The tension between exposing students to a range of ideas and shielding students from undue offense or trauma is ever-present at our nation’s universities.  How we resolve this tension is critical for the legitimacy of private universities, where academic freedom depends on a university’s main role being the dissemination of knowledge and encouragement of new ideas, not its serving as another political actor in a quest for a particular view of justice.  The proper resolution of this tension is even more critical at public universities, which must also respect the First Amendment’s broad free speech guarantees.  George Will’s opinion piece in The Washington Post on the “contextualization” of a statue at Yale, while extreme and ahistorical, makes important points about the way universities infantilize students and pathologize their emotions, leading to a decreased sense that students can manage their own emotions and handle disturbing and new ideas.  Using First Amendment lenses, I want to add some nuance and contextualization of my own to Will’s piece.

First, academic institutions have, with increasing enthusiasm, asked students and professors to be especially attentive to speech that makes assumptions, perpetuates perceived unfairness, or distresses students based on status characteristics or life experiences.   Universities must create welcoming environments and address the very real social inequities and harmful assumptions, some built into the law, when serving a diversity of students for the betterment of everyone.  Yet, indulging every slight, instead of teaching some ability to adjust and overcome assumptions, does a disservice to students, who learn that they are not strong enough or capable enough of overcoming others’ assumptions and their own hurt feelings.

The First Amendment offers some guidance here.  Free speech, which universities dedicated to a primarily academic mission should embrace, generally assumes a strong listener model.  This model – a normative model – assumes that listeners can rationally handle the speech to which they are exposed, and distinguishes between the distressing effects of speech and the more regulable, tangible effects of conduct.  Under this model, professors can direct the speech in their classes to encourage academic values of logical rigor, sophistication of ideas, and clarity and civility of presentation.  But, professors should generally assume that students can handle the ideas to which they are exposed.  Students should learn to distinguish between real injustice and slights that can be perceived as unfair.  Students should be taught they must tolerate some amount of unpleasantness.

Of course, there are hard cases.  Criminal law professors must teach the presumption of innocence in rape cases, and must explain that any definition of consent has broad effects, not just on potential victims but on the accused, without adding to a victim’s trauma.  These conversations must happen, and not in a preachy, one-sided way.  Professors cannot shy away from addressing all the complexities of an issue.  This allows universities to leverage academic freedom and maintain the social legitimacy they still have with a straight face.

Some First Amendment scholars argue for a descriptive model of the First Amendment.  Instead of telling people how they should respond to speech, they argue, we should base our First Amendment rights on how they do respond.  But indulgence of every offense creates the spiral of complaints recently evident in Melania Trump’s High Heels-gate.

In the aftermath of Hurricane Harvey, First Lady Melania Trump gave a press briefing before a trip to Texas wearing her trademark high stiletto heels.  Social media vilified her for the obvious disconnect between her fashion-first lifestyle and those devastated by a natural disaster.  By the time she landed, she had changed her shoes but was now wearing a hat emblazoned with the words FLOTUS, seen by many as tacky in its cutesy bachelorette-party like labeling.  Social media was awash in complaints of unfairness:  first, the unfairness of Melania’s rich lifestyle in comparison to those in Texas; then, the unfairness of attacking Melania’s wardrobe simply because she is a woman.

Confirmatory bias teaches us that if you’re looking for something to be unfair, you will notice evidence tending to support your theory.  Complaints will lead to complaints about complaints.  In the world, where we (thankfully) cannot police complaints on social media, constant slights are aired by everyone on all sides.  We, in a relatively diffuse way, are allowed to referee these complaints.  (My own view is that the high heels and FLOTUS hat were in poor taste, but reasonable minds can differ.)

At a university, professors and administrators should take care to avoid this squabbling, inevitable by a bored and angry social media population hyperfixated on all slights.  We should recognize that there are real examples of unfairness, and speech that is disrespectful or non-evidence- based can be squelched in a classroom (although a public university cannot punish students or professors on the basis of viewpoint).  But we also should recognize that the way that we learn and grow is often through pain, the pain of challenging and often distressing ideas and concepts.  We cannot expect our students to grow if their distress at speech governs so much of their education.