Garces, L., B. Johnson, E. Ambriz, and D. Bradley. 2021. “Repressive Legalism: How Postsecondary Administrators’ Responses to On-campus Hate Speech Undermine a Focus on Inclusion.” American Education Research Journal.
How do university administrators think about and conceptually frame their institutions’ responses to hate speech on campus? How do they negotiate the tensions between legally protected free speech and their imperative to protect students from harmful speech? This embedded single-case study examines the responses of 16 administrators at the University of Texas at Austin in the context of the post-2016 election hate speech environment and several free speech lawsuits faced by the university. Leveraging a conceptual framework that spans organizational theory, cultural analysis, and several forms of legal theory, the scholars forward the argument that a form of “repressive legalism” overdetermined the university’s responses to controversial speech and resulted in preventing it from pursuing inclusive practices.
Discussion of the Findings
Public universities, like UT Austin, must maintain a balance between the protection of freedom of expression and the promotion of inclusive policy. This balance has become more difficult to maintain as access to information has become instantaneous and self-curated, hate speech has become more widespread, and racial and political polarization has increased. A careful examination of how these administrators framed hate speech-related incidents illumines the powerful influence of external threats from the prevailing legal context that largely determined the suite of responses available to the institution and unnecessarily prevented it from pursuing its inclusive mission. The findings provide guidance for leaders of CIC colleges and universities.
The researchers observed that their participants tended to acknowledge the harms that stem from hate speech, but legitimized its many instances as legally protected under the First Amendment. and outside the scope of institutional prevention. Administrators framed their responses to these incidents in light of the external pressures and fears of legal action from advocacy groups and a conservative state legislature. This coerced institutional leaders into adopting policies that appeared neutral regarding the content of hate speech and prompted them to ignore the patterns of historical exclusion and power imbalances between those who frequently produce and those who frequently receive hate speech on campus. Thus, a culture of repressive legalism, the authors argued, served to hinder the achievement of equity in the face of incidents of hate speech.
Implications for Action by Campus Leaders
Formulating effective institutional responses to hate speech remains a challenging process that is dependent in part on the legal, policy, and political environment surrounding the institution. However, instituting content-neutral speech policies need not prevent administrators from acknowledging the specific harm hate speech causes, nor does it demand ignoring the context in which this harm occurs. As a state institution, UT Austin needs to understand its constituencies and frame issues of equity accordingly. The manner in which a message is crafted requires a balance of acknowledgement of hurt and a reduction of risk to the institution at large from internal and external sources. Although independent institutions have more latitude in the types of policies they can enact, they are just as likely to face a complex environment of stakeholders and consequences depending on how the policies and actions are perceived.
Effective, and fully legal, responses might include finding ways to empower the voices of the harmed and marginalized on campus, instituting campus-wide training regarding the effects of hate speech, and creating intergroup dialogue programs to help prevent hate speech from being voiced in the first place.
ABOUT THE AUTHORS
Liliana Garces is an associate professor of educational leadership and policy at the University of Texas at Austin.
Brianna Davis Johnson is a program manager in the Office of Diversity and Inclusion at the Ohio State University.
Evelyn Ambriz is a doctoral candidate in the College of Education at the University of Texas at Austin.
Dwuana Bradley is a postdoctoral researcher at the University of Southern California.
Literature Readers May Wish to Consult
Ben-Porath, S. R. 2017. Free Speech on Campus. Philadelphia: University of Pennsylvania Press.
Hutchens, N. H., and F. Fernandez. 2018. “Searching for Balance with Student Free Speech: Campus Speech Zones, Institutional Authority, and Legislative Prerogatives.” Belmont Law Review 5 (5): 103–127.
Waldron, J. 2012. The Harm in Hate Speech. Cambridge, MA: Harvard University Press.