FIRE Support Letter for CAFAR by thefire


									April 23, 2013
Mr. Brent Smith, President of the University of Wisconsin Board of Regents
And Members of the Board of Regents
1860 Van Hise Hall
1220 Linden Drive
Madison, WI 53706

Dear President Smith and Members of the Board of Regents:

I am the president of the Committee for Academic Freedom and Rights, an independent
group of faculty members at the University of Wisconsin-Madison. CAFAR was formed
in 1996 for three basic reasons: to provide legal, moral, and political support for members
of the academic community (students, faculty, and staff) whose rights of free speech, due
process, or academic freedom have been violated or jeopardized; to promote these
principles in the public sphere and in campus politics; and to influence University policy
making in these domains.

I am writing on behalf of CAFAR to inform you of our profound concerns about Board of
Regents Policy 14-6, the “Racist and Other Discriminatory Conduct Policy.” We were
unaware of this policy until the Foundation for Individual Rights in Education brought it
to our attention. Though we strongly condemn harassment and discriminatory conduct as
properly defined by the law, we agree with FIRE that Policy 14-6 is highly inappropriate
for three fundamental reasons. First, Policy 14-6 urges UW campuses to adopt policies
that embrace wording that was expressly declared unconstitutional in a 1991 federal court
case that invalidated the UW System’s student speech code (UWS 17.06). Indeed, UWM
Post v. Board of Regents was a landmark case in the First Amendment law governing
speech codes, holding that discriminatory conduct policies may not go so far as to violate
First Amendment rights.

Second, as FIRE’s research and our own research have found, several UW System
campuses have acted on 14-6’s urging by adopting policies with wording similar and
even identical to the language that UWM Post declared unconstitutional. Such policies
are linked to enforcement powers on some campuses, making them more than merely
moral exhortations. Third, Policy 14-6 is even broader in its potential scope than the old
rule (UWS 17.06) that was declared unconstitutional, for it is not limited to expressive
conduct by students. It can apply to faculty and staff, as well. In addition, UWS 17.06
expressly did not apply to the classroom, whereas no such limitation is evident in Policy

The United States Supreme Court has declared that the First Amendment stands for the
proposition that “debate on public issues should be uninhibited, robust, and wide open.”
(New York Times v. Sullivan, 1964). This principle is similar to the landmark 1894

statement of the Board of Regents that has embodied the core mission of the University
of Wisconsin ever since: “Whatever may be the limitations which trammel inquiry
elsewhere, we believe that the great state university of Wisconsin should ever encourage
that continual and fearless sifting and winnowing by which alone the truth can be found.”
Like UWS 17.06, Policy 14-6 can inhibit honest and open debate on matters pertaining to
“race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or
age,” even though such topics are of great importance in our national lives.

We urge the Board to rescind Policy 14-6, replacing it with a policy that is consistent
with fundamental First Amendment and free speech principles. FIRE recommends
adopting the language the Supreme Court endorsed in Davis v. Monroe County Board of
Education (1999): conduct that is “so severe, pervasive, and objectively offensive, and
that so undermines and detracts from the victims’ educational experience, that the victim-
students are effectively denied equal access to an institution's resources and
opportunities.” Such language protects individuals in a principled way from harassment
and discriminatory expressive conduct, while also protecting the right of free speech
which is so important to the University’s legacy and promise.

CAFAR and I would be very pleased to discuss this matter further with you.

Thank you for your time and consideration.


Donald A. Downs
Alexander Meiklejohn Professor of Political Science, Law, and Journalism
University of Wisconsin-Madison
President, Committee for Academic Freedom and Rights

Lester Hunt, Professor of Philosophy
Kenneth Mayer, Professor of Political Science
John Sharpless, Professor of History
Robert Drechsel, Professor of Journalism and Mass Communications (non-CAFAR
Mary Anderson, Emeritus Professor of Geology and Geophysics
R. Booth Fowler, Emeritus Professor of Political Science
Robert Frykenberg, Emeritus Professor of History
W. Lee Hansen, Emeritus Professor of Economics
Stanley Payne, Emeritus Professor of History
Marshall Osborn, Emeritus Professor of Mathematics
John Witte, Emeritus Professor of Political Science and LaFollette School of Public
Affairs. Dean, School of Humanities and Social Sciences, Nazarbayev University,
Astana, KZ
Steven Underwood, Attorney at Law (CAFAR Counsel)


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