The ACLU Misses The Boat

Posted: Jan 28, 2008 12:00 AM
The ACLU Misses The Boat

Last Wednesday, I gave a lecture on the law of assault and battery. As an example of simple battery, I used my old middle school friend Darrin’s violent reaction to being called an “English fag” by our classmate, James. Fortunately, no one was silly enough to believe that my simple battery example was meant to endorse the widespread use of the term “fag” – in fact, I prefer the term “queer” and only use it when talking about John Edwards. (Sorry, Ann, I couldn’t resist).

I also consider it fortunate that I don’t teach at Brandeis University. If I did, I might already have had someone placed in my classroom to monitor my use of the term “fag.” If you think I’m joking, consider the case of political science professor Donald Hindley.

Professor Hindley did a good thing the other day in his Latin American Politics course. He criticized the use of the term “wetbacks” as an inappropriate racial slur against Mexican immigrants. Of course, in the process, he actually uttered the term “wetback.” As a result, some students were offended – actually, in my view, they claimed to be offended in order to get attention.

And the “offended” students certainly did get attention.

As a result of the students’ feigned offense at the criticism of the term “wetbacks,” Professor Hindley has now been found guilty of “harassment” by administrators at Brandeis University. It is certainly funny that a university named after a Supreme Court Justice (and staunch supporter of free expression) should be guilty of such heavy-handed tactics, which are certain to chill the free expression of ideas.

But, make no mistake about it; what has happened to Professor Hindley is not funny in a “ha-ha” sense. It is funny in a “strange” sense. Although he has never been given a written explanation of the charges against him, he has been found guilty of “harassment” and has had a “monitor” placed in his class to make sure he does not “offend” again. All this is punishment for a professor who has been teaching for five decades and has never before had a student complaint.

Fortunately, the ACLU – like the blind squirrel that occasionally finds a nut – has taken a break from causes like suppressing individual prayer in order to weigh in on this truly important case. And they have proffered a correct, though incomplete, analysis of the Hindley case.

According to the Massachusetts ACLU, universities must be vigilant in protecting their students from harassment but, in this case, no such harassment occurred. In fact, according to the correct logic of the ACLU, it is possible for the over-policing of harassment to have deleterious effects on academic freedom and free speech generally. In the Brandeis case, free expression was harmed but there was no real harm to racial minorities.

What the ACLU missed in their response was that minorities may, in fact, have been hurt by the incident at Brandeis. A decent man has just been punished for standing up against racism and is, therefore, less likely to do it again in the future. And those who are following the case are learning vicariously that defending minorities is often a thankless and risky undertaking.

The ultimate irony of the Hindley case is that none of the persons claiming to be offended by the term “wetback” were even eligible to be offended. The term “wetback” – as I recall from my upbringing in Texas – is reserved exclusively for illegal aliens. By claiming to be harassed by the term “wetback,” one must simultaneously admit to one’s status as an illegal alien. And, certainly, such an admission would create greater problems (e.g., deportation) for the “offended” than simply being offended.

It is hard to believe that one could entertain seriously the notion that there is some constitutional right to be “un-offended,” which trumps the First Amendment. It is even harder to imagine that illegal aliens have such a right over and above the rights of citizens who are in this country lawfully. But just wait a few years and this will all seem mundane to the average American.

Lately, I’ve been getting so tired of political correctness that I’ve even considered leaving the country. Maybe I’ll make my escape by swimming south across the Rio Grande. And if my shirt doesn’t dry quickly, I’ll just cover my ears and hope for the best.