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Was the case of UWM Post v the Bd of Regents of UW decided correctly?

Refer to Lawrence/ Gunther debate and arguments Mill, amongst other readings and cases. School newspaper sues University of Wisconsin because of attempt to implement speech code if speech was meant to demean race, sex religion, color with proviso that (i) it was made towards an individual (ii) meant to create a hostile educational environment. Courts asserts that the decision of UWM to regulate speech was in violation of First Amendment.

The argument that poses the largest threat to the courts decision in UWM Post v Bd of Regents is that the decision fails to balance the protection of First Amendment rights with the competing constitutional right of equal citizenship guaranteed under the Fourteenth Amendment. While Mackinnon acknowledges the importance of the expressive value of the First Amendment, this expressive value cannot be assumed to be an absolute justification almost anything can be said to have expressive value, even crimes like murder and rape. If something justified on the grounds of expressive value has results profoundly antithetical to basic principles -- principles such as guaranteed equal access to the educational opportunities then a healthy amount of skepticism and critical evaluation is required. It is in this vein that Mackinnon takes issue with hate speech. The problem, says Mackinnon, has little to do with mere offence feeing good is not an equal right. But equal opportunity of education is a federally guaranteed right under Title VI of the Civil Rights Act. Mackinnon thinks that schools should have the right to form speech codes in order to deal with epithets, invectives, harassment and abuse on the basis of race or religion or sexual orientation when these comments are sufficiently pervasive or severe so that the learning environment becomes discriminatory. Speech codes provide

grievance procedures for victims of racial and sexual harassment, thus allowing for greater security in educational pursuit. Moreover, Mackinnons argument sits especially well with the UW speech code: it applies specifically to students whose purpose in uttering the remarks was to make the educational environment hostile. Freedom of speech must also be considered in the context of other kinds of freedoms, such as academic freedom. Mackinnons argument can be countered on two grounds. The first is that it is simply not evident that free speech does, in fact, alter the learning environment to a sufficient degree as to conflict with equality laws. Educational opportunities have never been absolutely equal -- we accept that students who come from financially privileged backgrounds may simply have more options about what kinds of schools they may attend. But, asserting that, in the course of their schooling, some students may feel that they face challenges because they are poorer or less attractive or of a minority sexuality, does not necessarily mean that they have been victims of a breach of equality rights that contravene constitutional standards. It may indeed possible that such instances do occur as a result of free speech laws, but this claim is factual and its force is consequently always contingent. Regardless of whether or not we concede the first point, however, Mackinnons argument suffers from a general myopia that holds. Mackinnons emphasis on the apparent conflict between free speech rights and equality rights ignores the wider truth of their basic partnership. Abram is correct to maintain that these rights lack inherent conflict but, in fact, flow together in most circumstances. On occasion, conflicts can exist -- but it is always possible for two principles to conflict if we examine a wide and diverse

enough range of particulars. This is not to say that principles should be taken for-granted as non-conflicting based on whether we can conjure a longer list of non-conflicting vs. conflicting instances -- a mere shopping list will not do for our purpose. Rather, what matters are the grounds behind a constitutional principle. And in this respect, free speech can be said to be a particularly equalizing medium as its equilibrium is maintained by citizens entering into it, without need for the legislating power of the majority. Free speech rights have always been meant to benefit minority representatives who, regardless of how unpalatable their views might be to the majority, maintain as much a right to be heard and considered. We do have to pay the consequent price of occasional insensitivity. But it is distortive to conclude from these instances that free speech rights are a threat to equality rights. UWM Post was decided correctly because the fragility of free speech as a selfregulating mechanism requires as little tampering as possible in order to reach its maximal long-term effects effects that go towards a number of important principles such as equality and governmental transparency. Reacting rashly with legislation to the first conflict we seem to encounter, would be, to put it simply, penny-wise and pound foolish. Free speech codes seriously undervalue the first Amendment and threaten its fragile and precious contents. As Gunther correctly emphasizes, the proper answer to bad speech is usually more and better speech not new laws, litigation, and repression.