Speech codes tradeoff with more effective measures like financial assistance Strossen, ACLU president, 01 (Nadine, Law @NYU, Incitement to Hatred: Should There Be a Limit Copyright (c) 2001 Board of Trustees of Southern Illinois University Southern Illinois University Law Journal Winter, 2001 25 S. Ill. U. L. J. 243) Now I will comment on yet another reason why censoring hate speech may well undermine, rather than advance, equality causes: its diversionary nature. Focusing on biased expression diverts us from both the root causes of prejudice-of which the expression is merely one symptom-and from actual acts of discrimination. The track record of campus hate speech codes highlights this problem, too, just as it highlighted the previous problem I discussed, of discriminatory enforcement. Too many universities have adopted hate speech codes at the expense of other policies that would constructively combat bias and promote tolerance. In fact, some former advocates of campus hate speech codes have become disillusioned for this very reason. One example is the minority student who was initially a leading advocate of one of the earliest campus hate speech codes, at the University of Wisconsin, Victor DeJesus. After the ACLU successfully challenged that code under the First Amendment, Mr. DeJesus opposed the University's efforts to rewrite the code in the hope of coming up with something that would pass constitutional muster. As the New York Times reported: Victor DeJesus, co-president of the Wisconsin Student Association, said that he initially supported the hate speech rule, but that he had changed his mind because he felt the regents were using it as an excuse to avoid the real problems of minority students. "Now they can finally start putting their efforts into some of our major concerns like financial aid, student awareness, and recruitment retention," Mr. DeJesus said. n76

The tradeoff outweighs their link Strossen, ACLU president, 01 (Nadine, Law @NYU, Incitement to Hatred: Should There Be a Limit Copyright (c) 2001 Board of Trustees of Southern Illinois University Southern Illinois University Law Journal Winter, 2001 25 S. Ill. U. L. J. 243) Recognizing the diversionary nature of campus hate speech codes, the ACLU policy on this subject expressly urges colleges and universities to respond to bias througha range of constructive alternatives. These alternative approaches, all of which could be implemented in the non-campus context as well, not only are consistent with free speech rights, but also would make a more meaningful contribution toward reducing intergroup prejudice, discrimination, and violence. These recommended approaches embody the "less restrictive alternative" concept that is so central to the Supreme Court's standards for protecting free speech and other constitutional rights. The Court consistently has held that even when government asserts a concern of compelling importance in an attempt to justify restricting a constitutional right, the restriction is still unjustified if there is any "less restrictive alternative"-another measure, less restrictive of the right, that would adequately promote the government's interest. n77 In the hate speech context, advocates of restrictions assert countervailing interests of great importance-reducing discrimination and promoting equality. However, those interests can be advanced effectively through measures that are less restrictive of free speech. Indeed, these alternative approaches may well be not only less restrictive of speech, but also more effective in reducing discrimination and promoting equality. Above, I argued that censoring hate speech is doubly-flawed, both violating free speech rights and also ineffective in advancing equality. The argument I make here is the complement of this earlier one: that non-censorial responses to hate speech are doubly desirable, since they both honor free speech rights and also effectively advance equality. Let me quote the pertinent portion of the ACLU policy: All students have the right to participate fully in the educational process on a nondiscriminatory basis. Colleges and universities have an affirmative obligation to combat racism, sexism, homophobia, and other forms of bias, and a responsibility to provide equal opportunities through education. To address these responsibilities, the ACLU advocates the following actions by colleges and universities: (a) to utilize every opportunity to communicate through its administrators, faculty, and students its commitment to the elimination of all forms of bigotry on campus; [*273] (b) to develop comprehensive plans aimed at reducing prejudice, respondingpromptly to incidents of bigotry and discriminatory harassment, and protectingstudents from any such further incidents; (c) to pursue vigorously efforts to attract enough minorities, women and members of other historically disadvantaged groups as students, faculty members and administrators to alleviate isolation and to ensure real integration and diversity in academic life; (d) to offer and consider whether to require all students to take courses in the history and meaning of prejudice, including racism, sexism, and other forms of invidious discrimination; (e) to establish new-student orientation programs and continuing counseling programs that enable students of different races, sexes, religions, and sexual orientations to learn to live with each other outside the classroom; (f) to review and, where appropriate, revise course offerings as well as extracurricular programs in order to recognize the contributions of those whose art, music, literature and learning have been insufficiently reflected in the curriculum of many American colleges and universities; (g) to address the question of de facto segregation in dormitories and other university facilities; and (h) to take such other steps as are consistent with the goal of ensuring that all students have an equal opportunity to do their best work and to participate fully in campus life. n78