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The debate over the harassment policy had heated up at Penn in 1989-90, however,
because of a federal court decision. Despite the University's private status,
which placed it outside the sway of the Bill of Rights, the administration always
had insisted that its speech code could pass constitutional muster. In 1989,
however, a federal district court declared the University of Michigan’s code,
which was less restrictive than Penn’s, to be unconstitutional. It embarrassed
Hackney when his critics now pointed out that students at Pennsylvania State
University or at local community colleges had more rights of free expression than
students at the University of Pennsylvania. Accepting the advice of a professor
of law to change Penn’s overbroad, vague, and imprecise restrictions, and declaring
that they were interested in prohibiting merely "words used as weapons," Penn's
administration
promulgated a "narrower" prohibition of "offensive" speech. The new code specified
three conditions which, if met simultaneously, would constitute verbal harassment.
This was the definition governing Eden Jacobowitz’s case:
Any verbal or symbolic behavior that:
- is directed at an identifiable person or persons; and
- insults or demeans the person or persons to whom the behavior is
directed, or abuses a power relationship with that person, on the basis of his
or her race, color, ethnicity, or national
origin, such as (but not limited to) by the use of slurs, epithets, hate words,
demeaning jokes, or derogatory statements; and
- is intended by the speaker or actor only to inflict direct injury on the person
or persons to whom the behavior is directed, or is sufficiently abusive or demeaning
that a reasonable, disinterested, observer would conclude that the behavior is so
intended; or occurs in a context such that an intent only to inflict direct injury
may reasonably be inferred.6
It still was a vague speech code, but it now prohibited epithets, jokes, and derogatory
stereotypes uttered solely with the intention "to inflict direct injury." At a meeting
of the Faculty Senate, a critic of both speech codes and selective enforcement asked
Hackney if it would be racial harassment "if someone called a black with white friends
an 'Uncle Tom' or an 'Oreo,'" or "if someone called a white person
a 'fucking fascist white male pig'"? Hackney answered "No."7
Eden, however, had not called anyone the officially protected "fucking fascist Uncle
Tom." His first
advisor, Director of Student Life Fran Walker -- whom he had
randomly selected from a list of judicial advisors presented to him by the Judicial
Office -- advised him to accept the settlement now offered by Robin Read:
- Write a letter of apology to the complainants, in which you acknowledge your
inappropriate behavior.... ;
- Plan, develop and present a program for residents
of High Rise East regarding some aspect of living in a diverse community environment
by the end of the Spring 1993 term ... under the supervision of ... [the] Program
Director, High Rise East;
- Be on residential probation for as long as you live in
a University residence. Should you be found guilty of violating any Residential
Living policy, rule, etc., you will be immediately evicted from all University
housing;
- Receive a notation on your transcript, stating "Violation of the
Code of Conduct and Racial Harassment Policy," to be removed at the beginning
of your junior year.8
The reason that Eden had been singled out for persecution was particularly
distressing. There had been fifteen sorority members celebrating under the
high-rise's windows, and in the twenty minutes that passed between Eden's "Keep
quiet!" and his "Shut up, you water buffalo!" a large number of students had shouted
down to the women to leave them in peace. From all accounts, some few students had
shouted apparently racial epithets, from "black asses" to "black bitches."
Nonetheless, Eden had uttered nothing but "water
buffalo."9
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9/19/98
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