As Stanford students on Instagram brought the University’s attention to Chaze Vinci’s racist and misogynistic social media posts, many students were frustrated at the University’s lack of transparency about how they were responding to the unfolding situation. As Vinci’s rhetoric escalated in the days that followed, students correctly pointed out that Vinci’s posts rose to the level of material threats against Black and other minority Stanford students. Why, then, was the University refusing to take a stronger stance against Vinci by expelling him?
The answer can be traced back to a 1995 Santa Clara County Superior Court case, Corry v. Stanford University, in which nine Stanford students sued the University for its “Free Expression and Discriminatory Harassment” Fundamental Standard interpretation. Before Corry, the Student Conduct Legislative Council had interpreted Stanford’s Fundamental Standard to prohibit face-to-face bigoted insults. The court overturned this policy, known as the “Grey Interpretation,” because they found it to be unconstitutionally overbroad in its restriction of free speech. Specifically, the court applied California’s Leonard Law, which requires that students have the same right to free speech on and off campus, to rule that Stanford’s interpretation violated the First Amendment.
Since Corry, Stanford has constrained itself from restricting students’ free speech and even uses the Leonard Law as an explanation for why it does not discipline students for “reprehensible” speech. In doing so, it has hamstrung its ability to respond to individuals like Chaze Vinci. Had Vinci not actively threatened a Stanford professor, it is doubtful that the University would have been able to remove him from campus. While over 600 students turned to Stanford’s new Protected Identity Harm (PIH) Reporting Protocol, that protocol lacks the teeth to respond to the “larger pattern of malice at Stanford,” as Professor David Palumbo-Liu wrote in a recent op-ed. Except in rare cases of truly abhorrent speech like harassment, the PIH process offers only non-judicial resolutions such as restorative justice to respond to discriminatory incidents. Instead, Stanford must revisit its own Grey Interpretation of the Fundamental Standard, once a paragon of effective “campus speech codes” that prohibited hate speech.
Stanford justified the Grey Interpretation on the basis of the “fighting words” exemption to the First Amendment, which holds that the Constitution does not protect words that actively incite violence. The Student Conduct Legislative Council argued that because forms of discriminatory harassment like racial slurs conveyed “visceral” hatred, they constituted “fighting words” and could legally be prohibited. The decision in Corry, however, held that Stanford’s policy was still prohibited by the First Amendment because 1) racially motivated insults were not the same as words that actually make people fight and 2) banning “discriminatory” insults while allowing other insults constituted an unconstitutional “viewpoint bias,” where speech is discriminated against on the basis of its ideology.
Because of the Grey Interpretation’s exemplary nature as a campus speech code, prominent advocates of campus speech codes such as Richard Delgado — one of the founders of Critical Race Theory — defended Stanford’s interpretation. Delgado persuasively argued that despite the Santa Clara court’s decision, Stanford’s Grey Interpretation was still legal under the First Amendment. He argued that forms of speech like racial slurs are such extreme forms of “personal abuse,” causing lasting psychological harm and humiliation, and that they should still be considered “fighting words.”
Furthermore, Delgado argued that prohibiting discriminatory speech was not a form of unconstitutional “viewpoint bias.” The Corry court found Stanford’s policy to be biased only because the policy described exactly which forms of speech were not allowed, which the court took as evidence that the policy was overbroad; in reality, the policy described which speech was not allowed to ensure it was only narrowly applied.
Finally, Charles R. Lawrence III, a professor at Stanford Law School at the time, argued that the Grey Interpretation was constitutional because insults like slurs are like a “slap in the face,” provoking a fight-or-flight response that is protected by the “fighting words” exemption. Additionally, slurs do not encourage more speech, presumably the purpose of the First Amendment, but actively shut down dialogue because speech is “an inadequate response” to such violent attacks on personal identity.
As such, a new speech code at Stanford prohibiting face-to-face racial insults would not be a violation of the First Amendment. Yet just because such an interpretation might be legal, does not mean it would be desirable. There are compelling arguments from both the left and the right against campus restrictions on free speech. The American Civil Liberties Union (ACLU), for instance, firmly opposes hate speech restrictions because of their concerns that such restrictions will be weaponized against unpopular ideas on both the left and right.
Arguments about the importance of free speech for marginalized groups, however, miss two crucial facts about Stanford’s Grey Interpretation: 1) its narrowly defined application would prevent spillover, and 2) while free speech is important, universities are first and foremost a site of learning and growth. If students’ bigoted speech impedes that function, it should be regulated.
First, while it is true that overbroad speech codes might be used against unpopular ideas, as they were against anti-apartheid activists in South Africa, a new speech code could be worded to avoid such weaponization. Stanford, modeling its policy on the Grey Interpretation, should explicitly prohibit the use of visceral, identity-based insults that constitute “fighting words” while condemning, but still allowing, less extreme rhetoric. Such a policy would enable Stanford to respond to individuals like Vinci while preventing the University from applying the policy to dissidents as long as they avoid the use of identity-based attacks.
Second, Stanford’s primary role is to serve as a learning environment. Learning at college necessitates peaceful dialogue between individuals with different viewpoints, but racial insults contravene this goal by targeting individuals on the basis of their identity, not their ideas. Stanford should not restrict students from expressing their opinions — but as soon as those opinions cross the line into attacks against other students’ identities, they can and should be disciplined.
Black @ Stanford, in their Change.org petition, furthers this argument by laying out how Vinci’s rhetoric made campus more unsafe for many marginalized groups. Even setting aside Vinci’s direct threats of violence, the use of racist cartoons and use of racial slurs on Instagram and Twitter have direct effects on how students of color feel on campus. Indeed, a 2019 study on campus hate speech, among many others, found a direct link between hate speech on campus and increased stress expression. As Delgado put it, if the University fails to stop forms of hate speech like Vinci’s, “it is violating its moral responsibility to protect that student’s right to equal access to its educational services without discrimination on the basis of race.”
Absent an update to Stanford’s Fundamental Standard, however, the University will lack a crucial tool in preventing future incidents, like the one started by Chaze Vinci, from occurring. While responses like restorative justice and conversations with professional staff authorized by the PIH are important, they cannot deter students from using bigoted insults, and because participation in the resolution process is voluntary, they cannot hold students accountable for those insults, either. By refusing to update its Fundamental Standard to restrict hate speech, Stanford is willingly removing its most effective weapon against discrimination from its arsenal and allowing its campus to remain an unsafe space.