Repressive Legalism: Understanding How the Legal Environment Undermines a Focus on Inclusion

• In Event: Assaultive Speech On-Campus and Insufficient Campus Responses: Now It's Time for Meaningful Change

Abstract

Hate speech on college campuses creates profound challenges for postsecondary institutions that try to promote inclusion on campus. Hate speech—expressive communication used to threaten, demean, abuse, and ultimately provoke hatred against vulnerable minorities (Waldron, 2012)—contributes to a hostile environment for students of color (Moore & Bell, 2017, 2019). Yet, university administrators’ efforts to regulate such speech are legally limited and politically contested (PEN America, 2019). The most significant pushback comes from First Amendment activists and conservative political officials alleging a “free speech” crisis in higher education. These (mostly external) political actors invoke the First Amendment to frame the problem not as a White supremacist attack, but as university overreach that tramples individual liberties and conservative viewpoints. In the name of free speech, they are trying to restrict inclusion-focused policy through actions such as legislation (now passed in 16 states) (PEN America, 2019) and lawsuits against public universities contesting their bias response teams (Anderson, 2021). Postsecondary institutions are not immune to these coercive pressures, as organizational actors seek to avoid and defend against them and integrate those responses in organizational policy and action (DiMaggio & Powell, 1983; Edelman & Suchman, 1997).
This presentation outlines the findings from an investigation of how administrators at a public research university negotiated and institutionalized principles of open, robust expression and inclusion as they responded to the proliferation of on-campus hate speech, in the context of both internal and external pressures and threats (Garces et al., in press). Findings reveal that an institution’s legal context and administrators’ interpretations of law and law-related pressures shape their understanding of hate speech-related incidents, and the permissible responses, in ways that make it nearly impossible to consider and implement inclusion-focused practices. For example, in reactions to a lawsuit from Speech First and legislative deliberation over a bill to regulate campus speech, administrators prioritized a legalistic frame that circumscribed attention to inclusion. Their public statements championed the protection of free speech, yet their messaging and programmatic activity downplayed the consequences of hate speech for targeted students, who reported feeling physically unsafe after such incidents.
To explain these dynamics, the authors advance the concept of repressive legalism defined as “the interpretation and application of legal norms and other facets of the legal environment in a manner that shuts down a focus on [inclusion-promoting policies]” (Garces et al., in press). As a concept, repressive legalism thus serves “as a prism to help identify areas in policy or practice where the law compromises organizational actors’ autonomy to advance other institutional espoused values” (Garces et al., in press), even when those actions are legally permissible. Informing the debate in this area, the concept exposes “the fiction that principles of freedom expression and inclusion can be balanced, or simultaneously pursued, in the context of a legal environment that legitimizes not acting on inclusion-focused responses and that compromises institutional autonomy to realize espoused values of inclusion” (Garces et al., in press).

Author

• Liliana M. Garces, University of Texas at Austin