Harvey A. Silverglate is a criminal defense attorney and civil liberties litigator who writes regular columns for the Boston Phoenix and the National Law Journal and has taught at Harvard Law School.

Chapter One

The Water Buffalo Affair

On the night of january 13, 1993, Eden Jacobowitz, a freshman at the University of Pennsylvania, had been writing a paper for an English class when a sorority begancelebrating its Founders' Day beneath the windows of his high-rise dormitory apartment. The women were singing very loudly, chanting, and stomping. It had prevented himfrom writing, and it had awakened his roommate. He shouted out the window, "Please keep quiet," and went back to work. Twenty minutes later, the noise yet louder, heshouted out the window, "Shut up, you water buffalo! " The women were singing about going to a party. "If you want a party," he shouted, "there's a zoo a mile from here."The women were black. Within weeks, the administrative judicial inquiry officer (JIO) in charge of Eden's, case, Robin Read, decided to prosecute him for violation of Penn'spolicy on racial harassment. He could accept a "settlement"- an academic plea bargain or he could face a judicial hearing whose possible sanctions included suspension andexpulsion. The JIO's finding that there was "reasonable cause" to believe that Eden had violated Penn's racial harassment policy for having shouted "Shut up, you water buffalo!" tolate-night noisemakers under his window was outrageous in terms of normal human interactions at a university. Loud and raucous festivites had occurred beneath thewindows of student since the Middle Ages. For centuries, would-be scholars, disturbed or awakened in the still hours, had shouted their various and picturesque disapprovalsat the celebrants. "Water buffalo" would have been one of the mildest such epithets ever uttered.

The JIO's decision also was unconscionable given the history of the debates over speech codes at Penn. In 1987, over the strenuous objections of a handful of professors,Sheldon Hackney, president of the University of 'Pennsylvania, promulgated the university's first modern-era restrictions on speech, in the form of prohibitions on "anybehavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic or national origin ... and that has the purpose or effect of interfering with anindividual's academic or work performance; and/or creates an intimidating or offensive academic, living, or work environment." In September 1989, to explain the policy toincoming students, the administration gave specific examples of what would constitute the serious crime of "harassment": students who drew a poster to advertise a "South ofthe Border" party, showing a "lazy" Mexican taking a siesta against a wall; a faculty member who referred to blacks as "ex-slaves"; and students who, in protest of "Gay JeansDay" (when undergraduates were asked to dress in jeans to show solidarity with gay and lesbian students), held a satiric sign proclaiming "Heterosexual Footwear Day."

There were ironies in this presentation of "incidents of harassment." When Louis Farrakhan spoke at Penn in 1988, over the protests of several Jewish organizations,Hackney issued a statement in which he conceded that Farrakhan's statements were "racist, and antiseptic, and amount to scape-goating:' but concluded: "In an academiccommunity, open expression is the most important value. We can't have free speech only some of the time, for only some people. Either we have it, or we don't. At Penn, wehave it." Indeed, in the very month that his administration was prohibiting social criticism of Gay jeans Day and posters of sleeping Mexicans, Hackney was campaigning, togreat national applause, against Senator Jesse Helms's efforts to deny federal funding, by the National Endowment for the Arts, of works such as Andres Serrano's "Piss Christ:' a crucifix immersed in the artist's urine. According to Hackney, it was impossible ''to cleanse public discourse of offensive material" without producing "an Orwelliannightmare" or the horror of "self-censorship." We were not, in Hackney's words, "Beijing" (an argument put to him earlier against his own speech code), but the "Land ofLiberty," where efforts "to limit expression" deemed "offensive" violated the essence and spirit of "democracy" and made social "satire" impossible.

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 itoutside 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 courtdeclared 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 thatstudents at Pennsylvania State University or at local community colleges had more rights of free expression than students at the University of Pennsylvania. Accepting theadvice 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 asweapons," Penn's administration promulgated a "narrower" prohibition of "offensive" speech. The new code specified three conditions which, if met simultaneously, wouldconstitute verbal harassment. This was the definition governing Eden Jacobowitz's case:

Any verbal or symbolic behavior that:

1. is directed at an identifiable person or persons; and

2. 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 stereotypes; and

3. 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 areasonable, 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 beinferred.