In the free-speech debate
Brandeis University enters The Bob Zadek Show as a named example in a discussion of campus speech codes. Bob Zadek, the host, raises the university while talking with Jonathan Rauch about exceptions to the general American tendency against restricting expression. Bob says that because the prohibiting institution is private rather than governmental — he names Brandeis University — universities are free to do what they want, and that free speech has been severely compromised on college campuses. He adds that his regular listeners will know the point from Greg Lukianoff of FIRE, who has been on the show several times, and that campuses go out of their way to prevent students with tender sensitivities from being exposed to points of view they may find offensive. He then asks Rauch whether he has had experience with speech codes on college campuses. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch does not accept the characterization as entirely a private problem. He says that at places like Brandeis, speech codes also appear at public universities, which are government-funded and subject to the First Amendment. He refers to Lukianoff of the Foundation for Individual Rights and Expression, saying that the courts in some cases will strike down these speech codes as unconstitutional, but that this does not stop the universities from having them. Jonathan Rauch on the New Attacks on Free Thought (2015)
The hostile environment doctrine
Rauch identifies a second source of pressure on universities and employers: government pressure to regulate speech through what is called the hostile environment doctrine. As he describes it, the doctrine holds that if a college or an employer creates an environment seen as pervasively hostile either to workers or to students, they cannot do that. Those rules, he says, come with federal money and sometimes federal civil penalties attached, and they pressure institutions to adopt codes that create a friendly environment — which, in his formulation, means people are not saying things that are offensive. The result, he says, is that colleges are in a balancing act where sometimes the First Amendment gets lost in the mix. Jonathan Rauch on the New Attacks on Free Thought (2015)
Bob responds that employers as such are not regulated by the First Amendment because they are not government, so employment matters are looked at through a different prism — one of workplace equality, with a different standard than would apply to government. He says the country was formed with a concern, and fear, of government intruding into private behavior, and that the First Amendment limits government because government was the institution most feared and the only one that carries guns. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch then extends the point to private employers. He says that what is happening with private employers is that a lot of government pressure is being brought to bear on them to police the speech of their workers, so that in effect government is requiring employers to do in the workplace what government could not itself do. He notes a body of legal thinking holding that the courts need to get active on this, because they cannot let government force employers to do what government cannot do. He calls this an area that really needs attention, and gives the example of telling employers they must take action against a sexist employee who says something that might offend a woman in the workplace, which he calls very problematic from a free speech point of view. Jonathan Rauch on the New Attacks on Free Thought (2015)
Bob calls this an excellent point and describes government as having become skillful at appointing deputies — albeit vigilantes — to do the work of government while it is not government itself doing the work. He says government has been able to deputize large segments of the commercial community as well as the academic community, doing indirectly what it cannot do directly, and that this is a way of expanding government influence and power. He says it is growing as government struggles to get around constitutional limitations, and compares it to the federal government using the purse to influence state governments on matters such as speed limits and minimum wage, which he says the government cannot do directly. He says employers have become agents of the federal government to some degree, and not to the benefit of society. Jonathan Rauch on the New Attacks on Free Thought (2015)
Across episodes
Only one episode in the excerpts touches Brandeis University, and the excerpts show no development across episodes.
What the sources do not cover
The excerpts do not state when Brandeis University was founded, where it is located, or what its founding principles were. They do not name any specific speech code at the university, any administrator, or any case involving it. They do not say whether Brandeis is public or private beyond Bob Zadek’s characterization of it as a private institution, and they do not report any outcome of the campus speech-code debate. The episode’s discussion of gay rights, which follows the Brandeis exchange, breaks off before any content appears.