Colleges with overly restrictive speech codes, such as “hate speech” policies, could be at risk of lawsuits from students with Asperger’s and similar conditions, a professor argues in a recent op-ed.
Geoffrey Miller of the University of New Mexico advanced the claim in an essay for Quillette, explaining that campus speech codes impose unrealistic expectations on students with conditions like Asperger’s, Tourette’s, and ADHD. Since these conditions often make it difficult to follow social norms (Asperger’s) or could cause someone to blurt out inappropriate remarks (Tourette’s), Miller argues that campus speech codes impose a “disparate impact” on these students.
When a policy is formally neutral, but it adversely affects one legally protected group of people more than other people, that’s called “disparate impact“, and it’s illegal.
Because people with Asperger’s and Tourette’s qualify as “disabled” under the 1990 Americans with Disabilities Act (ADA), “any speech code at a public university that imposes disparate impact on neurominorities is illegal,” Miller explains. While no student with Asperger’s or Tourette’s has yet challenged their college’s speech codes in litigation, Miller tells PJ Media that using the ADA to challenge campus speech codes could be a worthwhile pursuit.
The ADA strategy for challenging speech codes is highly unique, he notes. But if a student uses the strategy properly, they could get campus speech codes completely repealed, says Miller:
For it to work, you’d need to have a mental disorder diagnosed by a psychiatrist (such as “autism spectrum disorder” or “bipolar disorder type II”), and to ask the university’s ADA coordinator for “accommodations,” like explaining what the speech code really prohibits, and giving guidance on how you could realistically follow it.
Then, if a college fails to make these ADA accommodations quickly, a student could hire a disability rights lawyer to sue their school, explains Miller:
The logic is that they’re preventing equal access to education by imposing policies that certain students can’t reasonably be expected to understand or follow 100% of the time.
But a student doesn’t have to hire an expensive lawyer to sue, Miller tells PJ Media. Merely raising the specter of litigation could do the trick. The goal would be to make admins “realize that their speech codes discriminate against neurodiversity, and therefore could create a lot more legal headaches” than previously imagined, according to Miller.
It’s a credible threat that will get their attention. My hope is that once this litigation risk sinks in, University Counsels will realize that they have to advise administrators to drop the speech codes. And the administrators will have a good excuse for doing that: “Legal said we have to.”
You may ask, aren’t hate speech policies good? Don’t they help racial minorities and LGBTQ students feel safe on campus? Sure, perhaps they do. But LGBTQ students and “people of color” aren’t the only minorities on campus. Roughly 20% of students at any given time have a condition that impacts their ability to adhere to campus speech codes, Miller estimates. Miller notes that students with ADHD, schizophrenia, manic depression, or certain personality disorders could have trouble with hate speech policies, too.
Essentially, while Leftists instituted hate speech policies to make racial minorities and LGBTQ students feel safer on campus, they were blind to other minorities who often tend to be invisible, says Miller:
The Leftists, progressives, and social justice activists who pushed for speech codes claim to value diversity and inclusiveness above all else. This ADA strategy just asks them to take those values seriously, and to consider how alienating and oppressive their speech codes are to the neurodivergent.
Discriminating against the neurodivergent to uphold (often unconstitutional) policies designed to protect the feelings of racial minorities isn’t fair, I’d personally argue. Says Miller:
If Leftists discriminate against neurodiversity, they’ll be discriminating against many of the people they claim to care the most about.
Follow the author of this article on Twitter: @Toni_Airaksinen