WVU PRESIDENT FINALISTS: Law school under Bernstine crafted speech codes later ruled unconstitutional

Bernstine

CHARLESTON -- Another West Virginia University presidential candidate's failure to communicate his views on a First Amendment-related lawsuit at the institution where he was previously dean of the law school is cause for concern, says one of his former colleagues.

On March 21, the WVU presidential search committee announced it narrowed its list of candidates to three finalists. Among them is Daniel O. Bernstine, president of Portland State University in Oregon.

According to his biography on PSU's Web site, Bernstine became president in 1997. Prior to that, Berntine was a professor of law at the University of Wisconsin-Madison from Sep. 1978 to Dec. 1984 and again from Aug. 1988 to July 1990, during which he also served as the law schools' interim dean.

In Aug. 1990, Bernstine officially became dean, and served in that capacity until becoming PSU's president.

It was during Berntine's time as UW-Madison's law school dean that restrictions the university's board of regents placed on permissible speech became a national flashpoint in the battle of political correctness. Donald Downs, a professor political science at UW-Madison, says while Bernstine, to the best of his recollection, remained silent on the issue of speech-codes, the rest of the law school faculty was very outspoken in favor of the.

"I didn't see Bernstine playing a major role in terms of speech-codes, but the law school was totally on board," Downs said. "The law school committee drafted the code, and he [Bernstine] was certainly dean of the law school."

Codes ruled unconstitutional

If anyone knows about the controversy surrounding UW's speech-codes, it's Downs. He literally wrote on the book on not only free-speech follies at UW, but also the University of Pennsylvania, Columbia University at the University of California-Berkeley and published it in 2005 under the title "Restoring Free-Speech and Liberty on Campus."

According to Downs, Bernstine's re-arrival at UW in 1988, along with the university's board of regents' hiring of Donna Shalala the year before as chancellor, coincided with a movement already a-foot to restrict "harmful" or "inappropriate" words. The student speech-code, Downs says, was drafted in 1988 and adopted by UW's board in 1989.

The faculty speech-code was later adopted by a vote of the faulty senate. That code, Downs said applied only to UW-Madison faculty while the student code was enforced at all 26 campuses in the university system.

Two years after it was approved, the student code was ruled unconstitutional by U.S. District Senior Judge Robert W. Warren in Milwaukee. According to court records, in ruling on the case of UWM Post, Inc., et al. v. Board of Regents of the University of Wisconsin System, Warren found that the board's definition of harmful speech was vague, and not only prohibited it from further enforcing the code, but also ordered the action it took in one student's case to be vacated.

After the code was ruled unconstitutional, Downs said the board with the aid of the UW law school set about to rewrite a code that was more narrowly tailored. However, those plans where shelved in 1992 when the U.S. Supreme Court in the case of R.A.V. v. City of St. Paul ruled unanimously that St. Paul, Minnesota's ordinance criminalizing the placement of a symbol on public or private property that arouses anger in others on the basis of race, color, creed, religion or gender was unconstitutional.

An 'acceptable exception'

Though the law school played a large role in crafting the codes, Downs said most law school faculty were not "wide-eyed, anti-free-speech radicals." Instead, much like Bernstine, and even Shalala were "trying to find the right balance."

"They felt there could be an acceptable exception carved out," Downs said.

However, Downs said that as speech codes on other campuses were successfully challenged in the courts, the prospect of finding that "acceptable exception" grew dim. That, coupled with the education they received from their students about being treated like children, forced many faculty to rethink their position on vesting power in the administration to restrict speech.

One law school professor who help craft the student and faculty codes, Gordon Baldwin, switched sides and worked with Downs' Committee for Academic Freedom and Rights to abolish the UW-Madison faculty speech-code. That happened in 1999 with a vote of the faculty senate, Downs said.

Though careful to draw conclusions on how free-speech would fare at WVU under a Bernstine administration, Downs said he hopes Bernstine will articulate his views during his visit to Morgantown April 2-3.

Ironically, Bernstine, a Berkeley, Calif.-native graduated from there in 1969 during the height of the Free-Speech Movement.

"It's a concern for me that a person at a law school doesn't take a strong stance on free-speech," Downs said.

Attempts to reach Bernstine for a comment were unsuccessful as a woman who answered the telephone at his office in Portland said he was currently out of the country until the end of the month. He plans to return stateside for his visit to Morgantown before returning to Portland, she said.

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