Copyright <1996> Times Publishing Company
St. Petersburg Times

September 8, <1996,> Sunday

The professor may speak, freely

BYLINE: BILL MAXWELL


Score a tentative victory for academic freedom that should advance the debate over what is and is not in the college classroom.

In a 3-0 decision, a panel for the 9th U.S. Circuit Court of Appeals in San Francisco recently ruled that San Bernardino Valley College's anti-harassment policy infringes on the free speech rights of Dean Cohen, a tenured of English and film studies. He has taught at the school since 1968.

His troubles started in February 1992, when he required in a remedial English class to write an essay defining pornography after studying essays by authors Gloria Steinem and Susan Jacoby. The two essays were anthologized in an approved textbook sold in the college bookstore.

A female 35-year-old Anita Murillo, quit attending class when the did not offer her an alternative assignment. After failing the course, she formally complained to college administrators, alleging that the had created an "intimidating, hostile or offensive learning environment," as vaguely defined by the college's anti-harassment policy adopted in 1991. She further said she was offended that Cohen demonstrated writing techniques by using his published critiques of pornographic films.

For Cohen, the assignment was intellectually sound. "I mentioned that U.S. Supreme Court Justice Potter Stewart said that he may not have been able to define pornography but knew it when he saw it," Cohen said. "I told the that they had to do better than Stewart does. Their job, in fact, was to define pornography, to come up with some specifics to separate what might be merely sexually titillating from pornography or what might be considered to be obscene from something which is non-pornographic. It was a subject very much in the public debate at the time."

To circumvent Cohen, Murillo asked the English chairman to let her take the departmental examination. After she failed the test twice, she automatically failed Cohen's course. Remedial must pass the departmental final to pass their individual English course. The filed a complaint against Cohen in May 1993.

According to the court opinion, the Board of Trustees and the president humiliated the veteran by requiring him, among other actions, to attend a seminar; to undergo a formal evaluation in accordance with the collective bargaining agreement; to become sensitive to the special needs and backgrounds of his and to change his teaching plans when officials deemed that he was creating a climate that impeded the ability to learn.

Moreover, Cohen was warned that if he violated the harassment policy again, he would face further discipline, possibly suspension or termination.

As a college Cohen acted correctly in refusing to offer a single in a class of 27, an alternative assignment. Were he to have done so, he not only would have destroyed the uniformity of the class assignment, but he also would have been unfair to in the class who, by the way, completed the assignment without incident.

"In a teaching situation, one chooses material because it forces a to deal with certain specific problems in a certain specific fashion," Cohen said. "If a teacher then said to each "You choose the topic and I'll absent myself,' then the direction of the class has nothing to do with the designed intention. If you provide a syllabus and then everything changes at the whim of a particular where are you in terms of design of the class? You can't give individual veto power over the classroom."

Supporters of academic freedom call the court's ruling a milestone for free speech in the classroom. Stephen Rohde, Cohen's lawyer, said, "It is a fundamental question of whether we can cloister and protect from the rough and tumble debates of life. College isn't meant for that."

Ann Franke, general counsel for the American Association of University who also wrote a brief on Cohen's behalf, said: "The purpose o Cohen's assignment was to get to write analytically about an emotionally charged subject. He says that college need to take from where they are to some place new. And that (trip) can be challenging and uncomfortable. AAUP believes that the university needs to be a place where ideas can be examined without restriction. As long as the speech is related to the subject of the course, it needs to be permitted."

Franke also believes that have a right to be protected from personalized, individual harassment. No should be permitted to single out a or use sexually loaded language gratuitously. Cohen did neither. According to court records, although Cohen often played the devil's advocate, his teaching style long had been praised by faculty and administrators alike.

Judge Robert Merhige Jr., who wrote the opinion, said that the college's harassment code violates the First Amendment because its vagueness may "trap the innocent" by failing to adequately define what behavior is permissible. He called the college's action against Cohen "legalistic ambush." After he had been punished, all had to watch a film on < harassment> in the corporate workplace. The film was not about harassment relative to college teaching, but about trading sexual favors for job promotion.

Cohen's treatment is an example of why academic freedom must be protected, why policies must be narrowly worded. It shows also that too many college officials unthinkingly bow to the misguided complaints of who want learning to be comfortable, who want course content to be compatible with their societal views.

Comment by Barry Dank-

Yes, I agree that the case is a milestone. And I say congratulations to Professor Cohen for fighting the good fight. Of course, no matter what Cohen now does, no matter what the outcome of the case, Cohen will be held to be suspect by some since he had sexual charges against him; such appeared to be the case when I brought this case up online on the speech list. Cohen appeared to be characterized as a dirty old man who won.

In any case, might there be any argument that the paper did the wrong thing by publishing Murillo's name? No response to my question in my first post. Still looking for a defense of keeping Murillo's name unknown.


The path of love is not a path of comfort. It
means going forward into the unknown, with no
guarantees of safety, even though you are
afraid. Trusting is dangerous, but without
trust there is no hope for love, and love is all
we ever have to hold against the dark"

- Creina Alcock-


Barry M. Dank, Ph.D., Professor
Department of Sociology
California State University
Long Beach, CA. 90840
310-985-4236

case@csulb.edu