After last year’s election, universities across the country worked overtime to reassure students they would be “protected” on campus. One administration official at the University of Wisconsin, for example, emailed faculty and students to say the university planned to “provide space for community discussions with staff on hand to listen and provide support.” Other universities set aside safe spaces for their students, while some permitted them to miss class to deal with the electoral shock on their own terms.
These examples are part of an ongoing debate on whether protecting students from uncomfortable and even horrible speech prevents them from learning how to solve problems. That is a conversation worth continuing.
Just as significant, however, is how these policies could threaten our Sixth Amendment rights to an impartial jury. A just-released Supreme Court case shows just how problematic it is when people do not have the tools to speak up, and how failure to do so might jeopardize constitutional rights.
The Power to Influence Your Peers
In Peña Rodriguez v. Colorado, a jury found Miguel Angel Peña-Rodriguez guilty of sexually assaulting three teenage girls. The controversy turns on a juror’s racist remarks during jury deliberations. One of the jurors, a former law enforcement officer, urged other jurors to find Peña-Rodriguez guilty “because he is Mexican and Mexican men take whatever they want.” He also stated that where he used to patrol, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”
Ultimately, the jury found Peña-Rodriguez guilty of three misdemeanor charges. But two of the jurors later informed defense counsel of the racist remarks and suggested they may have influenced other jurors’ decisions.
The question before the Supreme Court was whether the Sixth Amendment compels judges to “look under the hood” to investigate the jury’s deliberations for racial bias. That is, did the juror’s remarks violate Peña-Rodriguez’s Sixth Amendment right to an impartial jury? The Supreme Court ultimately held that when a juror makes a clear statement indicating that he or she relied on racial bias to convict, courts are permitted to investigate whether the defendant’s rights were violated.
But another profoundly significant issue this case highlights is the failure of the jurors to stand their ground. The record shows that these two jurors failed to stand up for their beliefs. If they truly believed Peña-Rodriguez was innocent, they ought to have held out for his innocence. They ought to have responded to the racist juror’s remarks and told the other jurors the comments were wrong, then tried to persuade them of Peña-Rodriguez’s innocence.
But they didn’t. They voted guilty. To be sure, small group dynamics can be difficult to maneuver. It’s not easy to hold out when others want another outcome. But when justice is at stake, personal feelings must be overcome.
What Happens When Pushovers Sit on Juries?
How does this relate to campus speech policies? Regrettably, universities churn out a growing number of students each year who may lack the wherewithal to stand up to ideas and comments with which they disagree. Safe spaces, campus speech codes, and campus climate policies all reduce the amount of exposure students have to divergent ideas.
Today’s university students will soon sit on juries. They will invariably be exposed to comments and ideas with which they disagree. What kinds of practices are universities teaching them? Are they teaching them to think critically and debate? Or are they teaching them to avoid conflict, and to hope someone else will solve the problem?
Universities that would rather protect their students from uncomfortable speech have set their students up to fail. In the name of tolerance and safety, they strip students of the capacity to engage in the push and pull of political dialogue and to persuade listeners to shun ideas they dislike. Surely, if college students are adults competent to vote, marry, have abortions, and fight in wars, they are capable of being exposed to orthogonal ideas.
Alexis de Tocqueville once remarked: “No sooner do you set foot on American soil than you find yourself in a sort of tumult. A confused clamor rises on every side, and a thousand voices are heard at once, each expressing some social requirements.” He was not talking about passively tweeting “#outraged,” or posting on Facebook. He was talking about in-person debates with other humans in a room about serious constitutional issues.
The constitution entitles Americans to liberties that allow them protection from the government and from their fellow citizens. But to enjoy the blessings of those liberties, we require strong citizens. Universities should help citizens forge backbones of steel. They are failing in that endeavor.