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The Dangers of Campus Speech Codes: Revisiting the Water Buffalo Affair

(Steven Minicola)

“The history which preceded the magazine’s shutdown and resurgence involved a controversy sufficient for the Red and Blue to be ‘expelled from the Student Activities Council (SAC)’ and to have ‘archives…trashed by the University.'”

In a recent article for Merion West, I wrote about how “the scale and scope of what [systemic racism] entails has expanded so widely and rapidly in the wake of critical race theory and Whiteness studies that white supremacy is allegedly ‘reified’ in every way imaginable.” In other words, when we start seeing Whiteness and racism anywhere and everywhere, the word “racism” has lost its meaning. This penchant for confirmation bias can easily lead to Orwellian speech codes that see racist connotations in everything we say, do, and “perform” in our social interactions. 

Lest I seem to be overstating the case, I am reminded of the infamous Water Buffalo affair from the early 1990’s, in which a weak-kneed administration at the University of Pennsylvania caved to political correctness and the imperatives of public relations in the interest of fighting “racism.” In the fall of 1996, as a freshman at the University of Pennsylvania, I joined a student-run magazine called the Red and Blue. I was eager to join after receiving the May 1996 issue during the summer, which was mailed by staff to incoming freshman as a recruiting and marketing pitch. The issue opened with a hyperbolic declaration: “[w]hen the Class of ’96 arrived on this campus there was no free speech, no equal justice, and no due process.” The editorial pitch continued: “One year ago, this publication had been defunded and thrown out of its office.” In a triumphant tone, however, it boasted that, a year after then-president Judith Rodin eliminated a speech code which came under fire during the infamous Water Buffalo affair, “[t]he Class of ’96 leaves a transformed University.” 

The editors dedicated the issue to the Class of ’96 “for a job well done.” Flipping through the pages, I read an article criticizing post-structuralism as “The Unenlightenment,” an interview with libertarian Penn history professor Alan Kors about his “strong views on freedom in the academy and [his] opposition to the doctrine of in loco parentis,” and an article about a lecture delivered by William Kristol, former Weekly Standard editor and former Penn political science professor, to a gathering in the English Department, in which Kristol was treated as a token conservative and, at one point, met with “uncivilized” disruption. Needless to say, I was drawn to the magazine’s stated commitment to “truth, justice, and fundamental constitutional rights that the University often ignores.”

Given the quality of the articles I read, however, I was undeterred in my admiration. I was also impressed by the new editor-in-chief’s defiant tone in announcing the magazine’s successful publication of its ninth issue in a year.

The history which preceded the magazine’s shutdown and resurgence involved a controversy sufficient for the Red and Blue to be “expelled from the Student Activities Council (SAC)” and to have “archives…trashed by the University.” The SAC chairman had dubbed the magazine “repugnant” and “a vocal group of professors, administrators, and students held forums and candlelight vigils to protest” the magazine. 

Given the quality of the articles I read, however, I was undeterred in my admiration. I was also impressed by the new editor-in-chief’s defiant tone in announcing the magazine’s successful publication of its ninth issue in a year. “The phoenix has risen,” he declared, a year after, “in a row house in Center City, four dedicated and committed individuals decided that the treatment undergone by the R&B was an unthinkable Orwellian nightmare…aghast at the intolerant atmosphere and political correctness that was so pervasive in Penn’s faculty, administration, and student body…[and] decided that it was vital to publish an issue in May to rediscover free speech and the tolerance of all viewpoints on campus.” I was hooked and was eager to get to campus and get on board. 

During my first week on campus, I secured an interview with the editorial staff, and I felt immediate kinship with the staff’s decisive partiality toward free-market capitalism, libertarian politics, and adamant defense of free speech. The staff welcomed me on board, and I got my first assignment: investigating a “diversity policy” adopted by the Journal of International Economic Law, a law journal published by students at the University of Pennsylvania Law School, which prompted a third-year law student and member of the board to resign in protest, not wanting to be party to what he dubbed the “politicization” of a board whose job was supposed to be limited to editing and proofreading articles. The article proved a success. The editor-in-chief personally told me I had his “complete confidence.” If that was not enough to make me feel at home, I had no doubts when I saw a loose copy of the April 1996 issue on a table in the office—its cover depicting headshots of Mao Zedong, Karl Marx, Vladimir Lenin, Joseph Stalin, and Fidel Castro with the caption: Legacy of Murder

As a student considering whether to major in history, I was especially drawn to an essay entitled, “Behind the Iron Curtain: A Penn graduate describes his childhood in the Soviet Union.” But busy with other things, I never got around to reading the magazine’s routine editorial pitch, which would have clued me into the ignominious history which not only led to the end of Penn’s controversial speech code, but also explained why the magazine was so adamant in its defense of free speech. 

“Last month,” it began, “Eden Jacobowitz filed suit against the Trustees of the University of Pennsylvania for damages arising from the water buffalo case.” It welcomed “the suit as an opportunity to let the world know how truly stupid, wicked, corrupt, hypocritical, racist, and inept Penn’s administration can be.” Exactly “[t]hree years after the University denied Eden a hearing” in the aftermath of the Water Buffalo affair, now “his case will be heard in state court and some of the darkest secrets in Penn’s politically correct history will be exposed.” Above this editorial was a masthead listing all the names of staff members and their positions on the editorial board. One of the names on the masthead was Eden Jacobowitz, listed simply as an “officer.”

Whether official or honorary, Jacobowitz’s affiliation with the Red and Blue went unnoticed by me at the time, but it came to my attention later when I found myself flipping through old hard copies of the Red and Blue after publication of the April/May 1997 issue, which included a detailed account of the Water Buffalo affair and how Eden Jacobowitz was the central figure in a melodrama that, in the spring of 1993, put Penn in the national media spotlight as a university where political correctness had run amok, with the university president Sheldon Hackney leading the charge.

The account of the affair provided in the April/May 1997 issue is polemical, but it is also an impassioned, retrospective by Thor Halvorssen, an outspoken member of the Class of ’96, who was intimately familiar with the affair and how it exemplified the cancer of political correctness and speech codes growing on college campuses. In 2020, Halvorssen serves as the “[f]ounder, President and Chief Executive Officer of the Human Rights Foundation (HRF),” as well as “[f]ounder of both the Oslo Freedom Forum and the Moving Picture Institute, former founding CEO of the Foundation for Individual Rights in Education (FIRE), and the Patron of the Prague-based Children’s Peace Movement, On Own Feet.” But in the spring of 1997, Halvorssen was a year removed from serving as editor-in-chief of the Red and Blue. Still in regular contact with Red and Blue staff, he was invited to write an article about Sheldon Hackney returning to Penn as a history professor after a four-year stint at the helm of the National Endowment of the Humanities. 

During that stint, according to the Penn Almanac, “[o]ne of his major projects was to encourage public discussion of difficult issues through a program called ‘A National Conversation on American Pluralism and Identity’,” which led him to write a book entitled, In One America, Indivisible: A National Conversation on American Pluralism and Identity, as well as a 2002 memoir, The Politics of Presidential Appointment: A Memoir of the Culture War. According to the Almanac, Hackney said in an interview, “I was a true veteran of the multicultural wars; if they gave out Purple Hearts for wounds incurred while trapped between the front lines, I would have several.”

While Hackney presented himself as making a good faith effort to balance legitimate exercise of free speech with sensitivities arising from an incipient culture of political correctness, an incensed Halvorssen was less charitable. In his article entitled, “The Return of Sheldon Hackney: T’is a Pity He’s a Hypocrite,” Halvorssen explained at length why it was problematic that, as the magazine cover stated, “[t]he pope of political correctness returns from the NEH to a position in the history department.” When he was president of Penn, Hackney “presided over the radicalization of campus life, by promoting racial tension and a speech code that deprived students of their constitutional right to free speech.” The code “prohibited all speech deemed to be racially, ethnically or sexually offensive.” Moreover, “[a]side from this restrictive speech code (which was applied selectively), Hackney positioned himself on every public occasion as an ardent supporter of free speech.” Halvorssen wryly agreed: “undoubtedly he is, except when he is not.”

In 1993, Hackney was questioned “in hearings by the U.S. Senate for the position of chairman of the National Endowment for the Humanities” for allegedly being an “adherent of Political Correctness.” In contrast to his vehement defense of artist Andres Serrano’s Piss Christ exhibit, “Hackney’s administration also instituted a mandatory ‘sensitivity’ seminar in which examples of intolerable behavior were discussed” – e.g. “a sign that a student held up announcing a ‘heterosexual jeans day’ (probably a parody of ‘gay jeans day’)” and “a fraternity poster for a ‘South of the Border’ party depicting a man with a sombrero having a siesta was a direct violation of the code and considered harassment of Hispanics” (an incident that calls to mind novelist Lionel Shriver’s now-famous speech at the Brisbane writer’s festival on why she hopes “the concept of cultural appropriation is a passing fad”). However, a “photograph of Christ in urine [was] not, in Hackney’s judgment, harassment of evangelical Christians and Roman Catholics.” As Halvorssen pointedly speculated, however, “[h]ad some other artist, with other visions, wanted to exhibit a photograph of Martin Luther King Jr. immersed in urine, the roof of Hackney’s Penn would have fallen upon the perpetrator” (and rightfully so, one might emphasize).

Halvorssen moves on to discuss additional examples—e.g. defending, though disagreeing with, a student columnist for the Daily Pennsylvanian who, after the assassination attempt on President Ronald Reagan, wrote that it was “[t]oo bad” the assassin had missed and that “I hope [Reagan] dies”—demonstrating once again that Hackney enforced “one set of standards for those on the right, another for those on the left.” In sum, “Sheldon Hackney appears consistent in his inconsistencies.” 

It was the infamous Water Buffalo affair that brought it all to a fore and briefly brought national attention to the University of Pennsylvania in the spring of 1993—what Halvorssen described as “the most embarrassing public-relations disaster in Penn’s institutional history.” On January 13, 1993, Halvorssen wrote, “Eden Jacobowitz, an Israeli-born freshman, was studying for exams” when a group of “sorority women were making noise outside his student dorm.” Because they “would not keep quiet,” Jacobowitz “opened his window and shouted the five words that led to a national firestorm: ‘Shut up, you water buffalo!’ The sorority women were black.”

The women were not amused and called the police. Jacobowitz came forward and admitted he had uttered the insult, while “Hackney’s Judicial Inquiry Office creaked to life and began to browbeat Jacobowitz,” charging him “with racial harassment” and offering him “a settlement that included a diversity training seminar and a notation on his transcript.” Apparently, he had run afoul of a “racial harassment speech code,” initiated in the 1980′s, with Hackney playing a central role in its passage. The codemade it against University policy to ‘insult or demean’ fellow students on the basis of their race or ethnicity.” But “[a]fter the water buffalo case settled, the speech code — which Hackney said years later that he regretted — was replaced by a more general student conduct code.”

The Water Buffalo affair proved to be “terrible publicity, and his opponents dubbed him the ‘Pope of Political Correctness’.” 

Jacobowitz refused the settlement, offering “to apologize for having insulted them” but insisting “it was not racial.” Apparently, “water buffalo” is “a translation of behameh – a common word used among Hebrew-speakers to denote a fool,” or as Jacobowitz himself said, “[i]t is said Jew to Jew,” and means “a thoughtless person” or “fool,” with nobody taking any offense. But with the “pending prosecution of Eden Jacobowitz,” Halvorrsen wrote, Hackney “refused to intervene” and “seemed not to care about Jacobowitz’s free speech rights, and cared even less that Jacobowitz was being persecuted even though he was demonstrably innocent of the charge of ‘racism’.” In fact, Halvorssen informed his readers, “[s]everal black professors were willing to testify that the epithet was not racial.” 

As The Los Angeles Times noted, “[a]fter being interviewed twice by campus police, Jacobowitz was summoned in January to meet with Robin Read, an official who investigates allegations of racial harassment.” Read “asked Jacobowitz whether he had ‘racist thoughts’ when he made his water buffalo comment.” Jacobowitz “firmly denied having such thoughts and gave his explanation,” but Read “allegedly told him that his comment seemed to be a racial insult because water buffalo are ‘big, black animals that live in Africa’.” She was wrong: “water buffalo live in Asia” (see also here and here). 

As Halvorssen explained, the Water Buffalo affair would bring brief notoriety to Penn and to Hackney, in part “thanks to the efforts of Dr. Alan Kors,” a professor in the Penn history department who defended Jacobowitz, but also when Hackney testified before the Senate Labor and Human Resources Committee after being nominated to head the National Endowment for the Humanities. The Water Buffalo affair proved to be “terrible publicity, and his opponents dubbed him the ‘Pope of Political Correctness’.” 

According to Halvorssen: “At the Senate hearings, Hackney insisted he was a defender of free speech,” harkening “back to the time when he defended the free speech rights of Louis Farrakhan in 1988,” in which he claimed: “[I]n an academic community, open expression is the most fundamental value. We can’t have free speech only some of the time for only some people. Either we have it or we don’t.” But “[p]redictably, Hackney chose to highlight those times he believed in free speech.” In closing, Halvorssen wrote: “What concerns me is not what Hackney did when he left, but the reputation of my alma mater and how a careerist like Sheldon Hackney can balkanize a campus, promote racial tension, limit free speech, get paid $676,574 in his departing year, and then return four years later to a university that is ‘delighted’ to have him back. For shame!”

Halvorssen’s essay came a year before Professor Alan Kors and Harvey Silvergate (who co-authored The Shadow University: The Betrayal of Liberty on America’s Campuses) founded the Foundation for Individual Rights in Education (a.k.a. FIRE), before the seed of political correctness on college campuses became the scourge described here in a review of a 2014 book, Unlearning Liberty: Campus Censorship and the End of American Debate by Greg Lukianoff, current president of FIRE: “The international outrage over what happened to Jacobowitz should have stopped PC in its tracks,” but “[i]nstead, that outrage was swept aside by a rising tidal wave of people claiming offense over nonsense.” Indeed, “political correctness has hamstrung free speech, resulting in a society where citizens lack the ‘experience of uninhibited debate and casual provocation’ that keeps minds open and dialogue flowing. People lose their jobs because of jokes and misinterpretations; they’re hung out to dry in public when they misspeak; they quake in fear of being accused of ‘disrespect’.” Indeed, this is the world that speech codes have wrought.

Jonathan David Church is an economist and writer. He is a graduate of the University of Pennsylvania and Cornell University, and he has contributed to a variety of publications, including Quillette and Areo Magazine.

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