Protecting Students with Double Negative Rights

One framework that I've found to be useful when thinking about policy is that of positive and negative rights. When thinking about who benefits, it's helpful to determine whether a policy protects an individual from others or if it gives individuals a claim on other members of society. I've used this framework in the past to discuss corruption in developing countries. To avoid both plagiarism and re-paraphrasing common knowledge, I'll quote myself:

"Negative rights are things that are prohibited from being done to a person, and includes areas such as freedom from violent crime, private property (freedom from theft), freedom of speech and freedom from slavery. Positive rights are things that society must provide for a person. These include areas such as the right to police protection, housing, a job, food and health care. Many positive and negative rights conflict either indirectly or directly with each other. While a police force might help enforce the negative right or protection from violent crime, it also weakens the right to private property by requiring that citizens have some of their money taxed in order to pay for that protection."

When thinking about how these categorizations of rights might apply within our modern cultures of victimhood, it becomes a little more complicated. Take the new proposal by the University of California Regents which hopes to label being "free from expressions of intolerance" as a "right," recently highlighted by Eugene Volokh. The proposed policy principles state in part that.

"Everyone in the University community has the right to study, teach, conduct research, and work free from acts and expressions of intolerance...


The following non-exhaustive list contains examples of behaviors that do not reflect the University’s values of inclusion and tolerance, as described in the Regents of the University of California’s Statement of Principles Against Intolerance.

* Vandalism and graffiti reflecting culturally recognized symbols of hate or prejudice. These include depictions of swastikas, nooses, and other symbols intended to intimidate, threaten, mock and/or harass individuals or groups.

* Questioning a student’s fitness for a leadership role or whether the student should be a member of the campus community on the basis of race, religion, ethnicity, national origin, citizenship, sex, or sexual orientation.

* Depicting or articulating a view of ethnic or racial groups as less ambitious, less hardworking or talented, or more threatening than other groups.

* Depicting or articulating a view of people with disabilities (both visible and invisible) as incapable."

Volokh goes on to highlight some of the more inane situations that could result.

"For instance, articulating a view that people with various intellectual disabilities are incapable of various intellectual tasks, or people with various physical disabilities are incapable of various physical tasks, would be condemned by the authority of the University."

It is interesting to fit these policies into the framework of positive and negative rights. Students, staff and administrators will not have to hear anything that might disturb their delicate psyche* and on that basis it looks like the Regents are trying to define a new negative right. But protecting people from offense is a false negative right. If a large subset of people become offended when women refused to cover up their left hand, the policy of protecting the offended by mandating gloves would not be the enforcement of a real negative right. The obligation of the women the cover their safehand for fear of offending crazy people would be best understood as a nonsensical positive right.

The required self censorship by many who would in the normal course of events cause offense is a duty imposed on them. The new policy of the Regents is the creation of a double negative right, or a nonsensical positive right. 

My grammar school teacher always made sure to point out when I was using a double negative because that meant I was being incoherent and if the Regent's principles are adopted the forthcoming policies are likely to be similarly incoherent**. The implementation of a speech and conduct code that discourages students from even thinking of discussing protected groups in a negative manner will not change hearts and minds. Students won't lose their prejudiced views, it will just prevent their views from facing scrutiny in the light of day.

If the approved answer to "What is your physically disabled classmate capable of?" has to always be "Everything!" then the ignorant students will never learn when the true answer is "Actually, a lot more than you thought possible." because there is less likely to be any discussion in the first place. It's better to let the prejudiced or misguided air their beliefs openly where they can be confronted with reasoned debate and facts.

Universities should make sure students are safe. Preventing vandalism, unwanted graffiti and actual threats to students are causes that everyone can stand behind. But academic institutions should encouraging discourse, and enshrining principles that will make people scared to state what they think is true for fear of punishment does the opposite. If I told you ten years ago that an institution's leaders decided that a large subset of contentious topics are not open for debate and anyone bringing up forbidden ideas will likely be condemned, you would have assumed I was talking about a religious institution or an authoritarian government. Today, more of you would have filled in the details correctly. And that might be the saddest part about this story.

*The neuroticism of Americans has been consistently increasing from the 50's through at least the 90's, so they may be right about the vulnerability of today's college students and staff. But it's likely that the implementation of policies such as the above exacerbate the situation.

**Often the application of negative and positive rights framework can also be incoherent, because outside of the simple cases it depends on how the rights are framed. If this post seems to go off the rails a bit, it's because I really wanted to use the phrase "double negative right" to describe anti-free speech rules and nonsensical positive rights in general. Unfortunately, I can't easily tell if the phrase "double negative right" has been used in a similar context due to the popularity of the phrase "that's a double negative, right?".