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Education Reporter

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You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, David E. Bernstein, Cato Institute, 2003, 166 pps., $20.00.

Laws intended to eradicate discrimination are being passed and enforced in blatant disregard of core constitutional rights to free speech, association and exercise of religion. George Mason University law professor David E. Bernstein amply proves this thesis in You Can't Say That!, which catalogs the numerous threats to liberty posed by federal, state and local laws aimed against discrimination on the basis of sex, race, disability, age, height, weight, marital status, even body piercing and motorcycle gang membership.

Of particular interest to the readers of the Education Reporter are the chapters dealing with campus speech codes and religious schools' employment practices. Title IX, as interpreted by the Department of Education, requires universities receiving federal money to ban speech that could create a "hostile environment" for protected classes including women, minorities and veterans, among others. Campus speech codes are the dreary consequence, and typically aim to protect still more classes, such as homosexuals, from offensive speech as well. Students have been disciplined for "inappropriate laughter" at use of a homosexual epithet, for running an editorial cartoon in a student newspaper lampooning affirmative action, and for using a T-shirt to advertise a fraternity party with a Mexican theme. Meanwhile, college newspapers deemed offensive have been stolen or destroyed with impunity. The examples amuse and astound the reader, but the author does more than compile a long list. He stitches the cases together with insightful legal analysis and a forceful argument in favor of reinvigorating the First Amendment as a defense to the ever-proliferating anti-discrimination laws. Not all his arguments will appeal to conservatives, but, consistent with the values of the publisher, the libertarian Cato Institute, he steadfastly takes the side of the Bill of Rights as against governmental interference. The ACLU comes in for some criticism for compromising its historical mission of protecting civil liberties in favor of its goal of social equality. "Punishing speech because it creates offense has absurd and totalitarian implications," Bernstein reminds us. His anecdotes of how much farther other English-speaking countries have gone in trampling liberty should sound the alarm to Americans to stand up for their constitutional rights.

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