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The kind of "contextual" analysis you're talking about is really no more than ad hoc balancing of interests. It doesn't rely on any objective test. Any given judge or group of judges could balance interests and values any way it wishes. That is only slightly better than the early 20^th century notion that speech with a "bad tendency" can be restricted. If we take either approach we have largely eliminated a right to free expression in any strong sense of the term 'right.' Keep in mind that the whole idea of a right is that if you have a right to do something, you cannot be justifiably interfered with simply because it causes problems for other people.

We should get beyond the problem of speech codes. The way to work against racism and racist language on campus is not to spend your time trying to change First Amendment doctrine. Instead you should look at what can and should be done without restricting speech in unconstitutional ways:

• Devise a new code that is narrower than the one we have. Prohibit speech that harasses specific individuals. This will protect those individuals and also give you a symbol that embodies the administration's opposition to racism.
  

• Work to increase the number of African American students and faculty on campus.
  

• Work to reduce the concrete problems of poor blacks. Improve education, job opportunities, housing, drug treatment, safety, and so on. Don't get hung up on restricting speech.

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