Academic And Intellectual Freedom: Old Challenges, New Threats, Remedies

September 2016

Though the two principles are distinct, my talk envisions “academic freedom” and “freedom of speech and inquiry” as essentially two sides of the same coin in a practical sense. Academic freedom pertains to the special rights and responsibilities of the professoriate, whereas intellectual freedom is applicable more broadly to the institution of higher education, including faculty, students, student publications, outside speakers, audiences, and the like. But for present purposes, I am concerned with the way in which both principles, in tandem, contribute to furthering the raison d’être of higher education as a whole.

The term “academic freedom” itself is notoriously troublesome. As J. Peter Bryne, a well- known scholar of academic freedom, has written, “lacking definition or guiding principle, the doctrine [of academic freedom] floats in the law, picking up decisions as a hull does barnacles.” The definition I propose is based on a measure we passed in the Faculty Senate at the University of Wisconsin-Madison in 2010: “Academic freedom is the freedom to discuss and present scholarly opinions and conclusions regarding all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to reach conclusions according to one’s scholarly discernment.” The definition also includes the right to criticize (both in house and publicly) the policies and practices of the institution. It also addresses responsibilities. “[A]cademic responsibility implies the faithful performance of professional duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that when one is speaking on matters of public interest or concern, one is speaking on behalf of oneself, not the institution.”

Though Stanley Fish endorses a highly professorial and professional definition of “academic freedom” in his recent book Visions of Academic Freedom, I think it is useful to apply one of his core concepts to the broader notion of campus intellectual freedom. Fish draws on the work of such theorists as Ernest Weinrib and Max Weber, depicting the essential or core meaning of academic freedom as (in Weinrib’s words) “immanent intelligibility.” This “means an understanding of a practice as it is viewed and experienced by insiders who see the field of activity already organized by the purposes that define the enterprise they have joined. His subject is tort law, the law of negligence, and he declares that ‘Nothing is more senseless than to attempt to understand law from a vantage point entirely extrinsic to it.’” …And “[w]hat defines a practice is not a set of theoretical propositions, but a firm understanding of its distinctiveness in the Weinribian sense: it is a ‘this,’ not a ‘that.’”

I want to apply the concept of immanent intelligibility to the broader intellectual mission of higher education, which includes not just the professional rights and responsibilities of the professoriate—Fish’s domain—but also the broader academic community: institutions of higher education have a responsibility to be true to what they are. And their essential identity is the pursuit of truth through the practice of intellectual and academic freedom. The crisis of academic freedom and free speech that we confront today is, to a significant extent, due to the failure to live up to this responsibility. We have succumbed to an identity crisis.

The New Threats

I am sure you all know about the new threats to academic freedom. The most important include micro-aggression theory and policy; trigger warnings; “safe space” philosophy; new, troubling forms of “bias reporting” that go overboard and create Orwellian situations of informing against people who have the “wrong ideas;” and widespread “dis-invitations” of speakers deemed incompatible with regnant campus orthodoxies. Such policies are exacerbating the identity crisis I will address in a moment. We have not been keeping up our end of the social contract that led historically to the rights and privileges we enjoy, including academic freedom and tenure. This problem is exacerbated by other problems besetting higher education today, including: restrictions on tenure; the expansion of administrative power, as chronicled in detail in Benjamin Ginsberg’s book, The Fall of the Faculty; the growth of federal mandates and requirements, especially in the U.S.A. from the Department of Education; funding cuts alongside escalating costs and tuition; efforts to turn universities into trade schools; the overall lack of intellectual diversity. And, of course, there is that 800-pound gorilla in the room: Political Correctness.

Consider some examples. Recently, the University of New Hampshire issued a “bias-free language guide” that told students to avoid words like “American,” “homosexual,” “illegal alien,” and “Caucasian,” declaring those terms “problematic.” And this is in the state whose famous motto is “Live Free or Die!” Apparently no one at UNH fathomed that such policies chill the open discussion about important public issues that universities once cherished. Not to be outdone, some months ago I read that the University of Portland had issued a policy urging students and others to report “discomforting situations” to the police. The police! If I’m at that school, I’m going to issue a “discomfiture” complaint against the policy itself! The University of Missouri has promulgated a similar policy. You can’t make this stuff up. The best American forecasting of the vicissitudes of higher education today is the Onion, a proud product of UW-Madison students. Alas, the spoofs they concoct regarding higher education often soon become actual practices. With a nod to Dylan, you don’t need a weatherman to know which way the wind blows. You just need the Onion.

Even Jerry Seinfeld is refusing to do his act on college campuses because his comedy is considered politically incorrect. Seinfeld! As Freud teaches, humor bridges the gap between the forbidden and the acceptable: it is a vehicle of knowledge. It weds the mind to the spirit. So the more humor we quarantine, the less learning and intellectual adventure we get. To paraphrase Socrates and Aristotle, the non-humorous life is not worth living. And then there is the list of speakers “dis-invited” to speak on campus. Even former New York City mayor Michael Bloomberg was a target of this. The Foundation for Individual Rights in Education (FIRE) keeps a long list of over two hundred dis-invites. It’s sort of like being named to Richard Nixon’s old “Enemies List,” as much as sign of honor as it is a travesty. A while ago Williams College dis-invited the very first guest in a series explicitly designed to bring unorthodox speakers to campus. The speaker apparently endorsed the “wrong” model of feminism.

How We Went Astray

Okay, you get the problem. But people differ over what is really going on and what it foretells. Some think that what we could call the Anti-Free Speech movement will fail simply on account of its own absurdity. A few months ago, a speaker at my university talked about how even the terms “micro-aggression” and “trigger warnings” are now coming under fire because the words “aggression” and “trigger” are too upsetting to listeners! She cited actual public comments to this effect. The audience laughed the nervous laugh of those who see the obvious humor of the human condition in a phenomenon that is simultaneously scary. So there is some reason to think that this new era of revived political correctness will devour its young. Of course, there is also the other possibility: that things will only get worse. The federal government has been busy enforcing increasingly more subjective standards of harmful speech and conduct, as Laura Kipnis’s case at Northwestern poignantly reveals. She was formally investigated simply for criticizing women students who file questionable sexual assault complaints. And then there is the finding of a recent survey that 40% of so-called “Millennials” think that there is too much free speech for people who say hurtful things.

Several years ago, I attended a conference on free speech at Loyola Marymount University, in L.A., at which, a student proudly proclaimed, “My family spends over $30,000 per year for me to go here. So I should not have to be exposed to speech that I don’t like!”

Fortunately, we have been relatively free of such incidents at Madison—though some recent incidents have encouraged administrators to consider adopting more aggressive bias-reporting and sensitivity training. One reason for our relative freedom is the longstanding work our academic freedom group and students have performed over the course of twenty years; as well, some key members of the administration have been supportive of such efforts. I’ll have something to say about this shortly.

I want to talk about what can be done to remedy the problem. And there is indeed reason for perhaps realistic optimism. But first we need to have a sense of what lies at the heart of the problem. The problem is manifold, including the influence of movements and theories of knowledge that overly disparage reason and objectivity while trumpeting political power (e.g., post-modernism, post-structuralism, identity politics). But let me state the heart of the matter: higher education has forsaken the commitment to what it IS. Virtually every university claims it is dedicated to the pursuit of truth. Harvard’s “motto word,” so to speak, is “Veritas.” And diversity of views and respect for academic freedom and freedom of inquiry are indispensable to this end. We are in the “truth business” and the intellectual freedom business. Indeed, the special privileges the university enjoys such as tenure and academic freedom were historically part of a social contract: society grants the university the right of academic freedom, tenure (if available!), and a meaningful measure of self-governance in return for the distinctive contribution we can make to society by educating its youth, producing knowledge, and striving toward truth. This is our raison d’être. If we make something else our priority, we forsake this charter, which comprises our “immanent intelligibility.”

We have let certain moral and political objectives take priority over the pursuit of truth and academic freedom. That is, social justice—and most problematically, a dogmatic conception of it—too often trumps freedom of inquiry and speech. As social psychologist Jonathan Haidt recently said to John Leo in an interview in Minding the Campus, “It’s really scary that values other than truth have become sacred [on campus]. And what I keep trying to say—this comes right out of my book The Righteous Mind—is that you can’t have two sacred values. Because what do you do when they conflict? And in the academy now, if truth conflicts with social justice, truth gets thrown under the bus.” And it’s not like political powers in my state and around country haven’t taken notice. We cannot plausibly claim the right to such things as academic freedom, shared governance, and tenure if we are making intellectual freedom and diversity of ideas secondary concerns.

Now, I admire engagement. Dante reserved a special level of Hell for those who were “indifferent;” and the university should encourage vibrant discussion and debate over questions of justice. After all, the central question of political theory and philosophy has always been “How should we live?” And the university should deal with this question not simply in a purely abstract way, but in a way that animates and motivates the moral soul. I want students with the fire in the belly for such matters, and I have always sought them out from across the political and ideological spectrum. Ortega put the matter well in his classic book Mission of the University: “On pain of atrophy, [the University] needs contact…with public life, with historical reality, with the present…It must be in the midst of life, and saturated with it.”

But some points must be stressed in this regard. First, as is well known, the term “social justice” typically represents a dogmatic notion of equality of result that stands in tension with competing notions of justice in society and politics. Ortega meant something broader and diverse in speaking of “public life” and “historical reality”: the clash forces in political and social life, which includes competing notions of justice.

Second, Ortega made it clear that the confrontation and struggle with social and political questions must be on the University’s own terms. The struggle must be intellectual and take place on our grounds, in our house. As he wrote, “The original sin stems from the pretension to be other than one’s true self. It is our privilege to be whatever we wish; but it is vicious to pretend to be what we are not, to delude ourselves by growing habituated to a radically false idea of what we are. When the habitual behavior of a man or an institution is false, the next step is complete demoralization.”

Justice is also inseparable from due process and constitutional restraints. Laura Kipnis has spoken at length about the significant weakening of the presumption of innocence in campus sexual misconduct cases and the witch-hunt mentality—often encouraged by the Department Of Education—that is unfortunately accompanying the worthy and obligatory end of punishing and preventing sexual assault. Ends and means are not completely separable, but proper means are imperative to liberal democracy. How we achieve something is often as important as what we achieve. Similarly, social justice without respect for intellectual freedom and intellectual diversity is social justice without justice. No moral crusade can be just if it does not include respect for honest differences of opinion that are part of the human condition.

Finally, the meaning of social or political justice has been controversial since the birth of political philosophy itself, and necessarily so. Human beings do not all think alike, so having due respect for different opinions about important matters is necessary in order to respect

humanity. Any adequate notion of justice requires respect for a multitude of voices. Neither progressives nor conservatives have a monopoly on what social justice means, and no one has a monopoly on the truth. The fallibility principle is a key component of free speech theory, as John Stuart Mill and Jonathan Rauch have powerfully articulated in On Liberty and Kindly Inquisitors, respectively.

In the heat of the famous Berkeley Free Speech Movement controversy in 1964, which gave birth to the social justice notion of the university, a Berkeley professor of public administration captured the essence of the problem in words that ring just as true today. Herbert Lepawski observed that “The main task we face is preserving the university as not merely as a free political community but primarily as an institution which is privileged to be an intellectual sanctuary within a greater society that is now in political flux. After all, the university’s prime mission resides not in political activity but in the cultivation of the intellectual freedoms.”

Now, if the University is true to its “immanent intelligibility,” we will contribute to the civic and liberal education of our students in our own distinctive way by simply making them better informed and thoughtful. As Haidt, FIRE president Greg Lukianoff, and others have shown, young people’s moral and intellectual growth is actually thwarted when they are sheltered from controversial and challenging ideas. In the name of unduly protecting sensibilities, we undermine maturation. We betray the very students we are trying to help. Shame on us!

Remedies and Hope

So much for the problem. Let me conclude by talking about remedies. There are some reasons to harbor hope. Reasonable or not, we are nonetheless obligated to keep up the good fight in any regard. It is better to light a single candle than to curse the darkness.

First, we are now witnessing a lot of constructive backlash. Faculty members from across the political spectrum are now concerned, and the public is increasingly critical. A recent national survey found that 2/3 of Americans today think PC has gone way too far.

Second, more concrete mobilizations are fighting back in constructive ways. On the one hand, we have more local groups like the one I was privileged to lead at UW-Madison, the Committee for Academic and Rights, which mobilized substantial support for freedom on campus over between 1996 and 2016. We won numerous policy and legal battles. On a national level, FIRE and the Institute for Humane Studies (Washington, D.C.) have put together projects to work with local campuses to further the cause of free speech and open inquiry on campuses; and several schools have followed the recent example of the University of Chicago by passing institutional statements that strongly support free speech. Finally, Haidt and others have started an impressive on-line operation, Heterodox University, which is organizing different voices to promote the cause of intellectual diversity in higher education. Our chances for success are growing; and if we go down, let us at least go down with our boots on.