Which side are you on, anyway? Rethinking academic freedom

“It’s Not Free Speech: Race, democracy, and the future of academic freedom” by Michael Bérubé and Jennifer Ruth is published by Johns Hopkins University Press, Baltimore, Maryland, United States. ISBN: 978-1421443874.

The most interesting aspect of Michael Bérubé and Jennifer Ruth’s It’s Not Free Speech is not their proposal for still more committees charged with academic governance.

No matter how carefully their mandates are written, such committees will almost certainly fail to deal adequately with professors whose scholarship in their area, such as electrical engineering, is impeccable but who publish essays in newspapers saying that climate change is a hoax.

Nor is it clear to me how universities can ensure that a professor who is highly respected in his field but has written in a blog that vaccines cause autism could be kept off a committee judging another professor who has made insulting comments about minorities or women.

Staffing the committees Bérubé and Ruth call for could end up requiring still more committees to adjudge the membership of the first committee – and on and on.

My scepticism about Bérubé and Ruth’s proposed solution aside, It’s Not Free Speech is extremely valuable for a number of reasons, starting with its discussion of Critical Race Theory (CRT) which is signalled by its subtitle: Race, democracy, and the future of academic freedom.

They trace CRT from its beginnings in the 1970s, when it emerged from Critical Legal Theory, through the attacks on it in the 1990s (because it inspired the introduction of campus speech codes) and, most importantly, to the present.

In September 2020, in the waning days of the presidential election, then president Donald Trump issued an executive order banning CRT-inspired education from the federal government and characterised CRT as being “divisive, un-American propaganda”. Trump’s attack was quickly parroted by officials in some 20 states that have legislated against CRT in their schools and universities.

In CRT’s earliest days, white legal scholars objected to phenomenological differences between evidence – first person narratives, allegory, storytelling, interdisciplinary treatment of the law – and the traditional “putatively disembodied voice of [legal] authority”.

According to Professor Mari Matsuda, who teaches at the University of Hawai’i at Manoa’s William S Richardson School of Law, CRT proposes a different phenomenology for the law by recognising that “those who have experienced discrimination speak with a special voice to which we should listen” and to which we should respond by ameliorating the situation.

Dr James Lindsay, one of many who is part of the cottage industry devoted to attacking CRT, lumps it in with “post-colonialism, black feminism … intersectional feminism, Critical Race (legal) Theory and Queer Theory”.

This list, I hasten to add, seems at best eclectic and at worst indicative of profound ignorance of these theories and analytical schools.

Lindsay, who is not connected with any university, does, however, get one thing right: these theories and analytical approaches “describe the world critically in order to change it”. (Bérubé and Ruth missed a chance for some fun here, for whether Lindsay knows it or not, he’s channelling his inner Karl Marx, for this is almost a direct quote from his 1845 attack on Ludwig Feuerbach and his philosophical attempt to describe the world.)

CRT does seek to change the world. Or, to put it another way, CRT shows precisely what its critics deny: that the law is shot through with structural racism and, as Bérubé and Ruth discuss (and we will see in a moment), so too is the marketplace (of ideas) defence of free speech.

It’s well known that the person most responsible for turning CRT into political kryptonite – whose arguments Republicans like Virginia’s new governor Glenn Youngkin seek to use to fatally weaken many Democrats – is Christopher Rufo.

Within days of Rufo appearing on Tucker Carlson Tonight, Trump moved against CRT. What Bérubé and Ruth add to our knowledge of Rufo, a senior fellow at the Manhattan Institute, is that such right-wing think tanks truck in some serious “whackadoodlery”, to borrow a term Bérubé and Ruth use to describe the McCarthyite Red Scare of the 1950s.

Among the beliefs that circulate in this eco-sphere are ‘intelligent design’, that climate change is a hoax and that neo-Nazi beliefs about race and intelligence are correct. As well, these think tanks are making a concerted effort to “suppress knowledge of America’s history of racism”.

Extramural speech

In the first part of their book, Bérubé and Ruth, both of whom have held senior positions in the American Association of University Professors (AAUP), tease out the difference between academic freedom and extramural speech.

In the United States, this second group of statements comes under the protection of the First Amendment to the Constitution; later they question, given the flourishing of hate speech both in the American political arena and on social media, whether an absolutist reading of the clause that “Congress shall make no law … abridging [limiting] freedom of speech” is an unalloyed good.

Early in the book, however, they show that as late as the early 1960s, universities dismissed faculty members whose speech they deemed to have transgressed public morals or acceptable politics.

Their central example here is the firing of Professor Leo Koch in 1960 by the University of Illinois at Urbana-Champaign for writing an article in the student newspaper supporting sex before marriage and contraception.

Within a few years Koch’s views would be unremarkable, while university administrators and the AAUP would still be wrestling with the question: What role does the university have when the professor’s extramural speech is about matters of public debate but has no relation to his or her expertise? (Koch, for the record, was a biology professor, so his views could have been construed as being informed by his academic specialty and, hence, what the university was paying him for).

In 1970, the AAUP reiterated its 1940 position that extramural speech occurs when the professors speak as citizens and, ipso facto, cannot be used as a cudgel against him or her.

State governments have begged to disagree. Citing the fact that they fund state colleges and universities, at various times legislators have argued that not only do they have the right to pressure administrators to crack down on extramural speech but, also, that they have the right to crack down on speech within classrooms.

This academic year will see, for example, Florida conduct its second survey of students and faculty opinions, and, assuming it passes this fall, Texas universities will be required to hold the teaching of CRT (even by tenured professors) as cause for being fired.

With their fine eyes for detail, Bérubé and Ruth note that state governments which exercise their oversight power zealously can end up producing some rather odd results.

Pennsylvania State University, which is often considered the ninth Ivy League school, receives approximately 4% of its operating revenue from the Commonwealth of Pennsylvania. This contribution, critics of the university in the state legislature claim, buys the legislature the right to monitor and demand the cancellation of courses or schools of thought they, the legislators, find offensive.

What, then, is a firing offence today? Put another way, what kind of speech is not protected by academic freedom? One example, Bérubé and Ruth discuss concerns Dr James Tracy who, until he was fired in 2015, had been a professor in the school of communication and multimedia studies at Florida Atlantic University (FAU) in Boca Raton.

Tracy claimed that the 20 children and six staff shot to death at Sandy Hook Elementary School in 2012 was a “false flag” operation, an agit prop performance put on by supporters of gun control. Further, he harassed Veronique and Lenny Pozner, parents of one of the slain students, demanding, among other things, “proof that Noah had once lived”.

After being dismissed, Tracy sued FAU claiming it had abridged his First Amendment rights. FAU won the case. He remained dismissed but for the wrong reason, Bérubé and Ruth argue. FAU won the case on insubordination – not on the grounds of intellectual unfitness and, hence, being unable to hold a position that includes academic freedom.

The failures of universities

More than once, Bérubé and Ruth argue that their former colleagues at the AAUP make serious category errors.

The discussion that begins Chapter 5 takes the AAUP to task for the policy document that says: “An institution of higher learning fails to fulfil its mission if it asserts the power to proscribe ideas – and racial or ethnic slurs, sexist epithets or homophobic insults almost always express ideas, however repugnant.”

Why, Bérubé and Ruth ask, did the AAUP choose these examples, there being “no value in dignifying [them] by calling them ‘ideas’”.

No doubt wanting to get away from the philosophically messy question of how we could even understand phrases ‘ethnic slur’ or ‘sexist epithets’ unless they expressed some sort of an idea, Bérubé and Ruth emphasise that their analysis really turns on the sentence that comes after the word ‘repugnant’: “Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.”

In a nice turn of phrase, they write that this “dogmatic proscription of proscription suffuses the document” and leads to what they find to be an emblematically incorrect statement: “A college or university sets a perilous course if it seeks to differentiate between high-value and low-value speech.”

By contrast, they argue that higher education’s “primary function [is] to distinguish between high-value and low-value speech”.

However contentious this might sound in a world drenched with populist rhetoric from the right and mushy reasoning on the left, Bérubé and Ruth make clear that this accords with the quotidian facts on the ground.

“This is what professors do every time they grade student papers, write student recommendations, evaluate the work of their colleagues (especially for promotion and tenure), or participate in routine committee work. What is the intellectual mission of the university, we wonder, if it abandons the obligation to exercise critical judgement about the value of speech acts?”

To the AAUP’s statement that “On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message can be deemed so hateful or disturbing that it may not be expressed,” they undertake a thought experiment. In it, they propose a number of courses, including “The Jews had it coming”, “Vaccines cause autism” and “Phrenology has much to teach us”.

A few pages later, they cite Stanley Fish, who began his long career as a Milton scholar and ended it as a commentator on law for the New York Times, whom they paraphrase as saying, freedom of speech is not an academic (as opposed to political) value: accuracy of speech is an academic value.

A fraught metaphor

Pushed by the growth in right-wing speech and such events as the ‘Unite the Right’ rally in Charlottesville, Virginia, in the first months of the Trump administration – the one that led Trump to characterise the neo-Nazis as “good people” – Bérubé and Ruth register a palpable loss of faith in the efficacy of free speech in the extramural world.

Somewhat elegiacally, they note that the traditional American defence of free speech works if, and only if, both sides are committed to its rules. The traditional American liberal defence of free speech is that more speech is needed to drive out bad speech, such as racist speech. Economists will recognise this account as being an inversion of Gresham's Law (about debased currency): “Bad money drives out good.”

But is this really true? Does defending the right of neo-Nazis or white supremacists to march do anything but flatter liberals’ belief in their own “moral rectitude”? they ask, quoting Ulrich Baer, professor of comparative literature and vice provost for faculty, arts, humanities and diversity at New York University.

Stunningly, Baer argues, some liberals claim that tolerating hate speech leaves everyone “better off in the end” and increases toleration generally.

It’s hard not to see a hint of self-flagellation here or, to put it in sports terms, “taking one for the team” wearing the free speech jersey. Nowhere in this liberal defence is account taken of what Matsuda calls the “psychic tax imposed on those least able to pay” by hearing slurs, racial epithets and the like in the public sphere.

In a fascinating footnote, Bérubé and Ruth quote from Charles R Lawrence III’s Words that Wound to show what his CRT analysis reveals; Lawrence is an emeritus professor at the University of Hawai’i at Manoa’s William S Richardson School of Law. Put simply, the oft-touted good of the “unregulated marketplace of ideas”, where the best ideas are supposed to rise to the top and gain acceptance, is a fraught metaphor.

As Lawrence writes: “The American marketplace of ideas was founded with the idea of racial inferiority of non-whites as one of its chief commodities, and ever since the market opened, racism has remained its most active item in trade.”

It hardly needs be mentioned that this “marketplace of ideas” occupied exactly the same public space where countless slave auctions took place – the ‘ideas’ expressed in these sales being the same as those held about slavery by, among millions of others, George Washington, Thomas Jefferson and James Madison.

The tilting of the First Amendment by the US Supreme Court towards big business and religious institutions in recent years is a further reason why, Bérubé and Ruth argue, the metaphor of the marketplace of ideas can no longer be invoked.

Turning their telescope around, they argue that some speech in this supposed free marketplace of ideas actually injures academic freedom.

Again, quoting Baer, they argue: “The idea of organising society around the supremacy of the ‘white race’, or subordinating women to secondary status, does not merit debate on campus.

“To debate the idea of racial superiority does not serve the university’s fundamental mission, or what the law calls its ‘compelling interest’, since it re-hashes a disproven theory which had once been popular, but, based on expert consensus, is now no different from other obsolete ideas of junk science.”

Note how Baer, and hence Bérubé and Ruth, base the placing of these disproven theories in the dustbin of history based upon “expert consensus” which, we can safely assume, is reached via the functioning of the university’s normal standards of proof and argument.

Which side are you on?

Readers familiar with the debates about academic freedom and its place in American law will have encountered the 1957 decision in the case of Sweezy v New Hampshire written by US Supreme Court Justice Felix Frankfurter.

The details of this case are of less concern to Bérubé and Ruth’s argument than the words in the decision, which quickly became the classic statement of a university’s freedom from state interference and, because of the system of collegial governance, of the professor’s academic freedom.

The “four essential freedoms of the university”, Frankfurter wrote, are “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study”.

For decades this formulation was thought to be the justice’s. However, Bérubé and Ruth draw attention to a 2017 essay by Amherst College professor of law, jurisprudence, social thought and black studies, Adam Sitze, which shows that Frankfurter borrows heavily from the proceedings of a conference held by the University of Cape Town and the University of the Witwatersrand (Johannesburg, South Africa) held the very same year Sweezy was decided.

According to Sitze, the proceedings of the conference, “The Open Universities in South Africa”, which Frankfurter did not either quote or cite, make clear that “academic apartheid and academic autonomy are mutually exclusive”.

Frankfurter’s quotes, Bérubé and Ruth write, “will lead many of his readers to conclude that the principle that academic institutions must remain politically neutral is central to academic freedom”. Rather, they say, “in fact, the South African universities’ defence of academic freedom rests on defiant opposition to a political act” – the bill brought in by the Nationalist Party to establish apartheid.

Academic freedom, thus, rests on professors answering the question posed by labour activists in a song written in 1937 by Florence Reece in support of a coal miner’s strike in Harlan County, West Virginia, and made famous in 1940 by American protest singer Pete Seeger, “Which side are you on?”