This fall I participated in the annual Frankel Lecture symposium at the University of Houston Law School. The topic was on academic freedom and diversity, and the lecture was delivered by Jeannie Suk Gersen of Harvard Law School. I provided a response, along with Khiara M. Bridges of Berkeley Law School.
The articles from the symposium have now been published online and printed in the latest issue of the Houston Law Review. The full symposium can be found here.
My article, "Academic Freedom and the Mission of the University," focuses on the relationship between the mission of the university and the commitment to and value of academic freedom to that university. A university dedicated to truth-seeking needs robust protections for academic freedom in order to properly fulfill that mission, and American universities embraced those protections as they reoriented themselves to that mission in the late nineteenth and early twentieth centuries. To the extent that universities deviate from that mission and prioritize other values and commitments, then academic freedom protections will seem less valuable and even counterproductive.
I particularly consider three competing understandings of what universities should be seeking to prioritize and show that in each case academic freedom will likely suffer. The article explores the implications of committing the university to a "patriotic" mission of promoting a rich set of substantive values seen as central to the nation, committing the university to a "neoliberal" mission of preparing students for career success, and committing the university to a "creedal" mission of promoting a rich set of substantive values seen as important to the campus community such as inclusivity or social justice.
From the conclusion:
Modern American universities have struggled to live up to their own ideals, and our current polarized environment will make living up to those ideals harder rather than easier. The educational reformers of the late nineteenth century understood that if universities were to serve their proper purpose of bringing the benefits of knowledge to society, the experts that the university had to offer would have to be broadly trusted. They could not be perceived as just another set of partisans entering into familiar political battles. That is a hard position to achieve. To the extent that society is divided into distant warring camps, it is all the more difficult to bridge that divide. Scholarly judgment might be vilified and dismissed rather than welcomed. But modern universities were launched with a goal of standing above such divides. Their best chance of doing so requires taking scrupulous care to be intellectually open and nondogmatic, standing above the fray rather than diving into it, and protecting dissident ideas rather than suppressing them.
Khiara Bridges' article ends on a particularly intriguing note. A critical race theorist, she worries about pressure on academic freedom currently coming from the political left and from the political right. Notably, she emphasizes to the left that universities should not be places that prioritize "student comfort," as some diversity, equity and inclusion offices are wont to do. More curious is her discussion of the threat from the political right. There she notes that conservatives responded to critical race theory arguments about free speech in the 1990s by embracing a more libertarian view of free speech principles. She seems wistful that the political right now seems to be abandoning that libertarianism and adopting a more censorious attitude that more closely mirrors CRT.
And what is the best way to respond to pressures on academic freedom generated from the right? It seems like the right might need to remind itself of the claims that it made in the 1990s, when self-identified critical race theorists argued that the First Amendment should not be interpreted to protect racist hate speech. During that historical moment, many conservatives (and liberals) rejected these theorists' claims, arguing that the First Amendment was incompatible with protections against injurious speech. They contended that the best response to harmful speech was not to limit speech but rather to ensure that everyone could speak.
In the 1990s, conservatives wanted more speech. In the 2020s, they want less. If conservative pundits, activists, and scholars really value the First Amendment as much as they claimed just three decades ago, then they should recognize the bans on "Critical Race Theory," "divisive concepts," and the like as the wildly un‑American efforts that they are.
Is the implication here that CRT was wrong about free speech and that everyone should embrace the civil libertarian position on speech? That in hindsight it was a mistake for the left to have spent the last few decades advocating for a more restrictive understanding of the First Amendment and free speech principles? Indeed that CRT principles regarding free speech were "wildly un-American"? Or that it would be convenient for left-leaning academics if the right were to continue to adhere to liberal speech ideals while the left continues to embrace illiberal speech ideals? That the left should censor but the right should tolerate? Free speech for me but not for thee?
I'd like to think that my colleagues on the left are starting to see the light when it comes to free speech principles and realizing that they were playing with fire in urging an illiberal vision of free speech, but we are not there yet. Instead some are doubling and tripling down on theories about how to restrict speech they do not like. And meanwhile, Bridges is right that some conservatives are turning to the dark side when it comes to free speech. Things are likely to get worse before they get better, and the truth-seeking mission of the university might be curtailed, if not abandoned entirely.