The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Silencing professor speech to prevent students from being offended—or from fearing discrimination by the professors
People often support disciplining and even firing professors who say things that are perceived as racist on the grounds that 1) those professors can't be trusted to evaluate minority students fairly, 2) students will be afraid that they won't be judged fairly, or 3) students will more broadly lose confidence in the professors (or just couldn't stand to be in the room with them) or even in the institution, and won't learn as effectively. I've seen these arguments made often, most recently as to the University of Oregon controversy. One response to my Oregon post, for instance—a tweet by @TimothyWright3, "What does the institution say to students of color by allowing [Prof. Nancy] Shurtz back into a classroom?"—seems to be implicitly making these arguments (though it seems to focus most clearly on No. 3. But, again, this is just one example among many.
I appreciate the force of these arguments, and indeed, if all you care about is maximum teaching effectiveness and reliability, you might take such a view. But, if accepted, these arguments really will be the end of freedom of expression—both casual and more formally academic—on university professors' part, because they reach far beyond black makeup in Halloween costumes.
Imagine, for instance, a professor who says—at a party, in an op-ed, at a debate, in a scholarly article, or wherever—that she thinks that Catholicism is a foolish and evil religion, because it oppresses women and gays.
Presumably many devoutly Catholic students will be quite upset about that statement, which expressly derogates the faith that is such an important part of their identity. Indeed, they may worry that a professor who is militantly anti-Catholicism might discriminate against students who are known to be Catholic. (Many students might publicly self-identify as Catholic, for instance by prominently participating in Catholic campus programs, or mentioning their Catholicism when relevant to in-class discussions. They may also wear broader Christian symbols, such as crosses on chains or ashes on their foreheads on Ash Wednesday; if the students' last names or accents also identify them as people likely to come from a Catholic culture, some observers might infer that the students are likely practicing Catholics.) They may lose respect for the professor, because they feel the professor lacks respect for them.
True, anti-Catholicism doesn't always mean hostility to all individual Catholics; but wearing black makeup likewise doesn't always mean hostility to blacks. The argument against Shurtz is that wearing black makeup was offensive even if it wasn't motivated by hostility to people—likewise, sharply anti-Catholicism statements can be offensive to Catholics, too, even if they are motivated by disapproval of the religion and not specifically of the religious. People might well ask, "What does the institution say to [Catholic students] by allowing [the professor] back into a classroom?" Is such a question then reason to suspend or even dismiss professors who condemn Catholicism?
Or say a professor says that President-elect Donald Trump is a charlatan and a bigot and that Trump voters were therefore either fools or bigots themselves. Again, this could be in a conversation at a party where students may be present, or in an op-ed, or in a scholarly article.
Many Trump supporters might be upset at the statement, which directly insults them. And they may worry that the professor might discriminate (deliberately or unconsciously) against students who have publicly expressed their support for Trump. (Federal and state statutes generally don't ban discrimination against students based on their votes or political party membership, but the First Amendment does ban such discrimination by public universities, and certainly university rules and ethical principles ban professors from grading students worse just because of whom the students voted for.) People might well ask, "What does the institution say to [pro-Trump students] by allowing [the professor] back into a classroom?" Is such a question then reason to suspend or even dismiss professors who condemn Trump voters?
Likewise, say a professor sharply condemns certain streams of Islam (e.g., Wahhabism), or for that matter just posts the Muhammad cartoons on his office door or when writing about them on his blog. Some Wahhabi students may be offended by the former. Many Muslim students of various denominations may be offended by the latter. All might worry that the professor may discriminate against them. "What does the institution say to [Muslim students] by allowing [professors who post the Muhammad cartoons] back into a classroom?"
Or say a professor publicly identifies as a hard-line Marxist, who thinks that the capitalist class has blood on its hands from its oppression of the workers. The professor might have praised Marxist mass murderers, such as Stalin or Mao, and talked of the justifiability of violent revolution. Or he might have just been seen wearing a Che Guevara T-shirt.
Students whose families belong to the capitalist class—the class that was targeted for oppression and murder by the people the professor praises—might be offended by this and might worry that the professor will be prejudiced against them. Cuban American students whose parents may have fled Guevara and his partners in crime might be especially offended and worried. Maybe some of them had family members who were killed by Che's firing squads. "What does the institution say to [Cuban American students] by allowing [the Che-shirt-wearing professor] back into a classroom?"
And the list could go on: The same arguments could be made against professors who say that homosexuality is immoral, or even just publicly say that they believe in the teachings of a certain church, if those teachings condemn homosexuality. They could be made against professors who express doubt that gender identity should be defined by a person's self-perception, as opposed to a person's anatomical sex. They could be made against professors who argue that the military is a shameful career; many antidiscrimination policies (including at the University of Oregon) apply to discrimination based on veteran status as well as based on race, religion, sexual orientation and so on.
They could be made against professors who broadly condemn whites as racists or men as rapists (even if they only argue that this is just a strong tendency among those groups, and not a universal certainty). They could be made against professors who sharply condemn Israel and Israelis, or the Palestinian Authority and Palestinians.
Indeed, they could even be made against professors who make all these statements mildly and thoughtfully. Say, for instance, that a professor's condemnation of, say, Catholicism—or evangelical Christianity or Mormonism or Islam or capitalism or Socialism or Trump or Clinton or gun rights supporters or abortion opponents—calmly and politely argues that those beliefs are evil, and that rank-and-file adherents of the religious or political belief system are morally responsible for the evil that the belief system produces.
Could students reasonably worry that the professor—however polite—will be subconsciously (or intentionally) biased against people who, he has just said, are responsible for such evil? Could students reasonably worry that the professor will grade them more harshly (or discriminate against them in other ways, even if the grading is anonymous)? Could they feel unwanted in class, and in turn not want to take the class? Could they feel the loss of the perceived mutual respect that is often so useful to learning, especially in small classes or in one-on-one projects? The answer in all these cases has to be "yes," I think, to one or another degree.
Yet I take it that universities' (especially public universities') general answer to the student who complains about a professor who made anti-Trump-voter or anti-Catholicism or anti-capitalist or anti-American statements at a party or in a blog post will be, more or less, "tough." Professors are entitled to express their views, including controversial ones; indeed, they're supposed to express such views, however controversial, as part of their scholarship and their public commentary. And that applies to condemnation of religions, economic classes and political belief systems, as well as debate on less heated topics. "[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom." If you disagree with the professor, express that disagreement, the universities would say; but we won't shut the professor up in order to prevent you from feeling offended or alienated.
Now discrimination by professors against students is a serious concern. It's wrong for professors to grade students down because they are black or white or pro-Trump or anti-Trump or Catholic or Muslim or atheist. It's wrong even when the professors aren't deliberately saying "bwahaha, here's my chance to strike back against privileged whites or terrorist-loving Muslims or Trump yahoos or Palestinian-oppressing Israelis," but are just subconsciously undervaluing the work of those groups for which they have contempt—regrettably, a common human tendency.
And such discrimination by professors is also bad because the fear of such discrimination can drive students into the closet: It can discourage them from revealing that they're gay, or Christian, or Muslim, or Trump supporters, or abortion opponents, or whatever else. And that can undermine the quality of public debate as well.
Yet, again, I take it that the university's response to such complaints about professors who made anti-Trump-voter, anti-Catholicism, anti-capitalist or anti-American statements at parties or blog posts would still be some version of "tough." "You need to be confident that our professors will judge you fairly," the university would presumably say (however credibly). "And we can't just shut up our professors on all these subjects; they're supposed to express themselves on controversial topics. The university is all about learning from people who sharply disagree with you, even when those disagreements go to important parts of your identity."
I think that, on balance, this university approach, with its traditional support for freedom of expression, is the better one, if universities are to be places for fostering debate and inquiry. But if professors like Shurtz are barred from the classroom for their speech, then all this speech will be threatened. To the extent that any would be protected, it would be protected only when those who are in power—some mix of university administrators, state legislators, faculty senates, student majorities, student activists and wealthy donors—happen to agree with the potentially offensive speech.
There would be no principle to which dissenting voices could appeal for protection. Once a professor's public speech—or even speech in a relatively private setting, so long as some students are there or some students hear about it—is seen as sufficiently offensive to enough students, that would be seen as justification for suspending or firing the professor.
And the lack of this principle would be felt not just by Shurtz but also by those who talk about alleged white privilege, the evils of Catholicism, the folly or bigotry of Trump voters, the immorality of choosing the military as a profession, or the depravity of capitalists or Israelis—as well as those who post Muhammad cartoons, criticize homosexuality or transgender rights theories, or discuss possible biological differences between male and female cognition and temperament. Indeed, as groups see that claims of group-based offense can be tools to fire professors they dislike (or pressure those professors into silence), the result would be more and more such claims of offense: Behavior that gets rewarded gets repeated.
Again, maybe some may support all this, on the theory that any such controversial statements undermine classroom instruction (and perhaps even grading fairness), and that maximally effective classroom instruction on those topics and with those viewpoints that the university administration chooses should be our main goal. That is more or less the view in the military, for instance (to oversimplify somewhat), because the military understandably prizes effectiveness above self-expression or open debate (except insofar as debate is needed to better accomplish specifically military goals).
But if people do endorse this view, they should endorse it with their eyes open, realizing what a vast range of academic speech—left, right and otherwise—it would potentially affect.