The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I more often note when universities behave badly—or threaten to behave badly—by sanctioning members of the campus community for expressing unpopular opinions. Unfortunately, there are many such episodes to highlight. It is also worth recognizing universities when they behave well.
Professor John Eastman of Chapman University Law School wrote a much-discussed op-ed in Newsweek questioning whether Kamala Harris is a natural-born citizen and thus eligible to be president or vice president. The op-ed applies Eastman's longstanding views about citizenship under the Constitution, which he has more often discussed in the context of children born on American soil but whose parents are undocumented aliens.
I think Eastman's constitutional arguments on this topic are generally wrong, and that he is wrong about the specific application to Harris. Many scholars think he is wrong, and they have explained why. But that is how scholarly debate works. Professors will sometimes be wrong, and they are allowed to be wrong. They are allowed be wrong even on politically controversial topics that people outside of academia care about. When they are wrong, they should be rebutted or ignored. There are extreme cases when academics might be so wrong about a matter within their professional competence that it calls into question their professional fitness to hold an academic position, but Eastman is nowhere near that line.
But as is often the case, some think that open discussion of competing points of view in the public sphere is not good enough. Professor Eastman is a "visiting scholar in conservative thought and policy" at the University of Colorado at Boulder. These positions were created in order to increase the intellectual diversity of the university and expose the campus to some conservative scholars. In light of Eastman's op-ed about Harris, some demanded that Eastman's position at Colorado be rescinded.
To his credit, the chancellor at the University of Colorado at Boulder has firmly rejected that demand.
Academic freedom includes the rights and responsibilities afforded to faculty members to create and disseminate knowledge and seek truth as the individual understands it, subject to the standards of their disciplines and the rational methods by which truth is established. Even legal scholars who reject Professor Eastman's constitutional arguments recognize his theories are debatable.
If I would deny Professor Eastman these rights, it would weaken our ability to defend our entire faculty's pursuit and dissemination of scholarship without fear of censorship or retaliation, even when it offends the sensibilities of others and makes people uncomfortable. However, I do encourage all of us—our visiting scholars included—to remember that while we as faculty have the privilege of academic freedom, that privilege comes with significant collective and individual responsibilities.
As with many such statements, the chancellor's recognition of the faculty member's right to free speech comes couched in a discussion of how problematic the faculty member's speech was in this particular case. That would not generally be my preference for how such statements should be written. But the bottom line is that Colorado has stood up for academic freedom, and in today's world that is no small thing.
Eastman's home institution of Chapman University is also coming under pressure to do something about their high-profile law professor. Fortunately, the Chapman president has also emphasized that Eastman enjoys the same freedom of speech that protects every other member of the faculty there. The activists at Chapman appear to already be pivoting away from the demand that Eastman be fired and toward new demands that no one like Eastman ever be hired again and that political orthodoxy be preserved with each new hire going forward. A reminder that academic freedom is a necessary but not a sufficient condition for maintaining a robust intellectual climate.