The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prof. Jeannie Suk Gersen (Harvard Law) on The Future of Academic Freedom
An excerpt from this article in Saturday's New Yorker (the whole thing is much worth reading):
Sometime in the twenty-tens, it became common for students to speak of feeling unsafe when they heard things that offended them…. [C]olleagues at other schools [besides the law school] within Harvard and elsewhere feared that their administrators were using concepts of discrimination or harassment to cover classroom discussions that make someone uncomfortable. These colleagues become more and more unwilling to facilitate conversations on controversial topics, believing that university administrators might not distinguish between challenging discussions and discrimination or harassment. Even an investigation that ended with no finding of wrongdoing could eat up a year of one's professional life and cost thousands of dollars in legal bills….
Students across the political spectrum, but largely liberals, have told me that they felt it would be foolish to volunteer their opinions in class discussions, or even that they routinely lied about their views when asked. These self-censorious habits became even more conscious with the rise of the #MeToo and Black Lives Matter movements, such that a large range of political remarks—questioning abortion rights, calling a fetus an "unborn child," doubting the fairness of affirmative action, praising "color-blindness," or asking who should compete in women's sports—could be perceived as being on a continuum of bigotry. In this climate, it became increasingly difficult to elicit robust discussions because students were so scared of one another….
The events of October 7th—and an open letter issued that day with signatures from more than thirty Harvard student groups, holding "the Israeli regime entirely responsible for all unfolding violence"—changed the terms of the academic-freedom debate…. The two sides had effectively flipped: activist students, whose politics overlapped with principles of D.E.I., were engaged in speech that some faculty members, who were supportive of academic freedom, now wanted the university to treat as harmful….
In response to calls to punish the students, Gay said, "Our University embraces a commitment to free expression. That commitment extends even to views that many of us find objectionable, even outrageous. We do not punish or sanction people for expressing such views." This is what a university president should say. But, to many who believed that Gay would have condemned speech that offended Black or transgender people, the invocation of free speech was an outrageous permission to offend Jews, exceptionally, at Harvard. (She later did condemn the phrase "from the river to the sea.") …
To demonstrate that it is against antisemitism, Harvard may face pressure to expand its definitions of discrimination, harassment, and bullying, so as to stifle more speech that is deemed offensive. In order to resist such pressures, the university needs to acknowledge that it has allowed a culture of censoriousness to develop, recommit itself to academic freedom and free speech, and rethink D.E.I. in a way that prizes the diversity of viewpoints.
Though some argue that D.E.I. has enabled a surge in antisemitism, it is the pervasive influence of D.E.I. sensibilities that makes plausible the claim that universities should always treat anti-Zionist speech as antisemitism, much in the way that some have claimed that criticizing aspects of the Black Lives Matter movement—or even D.E.I. itself—is always discrimination. The post-Gay crisis has created a crossroads, where universities will be tempted to discipline objectionable speech in order to demonstrate that they are dedicated to rooting out antisemitism and Islamophobia, too. Unless we conscientiously and mindfully pull away from that path, academic freedom—which is essential to fulfilling a university's purpose—will meet its destruction.
