Intellectual Workers and Essential Freedoms

At the AAUP’s annual meeting, a legal scholar argued that journalists and professors deserve special privileges—but only if they can adapt their work to an increasingly diverse society.

By Christopher Edley, Jr.

Let me start in a somewhat combative stance: what are the principal threats to the freedoms so essential to the work of academics and journalists in twenty-first century America? Are they born of corporatism, in its many manifestations? Some are, and those threats are real enough and growing. But more menacing, I believe, is our arrogance; our smugness; our unapologetic claim of rights and privileges that so many in the public simply do not believe we have earned.

What are these entitlements? Journalists assert the rights to be wrong, to be sensational, to be libelous (although not malicious); they argue that such rights are necessary to guard core freedoms. But the public perceives that journalists view these misdemeanors not only as protected activity, but also as accepted activity beyond the reach of government regulation or civic criticism. These claims by and for journalists are important sources of the public cynicism and distrust so widely felt toward the media. And although this cynicism surely is part of a broader pattern of civic malaise, that does not make the trend it represents either innocuous or immaterial.

For academics, the essential entitlement is academic freedom—the freedom to determine who our students will be, what we will teach them, and how. First Amendment rights of expression and association are the legal bedrock for our claims, but the broader social goals of knowledge creation and dissemination have been built upon that bedrock. An important device for implementing and protecting our entitlement is the magnificent institution of tenure. We are all but impervious to the business cycles that buffet ordinary mortals; we remain untroubled by the high-stakes performance evaluations that terrorize workaday wage slaves; and we stand united in our commitment to the inviolability of those three great and good things about teaching: June, July, and August!

Public Mistrust

But is our privileged sanctuary of academia worth the price the public pays: the tuition, the real-estate-tax breaks, the taxpayer funding? It is no surprise that state prison budgets are creeping up on, and in some places exceeding, state higher education budgets. It is no surprise that political actors are growing bolder in imposing their judgments on academic matters such as admissions and even curriculum. More is coming—mark my words. There are no surprises here, I suggest, because the public is not so confident about the product it is buying. Arrogant, bald, unelaborated claims of entitlement will not reduce that confidence deficit.

Admittedly, there is a difference between the elite public and private colleges and universities on the one hand, and the typical, more numerous public institutions on the other. The power of the legislator or political administrator over the life of an academic in a typical public institution can be chilling and even overwhelming. This force is present to some degree in elite settings as well. But whatever the setting, the basic challenge is the same. As the public increasingly sees higher education as economically indispensable, it will demand greater accountability regarding the effectiveness of its investments in education. Ironically, the resulting pressure for accountability may threaten the very enterprise deemed indispensable.

We can blame arrogance and hubris if we fail to perceive that preserving the freedom and independence we deem so essential means that we must persuade the public that these freedoms are worthwhile. The fact that we believe in their value will not suffice as the trends of cynicism and distrust deepen. We must not underestimate the possibility of a major shift, tectonic in scale, with the power to transform the character of both journalism and academia. In my generation, many of us, as young adults, vaguely envied our peers who headed into medicine, with all its prestige, challenge, and lucre. But consider the dramatic changes in that profession over the past thirty years. Managed care has brought a wholesale redefinition of medicine, for better and for worse. If public cynicism prevails, a generation from now the professions of journalism and academia may be virtually unrecognizable.

My argument is not a legal one. I do not expect that what we take to be constitutional protections will be delimited by a cost-benefit analysis in some court of public opinion. Legally, however, several things are clear. First, the law itself, in the long run, is about politics. That is true because the fuzzy, disputed boundaries of doctrine are resolved by courts based in part on how judges clumsily and inexpertly weigh the public policy arguments. It is true because politics determines who becomes a judge. It is true because, beyond the wars over constitutional doctrine, there is room for policy making by federal and state legislatures. And finally, it is true because even the most sheltered of judges is a product of, and lives within, the social context. He or she will witness the broader civic discourse, and from that will decide the direction in which the arrow of history points.

Moreover, the law is a blunt instrument and an imperfect shield for journalists and academics. It leaves us ill equipped to protect against the tyranny of petty insults and the oppressions flowing from corporatism—the budget pressure, advertiser pressure, alumni pressure, legislative pressure—whatever.

This imperfection exists partly because First Amendment rights, as nonlawyers often fail to recognize, formally restrain only government actions. A newspaper has no First Amendment protection against powerful private voices or concerted private action—the civil rights protest against homophobic editorial practices, for example. And a professor at a private university has no constitutional protection against that university’s imposing some penalty for the professor’s perusal of pornographic Web sites, whether for personal or research purposes. So there is a wide field for civic argument about the scope of our privileges. And that is where we must engage the threats to our professions.

Education for Democracy

Let me shift gears, turning to freedoms the public needs and the role of intellectual workers in helping to protect those freedoms.

I returned last week from a trip to Cape Town, South Africa, where I attended an international conference on comparative race relations. The conference began with an address by South African leader Nelson Mandela. In his remarks and in his autobiography, which I have since read, he refers to education as a tool of revolution and a tool of freedom. But "education," according to Mandela’s view, is much more than the academic study customary for preparation in a trade or profession. In the South African fight for freedom, education helped both the revolutionary leaders and the people to appreciate the history, context, and multidimensional character of their struggle.

We, too, are making a revolution here in the United States. Viewed from the long perspective of human history, the American experiment in democratic self-government, especially coupled with a liberal market economy, is itself a revolutionary idea. And it is still experimental. We continue to make adjustments. This June newspapers around the country covered Gay Pride Day at the Central Intelligence Agency. The event dramatized our evolving quest to perfect the norm of equality or antidiscrimination. In coming years, the ascendancy of the Hispanic population will rock our political and cultural assumptions, showing those assumptions to have been provisional.

Ideals we may have thought established and beyond experimentation may be quite fragile. Racial segregation in schools and neighborhoods, for example, is actually increasing today, showing the persistence and powerful legacy of that most antidemocratic institution of all, racial caste. So our revolution continues, and our ideals must struggle against the human tendencies and the social forces that would cause our experiment to founder and fail. To protect our freedoms and perfect our ideals in the face of all this, the public must be educated. How?

Most American college teachers will recall the 1996 federal appeals court decision in Hopwood v. Texas, striking down a voluntary race-conscious affirmative action admissions plan at the University of Texas at Austin School of Law. In that opinion, the court wrote that diversity is admittedly an important consideration for university admissions, but that attention to diversity on the basis of race is as irrational as attention to blood type. Well, this court’s reasoning raises two questions. First, what planet are these judges from? And second, who were their teachers?

Similarly, I cannot count the times I have talked about race-related matters with twenty- or thirty-something-year-old reporters or producers with minds that are virtually blank slates—blank except for the sense that the greatest civil rights challenge of today is the oppression of white males. Again, I ask, who were their teachers?

Well, clearly we were, and are, their teachers. Either they have learned in schools and from the news media, or they have not. If the public is not educated, people’s rights with respect to racial justice will be vulnerable to assault or insidious erosion powered by ignorance.

The same can be said for other essential freedoms, unrelated to race. Lagging voter participation and the need for political reform reveal that the health of our democracy is at risk; the public seems to have failed the basic course in American civics. It is the work of journalists and teachers—we certainly can’t count on the politicians—to educate people in the responsibilities of citizenship.

Beyond the familiar political liberties, economic justice calls for the inclusion of those who have been locked out and left behind. As intellectual workers, we have the obligation to protect these essential public rights through what we study, what we teach, and to whom we teach it. Through our work, we must promote understanding and, thereby, inclusion.

Freedom and Race

Finally, we must address the collection of essential freedoms one might group under the heading "racial justice." Consider the matter of demography. I need not detail the sweeping changes the next few decades will bring to the population makeup of our country. By midcentury we will have a nonwhite majority. Several major cities and most large public school districts already have nonwhite majorities; soon our largest state will have one.

The new demography has parochial implications for our work. A more diverse population means a dramatically different set of constituents. Our strategy for securing our professional and institutional legitimacy will have to adapt to that new reality of diverse constituents and customers. Of greater importance, however, are the implications for the social and economic fabric of the nation.

President Clinton has a way of addressing these issues rather pointedly and passionately. He notes that if we review events around the world and throughout human history, the measure of misery and bloodshed occasioned by tribal, religious, and racial differences is a powerful indictment of human nature. What folly, he suggests, to think that America is somehow immune. We should recognize that America’s exploding diversity poses challenges that, if ignored or mishandled, will impoverish our dreams and rend our social fabric.

Yes, this is drama. But difference, and specifically difference based on color, will be the news story of the twenty-first century, and it should be the research topic and a key piece of the core curriculum for the new century as well.

Our most important professional contributions to preserving essential public freedoms will consist of the stories written by journalists, the research and teaching conducted by academics, and the influence these have on the advancement of racial and ethnic justice. We have a responsibility to define our burden of carrying the American experiment forward, and then to shoulder it.

We can best preserve the essential freedoms we enjoy as intellectual workers by doing our jobs well. In part, that means serving the broader public through our contributions on the question of color, as I have just suggested. It also means recognizing that the demographic changes I’ve discussed make diversity and inclusion in our workplaces an essential part of excellence.

At Harvard Law School, we aspire to be not merely the best law school in the nation or in the world, but the best law school in the solar system. Among our approximately seventy-five tenured and tenure-track professors, however, there are zero Hispanics, zero Asian Americans, and zero Native Americans. This record is scandalous, bordering on educational malpractice. I say that not because the limited range of skin tones offends some political aesthetic, but because the absence of diversity corresponds with deficits in the content of our teaching, our research products, and our mentoring for a diverse student body destined to lead in diverse communities (throughout the solar system). Inclusion is an essential ingredient of excellence.

My conclusion, therefore, is that as journalists and academics we must earn our privileges. I say this not because the Constitution thus conditions our privileges, but because it is prudent to do so. We cannot rely on the prescience of the Founding Fathers, great as it was, to protect our professions. To secure these essential rights, we must assure the public of the value of our contributions. And doing so means that we must be ever mindful of the crying needs of the diverse society we serve.

Christopher Edley is professor at Harvard Law School and codirector of the Civil Rights Project at Harvard University.

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