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Restoring Free Speech and Liberty on Campus and FIRE's Guide to Free Speech on Campus
Reviewed by Joan Wallach Scott
Restoring Free Speech and Liberty on Campus
Donald Alexander Downs. Oakland, Cal.: The Independent Institute, and Cambridge: Cambridge University Press, 2005
FIRE’s Guide to Free Speech on Campus
David A. French, Greg Lukianoff and Harvey A. Silverglate. Philadelphia: The Foundation for Individual Rights in Education, 2005
In the last two decades, in the name of individual rights, conservatives have attacked, and often succeeded in weakening if not dismantling, the antidiscrimination programs of the 1960s and ’70s. Their lawsuits and political campaigns have portrayed affirmative action in employment and college admissions—to take the two most prominent examples—as misguided and unconstitutional attempts to favor groups at the expense of individuals. Equality, they insist, can be measured only in terms of individuals; justice consists of protecting the liberty of each of us to pursue our chosen ends. The only distinctions admissible in this definition are those of merit. Sports metaphors abound: there is a level playing field and may the best man win.
All of this minimizes, when it does not entirely dismiss, the problem that antidiscrimination programs were designed to address: discrimination is not based on individual attributes or performance but on the characteristics said to pertain to individuals because they are members of groups. Discrimination creates imbalances of power that allow members of some groups (historically, white men) to be considered individuals, while others (historically, women and people of color) are identified, whether they choose the identity or not, in terms of the social category to which they are presumed, inescapably, to belong. How to shed the marks (of race or gender) that for so long established the natural inferiority of the persons to whom they attached? How to open the possibility of becoming individuals to those denied that possibility by stereotypical thinking and the exclusionary policies it legitimated?
The difficulty of finding practical answers to these questions explains the strengths and weaknesses of the programs put into place on college campuses—affirmative action, speech codes, and attempts to limit abuses of power that took the form of sexual harassment. By far the most successful of these programs was affirmative action: by insisting on the need to grant access to previously excluded groups, it succeeded in opening the academy to women and African Americans in unprecedented numbers, numbers large enough to begin to challenge stereotypes and make the recognition of individuality possible. Speech and sexual harassment codes have fared less well, partly because university administrators were sometimes overzealous in their enforcement, sacrificing due process for the accused in their desire to protect putative victims, and partly because the moralism and paternalism associated with victim identity politics overrode liberal commitments to freedom of speech.
The excesses associated with the enforcement of speech and sexual harassment codes have furnished conservatives with the anecdotal evidence they need to support a far-reaching backlash, one that aims not simply at correcting abuses, but also at calling into question the entire antidiscrimination effort. “True diversity respects individual differences in addition to cultural or racial differences and embraces the diversity of ideas and ideologies,” writes Donald Alexander Downs in Restoring Free Speech and Liberty on Campus. “As presently conceived . . . the diversity movement focuses too obsessively on what divides citizens and on racial and ethnic proportionality and differences. This understanding of diversity has not always been friendly to intellectual diversity and the pursuit of truth. Its practitioners often classify individuals too exclusively according to such ascriptive categories as race, gender, and sexual orientation, thereby downplaying the freedom to define oneself according to one’s free self-determination.” Downs writes as if “diversity” were an idea dreamed up by leftist and postmodernist reformers and not an attempt to address discrimination (campuses were overwhelmingly white, Christian, and male as late as the 1960s); as if “free self-determination” were possible in the face of discrimination that was based on “such ascriptive categories as race, gender, and sexual orientation”; and as if the “pursuit of truth” had nothing to do with analyzing such social and intellectual phenomena as power and discrimination. These belong to the realm of politics, not “truth,” in his lexicon; truth is “staunchly empirical and free of ideological bias.” And “intellectual diversity” trumps social diversity (as if the two were in contradiction) in his scale of academic values.
Downs offers his book as “a handbook for action.” He wants to encourage alliances of students and faculty to take a stand against the reforms of the 1980s and ’90s (speech codes, anti-harassment policies, sensitivity training) that, he says, sought to enforce not just good behavior, but also ideological orthodoxy on campus. In the name of freedom of thought and the rights of individuals to express their views without fear of retribution, he offers models of heroic action, principles of organization, and strategic advice drawn from case studies at the University of California, Berkeley; Columbia University; and the universities of Pennsylvania and Wisconsin. In each case, although action is initiated by courageous students (often minorities who are appalled by paternalistic condescension) and outraged faculty (including, in one case, a former president of an AAUP chapter) the determining intervention comes from the Foundation for Individual Rights in Education (FIRE), an organization founded in 2000 by history professor Alan Kors and lawyer Harvey Silverglate and devoted to “the protection of civil liberty on campus.” (FIRE’s Guide to Free Speech on Campus is the other book here under review. Both books are part of an effort by libertarian organizations to take over the field of academic freedom. Thus the AAUP is described by Downs as “a group that has retreated from prominence during the battles discussed in this book.” And the American Civil Liberties Union also comes in for dismissive comment: “FIRE has surpassed [the] ACLU on campus liberty issues.”)
Downs praises FIRE because it not only provides legal advice and a guide to constitutional precedent, but also brings to bear on the university the force of outside criticism by appealing directly to the media, alumni, legislators, and others. Downs, like the authors of FIRE’s Guide, is enthusiastic about these outsiders. He writes, “Typically, the outside world and the press value free speech and liberty more than universities these days.” When one thinks of the terrible distortions—almost impossible to correct once they are launched as virulent sound bites—offered “these days” by the tabloid print media (the New York Sun), TV “news” programs (Fox News), and right-wing talk show hosts (Bill O’Reilly, Rush Limbaugh, Sean Hannity), one wonders what kind of free speech Downs has in mind. The willingness to bring enemies of liberty on board in the fight for liberty necessarily gives one pause.
Still, the challenge posed by these books for an AAUP reader is that their critique is not entirely without merit, and the values they endorse—of free speech and open contests about ideas—are ones we share. Moreover, the examples they cite of censorship and harsh treatment of “offenders” whose guilt has never been established are worthy of condemnation. Indeed, the AAUP’s Committee A on Academic Freedom and Tenure has regularly condemned such violations of due process and free speech. There are reasons large and small, however, to be wary of what the books offer. I have mentioned some of these already. The authors have questionable motives and an evident desire to shift the emphasis of the public conversation about higher education to individual merit and the diversity of ideas and away from the importance of opening the university to many different social, economic, and demographic constituencies. For all his endorsement of everyone’s free speech, Downs is far more sensitive to censorship of Jewish students than to discrimination against Palestinians or African Americans. (His characterization of what is clearly an extreme and probably unjustified attack on a professor by students accusing him of all manner of speech code violations as “Mau Mau tactics” contrasts sharply with his careful nods to real problems of harassment and discrimination.) In addition, Downs minimizes or dismisses criticisms of the campaigns against the speech codes he describes, noting that there were objections to their exaggerations of the issues, but not going into much detail about what they were. I am also put off by Downs’s rejection of any analyses of power as “political” and contrary to the proper pursuit of “truth,” as well as by his and FIRE’s willingness to appeal to the forces of anti-intellectualism in the media and elsewhere to change university policies. In the short run, the offending policies may be changed, but in the long run the standing of the university as a bastion of free speech will be undermined. Downs and FIRE will argue that that has already happened because of speech and sexual harassment codes, but I would reply that internal processes are (indeed have been) safer and more effective as a way of achieving the needed changes.
My major worry, though, about this emphasis on individual liberty and freedom of speech is that it over-shadows the importance and meaning of academic freedom. Of course, individual liberty and freedom of speech must apply to faculty and students alike when it comes to invited speakers, political clubs, and other extra-curricular activities. But the classroom is a different kind of arena and neither of these books recognizes that fact. Indeed FIRE’s Guide, while it offers terrific information about the basics of free speech (constitutional rights, legal precedents, Web sites, libel, fighting words versus simple insults), treats academic freedom as merely a rhetorical term, to be invoked by students in association with other rights claims. “As a general rule, . . . academic freedom policies relate to speech in the classroom or to areas of academic study. If you believe that your classroom speech is being stifled or if your scholarly efforts are being suppressed, you immediately should check your student handbook or the university website for an academic freedom policy. Many mistakenly believe that only faculty members, or only tenured faculty are protected strongly by campus academic freedom policies. Since, as noted, the AAUP policies apply to students also, you would do well to assert academic freedom whenever censorship looms.”
The Joint Statement on Rights and Freedoms of Students (which appears in the AAUP’s Policy Documents and Reports) has more qualifications than FIRE’s statement suggests. While the AAUP insists that “students should be free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion,” they are also “responsible for learning the content of any course of study for which they are enrolled.” While students ought to be protected against “prejudiced or capricious academic evalution,” they are also “responsible for maintaining standards of academic performance established for each course in which they are enrolled.” In other words, ultimate judgment about what counts as serious academic work and as legitimate course content rests with the faculty. A student cannot claim violations of his academic freedom if creationism is not taught in his biology course or if Holocaust deniers are not on his history syllabus or if his professor of Middle Eastern studies is critical of Israeli domestic or foreign policy. In the area of individual rights to free speech, faculty and students may be on the same plane, since the First Amendment assumes equality of status in the field of ideas. But in the classroom, academic freedom rests on the notion of faculty expertise, as Yale law professor Robert Post argues in “The Structure of Academic Freedom,” an essay to be published in the forthcoming book Academic Freedom After September 11. It derives from values that attach to the distinctive role of the professional scholar, a member of a self-regulating corporate body whose job it is to certify that expertise. Academic freedom pertains to scholars as professionals, not individuals. It guarantees freedom of research, freedom to determine one’s teaching in the classroom, and freedom from censorship for extramural expression. It carries responsibilities that are enforced by one’s peers. Students do not have this kind of academic freedom and they ought not to be encouraged to believe that they do.
These books are at once useful and disturbing. They are useful as reminders of the importance of free speech and as a corrective to tendencies to minimize or deny it on university campuses. Orthodoxies of any kind are dangerous to the mission of the university, which is to produce new knowledge through critical examination, contested interpretation, and wide exploration. Downs’s book demonstrates the need for action against orthodoxy; FIRE’s Guide offers practical information about how to engage in that action. The books are disturbing, however, because in their exclusive emphasis on individual rights, they occlude the existence of hierarchies—the negative ones that enforced exclusions based on race and gender and that reformers sought to overturn in the name of social justice, and the positive ones, based on the faculty’s professional knowledge and expertise, that define the very meaning of the university. Any understanding of the university’s recent history and any planning for its future must take more than individual rights into account.
Joan Wallach Scott is Harold F. Linder Professor of Social Science at the Institute for Advanced Study. In June, she finished a term as chair of the AAUP’s Committee A on Academic Freedom and Tenure.
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