Administration, Faculty, and the Hard Free-Speech Questions

Learned institutions ought to be the favorite objects with every free people. They throw that light over the public mind which is the best security against crafty and dangerous encroachments on the public liberty. —James Madison, letter to W. T. Barry, August 4, 1822 

James Madison had great faith in the role of higher education in sustaining a representative democracy, as reflected in this famous passage from a letter written after several decades of public life under the structure of government he helped create. Yet at a time when our nation and institutions of higher education alike seem mired in culture wars that pit individuals and groups against one another, it might be tempting to blame Madison and his colleagues for developing a framework full of unresolved and unresolvable tensions. These tensions are especially acute in battles over free speech, and our campuses are among the most visible battlegrounds.

At the institution of higher education named for James Madison, we wrestle with these tensions every day. As a university president (“Jon”) and faculty senate speaker (“Mark”), we are pushed and pulled in many directions by constituents who often have radically different ideas and perspectives. So how can administrators and faculty members work together on the most vexing free-speech questions of our time?

We can begin by reminding ourselves of our common ground and first principles. We share responsibility to provide an environment that is inclusive and conducive to learning. We also share great respect for traditions of academic freedom and vigorous civil discourse, as well as for the important role of facts, evidence, and scholarly expertise. Of course, academic freedom and free speech are related but not identical. Academic freedom is a principle that reflects both rights and responsibilities inherent in the educational mission of colleges and universities, the standards of academic disciplines, and the search for truth. Free speech, as protected by the First Amendment to the Constitution, is an individual right to be free from government constraint on expression of thoughts, ideas, and opinions in society more generally—subject to certain limitations that protect and preserve the rights of others and the society as a whole.

Because James Madison is a public university, we start from a legal foundation in which we must comply with the First Amendment; thus we refer below generally to rights of free speech or expression. Yet the body of case law interpreting the First Amendment does not begin to answer all the hard questions that come our way. In the reflective dialogue that follows, we address some of those hard questions that we regularly face.

Why is free speech important to the mission of colleges and universities?

Mark: Universities exist to achieve certain valuable goals by providing appropriate services. The first goal is to produce educated persons. This is accomplished primarily by teaching. The second goal is to benefit our communities by providing innovation and insight. This is accomplished by advancing research. These basic observations about the purposes of universities render the argument for the importance of free speech at universities relatively straightforward: free speech is important because it is a precondition of educating students and advancing knowledge well. Closed systems of dogmatic indoctrination may result in some education and some advancement of knowledge, but students will be better educated and knowledge will be further advanced in institutions that are committed to free speech: to individuals’ rights to express views within the broad parameters of the law and without restraint or fear of arbitrary censorship. The best students master the material and, more important, develop critical-thinking skills. Educating students to achieve these goals demands a pedagogy that allows students to exchange ideas freely and engage openly with course material. Students must be free to question, call for elaboration, share disparate or even unpopular views, express disagreement, and withhold assent. All of this requires freedom of speech. The reliable advancement of knowledge similarly requires that professors have the freedom to follow their research where it leads, share their theories and concerns, open new channels of learning, and defend controversial views.

Jon: I concur with Mark’s defense of free speech on both philosophical and practical grounds. As a lawyer who spent several years working for the AAUP, I have always been struck by the imagery of the marketplace of ideas and the search for truth. We can’t prepare students to be productive citizens in an increasingly diverse society by shielding them from ideas with which they happen to disagree or that make them uncomfortable. Ideas and viewpoints cannot be tested and refined in a vacuum; they must be subjected to challenges and counterarguments in order to assess their merit.

This is a process that needs to be repeated for every generation. We must remain humble enough to recognize that we don’t have all the answers in any field of inquiry. Thus we must always remain open to debate, criticism, and the constant questioning of assumptions. College and university presidents can and must defend these principles when their institutions come under attack from within or outside the academy, because they are essential to our educational mission.

Are any limitations on free speech appropriate at an institution of higher education?

Jon: None of the rights in the Constitution are unlimited; all of them must be understood within the balancing act of creating a society in which individuals have liberty that exists insofar as it does not trample upon the liberty of others. For this reason, to take an extreme case, you cannot justify physically assaulting a neighbor whose views you despise as a mere act of protected self-expression.

While the Constitution protects a wide range of expression, the case law has long recognized that institutions can use content-neutral time, place, and manner regulations to fulfill their missions. In the case of educational institutions, we need to employ certain “rules of engagement” to create an environment in which all students can participate in meaningful ways, and also in which they have the opportunity to learn the subject matter at hand. Accordingly, academic freedom does not extend to protecting a faculty member’s right to spend an entire semester of a physics course lecturing about her views on pop culture, or to a student’s right to refuse to learn the subject matter in a course on Marxist political philosophy because he disagrees with the underlying assumptions of such thought. Administrators must respect the ability of faculty members to develop their own classroom protocols to further their pedagogical goals so long as they are consistent with the relevant legal principles.

Other limitations are essential to ensure nondiscriminatory learning environments. “Hate speech” in the abstract is not prohibited by the Constitution, but harassment directed at individuals on the basis of race or gender can constitute a form of conduct that may be regulated. These are among the hardest lines to draw legally in higher education, but they are essential for the vitality and effectiveness of inclusive learning environments.

Private colleges and universities are generally not subjected to constitutional limitations, but most such institutions recognize that they, too, need to protect free expression in order to accomplish their missions.

Mark: I strongly agree with the necessity for institutions of higher education to establish rules of engagement of the sort that Jon mentions, both in classroom settings and in relation to the advancement of research. Free speech is unquestionably important to the mission of universities, yet free speech in the context of higher education cannot be chaotic, disorderly, unconstrained license to scream or rant whenever one pleases with no concern for justifying one’s claims (“Shut your mouth! X is right! Y is wrong! Period! Go to hell!”). Such speech might be “free” in a very loose sense, but it is certainly not a reliable way to achieve the goals of higher education. Similarly, vitriolic claims made by professors without evidentiary support might constitute speech that is “free” in a very loose sense, but this is not an effective way to teach critically or advance learning.

Imagine an institution of higher learning where such rules are not in place, where students have no opportunity to engage with the material by speaking their minds about what they are learning, where professors are unable to engage with their subjects by speaking their minds about where their research leads them. Such an institution would be a dead place, where progress in the advancement of knowledge would be stalled, and where students would become shallow drones—perhaps able to regurgitate approved bits of information but unable to think for themselves or adapt to our changing society. This would be poor education indeed—or, perhaps better said, would hardly deserve the name “education.”

I’d like to say a bit more about Jon’s reference to “content-neutral” regulations on speech. Outside of a few narrow legal categories, speech in higher education is not constrained in terms of content. It can be constrained in terms of form. In a classroom setting, this means allowing students to speak their minds, of course, but in a mutually respectful manner that satisfies the demands of careful, critical thinking. Similarly, professors and administrators must be allowed to speak their minds but in a mutually respectful way that satisfies the demands of careful, critical thinking. If administrators and professors are going to do their jobs as effective advocates for the advancement of knowledge, they must not make claims without proper support and method. Just like the insistence on free speech given above, the limitations on free speech appropriate for institutions of higher education are justified by their role in ensuring that the basic goals of higher education are achieved well.

Institutional leaders often talk about the need for “civil discourse,” but constituencies occupying various points on the political spectrum question this concept. Some argue that an emphasis on civility can be used to reinforce the status quo and marginalize the views and involvement of those in our midst who have historically been underrepresented. Others argue that this terminology contributes to the “coddling” of students who assert that they are threatened by speech that offends them. Given these critiques, should civil discourse be an important goal in higher education?

Mark: The notion that free speech leads either to an unjust entrenching of the status quo or to “coddling the snowflakes” is a false dilemma that is grounded in a misunderstanding of the form that free speech must take at universities. Free speech in the context of higher education requires that students and professors are capable of and open to challenging the status quo and, by extension, opening learning to arbitrarily silenced voices. Similarly, where free speech exists in the context of higher education, students will inevitably be faced with new ideas, which will often be the best way to come to grips with opposing viewpoints rather than shutting them out. This may be unsettling for some students, but effective learning and the advancement of knowledge is not secured by closing off viewpoints because of worries that students will be unsettled. Learning to be an effective critical thinker requires coming to terms with opposing points of view.

Professors also have rights of free speech, of course. It follows that if professors wish to provide trigger (or content advisory) warnings prior to sharing course material that may be especially traumatic for some of their students, they certainly can, provided that they share these warnings respectfully and seek to meet the demand for evidentiary support. By the same token, members of the university community are free to object to the content or even the very existence of such warnings.

Jon: We have learned in recent years that the views Mark expresses here are not universally shared by students, parents, or members of the general public. Today’s college students have grown up in a 24-7 media environment in which they are inundated with messages that are not only controversial, but often also hateful, cruel, and not based on facts or evidence. They hear doubts expressed about any such thing as “truth,” and at the same time have learned in their K–12 education not to bully others. It is perhaps not surprising that such students believe that more limitations need to be placed on expression than the Constitution actually permits.

While our policies must reflect constitutional constraints at a public institution, administrators and faculty members need to articulate expectations and norms for how students should engage with us and with each other. We have a responsibility to model what vigorous civil discourse looks like. In a leadership seminar that I coteach, for example, we use team debate as a tool to help students learn how to craft and respond to arguments using research and analysis. We are not doing our job if we fail to help students develop the tools they will need to engage civilly with individuals from diverse backgrounds and viewpoints. In a practical sense, that tool kit includes empathy, resilience, openness to new ideas, patience, humility, and active listening skills.

How should institutions respond if a faculty member teaches, writes, or speaks about controversial views that are deeply offensive to some students or colleagues?

Mark: The leaders of institutions of higher education have their own rights of free speech. They are not obligated to agree with professors’ claims. And they have a right to require that professors be advocates for effective learning and the advancement of knowledge. They are entitled to hold professors accountable for claims that have no evidentiary basis, as these kinds of claims show that the professors, as advocates for knowledge, are not doing their jobs. That said, if evidentiary support is provided, leaders of educational institutions should not censor or punish their faculty for sharing unpopular or even offensive views. History shows us that many views that were unpopular or offensive at one time have come to be viewed as correct. And administrators must not presume that they always have a monopoly on the truth.

Jon: Presidents and other administrators are viewed as representatives of their institutions in many situations, and thus have a special responsibility to be thoughtful about clearly distinguishing their personal views from those of the institution. Having said that, I concur with Mark that administrators do not need to remain silent when faculty members express controversial views— especially when such views might be antithetical to core institutional values such as inclusion. Administrators can disagree strongly with the content of a faculty member’s views while simultaneously protecting and respecting that person’s rights of free expression.

I also believe that administrators should be judicious in their use of the bully pulpit and should choose their battles carefully. University leaders today are relentlessly pushed by some groups and individuals to opine publicly about virtually every controversy in the national, local, or campus news. My own rule of thumb as a president is to focus and speak out on issues and circumstances that have a direct impact on the university and the broader educational mission.

How should administrators and faculty members respond to outside agitators who use campuses to spread controversial or hateful messages?

Jon: As largely open environments that encourage a wide array of discourse, institutions of higher education have become a convenient venue for some individuals outside of academia who want to use our campuses to draw attention to controversial views that many may find deeply offensive. We must not forbid such expression, but we can respond vigorously in ways that reinforce our educational mission. These incidents can become “teachable moments” for us—opportunities to engage our campus communities thoughtfully about the issues raised. Given all the expertise in our midst, we can tap into a wealth of knowledge to create times and spaces for discussion and debate. And, of course, we also have an obligation to provide a safe learning environment for everyone, and thus must retain the ability to focus on campus safety.

Mark: I agree that a commitment to satisfying the goals of higher education requires a commitment to allowing legally protected speech. But administrators and faculty alike must champion the goals of higher education by pressing the university community to think critically and focus on the need for justification in the face of controversial or hateful messages spread by agitators. Legally protected speech must be allowed, but educational leaders, if they wish to do their jobs, must use their rights of free speech to push the demands for respectful discourse and the justification of claims. Students should be allowed to listen to all legally protected points of view, but they should also be encouraged to engage critically with them.

How can administrators and faculty members work together on the curriculum to foster free speech?

Mark: A core focus on critical thinking is absolutely essential, for critical thinking is the skill needed in order to assess claims for coherence and justification. It is the prime skill that distinguishes a person as educated. One of the most important services that university administrations can render is to support critical-thinking courses wholeheartedly.

Administrators and faculty can also work together to develop and disseminate resources that support the establishment and maintenance of a classroom atmosphere of respect and inclusion. Respectful exchange is crucial to achieving the educational mission of a university, so administrators and professors alike should be intentional and persistent in advocating for it and modeling it. The “tool kit” Jon mentioned above is a good example of this.

Jon: As a president, my role in large part is to provide the infrastructure and resources needed to support faculty members in their teaching and scholarship. As our classrooms become ever more diverse, we need to provide tools and training for faculty members who want to use forms of pedagogy that bring out the educational benefits of diversity and that foster genuine debate, analysis, and reflection. Centers of teaching and learning are one such resource that many campuses offer.

How can administrators and faculty members work together on policy and through governance to foster free speech?  

Jon: Effective policy development and governance in higher education are often messy and time-consuming, especially on issues like free speech that engender strong feelings and opinions. When developing policy in this area, we have mutual obligations to keep the lines of communication open, listen respectfully to one another, identify and articulate the underlying educational values that guide our decisions, and search for common ground. In doing so, we can model complex problem-solving for our students.

Mark: Educational policies of all kinds must be clearly and intentionally stated as committed to the goals of education, which require open engagement. Educational leaders must be clear and deliberate in all governing policies in order to show that the organizing goals behind all that they recommend, suggest, support, require, allow, and disallow are in the service of respectful engagement and critical thinking. Additionally, free speech in the context of higher education flourishes best when faculty are given the opportunity to exercise primary responsibility in all matters that pertain to the curriculum and the learning environment of the university.

What has been the impact of social media on free speech in higher education?

Mark: Social media hurt and help, in light of the goals of higher education. They hurt insofar as many of the most popular forms of social media require little or no justification when making claims. They also hurt to the extent that they tend to make communicators disrespectful competitors more than respectful collaborators. Social media can greatly help, however, in three respects: they facilitate easy communication, open up students to new points of view, and serve as material to be critically examined. The mixed impacts of social media show that they should be handled with care, and the near-universal usage of social media underscores the importance of engaging with them properly.

Jon: Amen. Like it or not, we can’t put the social-media genie back in the bottle. Information literacy has become more important than ever in our society, and it’s incumbent upon us to help students learn how to use these tools critically and responsibly.

As the culture wars seem to heat up yet again on our campuses, where can we go from here?

Mark: We should know the law and think in terms of the fundamental goals of education: effective learning and the advancement of knowledge. Everything flows from this. Free speech for the purpose of higher education requires a commitment to respectful exchange and critical thinking, which in turn places demands on those seeking to educate and those seeking to learn. This commitment is neither conservative nor liberal. It is neither religious nor secular. It makes demands on all creeds, views, philosophies, and claims alike. This feature of free speech in higher education shows that it can and should be supported by anyone and everyone who values higher education.

Jon: We can’t assume that everyone who joins our campus communities instantly understands or shares these values, so as educators we need to talk early and often about how and why these values and norms matter in higher education. As we strive to agree on basic rules of engagement, we must also acknowledge and accept that our educational mission by necessity entails a greater tolerance for disagreement and dissent than other environments with different missions. It’s up to administrators and faculty members alike to model our values in how we treat one another, and how we engage on the most difficult topics of our time.  

Jonathan Alger is president of James Madison University and a former member of the AAUP’s legal staff. Mark Piper is associate professor of philosophy and speaker of the faculty senate at JMU.