U Chicago law professor: Universities need dedicated units and officers to protect academic freedom and free speech

June 17, 2021 • 9:15 am

We all know that both the Left and the Right impinge on free speech and academic freedom in American colleges and universities. Though the Left does it more often, at least judging by the number of speaker deplatformings and disinvitations, the Right is no stranger to censorship. The latest incident from the Right occurred recently when Nikole Hannah-Jones, known for her founding of the NYT’s 1619 Project, for which she won a Pulitzer Prize, was refused tenure by the Board of Trustees for a position in the journalism school at the University of North Carolina. Her position had already been approved by the journalism school itself, and by the UNC administration, but the Board of Trustees, which has ultimate power, put the kibosh on it. Though I’m no fan of Hannah Jones or the 1619 Project, I think the trustees should have rubber-stamped the decision of the school itself and hired Hannah-Jones. It’s pretty clear they didn’t do so because Hannah-Jones is a controversial figure beloved by the progressive Left.

Incidents on the Left are more numerous, and I often describe them here. Some are summarized by my colleague Tom Ginsburg, a professor of law and political science at the University of Chicago, in a new article at the Chronicle of Higher Education.

The UNC debacle was not an isolated incident, nor is the threat limited to the political right. Consider other recent examples: the University of Oklahoma demanded agreement from faculty and staff members with certain diversity-related statements as a condition of employment; Chapman University faculty members called for the firing of a professor who appeared at the pro-Trump rally in Washington, D.C., that took place hours before the Capitol insurrection; and Central Michigan University ended the contract of a journalism professor who invited members of the Westboro Baptist Church to class. A recent survey by the Center for the Study of Partisanship and Ideology found widespread self-censorship among U.S. academics.

What to do about this? Ginsburg’s article proposes a solution that seems excellent. Read on by clicking on the screenshot.

The issue is a disparity involving colleges having ample resources and programs for promoting DEI (diversity, equity, and inclusion), often with policies that can impinge on freedom of speech and/or academic freedom, but lacking programs and resources to ensure those freedoms themselves. Ginsburg describes this disparity:

In recent years, colleges have devoted significant resources to institutionalizing diversity, inclusion, and equity. These efforts accelerated after the murder of George Floyd, and many colleges are now creating vice president- or vice provost-level positions, leading entire bureaucracies devoted to this effort. As a requirement of federal law, colleges have also developed Title IX bureaucracies, which help to ensure that institutions receiving federal money deal with sexual harassment. Whatever one thinks of the implementation (and the implementation of Title IX in particular has been controversial), it is clear that colleges are serious about these important goals.

In contrast, in most institutions of higher learning, issues of academic freedom or free speech have no designated campus officer. There is no emerging profession devoted to it, no mandatory training programs, no resources for faculty members and students who want to understand what it means. There are no job ads posted for vice presidents for academic freedom. Instead, academic-freedom controversies tend to be left to faculty committees, whose membership turns over regularly, or to ad hoc decisions by provosts and presidents. Among students, questions of freedom of expression are left to deans of students or in some cases to the diversity bureaucracy. Without an institutional base to protect free inquiry, standards are applied in an uneven way. The risk is that administrators will simply give in to the loudest voice in the room, which will, by definition, never be someone whose full-time job is to speak up for academic freedom.

Perhaps Ginsburg was inspired by discussions that many of us have had about the Kalven Report, one of the U of C’s foundational principles. I’ve discussed it here many times; the report is meant to ensure that, with a very few exceptions, neither the University, its administrators, nor its departmental units are permitted to take ideological political, moral, or ideological positions.  (Professors and students themselves, of course, are welcome and encouraged to do so.) The purpose of this policy is to avoid chilling speech and intimidating dissenters that could occur when those who disagree with “official” political or ideological stands become fearful of their standing or treatment by the University.

The Kalven principles were affirmed last fall by our President, Bob Zimmer. Despite that, administrators and departments have been posting many “official” political statements on University websites, most of which clearly violate the University’s own Kalven policy. But it’s hard to get departments to remove them (I think all of those at the previous link are still up), and there is no official mechanism for doing so—and no official ombudsperson, group, or unit devoted to protecting our own principles of free speech. This is important, for it is those principles that the school uses to attract students, and advertises them heavily as an inducement to come here. Without enforcement, though, our famous principles, which include “the Chicago Principles” of free speech (copied by over 55 other schools) are in danger of disappearing.

One solution mentioned by Ginsburg is to give incoming students a unit on freedom of speech and academic freedom, comparable to their units on DEI. But the other is the creation of a formal academic system to ensure freedom of thought. To my knowledge, no university in America has such a system, though nonpartisan organizations like the American Association for University Professors, the Foundation for Individual Rights in Education and the Academic Freedom Alliance will go to bat for faculty and students if their freedom of expression is violated.

As Ginsburg notes, however, such external bodies “are too removed from the front lines to touch the culture of students and faculty members”. So Ginsburg proposes a way to create or strengthen a freedom-of-expression culture in universities and colleges (remember, public ones must adhere to the First Amendment):

Institutionalization of academic freedom could look something like diversity initiatives, and would have the same goal: to advance core values in the culture of colleges. Staff members would serve as a resource for the faculty, develop basic explanations of core concepts for students, collect data, and advise leaders behind the scenes on how to handle controversies when they arise. While the last thing faculty members need is another online training program, there should at least be materials introducing new faculty members and students to the importance of academic freedom. One might imagine orientation programs where participants wrestle with the idea, perhaps role-playing through tough cases; books on free speech could be considered for pre-freshman summer reading; and students should be invited to ruminate on the fate of academics in places like Turkey, Venezuela, and Hungary, where attacks on colleges were a harbinger of broader assaults on democracy.

Indeed, when the controversy about the Kalven Principles arose in the past year, many faculty members were completely unaware of this policy, even though it’s a critical part of our Foundational Principles. But even when departments are informed that they’re putting up statements that violate these Principles, they ignore the critics and leave them up. This has already caused some chilling of speech on campus.

I would go even further than Ginsburg, though. The “institutionalizaton” of freedom of expression and academic freedom should encompass a formal and permanent unit that will adjudicate reported violations by the University itself or by its departments. The decisions should not be left to the University administration, for, as in our case, they’ve let stand several arrant violations of our own principles—for reasons I can guess but don’t know for sure.

If we can have permanent units to deal with and promote DEI, we can surely have permanent units to promote and enforce academic freedom. After all, our principles are already written down; all we need is a way to ensure that they’re followed. This need not involve Pecksniffian “bias reporting,” but certainly can involve dealing with issues like deplatforming, disruption or abrogation of free speech, and, for the faculty, violations of academic freedom.

17 thoughts on “U Chicago law professor: Universities need dedicated units and officers to protect academic freedom and free speech

  1. Aren’t universities themselves permanent units to deal with and promote academic freedom? They have fallen down on their mission. There’s no guarantee that a new watchdog group wouldn’t be staffed by people who see speech as violence or define free speech as speech that doesn’t offend. I think it unlikely that a school which needs a group like this would actually set up and listen to one. What’s needed is for people who run colleges and universities to remember their mission. As for Hannah-Jones at UNC, I don’t know the whole story (does anyone?), but isn’t it possible that the trustees looked at a person whose fame is built on a project that has been deeply criticized by professional historians (and who has shown no ability to accept criticism), and said this isn’t a person to whom we should give tenure, yet? The trustees may be acting as the check that’s needed over popular action against the university’s interests.

    1. I don’t know the facts about the Hannah Jones story. In my department the specific criteria for tenure would include things like X number of publications in peer reviewed journals. But I don’t know what her criteria was. I’ve seen where professors were wrongly denied tenure for what seemed to be political reasons, and I’ve seen where professors were rightly denied tenure at the final stages, even though their department recommended them. I’ve thought there were such cases where departments would recommend someone while knowing they weren’t up to par, and they did so knowing it would be blocked by higher ups who were not her friends and colleagues. It’s less painful that way.
      If she technically passed her units’ criteria then she might be able to appeal. Some appeals are successful.

    2. As for Hannah-Jones at UNC, I don’t know the whole story (does anyone?), but isn’t it possible that the trustees looked at a person whose fame is built on a project that has been deeply criticized by professional historians (and who has shown no ability to accept criticism), and said this isn’t a person to whom we should give tenure, yet?

      In what world is that consistent with the First Amendment Free Speech clause applicable to public universities? Academic freedom applies whether you agree with a professor’s politics or not.

      Here’s an article that sets out the details of the Hannah-Jones/UNC J-School story.

      1. Thanks, Ken. I’ll look at that peace. I wasn’t suggesting they disagreed with her position, but that they found a lack of academic rigor.

  2. … the University of Oklahoma demanded agreement from faculty and staff members with certain diversity-related statements as a condition of employment …

    Shades of the misbegotten loyalty oaths Harry Truman put in place for federal employees during the Cold War, in the early stages of the Second Red Scare. Chrissake, at a university, you’d think they’d at least be familiar with George Santayana’s maxim about those who fail to learn from history.

  3. I see no evidence that creating another office, another bureaucratic body, will solve this problem. Proposing to do so is an understandable reaction, but it is a very unimaginative, almost knee-jerk response. Problem? Create a permanent bureaucratic arm to deal with it. This is one of the universities main jobs! They’re failing at it! How can creating an office inside a university help? It won’t. I would even predict it would make it worse.

    1. This is my reaction as well. It is barely possible that the people in the Freedom office will be more protected from student wokeness than professors.

      It is more likely, once they act for unpopular speech, they will be harassed nonstop and the presidents will cave. The freedom office will soon manned by the illiberal wokerati.

  4. RE: the “denial” of tenure to Nikole Hannah-Jones at the University of North Carolina, Chapel Hill
    Michael Munger (professor of political science at Duke University, Durham, North Carolina):

    there seems to be a misunderstanding of the mundane bureaucratic process of ‘Hurry Up and Wait.’

    UNC was trying to process the appointment–the Knight Chair for Race and Investigative Journalism—in time for a start date in Fall 2021. But the hastily compiled dossier lacked information on undergrad teaching experience and academic publications that some members of the Board of Governors wanted. Because of the time pressure, the UNC Provost made a sensible decision, changing the offer to a five-year fixed-term appointment with the option for reappointment. There was no vote on the tenure case, because the dossier was incomplete

    Unfortunately, the combination of events that—viewed dispassionately—could be explained as well within the normal boundaries of bureaucratic process resulted in inflammatory mischaracterizations. According to most sources, including the once-reliable (including the New York Times). Ms. Nikole-Jones had been “denied tenure.” That’s simply not true. She might have been denied tenure, if her supporters had resubmitted the file, but she might have been voted up. We’ll never know.

    Michael Munger: Nikole Hannah-Jones vs the UNC Board of Governors: Academic Freedom for Whom?
    https://www.econlib.org/library/Columns/y2021/Mungeracademicfreedom.html

    1. Also for possible edification:

      “Hannah-Jones, Hussman, and journalism’s objectivity debate”

      By Paige Masten, a 2021 UNC-CH School of Journalism graduate.

      https://www.charlotteobserver.com/opinion/article251980503.html

      And a response:

      “UNC journalism donor Hussman responds: ‘Our job is to report the news’”

      https://www.charlotteobserver.com/opinion/article252156883.html

      Walter Hussman, Jr. is publisher of the Arkansas Democrat-Gazette.

      (Charlotte Observer will let one access a few times before denying access.)

      I have a problem with Hannah-Jones and the 1619 project but, for the sake of consistency, I’m inclined to think that Hannah-Jones should be given a full professorship with tenure since her predecessors also had that. (Not that I think that all that a candidate needs to recommend her/him.) As it is, she has five years to acquire some significant teaching and research experience to lower the bar to getting tenure.

      That said, I wonder if the UNC journalism faculty would be as keen to confer the same status to Hitch were he still with us, and to John McWhorter. (I look forward to Hannah-Jones debating McWhorter – or maybe Douglas Murray or Andrew Doyle – on the UNC campus and getting deplatformers frothing at the mouth.) Also, may one reasonably anticipate that UNC will soon similarly hire Master’s level-trained STEM types (who have not attained a Ph.D.) with 20 years-plus industry experience in their fields and, if not, why not?

  5. A bureaucracy comparable to the DEI mandarinate designed to protect academic freedom? Why, if this proposal were implemented, professors could actually get away with saying horrible things like: biological sex is real and not a social construct; you cannot be born in the wrong body; Black neighborhoods suffer high crime rates; policemen are not all racist agents of oppression; evolution might apply to the human brain; natural selection is not “equitable”; subjecting Science to ideological criteria has been known to work out badly; and other similar heresies. Surely an auto-da-fé for Professor Ginsburg is already in preparation, based on the harm and offense his proposal could cause, and is already causing simply by being read.

  6. Starting to wonder what exactly most people do at universities all day. I thought that the primary purpose of these massively expensive institutions was the pursuit of academic excellence. Everything else, from sports, clubs, social causes and even moral development should be secondary. Yet, these ancillary activities seem to soak up all of the time, attention, and resources.

    My sense of a modern US university is:
    – a bloated administration, doing very little to support the primary mission of academic excellence
    – students who appropriate way more of their time to social activities than to academics
    – an intellectual monoculture that leans heavily to the left
    – slipping academic standards and a general lack of rigor, at least at the undergrad level
    – a class of comfortable tenured professors, the majority of which are on cruise control (and want to keep it that way)
    – an exploited class of underpaid and overworked adjuncts and grad students who do the real heavy lifting

    In other words, an expensive waste of time for most of the participants. Am I wrong?

  7. The Left is ideologically opposed to freedom of speech…they say so explicitly. That’s because they view freedom of speech as a tool of the oppressor. You’ll never see a university committed to it that’s also committed to Social Justice.

    1. Certainly there are some on the left opposed to freedom of speech, just as there are some on the right opposed to freedom of speech. But what is your justification for the generalisation that the left is ideologically opposed to freedom of speech? Is there some body that speaks for the for all of “the Left” that I haven’t heard of?

      1. Right now, there does seem to be more opposition to free speech on the left than the on the right, though I agree the left is not universally opposed to it.

        But to me the bigger question is, why would anyone on the left oppose free speech? Isn’t the ability to speak your mind, especially in a public forum, a way for the oppressed to fight back against the oppressors? Surely they realize that the “limits on free speech” are always determined by those in power!

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