When does DEI supersede academic freedom?

March 1, 2023 • 11:45 am

This article from the new Chronicles of Higher Education (click on screenshot below) is deeply misguided. It argues that academic freedom must sometimes give way to DEI initiatives; the argument is based on a balancing of two “rights” (one of which, DEI initiatives, is arguably not a “right”); conflates a professor’s rights with a professor’s preferences, construes student “rights” largely as “the right to not be offended”; and misunderstands the nature of academic freedom. First, though let’s define academic freedom. This construal, from the University of California at Santa Cruz, is as good as any (definitions vary)

Academic freedom: is the freedom of teachers, students, and academic institutions to pursue knowledge wherever it may lead, without undue or unreasonable interference. At the minimum, academic freedom involves the freedom to engage in the entire range of activities involved in the production of knowledge, including choosing a research focus, determining what to teach in the classroom, presenting research findings to colleagues, and publishing research findings. Still, academic freedom has limits. In the United States, for example, according to the widely recognized “1940 Statement on Academic Freedom and Tenure”, teachers should be careful to avoid controversial matter that is unrelated to the subject. When they speak or write in public, they are free to express their opinions without fear from institutional censorship or discipline, but they should show restraint and clearly indicate that they are not speaking for their institution. Academic tenure protects academic freedom by ensuring that teachers can be fired only for causes such as gross professional incompetence or behavior that evokes condemnation from the academic community itself.

Note that this freedom is already limited by several constraints.  Although I know of no strictures on the freedom to study what a faculty member wants, there are constraints about what one can say in class. You cannot, for example, teach creationism as factual in a biology class. You cannot insult a student or create a climate of harassment in the classroom.  And you have to generally teach as true what is accepted in your field as true, though of course you can offer your opinion, as long as it’s clear that it’s your opinion.

For students the issue of academic freedom is actually the issue of “freedom of speech,” and they are not the same thing. Both faculty and students, at least at publicly funded universities, have full First Amendment rights, but that refers to expression, not research direction. (Most private colleges and universities do claim to adhere to First Amendment standards, and all of them should.) There are limitations on free speech, too; these are well known, having been carved out by the courts over decades and decades. Those limits prohibit repeated personal harassment or threats, speech that promotes imminent and predictable harm, defamation, false advertising, and so on.

But that is not the subject of this article, which is about whether professors are allowed to say things about diversity in the classroom that “harm” students.

The article’s author is Stacy Hawkins, vice dean and a professor of law at Rutgers Law School.

First they argue in the abstract, though it would have helped to start by giving examples of these clashes. Those, however, come later.

From the piece:

Academic administrators, much like judges, need to take seriously the responsibility to weigh the competing interests involved when academic freedom and DEI efforts collide. They must measure the relative harms, evaluate facts and circumstances, and render judgments that elevate the needs of the many over the needs of the few. The First Amendment, and the principle of academic freedom which emanates from it, is not exempt from the rule that no right is absolute. The authors, in fact, acknowledge this need for balance by recognizing that “there is no academic freedom without academic responsibility.”

In particular, academic freedom may sometimes (perhaps also increasingly often) need to cede to the responsibility academic administrators have to effectuate the institutional commitment to diversity, equity, and inclusion. Equally important, academic administrators also have an obligation to protect members of the community from discrimination and harassment on the basis of protected characteristics, including but not limited to race, ethnicity, gender, sexual orientation, and religion. In discharging these responsibilities, some people’s right to express themselves cannot come at the expense of other people’s right to dignity, safety, and equal participation in the academic community. More pointedly, the faculty’s academic freedom cannot always trump student well-being.

The institutional commitment to diversity, equity, and inclusion is not a “right” like the contractual obligations of academic freedom, but a choice. However, bigotry, unequal opportunity, and denial of rights to protected groups are already protected by civil rights law.  As you see by the last two sentences, Hawkins is not talking about two clashing rights but one (academic freedom). The other “right”, of people to be protected against bigotry and unequal opportunity, is already protected, and coexists with academic freedom.  What Hawkins is talking about is a newly confected “right”, but one that does not exist, and what’s she means is not protected by either academic freedom or the First Amendment.

Hawkins argues that this clash of “rights” is new because when the concept of academic freedom was formulated,

. . . academe was largely governed by and on behalf of a narrow set of interests (most notably white, male, and Christian). In this context, the content and the terms of the academic-freedom debate were largely ideological (references to Communism, for instance, were common). Accommodating the presence or needs of other (historically marginalized) groups was neither contemplated by nor reflected in the statements about academic freedom that were developed in these earlier periods. The focus was exclusively on promoting the free exchange of ideas among equals.

But let’s cut to the chase. What are some examples of clashes between academic right and the presumed “rights” of DEI? The latter are never really spelled out, but we can guess them as the right to not be harmed or offended by words”.

Some recent, high-profile examples reveal the nature of these conflicts. Consider, for example, a professor who refused to use a student’s preferred pronouns, or another who repeatedly requested a student use an Anglicized name in class, or another who instructed international students to speak English while on campus. In cases such as these, professors commonly defend their actions as protected, sometimes even well-intentioned, speech. A more common example are the numerous instances when a professor has defended the right to use racial epithets or other content considered highly offensive and demeaning to some students in the classroom. Intentions notwithstanding, the impact of this speech on students matters.

The first two seem to me matters of preference, and may involve academic freedom. I’m not sure that you can be fired for not using a student’s preferred pronouns (though I think Jordan Peterson quit his job in Canada because there it is required).  Asking a student to use an Anglicized name is rude and may constitute personal harassment, which would be a violation of academic freedom. As far as I know, there is no right to ask students to “speak English while on campus”, though it seems proper to request a student to use English when answering or asking questions.

As for racial epithets, you have the right to use them if they are used didactically, as Geof Stone used to do in his class on freedom of speech here at the law school (see below), or on an exam as a hypothetical example of speech that’s offensive (as in the case of Jason Kilborn at the University of Illinois at Chicago Law School). That is, the right to use epithets is protected by academic freedom if the intent is an academic one, but not if the words are meant as pejoratives.  You should not be disciplined for using them that way, but of course a professor, like Geof Stone, may decide that they’re too inflammatory to serve as examples and their use would derail the discourse. But the students have no right not to have them said didactically in the classroom. Note that in the discussion above, Hawkins implies that the “impact” of this speech matters, and it does, but only psychologically. There is no “right” not to not be impacted. In other words, in terms of academic freedom rights, intent matters and impact doesn’t.

Any well meaning professor will, of course, try to avoid insulting students if it can be avoided, but sometimes you cannot help it. Such was the case of the instructor at Hamline University who showed a picture of Muhammad’s face from an old and famous painting. This was done didactically, as part of an art history course, and the instructor issued two trigger warnings before she showed the painting. But it didn’t matter: Muslim students were offended, complained to the administration, and the instructor was fired. (She is since suing the university.) This is exactly the same kind of conflict between “rights” that Hawkins is writing about. Should the DEI “right” (not showing the picture) triumph? No, because there IS no DEI right here.

Re Geof Stone, here’s what happened at Chicago:

Balancing academic freedom with academic responsibility will sometimes require harmful and offensive speech to be condemned, especially when it serves no legitimate educational purpose. Even within the hotbed of academic freedom, Geoffrey Stone, a University of Chicago law professor and an avowed defender of faculty free speech, has recently agreed to forgo use of a racial epithet that he has used in class for many years. The reason? He realized that it was causing real harm to his students (both Black and white), and their harm matters. Also, “things change,” according to Stone.

The word was the “n-word”, used to demonstrate how racial epithets should still constitute free speech. As far as I understand, Geof dropped that example not because he realized that the DEI “right” to use it trumped his academic freedom, but because he realized that it really riled up people and derailed the discussion.  His was a decision based on both civility and pedagogy, but not on adhering to one “right” that trumped his academic freedom. Had he persisted in using that word, he would not have been disciplined by the University.

Hawkins’s whole article seems to me a straw man, because it conflates too many things, construes DEI as producing a “right not to be offended”, and because many of the rights asserted aren’t “DEI rights” but simple civil rights already in force. I’m surprised that the dean of a law school would write some of this, for, as my colleague Brian Leiter, a professor at our law school, argues, Hawkins’s article is legally incoherent. Here’s what he wrote in an email and has given me permission to quote:

The article is not just “troubling,” it’s legally incompetent.  It fails to recognize that for all academics at private universities, but also for most faculty at public universities, academic freedom is a contractual right (not simply a constitutional one as the author writes).  Employers can’t breach contractual rights just because they have other objectives they want to pursue.  And while there are some very narrow exceptions to First Amendment protections, there is no DEI exception ot the First Amendment:  indeed, the U.S. does not even have a “hate speech” exception to the First Amendment.   It would be consistent with academic freedom for Rutgers to investigate what this person [JAC: author Stacy Hawkins] is teaching in the classroom, since these mistakes raise serious questions about her competence.

26 thoughts on “When does DEI supersede academic freedom?

  1. Just to complicate things, the professor who “requested a student use an Anglicized name in class, …” was actually trying to create a more “inclusive” environment.

    The student was a Vietnamese-American whose first name is “Phuc”, which has a pronunciation that might have caused problems.

    We recall the problems caused by a professor referring to the Chinese filler word “nèi ge”, and that was not excused by the fact that he was using a foreign word which merely sounded like an English word.

  2. “(though I think Jordan Peterson quit his job in Canada because there it is required” Jordan Peterson retired for a number of reasons and he is not a Professor Emeritus at U of T. The use of pronouns was certainly his cause celebre and he kept claiming that he could be jailed if he used the wrong pronoun in class. To the best of my knowledge no one has ever been prosecuted under Bill C-16 which included gender identity as a form of discrimination for using the wrong pronoun. One could get into trouble if one deliberately used the wrong pronoun as a way to intimidate or harass a student, trans or otherwise. One could imagine a situation where a professor might seek to provoke a effeminate male student by repeatedly referring to him as her. It’s harassment plain and simple.

    Years ago in the 80’s I took a course at U of T from a professor whose first language was Hungarian and he didn’t learned English until his 30’s. He apologized at the start of the term that he may mix up pronouns as Hungarian has no separate gender pronouns and he still makes mistakes at times. I wish English was like that.

    1. My partner’s first language is Cantonese, which does not distinguish the sex of the referent (in the spoken language), and he sometimes mixes up “he” and “she” in his English – it can get a bit confusing at times but nobody has ever taken offense so far.

    2. Technically you don’t get prosecuted under Bill C-16. The bill, passed into law, amended the Canadian Criminal Code and the Canadian Human Rights Code to recognize gender identity and expression as “protected grounds” for being a member of an “identifiable group” for the purposes of both laws.

      The Criminal Code bans speech that incites breach of the peace against an identifiable group. And it bans speech that is intended to promote hate against an identifiable group when the speech has no reasonable grounds for being believed as true. (It doesn’t have to be true, it only has to be believed on reasonable grounds to be true.) So that became illegal under C-16 to say about trans people as well as the traditional groups.. (In Canada, it is not a crime merely to incite a breach of the peace. It must be incitement against an identifiable group as defined.). These are police matters prosecuted in the criminal courts, with jail terms imposed, and large legal bills for those charged.

      The Canadian Human Rights Code prohibits federally regulated employers and providers of public accommodation from discrimination or harassment based on membership in a protected group. Complaints are heard by human rights tribunals as civil matters. They can’t imprison anyone but they can compel payment of monetary awards to the complainant. This can be a lucrative sideline for the perpetually aggrieved as complainants are nearly always successful against corporate or government entities with deep pockets. They can be a big blow for small businesses.

      An individual is not personally named as the respondent unless the individual is a business entity providing a service to the public, like the cosmeticians who refused to wax a certain woman’s scrotum. The Human Rights Commission acts against the employer who would have to defend the complaint brought against the company owing to the employee’s actions alleged to have violated the Code.

      So Jordan Peterson couldn’t actually have been put in jail for using the wrong pronoun unless for some reason this incited others to beat up the mis-gendered person. A student or member of the university’s staff could complain to the Human Rights Commission that the university as his employer, was perpetraing harassment under the Code by condoning his use of undesired pronouns. The university, not Peterson, would have to defend the complaint and whatever was awarded to the complainant. After that, it would be between the university and Peterson as an HR matter. Conceivably the university could decide to eat the award as a gesture toward its vigorous defence of academic freedom in the face of government over-reach. Or it could find a reason to fire him.

    3. Your example, Mike, of the professor seeking to provoke an effeminate male student by referring to him as ‘her’ is indeed harassment pure and simple. What is not so pure and simple is a situation involving some other similarly effeminate male student who has requested that others use of him the pronoun ‘she’, which some of us find offensively sexist.

  3. Presumably there are professors all around the country who are rethinking what they present, or how they present it, for fear of being hauled before a disciplinary committee. While reading this article, it occurred to me that his cuts both ways. What happens when students start to worry that the professor might be offended by what they write in an essay? Do they fully tackle controversial topics to try and get a good grade? Or do they back off so as not to risk offending the professor? How exactly is that going to work out?

    1. I think about this a lot. I’m a biology professor at a university where all instruction and administration is in English. I study and teach about the evolution of sex and reproduction, including in humans, in a department with many they-them enbies. In that specific context, it seems both false and ridiculous for professional biologists to demand that other professional biologists refer to them using anything other than the usual gendered English pronouns that distinguish females from males. It’s a kind of denialism of reality to do otherwise, and a specific rejection of the shared knowledge all biologists have about human sex and reproduction. Outside of that context, I really don’t care what other people ask to be called (and I’ll be polite about following requests for even the dumbest pronouns like “cake” or “faer”).

      1. I was thinking about the pronoun issue recently. We can resolve the whole thing by thinking about what they are actually for. The function of a pronoun is to act as a proxy for the name of somebody (or some thing). For example:

        “Jeremy wrote a post about pronouns. He put forth his ideas on the subject.”

        The pronouns there are just proxies for “Jeremy”. There’s no reason why they have to convey anything about gender at all. So I think we should do away with gendered pronouns as much as possible and only use them when gender really matters.

        1. But pronouns do need to agree with the number of the antecedent, Jeremy, else fidelity in communication suffers. The well-established use of “they” to indicate vague or indefinite sex or number of the antecedent is not the issue here. Rather, it’s the story: “Jack and his captors emerged from the police van. That’s when they made their attempt to pet their seeing-eye dog. They bit them in the ensuing melee.” This is a mess. Here we don’t care about the sex of the officers, or even about Jack’s. What we want to know is who did what to whom.

          English doesn’t have gender in the grammatical sense. Adjectives, pronouns, and participles don’t “agree” with the noun the way they do in French. Pronouns are just a convenient shorthand to avoid having to repeat the antecedent nouns over and over.

          “Jack and Jill got into an argument. She gave him a piece of her mind.” We know immediately who’s talking. But “Zhe gave zhirm a piece of zxo’s mind,” tells us nothing, even if we all agreed that those made-up pronouns are just unisex versions of the subjective, objective, and possessive. The sentence would be grammatically correct but meaningless. You’d have repeat “Jack” and “Jill” over and over to keep the story straight.

          Now, granted, if two men, two women, or two inanimate objects are interacting, then the pronouns as proxies don’t work. This is a well-documented difficulty for writers of homosexual erotica. But wherever we can, we should exploit the wonderful shorthand that English gives us for no reasons other than brevity, clarity, and vividness.

  4. Stacy Hawkins sounds more like an administrator crusading for more DEI junk than vice dean and a professor of law at Rutgers Law School.

    If universities want to prevent becoming jokes, they need to find a way to push back against students who claim to be “harmed” by the exercise of academic freedom. Students aren’t customers; they’re at university to learn and have their outlook broadened, even if that means challenging it.

  5. Shawnee State University in Ohio cost itself $400k last year in a settlement after a US appeals court panel ruled that the school had violated both the Free Speech and the Free Exercise Clauses of the First Amendment when it disciplined a professor for refusing to use a student’s chosen pronouns. The university adamantly denies that they deprived him of any such thing, because, well, their policy “protects students”.

    The new math: University policy > First Amendment



    1. “The university adamantly denies that they deprived him of any such thing, because, well, their policy ‘protects students’.”

      Kinda sounds like one of the arguments I heard Justice Sotomayor make yesterday in the case regarding student loan forgiveness. It basically boiled down to “well, I think it’s a good thing to do!” I shouted at my TV, “that’s not a legal argument!”

  6. A more common example are the numerous instances when a professor has defended the right to use racial epithets or other content considered highly offensive and demeaning to some students in the classroom. Intentions notwithstanding, the impact of this speech on students matters.

    Okay, let’s agree for the sake of argument that there are black students who are unavoidably triggered by the n-word regardless of intent, context, reference, situation, and whether it’s used didactically or not. Their genuine distress whenever they hear this word creates a moral obligation on the part of others to eliminate all instances where this word might be used, and these individuals might be exposed to it.

    Why is nobody going after rap music? Or hip hop? There are songs which throw out the n-word with what could be called alarming regularity, all playable and often played in public contexts where sensitive black students might hear them

    Ah, but that’s different, of course. The situation of who is using this word and how and why they’re using it is obviously taken into consideration by these students and no offense is therefore taken. They can discern the difference between different ways the n-word can be used and aren’t triggered.

    Which means my hypothetical group of students doesn’t exist.

    1. A few years ago in the UK a teenager was convicted in court after having quoted rap lyrics on Instagram (using the -ga ending not the -ger ending). [link]

      At the same time, the BBC was regularly broadcasting the very same rap song, complete with its lyrics, on its radio channels.

  7. In regard to Professor Brian Leiter’s doubt about Stacy Hawkins’ competence to teach law, one has to bear in mind Hawkins’ special status, to wit:
    “Principal Stacy Hawkins, Esq. Jan 2008 – Present 15 years 3 months
    Philadelphia, PA Diversity & Employment Practices Consultant”

    In short, Stacy Hawkins is a professional Diversity Consultant. This status confers infallibility, and supercedes any question of competence in specific realms of knowledge. Questioning this status violates the DEI principles that all academics must affirm in their Diversity Statements. Anywhere but the University of Chicago, Professor Leiter himself would be investigated for doing the harm of raising such a question.

  8. “However, bigotry, unequal opportunity, and denial of rights to protected groups are already protected by civil rights law. As you see by the last two sentences, Hawkins is not talking about two clashing rights but one (academic freedom). The other “right”, of people to be protected against bigotry and unequal opportunity, is already protected, and coexists with academic freedom.”

    I’d go further: the author is arguing that schools should have the right to discriminate against people based on skin color, religion, and insufficient commitment to a very specific political ideology. These are not yet rights fully enshrined in law (I say “fully” because they are already partially so, through “affirmative action”), but they may very well be in the near future, if the woke get their way.

  9. One of the reasons these arguments are so squishy and infuriating is that they constantly pull switches.

    She says: “an obligation to protect members of the community from discrimination and harassment on the basis of protected characteristics, including but not limited to race, ethnicity, gender, sexual orientation, and religion” [all protected by civil rights law] and then immediately sashays into “people’s right to express themselves cannot come at the expense of other people’s right to dignity, safety, and equal participation in the academic community.”

    In other words, you can’t say words I don’t like.

    I am flabbergasted by the implications of this kind of essay: If a university isn’t a place to have your preconceived views challenged and by confronted by uncomfortable subject matter, what the hell is it good for? Why not just hand out diplomas that say “Yeah, what you already knew if good enough! Bachelor of Self Indulgence granted.”

    And if students only want their preconceived notions affirmed and will try to get faculty fired for teaching something else, why bother attending? You already know everything you think you need to know. Clever you! Save all that time and money!

  10. Does academic freedom actually apply to teachers? Primary and secondary school teachers are not generally engaged in the production of new knowledge, so what would it be for?

    1. Academic freedom also includes the freedom to teach as one sees fit. (Within certain disciplinary limitations). So even an elementary school teacher could decide whether to use a group assignment or an individual assignment, etc., I guess.

  11. I am confused—much of the discussion about academic freedom seems to be actually about freedom of speech. Are these not two separate things? I assumed, not being an academic, that academic freedom meant the freedom to conduct what research you like, within ethical limits, and to publish the results. Yes, publication is a form of speech, but this still doesn’t mean that tenure allows you go around saying anything the rest of us untenured peasants are forbidden to say, does it? I don’t see what that has to do with demanding anglicized forenames etc. Purely as a matter of manners, ones addresses people as they prefer, and class discussions and questions should be in the language in which the class is taught.

  12. Hawkins gets the genealogy of academic freedom wrong in an interesting way: it was atheists, Jews, political and religious nonconformists (such as pacifists) who drove the development of academic freedom as a defense against the hegemonic Christian culture. It was, in fact, developed by people who *at the time* were “historically marginalized” in universities (which had developed out of Christian monasticism). How exactly could her historical narrative account for why the “Universities Test Act of 1871” was even needed in England? Does she have any knowledge of the Freethinkers who wanted to escape the domination of religious authority and tradition in an academic setting?

Leave a Reply