Brian Leiter makes hash of a recent claim that DEI objectives can sometimes supersede academic freedom

Two days ago I wrote about a misguided article in the Chronicles of Higher Education:  “Sometimes diversity trumps academic freedom” by Stacy Hawkins, vice dean and a professor of law at Rutgers Law School. Dr. Hawkins doesn’t seem to know the law too well, for even I could spot the flaws in her claim that DEI objectives (mostly involving “harmful speech” that subverts DEI objectives) can sometimes override academic freedom. That could happen only rarely, usually when the “academic freedom” wasn’t really “academic freedom” as normally construed or, more often, when the “harmful speech” is speech that’s perfectly allowable under the First Amendment or university regulations.

But Brian Leiter, my colleague in the Law School here, knows the law and academic precedents better than I, and he found Hawkins’s piece even more objectionable, giving me a quote that began “The article is not just ‘troubling,’ it’s legally incompetent.” Now Leiter has written a Chronicle rebuttal of Hawkins’s claims, showing that they’re based on ignorance of freedom of speech, academic freedom, and contract law. It leaves Dr. Hawkins with no leg to stand on (is that ableist?) You can read Leiter’s letter by clicking on the link below:

Here are the first and last paragraphs; there are two in between. Go to the Chronicles (or to Leiter’s own website) to read them:

Rutgers law professor Stacy Hawkins writes that, “The First Amendment, and the principle of academic freedom which emanates from it, is not exempt from the rule that no right is absolute” (“Sometimes Diversity Trumps Academic Freedom,” The Chronicle Review, February 28). The First Amendment protection for academic freedom, however, only applies to faculty at public universities; faculty at private universities typically enjoy a contractual commitment from their university to protect academic freedom pursuant to the AAUP definition. Employers cannot violate contractual rights because they want to pursue other objectives incompatible with them: It is thus false that “academic freedom may sometimes…need to cede to the responsibility academic administrators have to effectuate the institutional commitment to diversity, equity and inclusion.” Academic administrators who take that approach are breaching a contract with their employees. (Many public university faculty, it should be noted, also enjoy contractual protection for academic freedom.)

. . . Professor Hawkins asserts that the AAUP and University of Chicago statements defining academic freedom “were conceived and drafted [when] academe was largely governed by and on behalf of a narrow set of interests (most notably white, male, and Christian).” Many of those involved in conceiving these principles were, in fact, Jews and atheists, but in the litany of mistakes in Professor Hawkins’s essay, this is minor. What is outrageous is the implication that the “interests” served by academic freedom have a race, gender or religion. Academic freedom protects the pursuit of truth within the various scholarly disciplines, as well as the right of faculty to speak as citizens in the public square without professional sanction. It is an equal opportunity principle. Ironically, there is is some evidence that violations of this principle in recent years have affected non-whites and women slightly more often than others, so the groups Professor Hawkins professes an interest in protecting may well be among the first victims of the weakening of academic freedom protections she advocates.

QEDEI