Bobo’s boo-boo: Harvard dean says faculty have no right to criticize University if it could lead to outside intervention in the school’s business

Just when you thought the turmoil at Harvard was over, its briquettes have ignited again, thanks to a big squirt of lighter fluid from Harvard’s Dean of Social Science, Larry Bobo.  Last week, Bobo posted a deeply misguided editorial in the Harvard Crimson, which you can see by clicking the title below. What he calls for is in-house censorship of Harvard faculty, and even sanctions applied to those who nevertheless adhere to First-Amendment-permitted free speech:

Click to read:

Apparently the target at which Bobo’s editorial is aimed is ex-President Larry Summers, who criticized Claudine Gay’s response to the October 7 butchery of Hamas as well as the University’s hamhandedness in dealing with antisemitism. But then Bobo goes on to say that faculty should be muzzled in general, so long as what they say could, down the line, cause “trouble”.

I’ll give a substantial excerpt of Bobo’s screed because it violates canons of academic freedom, academic neutrality, and simple common sense.

Having witnessed the appallingly rough manner in which prominent affiliates, including one former University president, publicly denounced Harvard’s students and present leadership, this first question must be answered: Is it outside the bounds of acceptable professional conduct for a faculty member to excoriate University leadership, faculty, staff, or students with the intent to arouse external intervention into University business? And does the broad publication of such views cross a line into sanctionable violations of professional conduct?

Yes it is and yes it does.

Note that Bobo says that the faculty behavior is “sanctionable”, i.e., faculty could be punished for free speech—for criticizing the University. As for “the intent to arouse external intervention into University business,” that’s both hard to determine and, at any rate, remains free speech. It’s as if professors or other deans cannot bring to the attention of the public bad stuff going on at Harvard.  One possible example is donor Bill Ackman pulling his gifts to Harvard during and after the Claudine Gay affair. That was bad for Harvard, but faculty who publicized Gay’s missteps, which included plagiarism, should certainly NOT be punished.

And remember that, as Dean, Bobo has the ability to affect people’s tenure, promotions, and salaries within his division, as one professor critical of his stand has noted (see below).

Here’s Bobo evincing ignorance of the First Amendment, which Harvard is supposed to adhere to:

Vigorous debate is to be expected and encouraged at any University interested in promoting freedom of expression. But here is the rub: As the events of the past year evidence, sharply critical speech from faculty, prominent ones especially, can attract outside attention that directly impedes the University’s function.

A faculty member’s right to free speech does not amount to a blank check to engage in behaviors that plainly incite external actors — be it the media, alumni, donors, federal agencies, or the government — to intervene in Harvard’s affairs. Along with freedom of expression and the protection of tenure comes a responsibility to exercise good professional judgment and to refrain from conscious action that would seriously harm the University and its independence.

The response to these assertions is simply, “yes: so long as a faculty member’s speech is not prohibited by the First Amendment (and “inciting external actors to intervene in Harvard’s affairs does not count), faculty do have a blank check. Speech prohibited by the First Amendment includes incitement of imminent and predictable violence (no Harvard faculty have done that), and things like defamation, false advertising, harassment, and so on. Absent those kinds of speech, yes, Harvard faculty can say what they want. Bobo needs to understand the First Amendment. He shows further ignorance of the law in this paragraph:

But many faculty at Harvard enjoy an external stature that also opens to them much broader platforms for potential advocacy. Figures such as Raj Chetty ’00, Henry Louis Gates Jr., Jill Lepore, or Steven A. Pinker have well-earned notoriety that reaches far beyond the academy.

Would it simply be an ordinary act of free speech for those faculty to repeatedly denounce the University, its students, fellow faculty, or leadership? The truth is that free speech has limits — it’s why you can’t escape sanction for shouting “fire” in a crowded theater.

Note that Gates, Lepore, Pinker et al. are said to have “well-earned notoriety”—an interesting choice of words! Why not “renown”?

But the “shouting fire in a crowded theater” phrase, which, when used as a ruse, was construed as speech creating immediate and predictable panic and violence, came from a  1919 Supreme Court decision by Oliver Wendell Holmes—in a case in which a man was indicted for urging others to avoid the draft.  In fact, the anti-draft speech, held unlawful by the Court, was partly overturned 5 decades later precisely because it wasn’t “directed to inciting or producing imminent lawless action and [wasn’t] likely to incite or produce such action”

None of Harvard faculty speech, then, violated free speech, though Bobo added one other area in which faculty should shut up:

Following similar logic: Is it acceptable professional conduct for a faculty member to encourage civil disobedience on the part of students that violates University policies? Faculty advocacy for actions clearly identified as in violation of student conduct rules is extremely problematic. Doing so after students have received official notification of a potential serious infraction is not acceptable. Such behavior should have sanctionable limits as well.

. . .Modern student protest appears less and less likely to target major non-University events, businesses, or government bodies. Rather, they’re comfortably situated in the confines of college campuses, directing demands for change at university administrators and boards of directors.

While this certainly draws in media attention, it is flawed. Targeting protest at those charged with a pastoral duty of care for their students and an indirect-at-best relation to the protesters’ core grievance considerably removes these efforts from the inarguably heroic actions of college students who burned draft cards in protest of the Vietnam War, registered black voters in Mississippi or Alabama, sat in at segregated lunch counters, or joined marches for women’s liberation and gay rights.

Even this commitment to instruct students on protest, however, is not without justifiable limits. If we are prepared to sanction our students for a line of action contrary to our codes of conduct, then I believe professors or administrators who encourage and advocate for such actions should also face parallel consequences.

I disagree, as do many others.  Encampments (that’s surely what Bobo’s talking about here) are violations of Harvard’s policies, and some faculty did encourage students in their desire to encamp. But that is simply calling for civil disobedience, not calling for violence and the like.  If faculty promoting encampments is illegal speech, then so were the calls by civil rights leaders for illegal sit-ins, voter registration, and marches.  (Note, “lawless action” implies violence, not “peaceful disobedience of the law”.) I disagree with the politics behind encampments, of course, but I certainly wouldn’t sanction faculty for encouraging that behavior. Such speech may have been unwise, but it was neither illegal nor a violation of Harvard’s speech policy.

Remember, encouraging civil disobedience is legal, while civil disobedience itself is by definition illegal.  As for whether disobedience like encamping is “heroic”, that’s a matter for history to judge, not Harvard.

One more thing: Bobo didn’t emphasize that he was speaking personally rather than as a Dean of the College; in other words, he was not limning official policy. (He later clarified that he spoke personally.) Thus his first op-ed is a violation of institutional neutrality that was likely to chill the speech of people in the social sciences and keep them from criticizing him. In fact, someone of Bobo’s position is best off muzzling himself because the line between personal speech and official speech from administrators is unclear. Even now that he’s clarified that he was speaking as an individual, what faculty member in the social science wouldn’t feel inhibited from encouraging students to commit civil disobedience, or from criticizing the administration in a way that may draw outside attention?

The pushback on Bobo has already begun.  A letter appeared in yesterday’s  Crimson authored by three members of Harvard’s faculty Council on Academic Freedom at Harvard (CAFH), and signed by ten bigwig professors (including Randall Kennedy, The Notorious Steve Pinker, Jeannie Suk Gersen, and others) showing how misguided Bobo’s piece was. Click to read:

They correct a number of Bobo’s mistakes I’ve mentioned above, but here’s an excerpt:

It is downright alarming that such a stunning argument would come from a dean who currently wields power over hundreds of professors — without indicating that he would refrain from implementing his views by punishing the faculty he oversees.

We strongly reject Dean Bobo’s arguments. He does not invoke generally agreed-upon exceptions to the right to free speech, such as inherently verbal crimes like libel, or justifiable restrictions on time, place, and manner. Instead, he references an analogy from former Supreme court Justice Oliver Wendell Holmes, Class of 1861, arguing that shouting fire in a crowded theater is sanctionable.

The analogy is inapplicable for many reasons. Holmes alluded to falsely crying “fire,” whereas the speech that Dean Bobo would sanction is reasoned opinion, not known falsehood. The analogy pertains to a reflexive and predictable mob reaction; faculty opinions may be evaluated and deliberated over time. And the actual legal decision Holmes justified, which convicted people who criticized the draft during World War I, was later effectively overturned in a judgment that limited suppression of speech to incitement of “imminent lawless action.”

Analogies aside, Dean Bobo’s assertion that faculty who criticized Harvard’s leadership should be sanctioned because of an “intent to arouse external intervention” is troubling. He has no grounds for imputing such intent, nor for asserting that outside attention “impedes the University’s function.”

. . . Finally, Dean Bobo is also prepared to sanction those who encourage students to engage in civil disobedience that violates University policies. This, too, is deeply concerning. If a professor or administrator says to student protesters that their actions are legitimate civil disobedience, then such advice — whatever one thinks of its merits — is fully protected by academic freedom. Even encouraging students to break rules must be given wide leeway. Criminal law sets a high bar for charging incitement, solicitation, or aiding and abetting, precisely because of concerns for freedom of speech.

Will this letter itself incite outsiders to withhold money from or write letters about Harvard? If so, Bobo’s first op-ed would call this behavior “sanctionable”. But it isn’t.

The letter, I’m told, will soon appear with many more signers on the CAFH website.

There is a lot of criticism of Bobo’s op-ed at both liberal and conservative venues. I’ll show but two (you can access them by clicking on the headlines); one from a liberal source (the Boston Globe) and the other from a conservative cite (the Wall Street Journal editorial board). I’ll give two paragraphs from each.

One Harvard professor, who works in the social sciences, said, “The suggestion that members of an institution should be punished for criticizing that institution represents an authoritarian mindset, with no place in a university.” The professor requested anonymity to criticize “the dean who determines [my] salary, particularly when the dean is saying that deans have the right to punish faculty who criticize deans.”

In December, Bobo, along with hundreds of other faculty members, signed an open letter urging Harvard leaders “to defend the independence of the university and to resist political pressures that are at odds with Harvard’s commitment to academic freedom.”

The first paragraph shows why Bobo’s op-ed violated institutional neutrality. He’s now clarified that his statement wasn’t “official,” but it’s too late.  I don’t think the chilling effect of Bobo’s threat to punish faculty members can be overcome now that he’s shot off his big bazoo.  I seriously think he should be replaced, for there will always be the suspicion that he’s policing faculty in the social sciences.

The second paragraph is just bizarre, since what Bobo wrote urged direct violatio of academic freedom: the right of professors to engage in whatever academic research and speech that they see fit, so long as it doesn’t violate freedom of speech or University policy (again, Harvard says that it does adhere to a First-Amendment-like freedom of speech).

And the Wall Street Journal (archived here):

An excerpt:

As an institutional matter, Mr. Bobo’s position as a Harvard dean is especially problematic. Harvard President Emeritus Larry Summers notes that the call to censure faculty members’ comments on university affairs is “an obvious intrusion on academic freedom” and worse because of his position. Mr. Bobo “has authority over salaries, setting promotions and resource allocations,” Mr. Summers notes, and until his views are repudiated by university leadership, “academic freedom at Harvard will be in jeopardy.”

The Harvard faculty hasn’t so far embraced Mr. Bobo’s speech notions, and it will be useful if the gaffe encourages them to reread the University of Chicago free-speech principles over summer vacation. But Mr. Bobo’s broadside is a reminder that censors haven’t vanished from the top rungs of America’s supposedly elite universities.

Instead of soothing the turmoil at Harvard, Bobo has exacerbated it by, as the WSJ suggests, urging the Harvard professors censor themselves—or else. This is not going to bring peace at Harvard, and in fact it’s roiled the University, uniting Right and Left against the administration. (Note the plaudits to the University of Chicago.)

Given Bobo’s boo-boo, here are my three suggestions about what Harvard should do:

1.)  Get rid of Bobo as Dean. Seriously.

2.) The rest of the Harvard administration, and the deans of all the divisions, should publicly say that Bobo’s views are not University policy and that the University adheres to Constitutional freedom of speech as well as academic freedom.

3.) Most important, Harvard should adopt the five provisions laid out by The Notorious Steve Pinker in his Boston Globe editorial last December, “A five-point plan to save Harvard from itself.”  Here are two provisions that need to be formally and immediately adopted by Harvard (a short excerpt from Pinker):

Free speech. Universities should adopt a clear and conspicuous policy on academic freedom. It might start with the First Amendment, which binds public universities and which has been refined over the decades with carefully justified exceptions. These include crimes that by their very nature are committed with speech, like extortion, bribery, libel, and threats, together with incitement of imminent lawless action. It also permits restraints on the time, place, and manner of expression. The First Amendment does not entitle someone to blare propaganda from a sound truck in a residential neighborhood at 3 a.m. or to set up a soapbox in the middle of a busy freeway.

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. . . . Institutional neutrality. A university does not need a foreign policy, and it does not need to issue pronouncements on the controversies and events of the day. It is a forum for debate, not a protagonist in debates. When a university takes a public stand, it either puts words in the mouths of faculty and students who can speak for themselves or unfairly pits them against their own employer. It’s even worse when individual departments take positions, because it sets up a conflict of interest with any dissenting students and faculty whose fates they control.

During the turmoil of the last year, Harvard has lost considerable money and, more important, a lot of its reputation. The school is now the butt of jokes. It’s also subject to a federal investigation of whether it failed to stop harassment of Jewish students. Harvard’s entire position as the Best College in America depends on its academic reputation, something that has been severely undermined. Bobo helped continue the undermining. Part of the school’s academic reputation depends, of course, on academic freedom and freedom of speech: two buttresses of truth-seeking.

I used to think that NOTHING could erode Harvard’s reputation, but that doesn’t seem to be true. Applications to the school fell 5% last year as students sought other selective schools whose applications have actually increased, and applications for early admission dropped a whopping 17%,  Yes, Harvard will still be able to get its quota of highly qualified undergraduates, but with declining applications, some of the best ones will simply go elsewhere.