Lessons from a free-speech victory at Cambridge University

September 24, 2021 • 12:00 pm

In December of last year I reported (see also here) about how Cambridge University tried to pass a resolution mandating respect for differing views and “diverse identities” (bolding below is mine). This is just one of three resolutions that were similar:

The University of Cambridge, as a world-leading education and research institution, is fully committed to the principle, and to the promotion, of freedom of speech and expression. The University’s core values are ‘freedom of thought and expression’ and ‘freedom from discrimination’. The University fosters an environment in which all of its staff and students can participate fully in University life, and feel able to question and test received wisdom, and to express new ideas and controversial or unpopular opinions within the law, without fear of disrespect or discrimination. In exercising their right to freedom of expression, the University expects its staff, students and visitors to be respectful of the differing opinions of others, in line with the University’s core value of freedom of expression. The University also expects its staff, students and visitors to be respectful of the diverse identities of others, in line with the University’s core value of freedom from discrimination. While debate and discussion may be robust and challenging, all speakers have a right to be heard when exercising their right to free speech within the law.

As I wrote, I was in good company opposing this resolution (I opposed not the identity part but the opinion part):

Similar restrictions appeared in two other paragraphs of the speech code, and irked writers like Stephen Fry and Nick Cohen, both of whom wrote editorials arguing that “respect” wasn’t the right word. For while one can respect an opponent as a human being to be treated civilly, there is no good reason to be respectful of opinions. Both Fry and Cohen emphasized that the operative word was “tolerance”: one can tolerate both opponents and their opinions—and argue with them if you don’t like the opinions—but you don’t have to give them respect.

And, as I reported, the resolutions were voted down by the University—by margins of between 4:1 and 7:1. This was a victory for tolerance and a defeat for “we must respect all views.” Now Arif Ahmed, a reader in philosophy at Gonville and Caius College at Cambridge, gives a bit of the backstory in a short piece on Spiked (click on screenshot below). And he gives two lessons that are worth trumpeting to all who fight for free speech and against creeping wokeness on campus.

Apparently, the three amendments mandating “respect for others’ opinions” were passed by the College Council, who dismissed the objections of some dons and other university members. This would have become University policy, then, had this not happened:

Many Cambridge dons were concerned about the policy and the threat it posed to academic freedom, though few were willing to say so in public. In any case, the council dismissed the few concerns that were raised in September 2020, without consultation. Rebel academics then had to campaign to force a vote of the whole university.

When that vote finally happened, by secret ballot, the result was a huge defeat for the university authorities: the vast majority voted against the council in the biggest turnout for decades.

The result was in itself evidence of the vast scale of self-censorship on campus. Clearly, concerns about the threats to our freedoms are widely felt, even if they are not widely voiced. And it’s not just a problem in Cambridge. A recent, large survey carried out by the University and College Union found that 35.5 per cent of academics are self-censoring.

I believe the proportion of American students who self-censor is much higher. A 2019 survey by the Heterodox Academy showed that “58.5% of students were somewhat or very reluctant to give their views on at least one of the five controversial topics.”

Self-censorship doesn’t apply with a secret ballot, giving rise to Ahmed’s first lesson. I can’t emphasize how important this is (emphasis is mine):

First, the Cambridge vote illustrated the power of anonymous voting. Academics who wouldn’t publicly voice support for liberal, pro-freedom policies at decision-making meetings might still support them in a secret ballot. If – as the figures suggest – a small and vociferous minority has cowed a liberal but risk-averse majority out of speaking its mind, secret ballots may break this minority’s power. Activist bullies might monopolise what is said out loud at a meeting, but if they can’t see how members vote, they can’t control what members decide. Every time a faculty votes on a change to the syllabus, every time a college votes on whether to invite a speaker, every time a students’ union chooses whether to affiliate to this or that political cause – these questions should be settled not by a show of hands, but by a secret ballot.

This doesn’t apply, however, to the running of student governments, as the students need to know how their representatives vote. That’s why no Congressional votes are secret.

And the second lesson, which we’ve seen at my own University:

Second, it is clear that the senior academics and administrators running most universities are faced with conflicting pressures from students, staff, funding bodies and central government. It is not surprising that in trying to balance these demands, even the most well-meaning vice-chancellors sometimes forget that free speech must be non-negotiable. One possible remedy would be for each university to appoint someone whose job it is never to forget the importance of free speech. Universities should each have their own free-speech officer, whose sole duty is to enforce compliance with the statutory duties on universities to promote free speech. If we cannot stop bureaucracy from growing, we can at least channel its energy in a benign direction.

One example I’ve used on my campus is ex-President Zimmer’s declaration that both the University itself and its academic units, like departments, are prohibited by the University’s Kalven Report from making official political, ideological, or moral statements. The reason is that an official statement in these areas will chill the ability of people like graduate students or untenured professors to oppose its views, much less discuss them. (This policy is of course rare in American colleges—it may be unique!)

Yet, many departments put up those statements on their websites, explicitly violating our own foundational free-speech principles. Despite efforts to have the statements removed (even though I agree with some of them!), they remain up, because, I suppose, there is also pressure on college administrators to not enforce university free-speech policy. I can imagine department heads saying to administrators: “Who are you to tell us what we can and cannot put on our department websites?” Well, the administrators should do exactly that with respect to anything that could chill speech. Conflicting pressures allows the university to explicitly declare these statements inappropriate, but then render the enforcement of that principle toothless. The result is that free speech has waned. No wonder we’ve fallen to #2 in FIRE’s free-speech rankings when we were #1 for so many years.

As Ahmed says, “free speech must be non-negotiable,” even when some parts of a university want to water it down.

h/t: Greg

University of Chicago no longer #1 in free speech rankings

September 21, 2021 • 2:05 pm

For a long time the University of Chicago has been #1 among all rated American colleges and university’s in the free-speech ranking of FIRE (the Foundation for Individual Rights in Education).

I’ve been beefing for over a year about my school’s unwillingness to enforce its own speech rules, though, by allowing departments to make official pronouncements on politics, morality, and ideology—an explicit violation of the Kalven Report. This is one of our foundational principles along with our Principles of Free Expression, which have been adopted by more than fifty enlightened schools. (See my reports on U of C’s violations and about Kalven here.)

Now, and very sadly, the University of Chicago has fallen to second place in Freedom of Speech, behind Claremont-McKenna College in California. Mind you, we still get the approved “green light” overall, and we’re not that far behind Claremont-McKenna (they get 72.7 out of 100 points; we get 70.43), and this is out of 154 ranked schools.

I’m also sure that my beefing had nothing to do with this change, though they may have taken into account Chicago’s violations of Kalven. But it’s always been a selling point for our school to proclaim itself #1 in free speech, as there’s a group of parents and students who—mirabile dictulike that! Perhaps our new President, Paul Alivisatos, a chemist who was executive vice chancellor and provost at UC Berkeley, and who began his term September 1, can pull us back to the top spot.

For your interest, here are the top ten schools for free speech, as well as the bottom ten, who deserve raspberries. (You can see the data by clicking on the school at the link I just gave.)

  1. Claremont-McKenna University
  2. The University of Chicago
  3. University of New Hampshire (Main Campus)
  4. Emory University
  5. Florida State University
  6. Purdue University (Main Campus)
  7. University of Maryland, College Park
  8. University of California, Los Angeles
  9. University of Arizona
  10. The College of William and Mary.

I’m chuffed that I taught at two of these (#2 and #7) and got my undergraduate degree from #10.

Here are the big losers:

WARNING RATING (no number but a bad sign.  Pepperdine University
148. Bates College
149. Rensselaer Polytechnic Institute
WARNING RATING: St Louis University
150. Boston College
151. Wake Forest University
152. Louisiana State University
153. Marquette University
WARNING RATING: Baylor University
154. DePauw University (score: 50.8/100)

Each college’s evaluation also has some student comments; here’s one from the University of Chicago, but it wasn’t my comment as I didn’t teach that year.

“I am religious and in a few science courses Professors have made direct statements claiming that religion is equivalent to fairytales those who believe it are stupid and that science disproves religion. I did not feel as though I could argue with them on this despite my disagreement with their opinion.”
– Class of 2022
To be sure, this sounds dubious to me, as I don’t know anybody at the U of C who would make a statement like that to an undergraduate class. But it is possible. And if it happened, the professor should have kept his/her mouth shut.

White Virginia Tech professor apologizes for her race (and racism) on course syllabus

September 14, 2021 • 9:15 am

(Note: this report comes from a right-wing college-monitoring site and I haven’t been able to verify it.  However, I don’t have reason to doubt it, either. Should I give similar caveats—from the opposite political direction—when citing PBS, the New York Times, and so on?)

This is what the madness on campus has come to: Crystal Duncan Lane, an “instructional faculty member” at Virginia Tech’s Department of Human Development and Family science, apparently handed out her syllabus for a course (I can’t find the exact course, but a student says it was “about disabilities” and the major lists “An Introduction to Disability Studies“, which must be the one).  At any rate, Campus Reform, which has carried many reports that I independently gave on this site, says that Lane’s syllabus included this introduction to the instructor:

I am a Caucasian cisgender female and first-generation college student from Appalachia who is of Scottish, British, and Norwegian heritage. I am married to a cisgender male, and we are middle class. While I did not ‘ask’ for the many privileges in my life: I have benefitted from them and will continue to benefit from them whether I like it or not. This is injustice. I am and will continue to work on a daily basis to be antiracist and confront the innate racism within myself that is the reality and history of white people. I want to be better: Every day. I will transform: Every day. This work terrifies me: Every day. I invite my white students to join me on this journey. And to my students of color: I apologize for the inexcusable horrors within our shared history.

Given that this is a course on disabilities, it’s odd that she doesn’t mention that she’s also privileged by not being disabled (assuming she’s able bodied). But the most disturbing part is the implication that all white people are innately racist. This could have been written by the team of Kendi and DiAngelo.

The worst part is that education is supposed to teach people about things and about how to think and criticize, not propagandize them as Lane has done in her “introduction”. She tells them that she (and all the white students) are participating in a massive “injustice” right now. And really, is it a matter of student interest that she tells them that every day, in every way, she’ll get better and better? This is what the kids call “TMI“.

Yes, we have the written equivalent of a penitente, those Catholics who go around scourging their backs with whips until the blood streams down, all to imitate the Biblical trials of Jesus and to punish themselves for being sinners.

In the article, two students (one gives her name) beef about this statement, one saying this: “It hurts that someone says I was born with ‘innate racism’ because of my skin color. [It] makes me feel like I should hide and worry about everything I say.”

And well she should. The chilling of speech by colleges and professors setting forth what statements are ideologically acceptable on campus and in class severely diminishes the value of education. And we already know it’s widespread. Inside Higher Ed reports the results of a survey from September of last year and gives a disturbing graph:

Sixty percent of students have at one point felt they couldn’t express an opinion on campus because they feared how other students, professors or college administrators would respond, according to a survey report published Tuesday by the Foundation for Individual Rights in Education, or FIRE, a campus civil liberties watchdog group, and RealClearEducation, an online news service. The survey of 19,969 undergraduate students from 55 colleges and universities was administered from April to May by College Pulse, a research company.

Note below that all comfort levels are below 25%.  It’s instructors like Crystal Duncan Lane that create a climate like this.

Matt Taibbi on National Public Radio’s trashing of free speech

September 1, 2021 • 9:15 am

It’s dispiriting to start the day dealing with an NPR piece like this, in which the New York branch produced a nationally-broadcast 50-minute discussion of free speech featuring no defenders of free speech. Instead, we hear from several guests who all advocate (without explicitly saying so) some kind censorship.

The issue, of course, is hate speech, which currently is permitted by the courts with a few carved-out exceptions (speech designed to cause predictable and imminent physical violence, harassment in the workplace, physical threats, and so on). The guests (see below) don’t like just those few exceptions, and think they should be expanded to deal with speech that causes psychological harm (i.e., offense) recognized as equivalent to physical harm. After all, psychological harm does produce physiological reactions. Ergo, they’re the same and should be treated the same under the law.

The discussion includes several mischaracterizations of the First Amendment (see Taibbi’s beef below), including workplace harassment seen as presently permitted free speech, even though it isn’t. And they go through past litigation by the courts the yielded the current construal of the First Amendment, but somehow manage to imply that these litigated cases show that perhaps the First Amendment isn’t so clear cut, and could use some more tweaking. Well, it isn’t clear cut, but I, for one, find the courts’ winnowing pretty damn good, and would be very wary of cutting back further on free speech. That would include prohibiting “hate speech”, which, after all, is some people’s “free speech”.

In the end, one has little idea of how or even whether the guests would alter the First Amendment. I get the sense that they want the amendment reexamined and changed, but they won’t go so far as to say that openly. (After all, it’s altering the Bill of Rights!) Instead, they make noises about “making a better world”, assuming that this will get rid of the speech that Andrew Marantz (the main speaker) finds offensive.  But there will always be bigots, as well as those calling for social change that other people find offensive. So yes, of course we should become less hateful and more empathic, but this show, after all, was about freedom of speech and the First Amendment, not a World of Love. The show is curiously inconclusive, except that you get the impression that all four participants want some kind of censorship. Have a listen to the show below, and see if I’m wrong (click on screenshot) below.

First, though, there’s this blurb on the site from WNYC:

“The right to throw a punch ends at the tip of someone’s nose.” It’s the idea that underlies American liberties — but does it still fit in 2021? We look back at our country’s radical — and radically inconsistent — tradition of free speech. Plus, a prophetic philosopher predicts America 75 years after Trump.

1. Andrew Marantz [@andrewmarantz], author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation — and our guest host for this hour — explains what he sees as the problem with free speech absolutism. Listen.

2. John Powell [@profjohnapowell], law professor at UC Berkeley, P.E. Moskowitz [@_pem_pem], author of The Case Against Free Speech: The First Amendment, Fascism, and the Future of Dissent, and Susan Benesch [@SusanBenesch], Director of the Dangerous Speech Project, on our complicated legal right to speak. Listen.

3. Andrew and Brooke discuss the philosopher Richard Rorty, whose work can teach us much about where the present approach to speech might take us, as a nation. Listen.

Throughout the show you’ll hear free-speech advocates characterized as “free speech absolutists”, although no advocate of the First Amendment, including me, thinks that all speech should be permitted. “Free speech absolutists” should its place beside other misguided pejorative terms like “fundamentalist atheists”.

And although Marantz makes fun of the slippery-slope argument, this is not something to be laughed off. If you start banning speech that offends others, who is to be the censor?  All the good liberals on the show think that The Decider will be another good liberal, but as we know from Trump and his minions, this is not the case. They want to ban speech that many liberals favor, as in the Republican-dominated drive to ban “critical race theory” (CRT) from being taught in schools. But, for example, CRT could simply be construed by teachers as an honest examination of slavery and of the genocide of Native Americans, which kids really do need to learn. Yet the laws being passed by state legislatures might ban even that.

And, as I’ve mentioned—as does Taibbi below—limitations on free speech were used to suppress the civil rights movement in the Fifties and Sixties. This is why it’s dangerous to make the argument that “offensive” or “hate” speech should be banned, restricted, or even attacked. As Taibbi says,

The most important problem of speech regulation, as far as speech advocates have been concerned, has always been the identity of the people setting the rules. If there are going to be limits on speech, someone has to set those limits, which means some group is inherently going to wield extraordinary power over another. Speech rights are a political bulwark against such imbalances, defending the minority not only against government repression but against what Mill called “the tyranny of prevailing opinion.”

This isn’t new; it’s a point that Christopher Hitchens made repeatedly in his defense of free speech.

But I’m jumping the gun. In his latest Substack column, which you can read for free (but do consider subscribing), Matt Taibbi comes down hard on NPR for this disingenuous show. Click on the screenshot below to read his shortish piece:

I’ll give a couple of quotes by Taibbi from this excellent piece, and wind up with a kvetch about how liberals seemingly want make society less liberal, which is what will happen when “offensive” speech gets banned.

What Taibbi says here is absolutely on the mark:

The guests for NPR’s just-released On The Media episode about the dangers of free speech included Andrew Marantz, author of an article called, “Free Speech is Killing Us”; P.E. Moskowitz, author of “The Case Against Free Speech”; Susan Benesch, director of the “Dangerous Speech Project”; and Berkeley professor John Powell, whose contribution was to rip John Stuart Mill’s defense of free speech in On Liberty as “wrong.”

That’s about right for NPR, which for years now has regularly congratulated itself for being a beacon of diversity while expunging every conceivable alternative point of view.

I always liked Brooke Gladstone, but this episode of On The Media was shockingly dishonest. The show was a compendium of every neo-authoritarian argument for speech control one finds on Twitter, beginning with the blanket labeling of censorship critics as “speech absolutists” (most are not) and continuing with shameless revisions of the history of episodes like the ACLU’s mid-seventies defense of Nazi marchers at Skokie, Illinois.

And, like Taibbi, I was stunned by the argument made by Powell about the ACLU defending the Nazi Party’s right to demonstrate in Skokie in 1977. Powell construes the whole thing as a case of psychological harm to Nazis as well as Jews, since had the Nazis been prohibited from marching, they would have been psychologically harmed. Ergo, if you think it’s not ok for Jews to suffer psychological damage by watching Nazis march, it’s also not okay for Nazis to be harmed by prohibiting their marching. That is about as disingenuous as you can get.

Taibbi points out the fatal flaw in this reasoning (his emphasis below):

I was stunned by Marantz and Powell’s take on Brandenburg v. Ohio, our current legal standard for speech, which prevents the government from intervening except in cases of incitement to “imminent lawless action”:

MARANTZ: Neo-Nazi rhetoric about gassing Jews, that might inflict psychological harm on a Holocaust survivor, but as long as there’s no immediate incitement to physical violence, the government considers that protected… The village of Skokie tried to stop the Nazis from marching, but the ACLU took the case to the Supreme Court, and the court upheld the Nazis’ right to march.

POWELL: The speech absolutists try to say, “You can’t regulate speech…” Why? “Well, because it would harm the speaker. It would somehow truncate their expression and their self-determination.” And you say, okay, what’s the harm? “Well, the harm is, a psychological harm.” Wait a minute, I thought you said psychological harms did not count?

This is not remotely accurate as a description of what happened in Skokie. People like eventual ACLU chief Ira Glasser and lawyer David Goldberger had spent much of the sixties fighting for the civil rights movement. The entire justification of these activists and lawyers — Jewish activists and lawyers, incidentally, who despised what neo-Nazi plaintiff Frank Collin stood for — was based not upon a vague notion of preventing “psychological harm,” but on a desire to protect minority rights.

In fighting the battles of the civil rights movement, Glasser, Goldberger and others had repeatedly seen in the South tactics like the ones used by localities in and around Chicago with regard to those neo-Nazis, including such ostensibly “constitutional” ploys like requiring massive insurance bonds of would-be marchers and protesters.

. . . .By the end of the segment, Marantz and Gladstone seemed in cheerful agreement they’d demolished any arguments against “getting away from individual rights and the John Stuart Mill stuff.” They felt it more appropriate to embrace the thinking of a modern philosopher like Marantz favorite Richard Rorty, who believes in “replacing the whole framework” of society, which includes “not doing the individual rights thing anymore.”

It was all a near-perfect distillation of the pretensions of NPR’s current target audience, which clearly feels we’ve reached the blue-state version of the End of History, where all important truths are agreed upon, and there’s no longer need to indulge empty gestures to pluralism like the “marketplace of ideas.”

Indeed, the “progressive” liberal “marketplace of ideas”, like a store in early Soviet Russia, stocks only one brand. That’s why John McWhorter, who wants to introduce another brand into the discourse on race, has been attacked so strongly. There’s a right way and a wrong way to think, and we needn’t even consider the “wrong” way.

Ironically, it’s the Left that’s been the most potent defender of free speech, and now it’s the Left that is oh-so-gently trying to get rid of it. The Right, of course, is far from exculpated on this issue, but if you review the last five years of FIRE’s “disinvitation database”, which chronicles campus attempts to stifle speech or deplatform speakers, a strong majority of the incidents come from the Left.

When NPR starts saying that we need to start hacking away at the First Amendment, or devise a new Constitution without “individual rights”, you know it’s time to cancel your subscription. You can use the money to subscribe to Taibbi’s site ($50/year), where you won’t hear this kind of odious palaver.

h/t: Cate

More histrionic and harmful political statements from university departments

August 10, 2021 • 9:15 am

I recently wrote about an matter involving Anna Krylov, a professor of chemistry at the University of Southern California (USC).  Fed up with the politicization of science, Krylov published a letter in the Journal of Physical Chemistry Letters, which you can read by clicking the screenshot below.

Krylov’s point was to show the similarity between the scientific censorship and “erasure” in the Soviet Russia of her youth with academic censorship of scientists in the West today. I’ll give one quote from her article showing the kind of “erasure” of scientists that Krylov deplores (I’ve omitted the references save for a self-aggrandizing one):

As an example of political censorship and cancel culture, consider a recent viewpoint discussing the centuries-old tradition of attaching names to scientific concepts and discoveries (Archimede’s [sic] Principle, Newton’s Laws of Motion, Schrödinger equation, Curie Law, etc.). The authors call for vigilance in naming discoveries and assert that “basing the name with inclusive priorities may provide a path to a richer, deeper, and more robust understanding of the science and its advancement.” Really? On what empirical grounds is this based? History teaches us the opposite: the outcomes of the merit-based science of liberal, pluralistic societies are vastly superior to those of the ideologically controlled science of the USSR and other totalitarian regimes. The authors call for removing the names of people who “crossed the line” of moral or ethical standards. Examples include Fritz Haber, Peter Debye, and William Shockley, but the list could have been easily extended to include Stark (defended expulsion of Jews from German institutions), Heisenberg (led Germany’s nuclear weapons program), and Schrödinger (had romantic relationships with under-age girls). Indeed, learned societies are now devoting considerable effort to such renaming campaigns—among the most-recent cancellations is the renaming of the Fisher Prize by the Evolution Society, despite well-argued opposition by 10 past presidents and vice-presidents of the society.(20)

For writing her piece in the journal, Krylov of course received considerable pushback, for there are people whose raison d’être is to sniff out any bad things that famous scientists did, and then use that as an excuse to vilify them and remove any honorifics attached to them. (The shabby treatment of Ronald Fisher by the Society for the Study of Evolution is but one example; another is the impending removal of Thomas Henry Huxley’s name from an Institute at Western Washington University).

A while back, Krylov and a large number of her USC colleagues wrote to the USC administration. concerned about the treatment of USC undergraduate Rose Ritch, forced to resign her position as Vice-President of the USC student government because Ritch, a Jew and Zionist, was subject to unrelenting harassment by student anti-Semites who oppose Zionism. The University President deplored the harassment and promised reform. But, as Krylov and colleagues say in a new letter, it never came:

In the wake of the Rose Ritch affair, we have been promised that a series of activities will be implemented to improve our campus climate. We were hoping to see educational activities that aim to combat zionophobia and antisemitism, as well as other forms of hate and discrimination, to reaffirm our commitment to tolerance and inclusion, and to enable discussion of controversial issues in a respectful environment. We are still waiting for concrete actions from the administration.

Now the attacks on Israel are back again, prompting another letter from Krylov and her colleagues.  This new letter was a reaction to a political letter signed by many university departments, programs, and centers concerned with women’s and gender studies, including the Department of Gender and Sexuality Studies of the University of Southern California. Click below to read the latter letter.

The letter above comprises the usual overblown rhetoric and misleading statements about Israel, including the characterization of Israel as an apartheid state, a call for the “right of return” that would destroy Israel, and a call for solidarity of these feminist departments with Palestine, stating that “Palestine is a Feminist Issue.”

Well indeed it is, but not in the way the authors think. The culture of Palestine, unlike that of Israel—except for Orthodox Jews)—is deeply misogynistic, with women oppressed and treated as second-class citizens. It’s ironic, and highlights the blindness of this faction of the Left, that these women believe that supporting Palestine against Israel is a “feminist stand.” How nuts can you get? But so it goes.

Enough palaver; I won’t summarize the letter above because it’s short and you can read it for yourself.

The salient point for Krylov and her colleagues was not that academics were taking a pro-Palestinian and anti-Israeli stand, which is their right, but that entire academic departments and units were speaking as a whole, presumably on behalf of their members. Yet surely not everyone in these many departments throughout the US share the histrionics about Israel. But, if they dissent, what can they do? Their dissenting views are lumped together with the opposite views of their colleagues.  What this does is chill the speech of the dissenters. What grad student, undergraduate student, or untenured professor in these departments would dare take a stand against their department as a whole?

It is this chilling of speech—this promulgating of official ideological, political, and moral views by departments of universities, indeed of universities as a whole—which led the University to issue the Kalven Report in 1967 and deem it one of our “Foundational Principles“. The Kalven Report, named after the committee’s chairman, expressly forbids the University from taking any official stands on political and ideological issues, though of course individual faculty are encouraged to do so. (There were also a few exceptions when the University may take a stand on an issue affecting the educational mission of the University itself.) The reason for the Kalven Report: because taking such stands chills the speech of dissenters and quashes free expression. Here’s a paragraph from the Report:

In October of last year, in response to inquiries from several of us, President Robert Zimmer affirmed that the Kalven Report extended to departments and units of the University. While faculty can take stands and sign their names to them, entire departments are forbidden from doing so for the reasons described above.  Despite that, several departments still have such statements on their websites, and they haven’t yet taken them down (nor does the University seem keen to force them to).

So Krylov and her colleagues, in their letter to the USC administration responding to the feminist calls for solidarity with Israel, promote principles identical to those limned by our Kalven Report: units of universities should not engage in wholesale political grandstanding lest it act to repress free speech: the lifeblood of any good university. The letter by Krylov and colleagues can be seen by clicking the screenshot below.

And here’s the crucial statement, which aligns very well with my University’s own stand. Note as well the misguided criticisms of Israel contained in these “official” statements:

We do not know whether such departmental declarations of political support are legal, but they are certainly unethical. They have nothing to do with freedom of speech of individuals; rather, they fall under compelled speech because they appear to speak on behalf of all members of the department (e.g. faculty, staff, and students), many of whom are untenured or supervised by more senior members and thus not in a position to openly disagree. Most concerning, this signing implies endorsement by USC itself. Thus, we call on USC leadership to publicly rebuke the practice of USC departments (or units) making statements for specific political agendas that have nothing to do with the University’s educational and research missions. The Statement above contains extreme, indeed fabricated, claims that criminalize the very creation of the State of Israel and, by implication, indict all its citizens and supporters, including us. Not doing so, would make USC complicit in comments within the Statement that describe the State of Israel as “settler colonialism”, “ethnonationalist violence”, “ongoing ethnic cleansing”, and “apartheid”. If USC’s implicit support stands, many Jewish students and others who believe in Israel’s right to exist will be reluctant to attend our university.

Do you think that USC will rebuke the posting of official departmental statements about issues having nothing to do with the departments’ educational mission? Will they make the departments take the statements down? I wouldn’t count on it. Even the University of Chicago, in response to repeated pleas by people like me, lets departmental political statements stand at the same time arguing that such statements violate university policy. I suppose it’s one thing to declare a policy, but another to tell a department that they’ve violated it and take “restorative” action.

Nevertheless these statements are examples of compelled speech applying to everybody in the units and departments, even if no individual signatures appear.

In these fraught times, such statements, which often seem to be a form of virtue signaling, aren’t uncommon. Here’s one issued not long ago by nine departments and programs (and some individual faculty) at the University of California at Davis. Like the USC statement, it’s a misguided and politically heated heap of denunciation of Israel and valorization of Palestine (click on the screenshot):

The statement was “updated” by adding a disclaimer at the top: “The statements below are part of our educational mission and reflect the views of the faculty in the department and not official University policy.”

But that’s deeply unclear. Why is demonizing Israel and lauding Palestine (the usual accusations against Israel, like “apartheid state” are pervasive) part of UCD’s “educational mission”? There are, of course, many political statements that could have been made: against Iran, China, North Korea, and so on, but the usual suspect is, of course, Israel. Further, the disclaimer says that the statements “reflect the views of the faculty in the department”.  Well, which faculty? ALL the faculty? Or only some? If the latter, then only the faculty who agreed should have signed, not entire departments and programs.

UCD, like USC, is violating its education mission by chilling speech, by allowing official units to take political and ideological stands (a pretty misguided one in this case) that will brook no dissent. No wonder that more than half of college students, at least in a recent survey, said they felt intimidated from speaking:

A majority—53%—also reported that they often “felt intimidated” in sharing their ideas, opinions or beliefs in class because they were different from those of the professors. A slightly larger majority feared expressing themselves because of differences with classmates.

Even accounting for shy people, that figure is way too high.

As for UC Davis, the administration basically took the coward’s way out, pretending that their refusal to prohibit compelled speech was actually a way of ensuring free speech. How’s this for doublespeak?

A spokesperson for the university told J. [the Jewish News of Northern California] in an email Wednesday that Davis “is committed to ensuring that all persons may exercise their constitutionally protected rights of free expression, speech, assembly and worship, even in instances in which the positions expressed may be viewed by some as controversial and unpopular.”

The spokesperson, Melissa Lutz Blouin, wrote that UC Davis had “consulted with University lawyers and learned that, provided that these statements do not engage in electioneering, including advocating for or against political candidates or ballot measures, these statements do not violate the law.” [JAC: they may not violate the law, but they still act to impede freedom of speech.]

She added that campus leadership is “consulting with campus stakeholders about whether there needs to be more regulation” in the area of “who may speak for a department” and “what may be posted on academic websites.”

The answer, UCD, is YES, there needs to be less promulgation of compelled speech.

I wonder if this politicization of universities is only a temporary phenomenon, and will one day be looked at as a sad overreaction to the George Floyd Era. Or is it here to stay?  Because if it’s here to stay, you can kiss academic freedom of speech—and academic freedom itself—goodbye.

And THAT is harm, however you define it.

Haverford College earns disgrace as FIRE’s “speech code of the month”

July 4, 2021 • 9:30 am

Haverford College, a very ritzy school in the eponymous Pennsylvania town, is one of the wokest (or should I say “most progressive”) schools in America, and not in a good way. Last year I reported how they caved in to ludicrous student demands. Let’s reprise:

On December 5 I described the meltdown happening at ritzy Haverford College (tuition: $57,000 per year, total expenses $76,000 per year) following a police shooting of a black man in nearby Philadelphia. The students went on strike and issued a long series of demands to the College, as outlined in my article and in an informative piece in Quillette by Jonathan Kay.

What was remarkable about the Haverford protests was how readily the administration caved in to the student demands, which comprised the usual laundry list of no punishments for strikers, more money for diversity initiatives, defunding the police, changing the curriculum, the institution of pass-fail grades, the creation of ethnically segregated spaces, and getting rid of the President (he’s now resigned). It seems that the students suddenly discovered the university’s “systemic racism”, which wasn’t a problem before the shooting (see Kay’s article about the harmony that used to reign at Haverford), and used this discovery to try getting everything they wanted.

The response of Haverford administrators, who cringingly abased themselves online, was in strong contrast to the response of nearby Swarthmore College (equally ritzy), whose black President, Valerie Smith, basically told the students to bugger off and stop making anonymous demands instead of engaging in civil discourse.

And, by and large, the Haverford students won. An article at the Haverford Clerk, the College’s independent student newspaper (click on screenshot below) recounts the administration’s surrender and links to a list of the students’ demands and the administration’s item-by-item responses, with the vast majority of those responses being “yes, we will.”

See here for more. Based on the school’s speech-chilling Honor Code, the Foundation for Individual Rights in Education (FIRE) previously rated the school “yellow”, meaning there were restrictions on free speech. Haverford is a private school, and doesn’t have to adhere to the First Amendment, but has an official Academic Freedom policy that guarantees a student’s right to “speak or write freely on any subject.”

It turns out that Haverford doesn’t really abide by that policy. As FIRE discovered, the school also has a new policy whereby “microaggressions” and disrespectful speech are violations of the Honor Code, which puts that Code at odds with school policy. Because of that, FIRE has named Haverford’s policy its “speech code of the month”, and that’s not an honor!

Click on the screenshot to read more, though I’ve summarized the salient stuff below:

Here’s a FIRE video about the new amendment:

Here’s an excerpt from Haverford’s new amendment to its Honor Code, given on the FIRE website:

The prohibition on microaggressions is far clearer in the amended version, with added text bolded:

In particular, we recognize that acts of discrimination, microaggression, and harassment, including, but not limited to, acts of racism, sexism, homophobia, transphobia, classism, ableism, tokenism, cultural insensitivity, discrimination based on citizenship status, discrimination based on religion, and discrimination based on national origin, accent, dialect, or usage of the English language are devoid of respect and therefore, by definition, violate this Code. We understand that these discriminatory acts can take many forms, and smaller acts such as microaggressions are also devoid of respect and thus violate the Code. …

We also recognize that a person’s there are a range of political opinions at Haverford College, are necessarily intertwined with their values and outlook, and thus influence their practices. These practices may violate the Honor Code. As such, Thus, we expect that when expressing or encountering others’ political beliefs, students will must be respectful of community standards as befits adherence to this Code. when expressing political opinions. As the Social Honor Code applies to all of our interactions at Haverford, engagement in political discourse falls within its jurisdiction, and political beliefs may not be used to excuse behavior that violates the Code. If we find that our political beliefs perpetuate discrimination, we are obligated to re-evaluate them as we would any of our beliefs that perpetuate discrimination. . . . 

[C]onfronted students weaponizing the Code’s expectation of respect in order to silence and/or invalidate the experiences of harmed parties—including invalidating experiences of harm by claiming discrimination against a privileged identity (e.g., claims of reverse-racism) or refusing to reflect on their actions—is a violation of the Code. Using one’s political beliefs to justify disrespectful or discriminatory words or actions is also a violation of the Code.

Microaggression is of course is a slippery concept, for not only does Haverford not even give a definition of “microaggression,” but, as FIRE says, “the addition of the language that students ‘must be respectful of community standards when expressing political opinions’ turns the Honor Code into a civility code.”  “Disrespect” and beliefs that “perpetuate discrimination”, are not forms of protected speech under the First Amendment, but are slippery. Is criticism of Israel or Palestine now a microaggression? (Even the words “dirty Jew” should be protected!). What about criticism of Black Lives Matter? The tenets of Islam or Catholicism? As we know, what constitutes “harmful” and “violent” speech has expanded beyond all reason, and Haverford’s code has expanded to include much of what we want to be protected.

Further, the body that adjudicates the school’s Honor Code violations comprises entirely students, and, as FIRE adds, “being brought before a jury of your peers to defend your protected speech is punishment in itself.” In other words, the school allows protected speech to be punished, and violates its own promise of adhering in principle to the First Amendment.

In light of this amendment, FIRE says they’re changing Haverford’s rating, once the changes are on the school’s website, to the worst category for free speech, the dreaded “red-light rating.” I wouldn’t send my kid to a $74,000/year school so they would have their speech monitored and regulated by other students.

In the meantime, at the page above (or click below), you can register a complaint with Haverford by filling in the form that goes to Haverford’s President.

The University of Oklahoma teaches instructors how to make students shut up and swallow an accepted ideology

June 24, 2021 • 9:41 am

This new article from the Foundation for Individual Rights in Education (FIRE) tells a dire tale that is documented with a recording.

On April 14, the University ran a professional development workshop for grad students and instructors dealing with “Anti-Racist Rhetoric & Pedagogies”. In this workshop, the instructors were taught how to make students shut up about certain topics, steer them and bend them to a woke ideology and, most offensively, how to threaten students with lower marks (or reporting to the administration) if they didn’t write the right stuff in their assignments. Click on the screenshot to read (and hear):

Of course it’s not illegal under the First Amendment to prevent students from disrupting classes, nor is it illegal to make them regurgitate material you’ve taught them, even if they don’t accept it. (In my evolution classes here, for instance, I sometimes had some creationist students, but they were graded on their ability to answer questions under the assumption that what I taught them was true. But I never made them accept evolution if they rejected it.)

Here’s the one-hour video of the U of O Zoom session. FIRE has highlighted it with time stamps certain parts that are worrying:

FIRE’s quotes are indented:

The workshop in question trains instructors on how to eliminate disfavored but constitutionally protected expression from the classroom and guide assignments and discussion into preferred areas — all for unambiguously ideological and viewpoint-based reasons. FIRE’s concerns are further compounded by the University of Oklahoma’s brazen and unconstitutional track record of putting individual rights out to pasture.

. . .But it’s not just racism the presenters encourage participants to root out.

One of the workshop leaders, Kelli Pyron Alvarez, explained in the recording how undergraduate students in one of her introductory English courses are “a little bit more emboldened to be racist” (17:17). To combat this, she forbids huge swaths of classroom speech, including “derogatory remarks, critiques, and hate speech,” as well as “white supremacist ideas or sources,” unless the student is using those sources to dismantle racism.

If you are wondering what sources or ideas are off limits because they fall into Pyron Alvarez’s subjective categories of white supremacist sources or “derogatory remarks” — well, she never specifies, so you should be.

Making a mistake can cost you: “If they use any of those things, if any of those come through in their writing or in their comments, I will call them out on it.” (18:20)

And if it happens again, “report them.”

Report them! To whom? Remember, as a state school, the University of Oklahoma must adhere to the principles of the First Amendment, and cannot penalize students for simply believing things that the instructors frown on. But wait! There’s more!

. . . Fairly early in the training, Pyron Alvarez addresses the potential reluctance faculty members might have toward putting a heavy hand on student speech. “One of the fears is that we’re going to get in trouble for this, right?,” she says. “Like we can’t tell students that they can’t say something in class. But we can! And let me tell you how.” (17:45)

Pyron Alvarez’ fellow workshop leader Kasey Woody later goes into some detail on how instructors can “steer” students away from “problematic territory” to accomplish this. (46:01)

“I, in this case, usually look for my students who might be, like, entertaining the idea of listening to a problematic argument. Then I say, ‘we don’t have to listen to that.’” (45:45)

That’s right — even thinking about listening to a disfavored argument is apparently to be discouraged.

Woody later reassures the instructors that they won’t face consequences for censoring students: “You do not need to worry about repercussions at any degree in the university if you are responding to a student who is using problematic language in the classroom.” (49:42)

And who gives them the green light to censor OU students? According to Pyron Alvarez, that permission comes from the highest court in the country.

“The Supreme Court has actually upheld that hate speech, derogatory speech, any of the -isms do not apply in the classroom because they do not foster a productive learning environment. And so, as instructors we can tell our students: ‘no, you do not have the right to say that. Stop talking right now’, right?” (20:05)

Now that is just wrong. The Supreme Court has said that speech on school grounds that causes “material and substantial disruption” of school functions can be punished. But what doesn’t “foster a productive learning environment” now becomes the judgment of the U of O instructors, and “material and substantial disruption” doesn’t seem to be what the OU trainers are addressing here—unless they adhere to the false mantra that “offensive speech is violence.”

Finally,

Some of the responses from workshop participants indicated that they understood how what they were being told to do was out of the ordinary, and expressed reservations about it. One workshop participant asked whether instructors are doing a disservice to their students by censoring certain topics. The participant asked how to identify problematic arguments and whether, for example, a student should be able to examine if the Black Lives Matter movement should refrain from property damage. In response, Pyron Alvarez suggests telling students to “re-adjust” their topic if they’re “bordering” on being offensive. (53:05)

That’s not advice on what arguments might be effective — that’s “advice” on what arguments are politically acceptable.

It goes on, and doesn’t get better. FIRE wrote the University about this, and at first they refused to respond. Finally, yesterday UO Chief Diversity officer Kesha Keith responded, but it was a non-response. Keith asserted that the University “unequivocally values free expression and the diversity of all viewpoints”, but that’s not what the video shows. Keith also says that participation in this session was voluntary, but instructors are required to attend at least two of nine workshops.

On April 8 I reported that when FIRE wanted to see this Zoom session, the U of O stipulated very specific conditions:

The university’s March 23 response — more than four months after our request — said that FIRE would be permitted to view the training materials, but only in person on OU’s campus in Norman, Oklahoma. In other words, in order to view public records, the University of Oklahoma would require a FIRE staff member to fly across the country (FIRE is based in Philadelphia) during a global pandemic. That’s not exactly a transparency-friendly approach to public records, and it all but ensures that public records remain private.

It looks as if the U of O will continue this training—training that is effectively propaganda and also involves lying about student rights.

What can you do about it? At the bottom of the FIRE page is this form, and all you have to do is fill in your name and email address and press “send”, which will send the message at the bottom. I’ve already done that.  Read FIRE’s report, and if you agree that this kind of training  violates the rights of students, fill in the form and click. The only way we can stop the propagandizing of students and the discouragement of “speech” that the instructors don’t like is to speak up!

 

The message that’s automatically send under your name.

I am concerned about the state of free expression and freedom of conscience at the University of Oklahoma. Multiple instructor training sessions indicate that student and faculty individual rights are in jeopardy.

OU is a public institution, obligated to respect student and faculty rights. We call on you to ensure that individual rights are not violated at Oklahoma’s flagship institution.

Demanding ideological uniformity is a violation of students’ constitutional rights.

Supreme Court rules for cheerleader accused of obscene and disruptive speech

June 23, 2021 • 12:30 pm

I’m told by reader Ken that a number of important Supreme Court rulings are coming out today, and this appears to be the first. By an 8-1 vote, with Clarence Thomas dissenting (see full opinion below), the court showed near unanimity in ruling that Brandi Levy, a Pennsylvania high school student, had not violated the First Amendment by sending out a Snapchat message when she was off school grounds. Click to read the NYT story:

Ninth grader Levy, upset that she didn’t make the varsity cheerleading squad, put out a short Snapchat message with her middle finger upraised, saying, “Fuck school;” “Fuck softball;” Fuck cheer”; and “Fuck everything.”  Although, like all Snapchat messages, it disappeared on its own, someone took a screenshot and called it to the school’s attention. The school suspended Levy from cheerleading for a year, arguing that her speech caused “chaos” and disrupted the “teamlike environment.”

Levy sued and won in a federal appeals court on the grounds that her speech was made off school grounds and was therefore protected by the First Amendment. (The Court previously ruled that students could be punished if their speech was on school grounds and caused “material and substantial disruption” of school functions.) According to the NYT article, though, there was divergence among the judges about why her speech remained protected:

Though the Third Circuit was united in ruling for Ms. Levy, the judges disagreed about the rationale. The majority announced a categorical rule barring discipline for off-campus speech that seemed to limit the ability of public schools to address many kinds of disturbing communications by students on social media, including racist threats and cyberbullying.

In a concurring opinion, Judge Thomas L. Ambro wrote that he would have ruled for Ms. Levy on narrower grounds. It would have been enough, he said, to say that her speech was protected by the First Amendment because it did not disrupt school activities. The majority was wrong, he said, to protect all off-campus speech.

The Supreme Court has limited students’ First Amendment rights since the Tinker decision in 1969. In the court’s last major decision on students’ free speech, in 2007, for instance, the court sided with a principal who had suspended a student for displaying a banner that said “Bong Hits 4 Jesus.”

In general, though, I count this as a victory for the First Amendment. There was clearly no violation of free speech by Ms. Levy saying “Fuck softball/school/cheer/everything”.  I’m not sure about whether the Court’s new ruling really would protect off-campus speech that could include “racist threats” and “cyberbullying”, for some examples of those behaviors could constitute harassment in the work(school)place.

Her speech, though, was clearly off campus, and disruptive though some may have seen it, is not subject to the school’s authority.

I wonder if she’ll go back to cheerleading, or will make the varsity squad.

Here’s the 8-1 opinion, with only Clarence Thomas dissenting on the grounds that whether this speech was really “off campus” is unclear. You can download the pdf by clicking on the arrow to the right.

Click to access 20-255_g3bi.pdf

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.

The ACLU unconvincingly denies accusations of “mission creep”

June 10, 2021 • 10:45 am

Three days ago I highlighted a New York Times piece, “Once a bastion of free speech, the A.C.L.U. faces an identity crisis“. (This was a news report, not an op-ed.) It obviously hit home at the ACLU, because on the organization’s website their legal director, David Cole, has written a long piece defending the ACLU against the accusation that it’s undergoing mission creep by moving from defending civil liberties to engaging in social-justice work.

Click on the screenshot to read.

Cole argues strenuously, and gives examples, that the ACLU is still actively engaged in defending civil liberties—often of people or groups despised by the Left, including the NRA, Milo Yiannopoulos, Donald Trump, and so on. He gives a list of five years of civil-rights lawsuits that the ACLU has brought—from 2017 to 2021.

And, as I’ve said before, he’s got a point here: the ACLU is indeed continuing its mission. My point, and the New York Times’s was that it’s diluting its classic mission by engaging in social justice work, which isn’t in itself bad, but because some of that social justice work is not even-handed but one sided in terms of rights. Further, there are many other organizations doing social-justice work, but only the ACLU (and now the Foundation for Individual Rights in Education, or FIRE), has the resources and chops to defend the civil liberties of the despiséd.

In other words, the ACLU is doing what the Southern Poverty Law Center has done: taken its classic mission and, by branching off into questionable social justice activities (damning Maajid Nawaz and Ayaan Hirsi Ali for the SPLC), diluted not just its mission, but also its credibility.

I’ve written at length about the dubious stuff the ACLU is engaged in; and here’s a partial list of posts:

The ACLU backs off defending free speech in favor of promoting social justice

New improved standards proposed for adjudicating sexual misconduct in college; ACLU opposes them for “inappropriately favoring the accused”

The ACLU defends the right of biological men to compete in women’s sports

ACLU continues defending the right of medically untreated men who claim they’re women to compete in women’s sports

ACLU joins lawsuit allowing biological males to compete in women’s sports

My beefs fall into four areas.

First, the ACLU is on the side of diluting the changes in Title IX made by Betsy DeVos to guarantee a fair hearing to college students accused of sexual misconduct. Nearly all these changes brought college hearings closer to court hearings, at least in terms of guaranteeing fairness. As I’ve said, these changes are one of the few positive things accomplished by the Trump administration, and the ACLU should have favored them. Instead, as you see in one piece below, they were characterized as “inappropriately favoring the accused.”  If you read the changes, I suspect you’ll agree that the ACLU should have been in favor of them, not opposed to them.

Second, the ACLU is on a big-time movement to ensure that transgender women can compete on a level playing field (i.e., competing under their gender identity) with men in sports. This is a complex issue (see here for one possible solution), but becomes less complex with the ACLU’s claim that medically untreated transgender women (that is, biological males who have undergone neither surgery nor hormone treatment but claim a female identity) should be able to compete in sports against biological women. This is a very bad call as it’s the equivalent of biological men competing against biological women, and this violates the very reason why we separate men’s and women’s sport. Further, even with medically treated transgender women, there is an issue of fairness to biological women, since transgender women may retain strength, bone density, and muscle mass that gives them an average advantage over biological women. The ACLU’s kneejerk reaction here does not take into account the “rights” of biological women. It is an ideological stand that deviates far from the ACLU’s mission to assure civil rights for all.

Third, in tweets by ACLU branches and attorneys, they have favored censorship of books like Abigail Schrier’s, and accused cops of murder who were, by all reasonable accounts, doing their jobs. How is this fulfilling their mission of extending civil rights to all? (Chase Strangio is the ACLU staff attorney in charges of transgender issues.)

Fourth, as I discussed in a post a while back, the ACLU circulated a document in samizdat that explicitly said that they now have to consider diluting their mission when defending speech involves defending “hate speech”. As I wrote at the time (my words are indented in regular type; the ACLU’s words are indented further and italicized):

The ACLU is committed to the fundamental rights to equality and justice embodied in the Fourteenth Amendment and civil rights laws. See Policies #301-332. We are determined to fight racism in all its forms, whether explicit or implicit, and the deep-rooted institutional biases that continue to reify inequality. We are also firmly committed to fighting bigotry and oppression against other marginalized groups, including women, immigrants, religious groups, LGBT individuals, Native Americans, and people with disabilities. Accordingly, we work to extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights. And the ACLU understands that speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.

Note that they now claim that speech that denigrates groups—including religion!—can “inflict serious harms” and “impede progress toward equality”. Here is the beginning of the slippery slope of “hate speech”. Is criticism of the Vatican, or the excesses of Islam, sufficiently harmful that the ACLU will not defend it? What about religionists who demonstrate for the right of bakers and others not to serve gays?

And remember when the ACLU defended the Klan when it wanted to march through the Jewish suburb of Skokie, Illinois? Well, no more.

We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners.

Yes this document, which was leaked and is now publicly available, is characterized by Cole this way in his post of yesterday:

I led a committee representing a wide range of divergent views within the ACLU in developing guidelines for selecting cases where they present conflicts between values that the ACLU defends. We reaffirmed in that document that “As human rights, these rights extend to all, even to the most repugnant speakers — including white supremacists — and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech.”

At the same time, we acknowledged the costs that can come with that representation, including to other interests and work of the organization, and outlined ways to address and mitigate the costs when we do decide to embark on that representation. That can mean making clear in public statements that we abhor the speakers’ views even as we defend their right to express them, supporting counter-protesters, and investing any attorneys’ fees we obtain in connection with the work to advance the views that the speaker opposed and that we support. Some saw even this document’s acknowledgment of the complexity of such work as an abandonment of principle, but we saw it as an honest effort to confront the challenge of being a multi-issue organization.

Read the document yourself, and see if you think that’s a fair summary. Their “mitigation of costs” completely ignores the implication in the document that they might reject cases that they’d normally take because it involves hate speech that can cause “harm”.

At any rate, there’s also been negative reaction from other quarters to what I saw as a fair report in the NYT (see this piece in The New Republic).  The TNR piece is misguided in the same way the ACLU’s mission creep is misguided: they do not prioritize free speech over hate speech.  You cannot pretend that free speech will never be construed as “hate speech”—it’s nearly always seen that way by the speech opponents.

But thank Ceiling Cat for organizations like FIRE whose principle of promulgating free speech in higher education has not been diluted.

h/t: Ginger K., Enrico