Whenever a university claims commitment to academic excellence, critical thinking, research productivity, career preparation, innovation, diversity and inclusion or academic freedom, there is a legitimate question about whether these terms are just fashionable slogans or actual campus characteristics. Definitions and measurement are key. Reliable and relevant data are necessary.
For example, if a university claimed devotion to academic excellence, but only had data showing selectivity in admissions, one might have reason to be skeptical about whether the education it actually provided was excellent.
In a similar vein, almost all universities claim to honor academic freedom. After President Trump, without much staff preparation, threatened that federal research funding might be cut off for campuses that violated free speech, a joint letter signed by 12 organizations argued that all higher educational institutions are committed to academic freedom, so there was no need for further federal scrutiny which might endanger institutional autonomy.
This blanket affirmation ignored widely publicized incidences of campus speech disruptions and disinvitations, the creation of safe spaces, trigger warning policies, bias response teams, and several national surveys showing students worried that they could not speak freely.
Obviously the scope and vigor of academic freedom varies by campus. So how can these characteristics be measured and what is their relationship to intellectual diversity?
On public campuses, constitutional speech and due process requirements must be followed regardless of the preferences of local administrators. The Supreme Court has declared:
To impose any straight jacket upon intellectual leaders in our colleges and universities would imperil the future of our nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. That is particularly true in the social sciences where few, if any principles are accepted as absolute.
Keyishian v, Board of Regents, 385 U.S.589, 1967
Yet the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite the contrary. The college classroom, with its surrounding environs, is peculiarly the “marketplace of ideas,’” and we break no new constitutional ground in affirming the Nation’s dedication to safeguarding academic freedom.” (emphasis in the original)
Healy v. James, 408 U.S.169,180 1972
The quality and creative power of student intellectual life to this day remain a measure of a school’s influence and attainment. For the University [of Virginia], by its regulations to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers of the Nation’s intellectual life, its college and university campuses.
Rosenberger v. University of Virginia, 515 U.S. 819,836, 1995
Finally, the Ninth Circuit unanimously agreed in a 2010 case where a faculty member was sanctioned for arguably demeaning Hispanics:
The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most unquieting and orthodoxy is most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment.
This is particularly so on college campuses. Intellectual advancement has traditionally progressed though discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from currents of popular opinion by tradition, geography, tenure and monetary endowments –have historically fostered that exchange. But that role in our society will not survive, if certain points of view may be declared beyond the pale.
Rodriquez v. Maricopa County Community College District, 605 F.3d 703, 9th Circuit, 2010
It is hard to reconcile these judicial declarations with the approval by university counsels and Vice Presidents of various speech codes which forbid students from making any statements perceived as discriminatory by members of a wide variety of groups.
When the new organization Speech First challenged bias response teams tasked with enforcing these codes in 2018, the University of Michigan changed many of its bias response definitions and policies “to ensure their consistency with principles of free speech.” The University of Texas had administrative rules that speech should be reported, if perceived as “offensive, insulting, insensitive, or derogatory” and occurring “in the classroom, on social media, at a party or student organization event.” After another Speech First lawsuit, UT avoided judicial sanction by confessing that its bias response team never actually punished students. Apparently, creating a chilling effect was purpose enough for circumscribing student speech on subjects available to all other American citizens.
Increasingly, academic freedom and due process are values that must be followed by “private institutions.” In 2018, John McAdams, a Marquette University political scientist, won a landmark academic freedom case in the Wisconsin Supreme Court. Bolstered by briefs from the National Association of Scholars and the American Association of University Professors et al., the Court found that, although a private Jesuit university, Marquette’s formal statements about academic freedom created a contractual obligation to respect McAdams’ comments about academic matters. Similarly, federal courts are finding that even private universities are obligated to respect due process in adjudicating Title IX complaints.
Yet, even if schools are legally obligated to defend free speech and due process, important questions remain regarding definitions (Who is covered? Under what circumstances?) and how academic freedom would be measured or evaluated at a given institution. For example:
- Where would a person go to find an operational definition of academic freedom on a campus? Is the academic freedom language just rusting away in some obscure paragraph in the faculty handbook, almost never mentioned in administrative speeches or campus publications?
- Is there any usable history of the campus treatment of academic freedom controversies that have emerged to guide those with dissenting views and future adjudicators?
- Campuses have specific officers responsible for research integrity, investigating Title IX claims, enhancing diversity, and determining athletic eligibility. Who is responsible for protecting academic freedom?
- Are students clearly included in academic freedom affirmations — and, if so, does the policy cover admissions criteria, scholarship, research, and internship decisions? Or does the campus or its units prioritize students who are committed to complex concepts as global citizenship, community engagement or social justice over students with more traditional values?
- If the campus has a policy of diversity and inclusion, as so many do now, what is the definition of diversity beyond racial, ethnic and sexual identifiers? Or does academic freedom also require a commitment to intellectual diversity?
- If a department has faculty with a single ideological orientation can academic freedom flourish?
- Do course syllabi and professorial instructions discuss the value of civility and intellectual diversity? Does the campus have policy of inviting speakers and hosting debates reflecting a variety of viewpoints?
If measurement is the key, then the surveys by Brookings and CATO which show many students are reluctant to express their opinions in class or among peers are important indicators. Unless individual campuses, however, as the Heterodox Academy urges, conduct such surveys and make the outcomes available for public discussion, invigorating the values of academic freedom and intellectual diversity will be difficult.
George R. La Noue is Research Professor of Political Science and Public Policy at the University of Maryland Baltimore County. He taught constitutional law for five decades and is the author of a new book, Silenced Stages: The Loss of Academic Freedom and Campus Policy Debates.