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How does political intervention shape the landscape of higher education?

Episode Transcript

John Tomasi: Keith Whittington, welcome to Heterodox Out Loud.

Keith Whittington: Thank you.

John Tomasi: It's really a pleasure to have you here. We're going to be talking about your new book, You Can't Teach That, The Battle Over University Classrooms, which came out this spring, I think. You are the David Boies Professor of Law at Yale Law School, and you're the director of the new Center for Academic Freedom and Free Speech at Yale. Congratulations on both those honors.

Keith Whittington: Thank you very much.

John Tomasi: And you taught at Princeton for many years. That's where you and I first met, I think. Would you mind just telling our audience a little bit about your path to where you are today? I don't just mean the path on the Acela from Princeton to New Haven. I mean, if you would be willing just to share a bit about how did you come to be a professor? Were you born writing books in the crib? Tell us about your story.

Keith Whittington: So, I sort of backed into being a professor and didn't know what I was signing up for. So, I figured most of my career has been sort of not really knowing what I'm getting into. And so, that's been crucial to everything I've ever done is not really knowing what I was signing up for.

John Tomasi: So, where'd you grow up?

Keith Whittington: I grew up in Katy, Texas, mostly, which is, at the time, a little farming town west of Houston, and is now basically a suburb of Houston. And I went to the University of Texas as an undergraduate. And it was there that, very late in the day, that I started thinking about potentially becoming a professor, primarily for two reasons. One is, I have a bunch of educators in my family, and I am pretty confident that my application in graduate school included a discussion of how, well, you know, my mom was a second-grade teacher, and my aunt was a fifth-grade teacher. And so, it's just natural that I would become a professor. And I'm sure that was the winning essay that the admissions committee was really looking for. In hindsight, that seems like probably the wrong pitch to have been making, but it seemed like the right pitch to me at the time, because what did I know? And so, it was true that I had teachers in my family, and so it just seemed like a natural thing to be thinking about education, and it just seemed like an extension of that. And the other thing is, I had the opportunity to write a senior thesis when I was at Texas. They had a handful of people who wrote honors theses as undergraduates. I went to grad school primarily interested in political theory and interested in American political thought, and had not much interest in empirical American politics as such. I had never taken constitutional law, didn't really have interest in common law as such. But through my interest in American political thought, I had a lot of interest in American constitutionalism. So, I'd read a lot of Daniel Webster and John Calhoun, which seemed kind of similar. And then, it turns out, I got to Yale, and there were all these people in the political science department who both did political theory and did American politics and talked to one another. The American politics group was very interested in historical American political work. American political development. And what is known within the disciplines of American political development, it was a hotbed of that, which I had no idea when I arrived there. Didn't know what American political development was, but also didn't know Yale specialized in it. And so, suddenly, I found myself in some American politics classes and talking about American political history. And I said, well, I didn't know this is what you could do in the political science department. Isn't this fascinating? So, I wound up in these long conversations in the middle of seminars about Jacksonian terror policy and the like, which I found fascinating. My professor found fascinating. I'm not sure the other students found fascinating.

John Tomasi: So, there are so many things that you and I could talk about in this hour. We could talk about the Academic Freedom Alliance. Which, were you the founding, were you the founder or the co-founder?

Keith Whittington: So, I was certainly among the founding members and organizers.

John Tomasi: Just say briefly what it is for our listeners.

Keith Whittington: Yes. So, the Academic Freedom Alliance is still a relatively new group composed of faculty concerned with defending academic freedom principles in academia. And we were particularly trying to organize to defend individual professors who found themselves in speech controversies of various sorts. And come to their aid in those controversies and help them navigate and defend themselves in those situations. You know, I think bad news is we've been much busier than I would have preferred. And the good news is, I think, is that we've been reasonably successful in a lot of those cases of actually coming to pretty good outcomes. And so, that's been reassuring. But it's terribly unfortunate. I think a lot of these cases could have been handled much more quickly. They could have been resolved much more quickly if universities, I think, really appreciated the principles they were committed to, understood their own policies, and were better set up to try to resolve these controversies in a manner consistent with their policies in an expeditious way. Instead, we've encountered lots of situations where professors are being suspended, they're subjected to these very long investigations, where the outcomes seem very uncertain, especially from the professors. The professor is extraordinarily stressed out for a year, for example. More and more. And then, at the end, the outcome is what I would have hoped would be true at the very beginning. I've said, you should have been able to look at this within days of the controversy and resolve this. And instead, we've gone through this six-month, eight-month, 12-month investigation. The universities have hired outside counsel to do it, so it's extremely expensive for the university. It would be expensive for the professor if they hired their own counsel. Instead, we've been able to provide counsel to people. So it's very unfortunate. I think an organization like that was necessary. But I think we've been able to do some very good work, and I've been very proud of them. And it's been eye-opening to me about the range of problems in the university environment. And it's led me down the road to sort of try to understand and act on academic freedom principles to a much greater depth than I previously would have been doing. The other thing worth mentioning about the AFA that I think is terribly important about how it was organized is we wanted it to be a faculty-driven organization, which it is. And we wanted it to be a cross-ideological organization. So we were very self-conscious in trying to put the thing together in the first place to make sure we had faculty from both the left and the right at the very beginnings as we were putting it together. And we wanted to bring in people who understood and were committed to the broad principle that we're going to defend people's speech rights no matter how much we might disagree with the substance of their speech. That if they are saying and doing things that are within the bounds of what they have the rights to say and do, it doesn't matter how much we might disagree with the substance of what they're saying. The question is, do they have the right to say?

John Tomasi: Let me say a bit about the context of that, which is also the context for your book. And again, the book is You Can't Teach That. So, you know, as you know, the trust in universities has been declining dramatically. There are Gallup polls showing just incredible drop we can talk a bit about if you like. But there's a long history now of criticism of universities, tenured radicals, the idea of political correctness on campus. I mean, this stuff may have begun with God and Man at Yale by William Buckley in 1951. Right, right. So, you know, that's 70 years of pretty sustained critiques on the university. But something that we're tracking with great interest, it seems to be something we think might be new, but I want to hear your take on this. The role of legislatures in controlling classrooms. We've had a lot of criticisms of universities. We've had declining trust in universities, especially on the political right.

Keith Whittington: Yeah.

John Tomasi: And now we have legislatures getting involved, state and national.

Keith Whittington: Right.

John Tomasi: There's a Stop Woke Act in Florida.

Keith Whittington: Right, right.

John Tomasi: There's the recently passed through the House End Woke Higher Education Act, which is now before the Senate. Do you want to say a little bit about the Stop Woke? We're going to talk about your book in particular. I want to talk about some of the history. But is this moment a unique moment? What do you think about this? Is this legislative, is the rise of legislative interventions the beginning of something new? A new era?

Keith Whittington: I do think it's new. It's different. So it's not the first time we've seen political attacks on universities, to be sure. And one thing the book's tried to walk through and remind us of is...

John Tomasi: I'm sorry. I just want to say, you used the word attacks. We're going to be talking about reforms, some would say.

Keith Whittington: And some of them are, I think, reasonably regarded as reforms. And so some look more like attacks, some look more like reforms. Maybe not always reforms that I think are as well-designed as one might like. But I think they are genuinely reforms in the sense that they're trying to improve higher education from a certain perspective. And they are grappling with certain substantive changes. Others, I think, are trickier to even characterize as reforms. And I think the Stop Woke Act is an example of that, or at least a crucial component of it. This is the Florida Act. The Florida Act passed not too long after the end of Donald Trump's presidency and built on an executive order that Donald Trump had near the very end of his presidency, aimed at what was characterized in the executive order as divisive concepts. So the particular focus there was on federal workplace training programs that incorporated, some would argue, aspects of critical race theory, but sort of this more general sort of body of scholarship, but also things being built way outside of academia. Ideas, ideas, ideas about microaggressions, for example, and the possibility of offending people inadvertently through language. And some of these workplace training things are very much concerned with what kind of language you're using in the workplace, you're accidentally offending your colleagues and the like. But the more extreme versions of that that are becoming increasingly prominent and moreover getting a lot of attention, we're making arguments like expecting people to show up on time at work is an example of white supremacy and should be rooted out of universities. If you expect people to show up on time at work, if you expect people to show up on time at work, you are a white supremacist and you should stop that. And unsurprisingly, people did not like being subjected to that regarding the ideas that were contained in that is often quite wrongheaded and even in many cases racist itself. And as a consequence, I think there was a real serious movement around the end of Donald Trump's presidency, around these things more broadly. And President Trump tried to address that in part then through an executive order saying federal workplace training should exclude these kinds of ideas. And he had sort of a list of specific ideas that ought to be excluded from workplace training. That became the foundation stone then for a state legislature to do versions of that as well, including Florida, which, among other things, said we can't do this in state government workplace training either. But then gradually expanding it to other contexts, including university classrooms. And so the Stop Woke Act is sort of several generations down from that initial starting point, but really designed to say that some of those same ideas we're trying to exclude out of being advocated in the context of workplace training also should not be advocated in state university classrooms. And there's a specific list then contained in the legislation. From that, the next step is then to ask, will the First Amendment, and this would be our big topic today, does the First Amendment, what does the First Amendment allow in terms of censorship or structuring or directing of speech within what public university classrooms, within classrooms more generally? So you can imagine sort of a set of potential applications of this.

John Tomasi: That's a policy concern, right? So you don't like Robin DiAngelo and what she's pitching, or you don't like Ibram Kendi and what he's pitching. And you're a politician and you're thinking about, what are the various ways I could try to reduce their influence in the public sphere?

Keith Whittington: And one answer is, well, they are influencing all kinds of government workplace training sessions. That's an easy call, as the government can say, we're not doing that anymore. No more Ibram Kendi and DiAngelo in our government workplace training.

John Tomasi: And Biden reversed that, by the way, I think. Didn't Biden reverse that when he came in?

Keith Whittington: And Biden totally reversed that. As usually is the case, right?

John Tomasi: And he kind of shows that they can.

Keith Whittington: No, absolutely. So as usually is the case, Biden repeals a bunch of Trump executive orders, and this is among them, and so allows that possibility again. So the next sort of natural step, you might think, is, well, okay, we don't like them in government workplaces. Maybe we also don't like them in private workplaces, so can we ban that? Well, now you have serious First Amendment problems because, of course, private companies have their own right to say, no, no, we want Ibram Kendi and Robin DiAngelo in our workplaces as part of this workplace training. And you shouldn't prohibit those ideas here. And some states try to, and they ran into some First Amendment problems in trying to do that. So then the next step is, well, where else might we find these ideas that we might try to regulate them out? And one answer is K-12 education, because a lot of these ideas wind up getting expressed in various forms in K-12 public education. And the state has a lot of constitutional authority to regulate what happens in public schools at the K-12 level. And so a lot of the early wave of legislation is aimed at that. And once that's been done, then the next target becomes higher education. And there, I think the constitutional problems are trickier.

John Tomasi: Again, I just need to call it out. You said target. So, again, we're thinking about the interest of legislators in shaping society's norms and values. Is that what the issue is?

Keith Whittington: Yeah, well, in this case, what I mean by target is simply in the sense of we're going to take the same legislative restrictions that we impose. And really, the language of the statute is very similar. So you sort of say, we're going to take the same legislative restrictions we imposed in K-12 public schools. So you're not allowed to teach these ideas, advocate these ideas in the classroom in fifth grade. And we're just going to take that same legislative language and apply it now to state university classrooms as well.

John Tomasi: Let me, again, let me pause on that point just to be sure I have it solved for our listeners and for myself. And the First Amendment, there's no serious First Amendment issues raised when a state legislature limits the content of speech taught in public schools.

Keith Whittington: I think that is right, although this is somewhat contested. So, and there's not a lot of really clear case law on this point because the court has not issued very many opinions dealing explicitly with the question of what are the limits of governmental control over classroom speech at the K-12 level. In some ways, you're sort of teasing out implications.

John Tomasi: Is there a classic case?

Keith Whittington: I can't think of one. So there's not really. And so you're really sort of teasing out implications of what the court has said in other contexts. And so the lower courts have developed a pretty well-developed jurisprudence at this point about how to think about government regulation of public schools. And the upshot has essentially been to say that what teachers are doing in public school classrooms is essentially governmental speech. What the constitutional doctrine would call governmental speech, which is to say the government can choose to express its own messages. And the sort of obvious familiar examples of that is the government can say things like, we're going to have a public messaging campaign in which we're going to discourage people from smoking. Or we're going to have a public messaging campaign in which the government's going to discourage people from littering. The government can be anti-littering. That's a legitimate thing for the government to do, and it can engage in speech that is anti-littering. What it cannot do is prevent private individuals from having a pro-littering speech, right? And so the government can choose to endorse some messages and not endorse other messages in its own venues. And so the government speech doctrine is designed to sort of say there's no First Amendment problems with the government doing that. And then the challenge becomes, well, when is the government engaging in its own speech that's engaged in its own government speech? And when is it really using that vehicle of government speech to, in fact, suppress private speech in various ways? And there are complicated contexts where this can come up.

John Tomasi: But the government suppress censoring speech within the government agency context. That's not a problem.

Keith Whittington: Not generally a problem, right? And so, and so, and because the claim of the government speech context would say, when we hire a school teacher like my mom to teach second grade, right, what are we hiring her to do? And the core constitutional answer is, we are hiring her to express the governmental message. We have given her the curriculum. We expect these are the ideas, the viewpoints, the content that she is supposed to be conveying in the classroom. And as a consequence, we can regulate that, supervise it, manage it in various ways. And if she expresses the wrong ideas in the classroom, we can ultimately remove her from the classroom for having done so. On that notion that she is simply the mouthpiece of the government when she is performing her job as a school teacher in a public school. The interesting challenge is, is that also what a state university professor is? Is a state university professor a mouthpiece of the government expressing the government's message when they are in a state university classroom? So again, that's much less settled in the, in the case law. it's much, and so much less clear. That's what creates the space, I think, for having lawsuits about it, which is, true in Florida. Now there's a fit. So the Stop Woke Act as applied to higher education is currently enjoined by a federal court, as being unconstitutional. And the starting point for that has to be, an argument that, state university professors are not in the same situation as kindergarten teachers in public schools in that they are not simply expressing government message. They're doing something else, but what that something else is not entirely clear yet. So, and so that part of what's interesting about the current situation is because we have this direct political interventions in state university classroom teaching, that hasn't really happened before. And so it's putting pressure on the state of constitutional doctrine in ways that, creates all kinds of interesting puzzles, but is, is, is it's based as genuinely uncertain as to what the right answer is from a constitutional perspective, on some.

John Tomasi: So there seems to be a, like we're on a train with a various variety of way stations. And the first station is a question of questions about government censorship, let's say, or the ability to censor and whether the first amendment allows that. And so the first train stop is, is something like government agencies controlling speech within government agencies. The second train stop is something like government controlling K through 12 education speech within the K through 12 context. The third stop, the third station is something like the government seeking to control speech within public universities.

Keith Whittington: Right.

John Tomasi: And then the fourth stop might be, the government seeking to control speech within private universities or receive substantial government funding.

Keith Whittington: I think that's absolutely right. So you could imagine the next step being, and, and there's been some bills floated in state legislatures to take that additional step, but nothing yet, has passed. But you can imagine, trying to take a step of, and you can either do it directly through regulation or you can try to attach it as a, requirement of, of funding. So say you're taking federal funding or state funding for your private university. If you're going to take those funds, one of the conditions of accepting those funds is you're not allowed to have professors in the classroom advocating, certain kinds of messages. The government doesn't like, and such as the ones included in Stop Woke Act, for example. I think those would probably be even more constitutionally, problematic than, the Stop Woke Act itself is, trying to regulate, the kind of speech activities that occur in private university classrooms. I think would run up against, a lot of clear constitutional doctrine, although there'd be interesting challenges, even, even in that, concern. And so we haven't gotten to that one yet. So instead we're still in the sort of, can you even do it in a public university context where presumptively the public, the government has a lot more control over public universities in all kinds of ways. and so it's really a question not of, can the state governments do all kinds of things with their state universities. The question is, can they do this specific thing with their state universities? And there are more modest versions of bills that are pushing this question in other kinds of ways that we're now starting to see emerge. So Florida, for example, also later passed legislation saying, you can't teach sociology as part of the general education requirements in, state universities. So it's a very unusual intervention in curriculum decisions by state universities, not so constitutionally obvious. Even if you agree with me that I think the Stop Woke Act is problematic from a constitutional perspective, even if you're willing to agree with that, and I'm not entirely sure the court will agree with that. It's, it's, it's, it's not clear that the state can't do that of saying, you can't have sociology and general ed requirements. North Carolina, the board of trustees, it was initially proposed as legislation, didn't get adopted there. I believe was adopted as board trustee policy, saying, we're going to have a civics requirement, for, undergraduates. and as part of that, certain specific texts have to be taught. So that has to include the constitution, for example, has to include the Gettysburg Address, certain mostly non-controversial kinds of content. But that kind of very specific micromanaging of content of university classes is quite unusual. So Texas has a very longstanding, requirement that all undergraduates at state universities, have to take a class, that includes, forget exactly how the statute is phrased, but it basically includes content about, U S and Texas government and U S and Texas history. but it's not very specific at all about what that means. And so in practice, it means all kinds of stuff gets covered and it says nothing about the viewpoint in which that's taught. And so, you could have a class covering, Texas government, for example, and be very critical of how Texas government is designed and what the constitution looks like, et cetera. The law doesn't say anything about how you teach the Texas government. It just says, yeah, so students earn a little bit. So part of what's different about some of these more recent laws is we're going to get more specific about what you have to teach. We want you not just to talk about the U S government. We want you to talk about some specific things about the U S government.

John Tomasi: Right.

Keith Whittington: And in the case of the Stop Woke Act, we're going to get specific about what viewpoints you're allowed to express when you're doing that.

John Tomasi: And so not just viewpoints that are going to be included, but the ones that are going to be excluded.

Keith Whittington: That's right. And so the way the law is, written, is, you're not allowed to, advocate or espouse or promote certain ideas. So, so part of the uncertainty about the law is what counts as promoting and espousing and advocating certain ideas, as opposed to simply presenting. and so it does leave a potential space for, as, as the advocates for the laws would sometimes say, well, if you just objectively present some ideas, you allow students to be aware of certain ideas, that would be acceptable. You're not allowed to promote or advocate the ideas on the other hand, that would be unacceptable.

John Tomasi: and can we just put that, put that into, non-technical language. So there, there's an attempted distinction between something like, are these laws censoring or are these laws preventing indoctrination?

Keith Whittington: Yes.

John Tomasi: That's kind of the line where they say, so we're not censoring.

Keith Whittington: Right.

John Tomasi: They can talk about these ideas, but they can't brainwash the kids when they present them as the only on the curriculum. This is the truth. You understand this now. There's a moment of awakening across the whole country. You need to understand the truth about that or this particular truth.

Keith Whittington: Yeah. So one of the interesting features of the Florida legislation, the Stop Woke Act, which was one of the very first iterations of these kinds of bills is, is it includes both types. So it includes both a ban on, you're not allowed to espouse or advocate, or promote certain ideas. And also you're not allowed to compel students to believe certain ideas, which gets to the indoctrination issue. as it's been challenged in court, those two things have just been lumped together. So the court has not tried to tease it apart because Florida has not tried to tease it apart. So Florida's posture in court is to say, everything that happens in a state university classroom is government speech. And we could, if we chose, which they say we have not yet chosen to fully do it. But if we chose, we could tell you exactly what to say in the classroom and not allow you to say anything other than what we say. So they're saying the first amendment would, would allow them to do that. They say the first amendment has no application in the state government classroom for, for that purpose. And so they have not, they say the Stop Woke Act has not, used all the authority we could use, but, but they've carved out a very extreme view about the scope of governmental authority, over because it makes it easy to defend the law. If they're right about that. then they have a blank check, about what they can do in the classrooms. Some later iterations of these proposals, that have been floated in other state legislatures, for example, have tried to abandon that first part of what Florida did. So we're going to cut out the, you're not allowed to advocate or espouse or promote language. And we're just going to keep the language about, you're not, you're not allowed to compel students to believe something.

John Tomasi: So they're going to drop the censorship part and they're going to maintain. The indoctrination part.

Keith Whittington: And the problem is on that front, so I think normatively a lot less problem. I think probably constitutionally a lot less problem, with that, the, the practical challenge of trying to keep the indoctrination part. is, we don't have a well-developed body of law or practice about what counts as indoctrination, and what it means to compel students to believe something. so, if for example, I, say this is going to be on the test and you'll need to write an essay in which you can accurately, explain, Ibram Kendi's ideas about race. Have I compelled you to believe it? if I say, I want you to write an essay from his perspective, and defend a certain policy, using his ideas, am I compelling you to believe it? I think the answer probably ought to be no in both of the cases, but it's actually not entirely clear either from the way that law is being written or from existing doctrine that that's necessarily true.

John Tomasi: Doesn't it depend on what else is being taught? Is there a, like, is there a lesson next week that says, criticize these ideas from the perspective of Martin Luther King?

Keith Whittington: Well, this is a, this is a longstanding challenge within academic freedom literature and practice more generally. So, from its very origins, the American Association of University Professors, which started in the beginning of the 20th century, begins with the Declaration of Principles in 1915, brings academic freedom ideas to the United States. and, and they are wildly successful eventually in getting universities to adopt those ideas as part of their own policies and practices. From its very origins, in 1915, the AAUP says, there's a difference between teaching and indoctrination. And academic freedom protects your ability to teach, including teaching very controversial ideas, ideas that alumni and donors don't like, ideas students don't like. You're allowed to teach them in the classroom. What you're not allowed to do is indoctrinate students, with those ideas.

John Tomasi: I mean, if I, on, on, on, on that, on that very point, if I may, I have a section of the AAUP statement here that I, that I particularly enjoy.

Keith Whittington: Right, exactly.

John Tomasi: And it goes to our topic about the state coming in.

Keith Whittington: No, and they have great, they have great language, although the problem is that nobody quite knows what it means in practice.

John Tomasi: Well, let me, let me, let me read it aloud for our, for our listeners. This is from the AAUP, AAUP statement of 1915. Quote, if this profession should prove itself unwilling to purge its ranks of the incompetent and the unworthy, or to prevent the freedom which it claims in the name of science from being used as a, from being used as a shelter for the, for the, for the uncritical and intemperate partisanship, it is certain that the task will be performed by others, by others who lack certain essential qualifications for performing it, and whose action is sure to breed suspicions and recurrent controversies deeply injurious to the internal order and public standing of university. So here we now, in 1915.

Keith Whittington: Yeah.

John Tomasi: We have the AAUP with a classic statement of academic freedom.

Keith Whittington: Right. It also, that statement includes other ideas that are really important about how academic self-governance is the best way to protect academic freedom. But it also, even then, as you pointed out, there's this worry about what's over the horizon.

John Tomasi: Right. I want to come back to the- And they could see it coming.

Keith Whittington: They could see it coming.

John Tomasi: So what I think might be helpful for us to do right now is to talk about some of the historical cases you talk about in the book, which came after that statement.

Keith Whittington: Right.

John Tomasi: In fact, and there are two main ones I'd like us to talk about, but the first is the Butler Act, which is the Tennessee Act in 1925.

Keith Whittington: Right. It was on the books for a long time.

John Tomasi: Yeah. Into the 60s, I think.

Keith Whittington: Right.

John Tomasi: Can you just say a bit of what the Butler Act was about? And is this in the context of the- Let's focus on that third station stop for this conversation. So the station stop where the government is intervening in teaching at public universities.

Keith Whittington: Yeah.

John Tomasi: What does Butler Act about and how does it affect that station?

Keith Whittington: Sure. So this is best known to most people as a consequence of the so-called Scopes Monkey Trial. So this is the law that is at the heart of that case and those challenges. And it applies at the time both to K-12 education in public schools and also to higher education. So, of course, the classic Inherit the Wind style focus was on K-12 and can you teach human evolution in the classroom in public schools in Tennessee. And this is part of a wave of concern in the early 20th century about the teaching of human evolution in particular. And as I said, the concern was both as it being taught in public schools and as it was being taught in universities. And in some ways, there's a surge of concern in the 20s about this. But this was a long-standing controversy extending back several decades of periodic political and academic fights about teaching of human evolution in particular. So it bans it and as I said, the ban includes public universities and public universities are very concerned about it when it's first adopted. But the energy and focus winds up being on K-12. And one consequence of the focus being on K-12 is it did not wind up clarifying at all then what the implications really were for higher education and constitutionally and legally what were the concerns. And so, as you say, the law stays on the books for a very long time. And one upshot of that was precisely to think that in the K-12 context, the government has a lot of authority to say there are some ideas we don't want taught in public schools. And because they're government schools, because they're minors who are being taught in those schools, we want democratic control over what happens in the public school context. And so now in the universities, what about their intensity? And then the question is, is that equally true at the university level? And so in the context of the human evolution laws, those don't really get challenged. And so it remains a point of uncertainty. So one thing that universities did in response to the passage of laws like that was, let's stop teaching this in our state universities. And we will avoid...

John Tomasi: Stop teaching biology?

Keith Whittington: Well, stop teaching things that the legislature might not be happy with. So we'll continue teaching biology and we'll continue, but we'll try to tread a line where we will try to find the things that will not rile up the legislature. And so the reaction, and as we've seen recently with these debates surrounding higher ed reform now, the same thing was happening in the 1920s. So lots of states were thinking about passing anti-human evolution bills. Some state university presidents were very vocal and public in criticizing those. Others were trying to work behind the scenes and trying to lobby legislatures and try to modify and mitigate what that might look like. Some states did not pass them, despite the fact that they were pretty conservative states and there was a lot of interest in them. Other states did wind up passing them. And in the places where they did wind up passing, a lot of universities, state universities, took the approach of saying, okay, we have to comply with the law, but we're going to try to comply with it with the least damage possible to the institution and how we operate. And so there's a lot of teaching around the law that was occurring in time. And so as a consequence, you didn't get litigation. There's not a lot of frontal assaults on saying, no, no, you're not allowed to do that. And really in the 1920s, that was for sure probably the safest tack to take because it would have been a really uphill climb to persuade the court in the 1920s that it was unconstitutional for a state legislature to ban the teaching of human evolution, for example, in state universities.

John Tomasi: Can I just pause on that point for a minute? Because it's just a really important historical, you and I both are interested in history of universities and history of academic freedom. And, you know, my reading of the history is that you see this explosion of the development of new colleges across the U.S. after the Civil War period in particular. And we've had this kind of moment through Jane Stanford, you know, getting Edward Ross, a professor fired who was critical of the railroad industry and all that came out of that. Then we had the 1915 statement from the AAUP, and we kind of get this remarkable statement about academic freedom, this new thing, that the American university system may be governed by some new set of understandings.

Keith Whittington: Right.

John Tomasi: Of what the role of university is within a free and democratic society.

Keith Whittington: Right.

John Tomasi: The idea was, it's written out by professors giving themselves a lot of power.

Keith Whittington: Absolutely.

John Tomasi: Right. But it also was a striking idea, and I would find, and this, the Butler Act is only 10 years after that statement.

Keith Whittington: Absolutely.

John Tomasi: Right. So our discussions about academic freedom, which are going to be extremely important in the growth of this incredible American research university in the 20th century, of which academic freedom was, in my view, a central driver of American excellence in education.

Keith Whittington: Right.

John Tomasi: But were issues of academic freedom at play in 1925 and in the 20s?

Keith Whittington: So they are at play in the public debates surrounding the human evolution laws, for example. So when university presidents publicly opposed the adoption of these laws in some of the states, they explicitly were making arguments about academic freedom. So they argued this isn't consistent with our university principles. Our university principles are committed to free inquiry. We should be able to talk about and teach any legitimate scientific subject, and that includes politically controversial and unpopular ones, and that includes human evolution. So university leaders and scholars in the public and political debates surrounding this particular set of controversies in the 20s are explicitly appealing to academic freedom. Now, their actual policies on the books often were not that great. The 1915 statement occurs just a decade earlier. It's not yet widely adopted and embraced, but the human evolution stuff sort of forces some university presidents to be more visibly in favor of those kinds of arguments than they might otherwise have been and that they previously had been. So it's part of the public discourse surrounding those debates in the 1920s. But it's a long way from any kind of constitutional discourse. There's no real toehold in American constitutional law in the 1920s for saying, not only is it a bad idea, and you shouldn't do it because it's going to undermine the mission and efficacy of universities, but also it's unconstitutional for you to try to do that. There's just no elaborated doctrine that the court had already recognized at that point that would have given you much grounding for developing out that claim. So things look very different by the late 1960s, but by the 1920s, these are just getting started.

John Tomasi: Let's move forward from the 20s.

Keith Whittington: Right.

John Tomasi: And I'd like to ask you about the Cold War era.

Keith Whittington: Yeah.

John Tomasi: And you talk in your book about the era of, you've discussed the era of loyalty oaths.

Keith Whittington: Right.

John Tomasi: What was happening during the Cold War? What were the loyalty oaths? And again, we'll be focusing on that third train station.

Keith Whittington: Right.

John Tomasi: Public universities.

Keith Whittington: Right. So part of what's interesting about the sort of anti-radical subversive legislation that's occurring during this period, the internal security legislation occurring during this period, a lot of it's not focused on universities, not focused on education as such. It's broad, often sweeping across federal employment in general, sometimes sensitive private employment context where you want to say, okay, well, you don't want radicals in your munitions factories.

John Tomasi: Radical meaning, for example, members of the Communist Party.

Keith Whittington: And radicals in this context, depending on the statute, some defined in various ways. So some of the earlier versions of these really date from more around the period of World War I, where there's already effort to say we don't want, and then the Communist Party per se is not necessarily the concern, but radical movements of various sorts. Eventually, by the post-World War II period, the focus is much more specifically on the Communist Party and a lot of the new policies that are being written and statutes that are being written are targeting specifically members of the Communist Party as such. So you get sort of a specification of which kinds of radicals we're most concerned with that does emerge later.

John Tomasi: And you and I know from working on political theory that there was this classic problem in political theory about tolerating the intolerant.

Keith Whittington: Absolutely.

John Tomasi: A tolerant society, a tolerant liberal society, what does it do with fringe cases, those who are by oath bound to take that whole system down. So can you just say more about the situation? What was the legal situation during the era of loyalty oaths?

Keith Whittington: Yeah. And so loyalty oaths become common through a lot of governmental employment broadly, but also get deployed specifically in an educational context. And sometimes laws that are written specifically requiring school teachers to take loyalty oaths and singling them out in ways that don't necessarily get applied in the same way to other government employees. And then more controversially, then can there's a reach from K-12 school teachers? Can we also require state university professors to take these oaths? And if so, what exactly can we be able to say? What do they have to look like? Et cetera. So often there's not an effort by governments in the 50s and early 60s to try to regulate what you're doing in the classroom, for example. So somewhat remarkably, you don't see statutes being passed saying you're not allowed to advocate communist ideals in the classroom, for example. Instead, they do it more indirectly by saying you're not allowed to be a communist and be in a classroom. And if we could get rid of the communists, presumably we also get rid of the communist ideas, right?

John Tomasi: Well, I'm sorry, can I pause you on that because I wonder about that.

Keith Whittington: Right. Probably not entirely successful.

John Tomasi: But I think it goes back to a distinction we were making a few minutes ago. You might say that a person who is a committed communist is unlikely, as a communist, to teach in a balanced, even-handed way. And so, again, so by going to that feature of the communist loyalty, they're trying to get to the anti-indoctrination point, not the censorship point. They're structuring it that way, and maybe not unreasonably.

Keith Whittington: Yeah.

John Tomasi: Because some of the communist party platforms have historically included things like, you will bring this place down.

Keith Whittington: No, that's right.

John Tomasi: And you will use all available methods. You want to comment on that?

Keith Whittington: So, part of what we see both in the political debates and the more immediate sort of policy debates inside a university and academic context, there were layers there. And so, some of it was an argument about the problem with members of the communist party in a world of Leninist communist parties in particular is you have to take the party orders. You can potentially turn on a dime, and the party could tell you tomorrow, if you are a university professor, the party now requires that you teach these false things in your class, for example. And you should be trying to indoctrinate students. And so, part of the argument among anti-communists that emerges during the period, including lots of liberal but anti-communist scholars, is to say there's a fundamental inconsistency between being a good scholar and being a teacher, engaging your professional responsibilities, and having that kind of party loyalty. So, there's that kind of question about, is the communist party different in ways that were not true about the anarchists and socialists in the 1920s, for example. Is the organization and structure of the communist party one that creates particular dilemmas? That's one kind of concern. The second kind of concern is to say, okay, well, lay aside the party obedience problem. It's also true that they're radical subversives and they undermine the American way. And so, do we want those people in your classroom teaching your students? And for a lot of government officials, that's the bigger problem, right? In the college classroom, teaching college students? Also in teaching college class, but also what about your second grade teachers and everybody else, right?

John Tomasi: But certainly… Well, let's focus on that.

Keith Whittington: Yes. But eventually it becomes a worry about, you know, should you have that in your university classrooms either?

John Tomasi: Can I ask you on that exact point to comment, if you would, on one of my favorite Supreme Court cases, Sweezy v. New Hampshire, 1957, I think?

Keith Whittington: I think that's right, yeah.

John Tomasi: What was that case about? So, how is it relevant here?

Keith Whittington: Right. So, Sweezy is a critical case from this perspective, although, unfortunately, a fairly murky one in terms of how it's actually written as well, which is often the case of how a lot of these opinions were written during the period. So, Sweezy was a Marxist economist, had been a lecturer at Harvard for a while, eventually leaves academia in order to become a public intellectual and journalist and editor. But he maintains all kinds of ties to universities, as you'd expect, and he's invited to the University of New Hampshire to give a lecture in an undergraduate class. And at the same time that that occurs, he's also under investigation for his subversive activities generally, in this case, by the attorney general of the state of New Hampshire. So, the attorney general is investigating Sweezy for all kinds of things, and as part of that general investigation, they also ask Sweezy, provide all this documentation and tell us what you're doing on all these things, including, are you a member of the Communist Party? The standard kind of things you'd expect, but also, tell us what you told the undergraduates in the classroom. What were you doing in this undergraduate classroom when you were delivering this lecture?

John Tomasi: Isn't it fascinating, just thinking from our perspective today, thinking about someone being invited to the class. So, you and I, as professors, we know, so somebody made the invitation.

Keith Whittington: The professor of the class.

John Tomasi: And in effect, they changed the syllabus to bring that speaker in, announced that the students came. There he was, right, lecturing now at UNH, and the students are going, well, who's this person?

Keith Whittington: Yeah, exactly.

John Tomasi: It's just a fascinating thing, you know, context of the drama.

Keith Whittington: No, absolutely right.

John Tomasi: He's in the news, presumably.

Keith Whittington: He's in the news, right. He's become a fairly celebrated figure at this point, but he's also a very serious scholar. I mean, so he wrote very interesting works about Marxist governments during the period and the like. And so, he's a very serious scholar and good reason to bring him into scholarly context and have him give lectures. But the concern of the Attorney General of the State of New Hampshire is precisely among the subversive activities I'm worried about is what you're doing in those classrooms. And so, I want you to tell me, what were you doing in the classroom? And he refuses, as people under these investigations were doing, Marxist economists and otherwise. They frequently were refusing to cooperate with these kinds of investigations. And Sweezy refused to cooperate here, so he refused to tell the State Attorney General what he said in the classroom. He also refused to tell the State Attorney General all kinds of other things the Attorney General wanted. So, and he goes to court and argues, I have a variety of constitutional rights that ought to prevent me from having to answer these questions. Among them, a First Amendment right to be able to give this lecture in an undergraduate classroom and State University without the Attorney General trying to chill my speech by demanding, by investigating me and demanding to know what I said.

John Tomasi: And how can I not just interject that this is a lovely, delicious irony about a Marxist advocating for these liberal rights?

Keith Whittington: Absolutely.

John Tomasi: But go on with your story.

Keith Whittington: No, and of course, we see a lot of that, right? So, likewise, in the earlier stage of anarchists and socialists in the 1920s and 19-teens who were under investigation and threat from the government, suddenly there are all kinds of First Amendment and free speech interest at the time. And there are some very interesting, the ACLU comes out of that, a bunch of radicals who are associated with the ACLU, many of whom are primarily concerned with advancing socialism. But then they become very interested in free speech once their speech rights get suppressed. So, it's a non-uncommon story about how people suddenly become interested in free speech and say, hey, wait a second, my free speech rights seem to be violated here.

John Tomasi: We're coming up towards the end of our time, but I want to ask you a more general question about how you see this moment. And there's an idea late in your book that I was really struck by. You say that there's a combination of two things that are causing particular, they're particularly coloring the current moment. You say that the combination of our living in a new information environment, the new information technologies, including, I gather, that means divisive, polarized news sources. The combination of the new information environment with the populist takeover of the Republican Party is producing what you describe, and I'll quote you, as dire consequences for higher education. You may say, you may say, threatening produce, die our consequences for higher education.

Keith Whittington: That's right.

John Tomasi: So, now, this is station three and four, but can you say a little bit about this cocktail, this combination of the new information environment and the populist takeover and why that's problematic?

Keith Whittington: Yeah. So, and the Sweezy example is an interesting one in this regard, right? So, go back to Sweezy in the 1950s. He was invited to get this guest lecture in a classroom. He's a controversial figure already. The attorney general knows he's traveling to the University of New Hampshire in order to give this lecture. And so, then the New Hampshire attorney general wants to know, what did you say in the lecture? Part of what's different about our modern world is some student in the classroom could have pulled out their phone and just recorded what he said, right? And then posted it online. And we have lots of primarily right-wing watchdog groups who are dedicated to trying to figure out, have professors said controversial things on social media, in the classroom, in other contexts? How can we identify those things? How can we publicize those things? How can we bring them to broader attention more generally? So, partially, universities and professors specifically are operating in an environment in which their controversial statements, whether it's said in a classroom context or said in a public context, can much more easily be identified, recorded, publicized, brought to a much wider audience than otherwise would have been the case. And that generates all kinds of controversies and puts all kinds of pressures on universities about faculty speech in ways that were not true, for example. So, even if nothing had changed about how radical were professors' opinions, how radical were the views they were being expressed, where they were expressing them, et cetera, what has changed is all that speech is much more visible than it previously was. And visibility creates political problems from this perspective, because a lot of that speech is very controversial. And as a consequence, once it hits a broader audience, that's going to create problems. And in addition, and so in some ways it is, as you said, there's a long history of conservative activists and writers calling attention to tenured radicals dating back to God and Man at Yale. And that got some traction, lots of conservatives cared about it, but this has really ramped up the intensity of that focus, right? And so, it's one thing for William F. Buckley to write a book saying, here was my experience as an undergraduate at Yale University. It's another thing, and if you're some random parent in the Midwest reading that, say, oh, that seems terrible. Another thing, if you open up YouTube or Twitter, and now you get to see a little video of what professors are saying in the classroom at Yale, that lands differently. And it has different political consequences as a consequence. And so, I think, and that's not going to go away, right? So, we just live in an information environment in which we're much more exposed than we otherwise would be. And it feeds into a polarized environment. And part of that polarized environment, then, is both you have this longstanding conservative distrust of academics and academia, more generally, in part because they think of them as left-standing spaces. And that was already true. And now, as the Republican Party, I think in particular, has become much more populist in its orientation, there's an added layer of hostility and concern about higher education. And you don't have some of the mitigating consequences, right? So, if you had a less populist party, even if it's quite concerned about what's happening in academia, at the same time, also wants to protect academia. Because there's lots of value from their perspective in what's being done in the university. Part of the collapse of Republican support and conservative support for academia, I think, comes out of the fact that a lot of fewer Republicans, probably conservatives, probably still think that academia has positive qualities they care about in the same kinds of ways. And so, you know, my dad, just to take a particular example, my dad's fairly conservative from Texas. And when I was growing up, he had his own hostilities and concerns about academia. But he also recognized universities were important places. He wanted me to go to university, he wanted me to get an education, all that stuff. And so, he simultaneously held in his head, there are things I don't like about universities, but things that are really important I really do like about universities. And he'd be horrified by the idea of gutting a university in that case. And I think some of that second part has faded away in Republican and conservative circles where that sort of countervailing concern of saying, we need to reform these institutions, and we need to be really cautious and careful about how we reform them. There's a lot less caution to hear.

John Tomasi: Let me ask you on that point, and we are reaching the end of our conversation, but I want to just hold on this point for a moment more. So, there is that classic AAUP statement that I read.

Keith Whittington: Yes.

John Tomasi: It says that, it says in the wider document that academic freedom is best protected by academic self-governance. And then they have this clause that says, however, if they don't govern themselves well, if they don't intemperately, or in a partisan way, others will stand before.

Keith Whittington: That's right.

John Tomasi: And, you know, you and I, the statistics about when your father was talking about music of your father as being conservative, being conservative politically, but being enthusiastic about higher education.

Keith Whittington: Right.

John Tomasi: Well, in 1960, 61, the ratio of professors who mean right to left, sorry, mean left to right was about two to one.

Keith Whittington: Right. Right.

John Tomasi: And currently, some studies should say 17 to one.

Keith Whittington: Yeah. Among the younger professors, it's actually much higher than that.

John Tomasi: Yeah. In some disciplines, it's Republican, right-leaning professors who are facing extinction.

Keith Whittington: That's right.

John Tomasi: So, it's not just, it's the reality on the ground seemed to have changed in some important ways.

Keith Whittington: That's right.

John Tomasi: I want to emphasize, and this is a point we have HSA make all the time, that that same period of 1960 till now, which is seen as precipitous decline in the ratio of, sorry, and the balance between left and right thinkers, has also been a time of remarkable breakthroughs in inclusion.

Keith Whittington: Yes.

John Tomasi: Yet women now, across the Ivy League, that happened in 1983, remarkably.

Keith Whittington: Absolutely, yeah.

John Tomasi: And we have many more people of color, all kinds of Muslim students arriving on campus in large numbers for the first time. So, it's an incredible way from, but there was a steady decrease in political diversity. Is that part, is that feeding into that? Is that partly why we see these polls with a sharp skepticism across the political spectrum for universities, but especially among Republicans? Is that a legitimate concern? And just more generally, there's a question about the ideological personnel.

Keith Whittington: Right.

John Tomasi: But just generally, do you think that media accounts, what happens at universities, are the media narratives overblown, or is that bedrock fact about ideological shifting happening really salient, like a spine holding it up?

Keith Whittington: Yeah, so, I think it's hard to know how to tease all those things apart in practice. So, there are those who would, I think, contest the descriptive point about the extent to which the faculty have become more leftward-leaning over time. I think they're just dead wrong about that. I mean, it's clearly the case that the faculty have, in fact, become much more left-leaning in exactly the way you described it. So, things have changed on the ground in universities, even laying aside things that have changed in the larger informational environment, even laying aside things that have changed in the larger political environment in which we operate in. It's also true, universities themselves have changed and changed in ways that are going to be in deep tension with these other changes that are taking place at the same time. I think what's unclear and hard to get a handle on to know whether it makes any difference is, okay, if it's a 7-to-1 liberal to conservative tilt in academia or a 25-to-1 liberal to conservative tilt in academia, does that radically change how vulnerable universities are to these political influences? Does it radically change how conservatives think about universities on the whole or not? And I don't know that it does, necessarily, right? And so, in some ways, we may have already been so tilted that we had already lost that sort of confidence issue, right? And so, but the question, I think, then becomes, so I think we all be concerned about it in part for our own intellectuals, which I've written about in other contexts of thinking, look, if we live in a world in which there are no such things as conservative sociologists, and we almost live in that world now, we are missing out from a scholarly perspective. Our own purposes inside the university. Lay aside all the concerns with how do we sell this to the public in general? How do we persuade Republicans they care about universities and sociology as a discipline? Just if we care about the advancement of understanding about human society and how it works, we need a more intellectually robust sociology discipline, for example, in which certain kinds of questions, for example, are on the table. Certain kinds of skepticism about certain kinds of skepticism about certain kinds of answers that sociologists come to is going to be heard in the room. We're not going to do our job in a very good way. We're that lopsided. We're that homogeneous about the nature of our own intellectual discipline. So it's not helpful for us internally, for our own values and purposes in our current situation. I think it also doesn't help externally, but I don't know how big of a difference it's going to make in that regard. And it also raises a question about how hard is that to clean up, right? So once you've lost that trust, and I think we've lost that trust now, how do you win it back, right? And hiring a handful of conservatives probably is not going to be sufficient, right? And so then how, you know, I think we've dug ourselves a really deep hole in terms of public support for universities, public trust in universities. And it's going to be a real challenge to dig our way back out. Part of what the book's concerned with, just from a constitutional perspective, is to say, okay, we are now in a situation in which there's a lot of governmental hostility coming from the political right, in particular, some from the political left as well, to universities. And that's leading to various kinds of new restrictions being imposed on universities. We should try to alter the situation or try to win back some of that support and help persuade legislatures and other policymakers not to go down some of these paths. But are there also any kind of constitutional protections that we can appeal to that can help shelter us a little bit in the midst of these current storms? And I think there may be some, but it's not nearly as obvious and straightforward as I think a lot of people would hope about what that constitutional arrangement looks like. And I think we will find ourselves in a situation which is going to get clarified, one way or another, as to what the constitutional situation looks like around universities. Because things like the Stop Woke Act are, I think, going to force the U.S. Supreme Court to develop some new doctrines, to write some new opinions in ways that they largely have avoided doing since the 1960s. The Congress recently passed, the House of Representatives recently passed the End Woke Higher Education Act. It's going to the Senate now where we expect it will be turned down. In that act, it doesn't include any censorship as we read the act. It does include recommendations that are requirements that public universities adopt Chicago principles about free speech or something like them. It includes a ban on political litmus tests within public schools, public universities. There's some other provisions, too. For example, it provides that student organizations not be discriminated against based on their content of their other views and interests.

John Tomasi: My last question to you is kind of a magic wand question.

Keith Whittington: Right, right.

John Tomasi: And the magic wand question is something like, yes, we're in the situation now where there's problems with our universities. Legislatures are looking at universities. They are writing legislation in a variety of places, Texas and other places that we're following very closely. If you had a magic wand, would you wave it and say legislators should not get involved in any way? Would you wave it and say they should get involved in certain kinds of things they should be advocating legislatively? Are there certain things with your magic wand to say they should not do at all? Well, if you had a magic wand to steer legislation, state or federal, regarding the regulation of higher education and public universities in the next, say, 10, 20 years, do you want to wave it? What would you say?

Keith Whittington: Well, right. So I think generally the thing I would be most concerned with trying to discourage legislatures from doing are things that seek to restrict what ideas can be discussed openly on college campuses. And some aspects of things like the Stop Woke Act, I think, run into that kind of concern that Florida passed, right, is that they are effectively saying there's some ideas that we're going to put our thumb on the scale and try to prevent students from having to ever hear. We're going to make it harder to engage in that kind of teaching scholarship where those ideas get discussed and played out. On the other hand, I think legislative interventions that try to open up campus spaces and make it possible to engage seriously with a wider range of ideas is at least appealing. There's a lot of devil in the details about how do you do that in practice in ways that are helpful rather than harmful about the process. But I tend to think that from a policy perspective, it's not only not a bad thing, but in fact, it's probably a good thing to do things like intellectual climate surveys on campuses. I think it's useful to know more about what kind of experiences students are having on their college campuses and if they're worried about speaking about certain things or they're concerned about being bullied by peers or faculty or anyone else on college campus. I think university, especially in the public university context, politicians have an appropriate interest or legitimate First Amendment interest being violated on university campuses. And so are campuses developing the right kind of free expression policies for what kinds of public expressive activities can occur on college campuses? Do they have content neutral time, place and manner rules in place? State legislatures have an interest in knowing do our state universities actually comply with the First Amendment? And when they're not, state legislatures have an obligation, in fact, to step in and make them comply more effectively and better. And there are some components of the federal legislation that are designed to do that. And I think that's both appropriate and to the good for the most part. But again, like I said, there are problems potentially in details about what that looks like in specifics. We've seen increasingly some state legislatures intervene on institutional neutrality requirements for state universities. I think that's fully within the right of state legislatures and more of an entirely appropriate for state legislatures to demand that. Likewise, we've seen some state legislatures intervene to ban their so-called diversity statements in faculty applications for employment. I think that's within the right of state legislatures to do that. I don't think there's constitutional objection to state legislatures passing that policy. Moreover, I think it's mostly probably helpful for universities, for legislatures to do that. So there are some things that legislatures could do that would reform universities. They're probably not very helpful. A lot of the talk around significant reforms of tenure, for example, I think probably are not going to be very helpful for universities. And some absolutely ought to be avoided, such as restricting what kinds of ideas we can talk about on university campuses. But some kinds of reforms, I think, can actually be helpful to universities, and particularly those reforms that are really fundamentally aimed at how do we encourage a more robust intellectual environment on college campuses. That's ultimately what we want on university campuses. And so trying to get legislatures and other policymakers to focus on how can they help that process is fundamentally good.

John Tomasi: And just a little detail, political litmus tests and hiring and promotion, what do you think? What's your hot take?

Keith Whittington: So I'm against political litmus tests in general. And I know that one aspect of that is to say some of the diversity statements, I think, effectively are political litmus tests. And so those are inappropriate and we shouldn't have them. But it also means, on the other side, you shouldn't have political litmus tests to say we ought to have a kind of affirmative action for hiring conservative faculty. And so the desire to think about political litmus tests politically cuts both ways in this regard. If you're not happy with political litmus tests being used in the form of diversity statements, you likewise should not be happy with political litmus tests being used in order to positively advance conservatives in academia. I think in both cases, it has the same danger, which is to say you are prioritizing political views over scholarly quality. And in the long run, that's bad for universities. And so that still leaves open the challenge of what do you do about a discipline that won't allow conservatives part of the discipline, effectively. And maybe they won't allow it in the sense of they are actively discriminating conservatives. And we have some evidence that that occurs. But maybe they're just doing it less self-consciously and explicitly and more inadvertent. But nonetheless, they have managed to construct a discipline in which conservative voices simply don't get heard. It's a real challenge, I think, as to how we fix that problem. And I would prefer that those fixes come from inside the universities. But as the AAUP said in 1915, if you don't fix it yourself, you're going to get fixed from the outside. And moreover, the fixes that come from the outside may be more ham-handed than you would like. They may be cruder than you would like. They may come with their own downsides and problems. And so it would definitely not be my first choice for legislatures to intervene in that form. But I think it may be inevitable that they will. And then the question is how to try to guide them so that they do it as helpfully as possible and with the least damage as possible.

John Tomasi: Keith, it's been great talking with you. We've been talking about your new book, You Can't Teach That. Wishing you well as you begin your new adventure at Yale Law School.

Keith Whittington: Thank you. Appreciate it.

John Tomasi: And with particular interest, we'll be following the growth of the Yale Center for Academic Freedom and Free Speech. Thanks for being on Heterodox Out Loud.

Keith Whittington: Thanks. I appreciate it.