Andy Lester | July 13, 2018
Academic freedom, freedom of speech, and the future of higher education
This article was published in OCPA's Perspective magazine View Issue
This article is adapted from the keynote address delivered at the State Regents Forum on Free Speech on April 4, 2018 in Oklahoma City.
For higher education to fulfill its mission, we need excellent professors, staff, and facilities. But for all of this to work in the manner to which we have become accustomed, more is needed. What is it? What is the key? What makes the difference? What has made our system of higher education the envy of the world? What distinguishes an institution of higher education from any other means of imparting knowledge? What makes it all cohere?
I think I know the answer. And it is the topic of my remarks today. What makes our system of higher education work is a commitment to the free exchange of ideas, to discerning truth from falsehood, to providing and defending the opportunity to confront challenging ideas and thereby to learn what is the better way.
Let me state it clearly—without a vibrant commitment to free and open inquiry, an institution of higher education ceases to function as such. No college or university is doing its job if it is not committed to allowing and encouraging the exchange of differing ideas. To be sure, without being so committed, an institution can transmit information or confer a credential. But a simple, freestanding website can do that. Without fostering the free exchange of ideas, an institution of higher education is not fulfilling its mission of expanding the minds of its students or teaching them how to examine new, challenging information and to test it for truth or falsity.
Let me pause for a moment here to state that my interest in free speech is nothing new. I have spent virtually my entire career as a lawyer dealing with the First Amendment to the Constitution of the United States and the rights it protects. I am a strong supporter of the First Amendment and the rights it protects. For me, it is impossible to conceive of a college or university that is not committed to freedom of thought, speech, and inquiry.
Academic freedom is vital for the well-being of any university, any college. As you know, the American Association of University Professors (AAUP) has spoken definitively on academic freedom. In its 1940 Statement of Principles on Academic Freedom and Tenure, the AAUP states that “Teachers are entitled to full freedom in research and in the publication of the results[.]” The policy statement continues: “Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.” And finally, the Statement of Principles provides that “When [college and university teachers] speak or write as citizens, they should be free from institutional censorship or discipline[.]”
The AAUP standards are voluntary yet apply essentially to all institutions of higher education. But, while academic freedom is important at private schools, it is even more important at public colleges and universities. For public institutions significantly differ from private ones in at least one important respect, in that public schools are the government, and as such have additional obligations. I will get to those momentarily.
A Rush to an Abyss?
The issue on which I will spend the rest of my time with you today involves what to some looks like a troubling trend on college campuses around the country to stifle academic freedom. To put it bluntly, I am concerned higher education is rushing headlong toward an anti-intellectual abyss. Many on college campuses appear to be turning their backs on freedom of speech, freedom of thought, freedom of expression.
Across America and here in Oklahoma, institutions of higher education face a serious, immediate, and, I believe, existential threat. The peril is insidious. It affects all institutions of higher education. None is immune. It has shown up at public and private institutions. It is present on the east coast, on the west coast, and everywhere in between, in blue states and in red states. It has shown up in Ivy League schools, the ACC, the SEC, the PAC 12, the Big 10, and the Big 12. It has found its way into large research institutions, small liberal arts schools, regional universities, and community colleges.
Without a vibrant commitment to free and open inquiry, an institution of higher education ceases to function as such.
The threat is subtle, treacherous, and perfidious. It is anti-freedom, anti-education, and anti-intellectual.
Institutions of higher education, traditional bastions of free thought, free speech, and free expression, are being targeted for allowing people, who might believe differently from some accepted norm, to have a forum to air their thoughts. It’s happening everywhere. Yale, Columbia, Duke, Georgetown, North Carolina, Michigan, UCLA, and Berkeley all have had recent controversies challenging traditional notions of academic freedom. So too, closer to home, have Texas, Missouri, and Kansas, and even, to some extent, institutions right here in Oklahoma. I could name many more.
What I find exceptionally worrisome is that this anti-free-thought threat is coming not from without, but from within. Sometimes faculty members are leading the anti-free-speech charge. Even more shocking is the fact that students are often leading the charge to exclude ideas from their campuses.
A Few Examples
Just one year ago this week, for example, students at Claremont McKenna College prevented most of the audience from attending a lecture by Heather MacDonald, and school officials, afraid it would be dangerous to remove the protestors, instead had the talk go on in an essentially empty room while live-streaming it elsewhere.
Ms. MacDonald’s crime? She had previously published a book called War on Cops, which criticized the recent heavy scrutiny surrounding police shootings.
A month before that, at Middlebury College, students and others prevented Charles Murray from speaking on campus. Middlebury tried the live-streaming alternative, too, with Professor Allison Stanger interviewing Murray. Afterwards, protestors physically assaulted the group, resulting in the hospitalization of Professor Stanger with a serious neck injury and a concussion.
It happened again just last semester. A handful of individuals at William & Mary successfully shut down a speech by Claire Guthrie Gastañaga, executive director of ACLU of Virginia chapter. Her topic, ironically enough, was college students’ First Amendment rights.
It took only a handful of individuals to effectively cancel Ms. Gastañaga’s speech. You can watch the entire incident on YouTube. Based on what I saw, it appears approximately a dozen individuals kept the rest of the William & Mary community from hearing what might have been an interesting and valuable speech. This “dirty dozen” marched to the front of the auditorium and started chanting, in rather loud voices, “A-C-L-U, you protect Hitler, too.”
Ms. Gastañaga initially welcomed the protestors, as being a good example of how people can exercise their First Amendment rights. How mistaken she was, however, quickly became apparent. The protestors were not going to stop, were not going to let anyone else speak. Worse, the institution was ill-prepared to do anything to protect the right of Ms. Gastañaga to speak or the right of the members of the audience to listen. The chants went on, and the speech was aborted.
Across America and here in Oklahoma, institutions of higher education face a serious, immediate, and, I believe, existential threat.
Should a supporter of Israel be allowed to speak on campus? Should pro-Donald Trump speech be permitted? How about anti-Donald Trump speech? Or should a university instead heed the cacophonous clamor of a few loud-mouthed individuals and constructively disinvite a former United States Secretary of State, herself a longtime professor, who had the temerity to serve in a Republican administration? The answers should be obvious. Yes, pro-Israel, pro-Trump, and anti-Trump speech should be allowed. And, no, the school should not disinvite the former provost of Stanford University simply because some members of its community might strongly disagree with her public positions or otherwise feel uncomfortable in her presence.
Academic Freedom and the First Amendment
Freedom of speech, crucial at all colleges, is at the core of the mission of public higher education. For over 200 years, the First Amendment to the Constitution of the United States has secured the rights of Americans against government abridgements of the right of freedom of speech.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” So says the First Amendment to the Constitution of the United States. It is short, simple, and clear. Congress, and by extension the states, may not abridge the freedom of speech.
Oklahoma Constitution Article 2, Section 22, also protects free speech rights. According to its first sentence, “Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”
Garcetti v. Ceballos. Without going into detail, the Court distinguished between speech of a public employee acting like a citizen versus speech made pursuant to official duties.
I mention Garcetti not because of its specific holding, but because the majority opinion pauses to proclaim the importance of academic freedom. Garcetti left open the question whether “expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.” The concept of academic freedom, the Court said, may lead to a different analysis in “a case involving speech related to scholarship or teaching.” As the Supreme Court said in another case—Keyishian v. Board of Regents—more than 50 years ago, “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned.” Did you hear that? Academic freedom is not merely about academicians. Academic freedom involves all of us. The Court continued: “That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom” (emphasis added).
Critical Thinking and the Free Exchange of Ideas
Commitment to the principle of freedom of expression lies at the very core of our system of higher education. Of course, the ideas of different members of a college or university community will often and quite naturally conflict. But it is not the proper role of a college or university to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. To be sure, our colleges and universities should greatly value civility. After all, we are teaching the best and the brightest.
Today’s college students are tomorrow’s leaders, and I, for one, certainly want our future leaders to be respectful of others. And I want them to be humble enough to hear differing ideas, to evaluate them, to distinguish good ideas from bad ones, to defend the good, and to reject the bad. But they will not be able to do so in the real world by chanting banalities in the face of challenging thoughts.
To put it plainly, classes must go on. No one, for example, has the right to interrupt a class and seize the room to speak through an amplified bullhorn. But exceptions to the general principle of freedom of expression are narrow, and it is vitally important that they never be used in a manner that is inconsistent with the institutional commitment to a completely free and open discussion of ideas.
As a corollary to the commitment to protect and to promote free expression, members of the college or university community must also act in conformity with the principle of free expression. Although members of the community are free to criticize and to contest views expressed on campus, and to criticize and to contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, I believe each college or university has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.
Each college or university should adopt such policies and procedures as they deem necessary and appropriate to implement these goals. Freedom of speech, freedom of expression, academic freedom—they are all that important.
Of course, having good policies is only the first step. Once you have the policies, you must follow through. You must actually follow the policies. And you must continually review them. As I am sure the members of the general counsel panel will tell you, the best policies are worth little—they can even be counterproductive—if you fail to follow them.
Make no mistake. Academic freedom is under attack, and that is a direct attack on the academy itself. This is a battle we cannot lose. For if we lose academic freedom, we lose the university.
Andy Lester is a partner in the Oklahoma City office of the law firm, Spencer Fane LLP, and is a member of the Oklahoma State Regents for Higher Education. He previously served as a member and chairman of the OSU/A&M Board of Regents, and also served on the board of Eureka College (President Reagan’s alma mater). Mr. Lester has a civil litigation and appellate practice in both federal and state court. He has faced off against the White House over the use of Executive Privilege, has appeared as counsel before committees of the United States Senate and the United States House of Representatives, and has been a featured guest on television shows such as “Hardball with Chris Matthews” and “The Situation Room” with Wolf Blitzer. While in law school, Lester served on President Ronald Reagan’s Transition Team for the Equal Employment Opportunity Commission. In 2002, he chaired Governor Brad Henry’s Law Enforcement/Corrections Transition Team and, as a member of the Budget/Finance Transition Team, helped write Governor Henry’s first State budget. He is a former United States Magistrate Judge for the Western District of Oklahoma and has served as Adjunct Professor at Oklahoma City University School of Law, having taught State & Local Government, Employment Law, Criminal Law, and International Law. Lester has written over 100 articles and papers on professional and public policy issues, and has published one book, Constitutional Law and Democracy, a collection of speeches he gave in 1993 in the former Soviet Union.