Introduction

In this fractured political moment, one premise on which all seem to agree is that academic freedom is imperiled. Critics on the right point to instances where professors have been sanctioned for articulating views, especially in terms of race and gender, that students find offensive.^[1] Those on the left rejoin by citing other cases where professors have suffered adverse professional outcomes for professing views considered hurtful to conservatives.^[2] Regardless of the political perspective from which they originate, these and many other examples all illustrate the fraying of the traditional model of the university as a place of robust intellectual exchange.

This is the background against which Professor Jeannie Suk Gersen of Harvard Law School delivered the Twenty-Sixth Annual Frankel Lecture, Academic Freedom and Discrimination in a Polarizing Time.^[3] Professor Gersen’s investigation is both retrospective and analytical. It looks back at the history and doctrine relating to academic freedom in the United States, showing that protecting the university as a locus of unfettered expression is largely a product of the twentieth century and not one that is necessarily guaranteed. Professor Gersen also analyzes present-day controversies over academic freedom generated by those on the right and the left, showing that these are not mere quibbles about the internal practices of universities but larger debates about how we do and should produce the public goods of ideas and ideology.

While academic freedom has distant roots in the early modern European university practice of tenure, Professor Gersen shows that the concept of academic freedom arose in the United States relatively recently, in the early to mid-1900s. Prior to that time, professors were often dismissed for stating views that inflamed public opinion. It was only with the founding of the American Association of University Professors (AAUP) in 1915 that academic freedom, enforced by tenure, gained purchase as a core value of universities in the United States.^[4] This extralegal development supported legal efforts to protect university professors from state sanctions for expressing controversial views, which was especially salient during the Red Scare and Vietnam War. The Supreme Court championed academic freedom during this era, stressing that the unrestricted exchange of ideas was essential to education and intellectual inquiry, and even in turn to “a free society.”^[5]

As Professor Gersen points out, however, the state action doctrine limits law’s protection of academic freedom. Courts can protect academics at public schools from discipline for speaking their minds, but this does little for professors at private schools. Moreover, Professor Gersen points out, the #MeToo and Black Lives Matter movements have acclimated us to the idea that people may lose their jobs for expressing ideas deemed offensive.^[6] At the same time, nearly all major universities have established Diversity and Inclusion Offices that consider complaints about objectionable conduct by professors and students, some of which result in disciplinary hearings under Title IX.^[7] The resulting atmosphere, Professor Gersen illustrates, is tense and complex. Those who criticize the efforts of Diversity and Inclusion Offices to root out racially or sexually objectionable conduct often couch their objections in the language of academic freedom.^[8] This risks reducing the entire practice of academic freedom to nothing more than efforts to use racist or sexist speech to harm vulnerable people.

But as Professor Gersen amply catalogues, the tension arising out of this dynamic has real costs. She observes that “[i]n my fifteen years of law teaching, an atmosphere of fear about speaking freely has never been more palpable.”^[9] Professor Gersen reports discussions with students who are unwilling to speak up in class for fear that stating an unorthodox opinion may result in backlash and notes that she feels students’ “fear” when leading discussions in criminal law and constitutional law classes.^[10] Professor Gersen notes that law professors, too, feel “at constant risk of self-immolation” in the classroom should they say anything deemed problematic and so have curtailed coverage of controversial topics in their classes.^[11] And in the faculty setting, professors feel reluctant to express any concerns over this repressive atmosphere aloud, lest they be deemed hostile to antidiscrimination goals.^[12]

Yet as Professor Gersen also shows, constraints on academic freedom arise also from the right, not from internally imposed silence but from a new spate of state laws explicitly restricting what may be taught in public schools. The target of these laws is critical race theory, or more accurately, “CRT” as it has become known in popular discourse.^[13] Numerous states have passed or proposed laws to ban teaching CRT in public schools, causing even some colleges to pause courses that teach about racial inequality. These laws seek to silence discussion of racial injustice but do so on the theory that they are preventing discrimination against those who may feel insulted by assertions that racism pervades American society.^[14]

Finally, Professor Gersen considers what these two invocations of academic freedom have in common. While coming from different ends of the political spectrum, she argues that they share a common thread: Both are not true applications of academic freedom in the sense of using a right to speak freely as a defense against suppression. Rather, they are disingenuous uses of the idea of academic freedom to advance political agendas.^[15] While academic freedom has historically functioned as a shield, Professor Gersen suggests that these two trends wield it as a sword instead, one designed to cut down the expression of views that clash with a preferred orthodoxy.^[16]

Professor Gersen uses this insight to show why the academy and the classroom have become such heated sites of cultural contestation. These are areas within which ideas are cultivated and ideology is produced, so the stakes of these debates are not just what content is delivered in law or history classes but how we all understand the world and how we resolve unsettled areas of inquiry.^[17] The error of both sides of the polarized contemporary debate about academic freedom, as Professor Gersen puts it, is that they misunderstand that freedom as solely an individual right to be free from exposure to certain troublesome ideas. In fact, she concludes, academic freedom is a public good, one that redounds to the benefit not just of professor or students but all of us through the creation of beneficial knowledge.^[18] And by recasting academic freedom in this broader and more humane sense, Professor Gersen’s Frankel Lecture has the potential to free this debate from its battle lines and reorient it in a more generous, public-spirited direction.

Given Professor Gersen’s profile as an academic and public intellectual, it is no surprise that her Lecture drew responses from professors of similarly esteemed stature. Professor Khiara Bridges spoke in reply first. Her commentary, Evaluating Pressures on Academic Freedom, focused on an opening premise of Professor Gersen’s presentation: That academic freedom is under fire from both right and left. Professor Bridges takes issue with this equivalence, arguing that the pressures on academic freedom from left and right are different in kind and degree.^[19]

Professor Bridges traces the pressure from the left to the centrality of “diversity” in contemporary discussions about race in higher education. She observes that in Regents of the University of California v. Bakke and Grutter v. Bollinger, the Supreme Court permitted affirmative action on such a diversity rationale, arguing that classroom discussions were more enriching for all students alike when both White and nonwhite students added their voices.^[20] But what this has wrought, Professor Bridges shows, is diversity as a “feel-good” concept that causes schools to avoid student discomfort in the classroom above all.^[21] What is lost with this vision of diversity is the presence of tough discussions about ongoing racism that may make everyone ill at ease but in so doing make them face the hard truths that are supposed to be the essence of a true education.^[22]

Professor Bridges stresses that her view is not that the classroom should become a place where teachers are free to abuse or humiliate students. On the contrary, she advances the idea of the classroom as a “space of mutual vulnerability.”^[23] The classic conception of teaching is one in which professors wield absolute authority with students as powerless subjects seeking to please. In such a model, the leading concern is simply to protect vulnerable students from professorial overreach.^[24] Professor Bridges, though, points out that teaching a class can make professors vulnerable—hence the concern of many law teachers that a single verbal misstep may cause them to suffer backlash. Students, for their part, can bring pressure on professors to teach certain courses and adopt certain classroom techniques.^[25]

As such, Professor Bridges suggests reconceiving the classroom as a space where contingently empowered actors—students and professors alike—interact. This reconceived law classroom would thus need less regulation of overweening teachers and instead could address concerns through mutually constructive dialogue between quasi-equals. It would also increase the chances that professors would be receptive to changing rigid approaches to content, embracing the perspectives of marginalized people in their syllabi, and making students of all backgrounds feel free to contribute to class discussions.^[26]

Professor Bridges then turns to the pressure from the right on academic freedom, showing how it is a wholly different kind of phenomenon from pressure from the left. She begins by showing that while pressures from the left grew from within academia, those from the right originated exogenously. The current moral panic over CRT arose out of conservative media pundits’ choice to use that signifier to capture a variety of cultural trends they and their followers opposed.^[27] This is why the CRT that is currently a conservative stalking horse is not related or responsive to the content of the critical race theory movement within legal academia. Professor Bridges shows that it is instead an organized political campaign unmoored from actual critical race arguments and an attempt at branding cultural trends loosely related to race that right-wing pundits and politicians seek to oppose.^[28]

As such, Professor Bridges argues, CRT is a capacious enough term that it is hard to know what recent legislative bans on teaching CRT actually do. They do, she points out, seem to get at the same thing targeted by “diversity” approaches used by the left: To eliminate content in the classroom that risks making students feel uncomfortable.^[29] Indeed, much of the language surrounding state-law proscriptions on teaching CRT centers on the concern that discussing racism as a structural or systematic matter will cause White students to feel bad about themselves. So just as diversity rationales seek to provide a “feel-good” classroom experience, so do anti-CRT laws.^[30]

Professor Bridges concludes by arguing that because pressures on academic freedom are very different from right and left, they warrant different responses. In terms of pressures from the left, she argues that her vision of law classrooms constituted by contingently empowered actors would help lower the temperature of discussions about race, as would more courses on inequality in all its forms.^[31] In terms of pressures from the right, she suggests that conservatives take a page out of the book they authored during the campus controversies of the 1990s, when they argued that more speech, not less speech, was the best approach to addressing content a group finds troubling. The curative power of open dialogue is, Professor Bridges reminds us, the essence of the First Amendment, rendering the current trend toward bans on CRT and other content in the classroom “wildly un-American.”^[32]

Finally, Professor Keith Whittington’s contribution amplifies some of the themes sounded by Professor Gersen, focusing on the distinctive position of the academy in contemporary American society and how open dialogue is critical to its social function.^[33] Like Professor Gersen, Professor Whittington starts by taking a page out of history. His goal is to highlight that the role of the university in modern America is different than it used to be. Even in the mid-1800s, universities existed to edify the character of their predominantly male students. This left little room for freewheeling intellectual discussion.^[34]

But Professor Whittington shows that starting in the late nineteenth century and over the course of the 1900s, universities transformed into sites that sought to “preserve, advance, and disseminate knowledge.”^[35] This new mission not only included but required academic freedom as a core principle. Proponents of this new model embraced dissent and dialogue, even if that meant challenging orthodox views and sometimes even alienating university officials and parents who found this approach objectionable. The result was the notion of academic freedom as we now know it, whereby professors are free to speak, teach, and publish without interference by university officials.^[36] This necessarily includes, according to Professor Whittington, the freedom to advance unpopular and even controversial arguments in the name of free and open exchange of ideas. The hope is that in such an environment of free exchange, dialogue about all ideas will flourish, and the best ones will prevail, thus advancing the “truth-seeking function of the university.”^[37]

Yet as Professor Whittington shows through several historical illustrations, this is not the only available vision of the university. One such vision is that the university is critical to democratic society because it produces people and ideas that will maintain informed debate on public issues. This idea, which developed alongside the emergence of the modern American notion of academic freedom, prioritized the independence of universities from the state because it needed professors to be guided only by their intellectual skills untarnished by dogma or political influence.^[38] Professor Whittington points out that this is not the only way to think about how the state and universities should relate, and indeed there have been numerous movements to constrain universities and require them to advance ideas that the state prefers.^[39]

Still another model outlined by Professor Whittington conceives the university as any other service provider, where content must be responsive to the needs and desires of students. Professional schools in particular are under an imperative to assure that graduates attain meaningful employment in their field of study.^[40] This approach too, Professor Whittington argues, can lie in tension with academic freedom. Students who feel uncomfortable or offended in the classroom can argue that they should be shielded from troubling ideas because they are paying customers and should not be made ill at ease any more than a restaurant or spa patron.^[41] And as Professor Whittington catalogues with numerous examples, this consumerist mindset has resulted in many instances of professors being sanctioned or made the targets of outrage when university officials or students find content presented in their work or classroom disagreeable.^[42]

A final model is what Professor Whittington calls “The University of Shared Values.” This is a school that is explicitly founded on some set of principles, most familiarly religious institutions of learning. Professor Whittington observes that many of these universities have explicitly limited their commitment to academic freedom because truly unfettered inquiry will inevitably clash with any fixed set of principles.^[43] More concerning, Professor Whittington identifies an increase in the number of universities devoted to some shared orthodoxy, both religious and secular, and attributes that trend to the increasing ideological polarization of American society.^[44]

Professor Whittington concludes by contrasting the abstract ideal of academic freedom with its actual life in practice. Organizations like the AAUP and the U.S. Supreme Court have both expressed strong versions of academic freedom as essential to the truth-seeking function of universities.^[45] But as Professor Whittington’s several examples illustrate, the function of the university as a truth-seeker is contested, and as a result, parties that have clashed with the goal of truth-seeking have sought to roll back academic freedom.^[46] Professor Whittington thus ends on a cautionary note, observing that if universities want to continue serving their truth-seeking function, it is essential that they embody this function and continue to allow open and robust debate rather than give in to political pressures that would exclude some perspectives from those discussions.^[47]

The topic chosen by Professor Gersen for the Twenty-Sixth Annual Frankel Lecture was distinctive because it related to controversies currently embroiling law schools, and universities generally, and so touched on the life and work of Professor Gersen, her commentators, as well as faculty, students, and alumni who attended the Lecture. But as Professors Gersen, Bridges, and Whittington all showed with their respective talks, academic freedom is not an issue relevant only to the academy. It is one that affects all of us. Constraints on academic freedom threaten to weaken the truth-seeking function of universities. Controversies about the appropriate content of academic debates mirror larger tensions in society. And how we address such challenges, with censorship on one hand and open-minded dialogue on the other, is a bellwether for how public discourse will proceed in an increasingly fractured America. These three speakers have mapped the geography of this controversy and hinted at the best way forward. It’s up to all of us to move forward together.