Academic Freedom and Discrimination in a Polarizing Time

In 1856, in the lead up to the Civil War, a chemistry professor was dismissed from the faculty at the University of North Carolina for his antislavery views. Professor Benjamin Hedrick had expressed support for the Republican presidential candidate, who opposed slavery. That led to public calls for so-called “Black Republicans” to “be driven out” of schools, and rumors about Hedrick’s views circulated at the university. After he responded in a newspaper article explaining himself, the university found him unfit because of his “indiscretion” of making his political opinions public and declared that Professor Hedrick’s views were “not those entertained by any other member of this body.” The trustees found that he had “destroyed his power to be of further benefit to the University” and removed him. Students burned him in effigy.^[1]

This teacher’s dismissal for his views on a central conflict dividing the country would of course not be the last.^[2] At the time, there was no established concept of “academic freedom” in the United States. Academic freedom as an institutional phenomenon and a legal idea in this country began to develop in earnest in the twentieth century.^[3] The law and discourse of academic freedom from that time to today have implicated the deep political conflicts that have characterized each era.

In 2022, we are in an academic freedom crisis. For this, right‑wing observers blame the left,^[4] and left-wing observers blame the right or claim that there is no real problem.^[5] I think it is plain to see that academic freedom is under attack from a number of different political viewpoints, affecting the speech of professors and students of various political directions. Both liberals and conservatives might claim to value academic freedom while attacking exercises of it that are at odds with their political goals. Further, we see attempts to champion academic freedom by attempting to restrict it,^[6] thereby decreasing the credibility of defenses of academic freedom.

In my fifteen years of law teaching, an atmosphere of fear about speaking freely has never been more palpable. I see it in my students; I see it in my colleagues. And it is at this moment that explicit discussions about academic freedom are most needed. I’m very grateful to the Houston Law Review and the University of Houston Law Center for inviting me to devote this Frankel Lecture to the subject, for inviting my excellent colleagues Khiara Bridges and Keith Whittington to share their comments on the subject, and for asking my old friend Dave Fagundes to moderate this discussion.

An event that appears to have triggered the process whereby academic freedom became an established idea in the United States is instructive. In 1900, Stanford University forced out an economics and sociology professor, Edward Alsworth Ross. Ross had made public statements that provoked the university’s sole trustee, Jane Stanford, to write to its president that “Professor Ross cannot be trusted and he should go. . . . He is a dangerous man.”^[7] Ross had first disturbed Mrs. Stanford in 1896 with his support for the Democrat William Jennings Bryan in his presidential campaign championing workers against wealthy capitalists. But her effort to oust Ross finally worked in 1900 when, in the context of organized labor leaders blaming Asian immigration for lower wages, Ross stated that “the Orient is the land of ‘cheap men’”; “America will be imperiled if Orientals are allowed to pour into this country in great numbers”; and “[s]hould the worst come to the worst, it would be better for us to turn our guns upon every vessel bringing Japanese to our shores than permit them to land.”^[8] Ross’s pro-labor and anti-immigrant statements, along with his calling for municipal ownership of railroads, arguably attacked the legacy of the Stanford family’s business practices. Later, Ross would also become a proponent of eugenics.^[9]

The university president was loath to fire Ross and entreated Mrs. Stanford to consider that “the word will go out that he was dismissed for political reasons. Such a statement would do us great injury in the higher circles which make university reputation. We cannot bring good men here, if they believe their positions insecure.”^[10] But she was adamant that a professor who associates himself with the discriminatory rhetoric of political demagogues and “plays into the hands of the lowest and vilest elements of socialism” had to go.^[11] Ross was dismissed.^[12]

That soon fueled protest resignations from other professors who objected to the firing and inspired wider attention to the issue of academic freedom. Years later in 1915 during World War I, a time when free speech controversies were legion, philosophy professor Arthur Lovejoy, who had resigned from Stanford in protest of Ross’s firing, joined John Dewey to establish the American Association of University Professors (AAUP).^[13] The purpose of the new organization was to protect academic freedom and tenure for faculty.^[14] The organization’s Declaration of Principles of Academic Freedom and Academic Tenure stated that a teacher’s academic freedom comprises “freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extra-mural utterance and action.”^[15] This declaration asserted that faculty are “not in any proper sense the employees” of university trustees.^[16] Undermining an employer’s simple ability to dismiss an employee was central to how academic freedom would primarily be enforced: through job security and insulation from firing.^[17]

Universities then gradually developed the system of tenure. After World War II, an influx of veterans attending college on the GI Bill caused universities to need more teachers, and they used the prospect of tenure to recruit faculty.^[18] Soon, in the late 1940s and early 1950s, we were in the period of fear of the spread of Communism, known as the Red Scare and the McCarthy Era. In his Senate investigations and hearings, Senator Joe McCarthy accused many academics of supporting the Communist Party and being disloyal to the United States. The existence of tenure by this point shielded at least some academics from being fired for their views or for their refusal to cooperate with McCarthy.^[19]

The chilling impact of the McCarthy Era on academia provoked the Supreme Court to make sweeping statements in support of academic freedom in a 1957 case involving a professor who was convicted of contempt for refusing to answer questions by the state legislature about his beliefs on Communism.^[20] The Court held that the professor’s conviction infringed his liberty under the Due Process Clause.^[21] Chief Justice Warren found “almost self‑evident” the “essentiality of freedom in the community of American universities,” because of “the vital role in a democracy that is played by those who guide and train our youth.”^[22] Thus, the Court declared: “To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”^[23] Such imposition would bring dire results: “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”^[24] In an influential concurrence,^[25] Justice Frankfurter, a former professor at Harvard Law School, also emphasized “the dependence of a free society on free universities.”^[26] “For society’s good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible.”^[27]

The Supreme Court’s next significant defense of academic freedom came in a 1967 case about New York statutes and regulations that were used to prevent appointment and retention of “subversive” people.^[28] Several public university teachers were dismissed or threatened with dismissal for refusing to say whether they had “ever advised or taught,” or been “a member of any society or group of persons which taught or advocated” the violent or unlawful overthrow of the government, or ever been Communists.^[29] The Court held that these laws were impermissibly overbroad and violated petitioners’ First Amendment rights.^[30] The vagueness of the regime meant that “[i]t would be a bold teacher who would not stay as far as possible from utterances or acts which might jeopardize his living by enmeshing him in this intricate machinery.”^[31] The uncertainty over what would get one in trouble “ma[d]e it a highly efficient in terrorem mechanism.”^[32] The Court stated:

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. 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.^[33]

The country would soon enter the era of political protest about civil rights and the Vietnam War, in the late 1960s. And the Supreme Court once again had a chance to address academic freedom in that context, in a case about students who sought to form a local chapter of Students for a Democratic Society (SDS) and were denied recognition by their state college.^[34] The Court noted that, in 1969 to 1970, “[a] climate of unrest prevailed on many college campuses in this country,” featuring “widespread civil disobedience on some campuses, accompanied by the seizure of buildings, vandalism, and arson.”^[35] And “SDS chapters on some of those campuses had been a catalytic force during this period.”^[36] But the Court stated that the First Amendment does not “apply with less force on college campuses than in the community at large,” and reiterated “this Nation’s dedication to safeguarding academic freedom.”^[37] A college’s denial of official recognition to a college organization, just “because it finds the views expressed by any group to be abhorrent,” violated the First Amendment “right of individuals to associate to further their personal beliefs.”^[38]

I also consider the Supreme Court’s affirmative action case from 1978, Regents of the University of California v. Bakke, to be an important academic freedom decision, though it is not a First Amendment case.^[39] In that case, the Court upheld the use of race‑conscious affirmative action to create a diverse classroom environment under the Equal Protection Clause.^[40] There, the Court explicitly reaffirmed its previous statements on academic freedom regarding a university’s atmosphere of “speculation, experiment and creation” and “robust exchange of ideas.”^[41] The Court connected that academic atmosphere to a university’s ability to enroll a diverse class of students, so as to expose them “to the ideas and mores of students as diverse as this Nation of many peoples.”^[42]

The Supreme Court’s statements on academic freedom, from the McCarthy Era^[43] through the civil rights and anti-war movements,^[44] arose in the face of political attempts by government to constrain what academics and students should think and say. Since that time, the legal doctrine of academic freedom has mostly been forged in the application of the First Amendment to teachers and students at public institutions.

The First Amendment framework of academic freedom centers on two main Supreme Court cases about the speech of public employees: Connick v. Myers^[45] and Pickering v. Board of Education.^[46] Under Connick, the First Amendment applies only if the employee spoke as a citizen “on a matter of public concern,” that is, “any matter of political, social, or other concern to the community.”^[47] If so, then under Pickering, the employee may have a First Amendment claim but only if the teacher’s interest in commenting on a matter of public concern outweighs the state employer’s interest “in promoting the efficiency of the public services it performs through its employees.”^[48] A school’s interest in limiting a teacher’s speech is not great when the speech does not impede the “proper performance of his daily duties in the classroom or . . . the regular operation of the schools generally.”^[49]

But in 2006, the Court in Garcetti v. Ceballos created an exception to this framework, holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”^[50] After Garcetti, courts have allowed states to restrict the speech of public primary and secondary school teachers.^[51] But some courts have declined to apply Garcetti to teachers at public colleges and universities because of the Supreme Court’s clear pronouncements on the importance of academic freedom.^[52]

In 2021, the Sixth Circuit decided the case of Meriwether v. Hartop, which involved a professor who was disciplined under a public university’s Title IX antidiscrimination policy when he refused to address a student, who identified as female, as Ms. or to use her preferred pronouns when calling on her in class because the professor perceived the student as male and did not believe that a person’s gender could be different from sex assigned at birth.^[53] In the professor’s lawsuit against the university, the Sixth Circuit held that the professor “plausibly alleged” that his refusal to use the student’s preferred pronouns was protected by the First Amendment.^[54]

It is clear that the First Amendment protects a person’s expression of views on matters such as gender identity. But I find the decision in Meriwether erroneous because the right that the professor was asserting, to use “Mr.” notwithstanding requests by the addressee to be called “Ms.,” is not the same as the right to express a view on a matter of “public concern,”^[55] for example, a view about whether someone’s gender can differ from their sex assigned at birth. I found the professor’s complaint no more convincing as a First Amendment matter than an insistence on a constitutional right to address a person by, for example, their maiden name instead of their married name. This is about a person’s form of address. It’s not a free speech right. To be sure, the choice might reflect politics, or underlying views about gender, marriage, immigration, assimilation, or ethnicity, but that does not render it speech on a matter of public concern as the constitutional doctrine requires. But were a school to discipline a person for stating that a person’s gender cannot diverge from sex assigned at birth, or that people should not take their spouse’s names, that would indeed be a violation of academic freedom.

It’s unfortunate that in a year when academic freedom is under attack, a strong judicial defense of academic freedom has come in a case that makes such a basic mistake in what it construes as covered by academic freedom. But that also reveals what makes the subject difficult today: the problem of defining what academic freedom is, particularly in relation to discrimination.

Political fights that play out as debates about academic freedom have reemerged following the dramatic cultural shifts of the past two decades.^[56] In the past five years, the global social movements of #MeToo and Black Lives Matter, protesting the pervasive harms of discrimination, have affected the contours of academic freedom.^[57] Intensifying social turmoil and political polarizations have squarely and explicitly become public fights about what teachers should or should not teach, what students should learn, and what speech should end up with an individual being disciplined, fired, or expelled.

In 2017, the #MeToo movement went viral and global, with public revelations of sexual harassment and discrimination in industry after industry and every conceivable workplace.^[58] A form of accountability that quickly emerged was high-profile firings, resignations, and terminations of working relationships.^[59] Then in 2020, in the midst of the COVID-19 pandemic, the Black Lives Matter movement went global after the murder of George Floyd by Derek Chauvin. We have now seen the criminal convictions of Chauvin and of Harvey Weinstein. But the broader social impact of these global movements has been measurable in the increased expectations that there will be negative job consequences in response to allegations or revelations of a person’s discriminatory wrongdoing.

Thus, we’ve become acculturated in the past several years to the idea that individuals who discriminate, harass, or express views that are racially or sexually offensive may lose their jobs. So where does that leave academic freedom, which has staked its power on making it difficult to fire academics for offensive statements? Recall that a key event that led to the rise of academic freedom in the United States was the reaction to the dismissal of Professor Ross from Stanford in part for his discriminatory statements about Asian immigrants.^[60] And today, too, academic freedom is often a defense raised when an individual is alleged to have said something discriminatory and is at risk of discipline.^[61]

In recent years, universities have developed a growing commitment to antidiscrimination principles and diversity‑and‑inclusion practices, including in relation to laws such as Title IX on sex discrimination and Title VI on race discrimination.^[62] And university policies on discrimination and harassment of course prohibit conduct that may be verbal, or that may occur in the classroom or in the course of performing duties as a teacher or researcher.^[63] And in recent years, definitions of discrimination and harassment have undoubtedly expanded to cover more than before.^[64]

You may believe, as I do, that not only must academic freedom be vigorously protected but also that there has to be a limit to a person’s academic freedom where their conduct constitutes discrimination or harassment that seriously compromises the environment for teaching and learning.^[65] Academic freedom cannot simply mean the right to freely discriminate. Addressing discrimination also cannot mean firing or expelling people for expressing views that offend others. But it is much more complicated than it would seem to distinguish instances of discrimination or harassment from the exercise of academic freedom. And it has become harder in the recent past because of changing ideas of discrimination and harassment, as well as increased political polarization that makes it more difficult for people to give each other the benefit of the doubt.^[66]

Perhaps we can start with an easy example. If a professor says in class about a student, “She is a slut,” that is not academic freedom, for a variety of reasons including that it targets an individual for gender-based disparagement and may be defamatory. But if a professor instead makes a statement about the impact of women’s promiscuity on their social standing, that would be an exercise of academic freedom.^[67] In between are myriad possible statements that could be made about women, gender, and sex that some people will find objectionable or offensive, or experience as discriminatory and as creating a hostile environment that impairs learning. And that is the contested space in which debates about academic freedom today take place.

What many people perceive as creating a hostile environment in 2022 is different from what they would have understood as such only ten years earlier. We’ve seen the significant growth of university bureaucracies including those dedicated to promoting and enforcing university antidiscrimination policies, through training, investigation, adjudication, and discipline, for reported and alleged incidents.^[68] And offices of diversity and inclusion related to this work have grown and become fixtures of university administrations in recent years.^[69] The work of those offices necessarily disfavors speech that is discriminatory, and their orientation and training of the university community cannot reasonably be expected to be content neutral since part of their mandate is to be against discriminatory speech.

Realistically, what people experience, report, and expect to be disciplined as discrimination or harassment based on their training and socialization affects what speech they consider illegitimate. And the more speech that is perceived as discriminatory, the more contests there are over the contracting space wherein people may express views without fearing discipline. It is therefore not surprising to see what we are now seeing: that training and discipline on discrimination, harassment, and bullying overseen by diversity and inclusion offices are coming into conflict with academic freedom.^[70] We see increasing clashes that look like fights between antidiscrimination commitments and principles of academic freedom.^[71]

It is in that vein that, for some people, the concept of “academic freedom” is simply associated with the defense of racist or sexist speech that harms vulnerable people. There are myriad examples of professors or students being threatened with discipline for speech that some considered discriminatory and others considered merely provocative, controversial, nonconformist, or ill-phrased.^[72] That has fueled the widespread criticism of the supposed atmosphere of censoriousness on campuses, wherein fear of unfair accusation, lack of fair process from administrators, and the lurking threat of investigation and discipline is said to create a general chill on free thinking, inquiry, and expression.^[73]

It has been tempting for liberals to dismiss this dire picture as one that is self-servingly painted by conservatives for political gain, to attack a straw man of liberal-progressive campus hegemony.^[74] My own experience as a left-liberal legal academic is that the chill that has descended on the classroom since 2007, when I began teaching, is significant. Left-liberal students, including students who are members of the vulnerable groups that discrimination policies are supposed to protect, tell me that they don’t dare try to speak their mind. They say they don’t dare engage in genuine exchanges or explorations of views in class. And I feel their fear while leading discussions in criminal law and constitutional law.

Left-liberal academic colleagues at various institutions tell me that they feel at constant risk of self-immolation in the classroom and have greatly curtailed the issues they are willing to explore with students. At the same time that #MeToo and Black Lives Matter have created great opportunities and demand to deepen and strengthen teaching about gender and race, many teachers tell me that they avoid class discussion of topics that touch on gender, race, or anything controversial, lest they misstep and cause pain, cause a scandal, or get reported to the school authorities.^[75] And many of those who persist in teaching on the most controversial topics are professors of color, who are then more at risk of allegations of wrongdoing in comparison to peers who assiduously avoid such risk-laden discussions.^[76]

What’s more, students and professors may not want to express these kinds of concerns about the academic environment out loud lest their peers take them to mean that they are insufficiently committed to antidiscrimination goals.

These constraints on academic freedom are largely ones that those within universities have put on ourselves, through our self‑imposed frightened silences or our failures to calibrate internal university policies and practices to account for their effects on free inquiry and free speech.^[77]

But the traditional way in which academic freedom has been threatened in the United States over the decades is through government constraints on schools and teachers.^[78] And this year, we have seen precisely that again, in the conservative political and legislative movement to ban the teaching of “critical race theory” in schools.^[79] (I’m going to bracket for now the substantive gap between what is commonly being referred to as CRT and the actual Critical Race Theory academic movement; in the public debate CRT functions as a floating signifier for ideas that conservative anti-“CRT” folks abhor.)^[80] I understand this speech-repressive movement as an intense and virulent backlash against the increased social influence of the idea of racism as systemic, structural, and institutional, as opposed to racism as an individual’s idiosyncratic prejudice.^[81]

Anti-“CRT” advocates appear to think that they are fighting against discrimination. An Oklahoma law made it unlawful for schools to “make part of a course” the concept that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.”^[82] In response, some colleges have paused courses about racial inequality.^[83] The anti-“CRT” movement on how race should be taught in schools is now shorthand for the broad and deep cultural, social, and political divisions in this country around race and the legacy of slavery—divisions that harken back to the Civil War. In that context, it makes sense that one of the biggest stories of academic freedom crisis in 2021 was that of Nikole Hannah-Jones, an author of “The 1619 Project,”^[84] a New York Times series exploring the legacy of slavery, who was offered a chair at the University of North Carolina’s journalism school but was denied tenure for the position because of objections from a conservative donor.^[85] Indeed, the Trump Administration had created the 1776 Commission as a response to the 1619 Project and issued a report that promoted “patriotic education” that would downplay slavery and condemn progressive politics.^[86] Each side in this debate has accused the other of attempting to indoctrinate students and of being against independent thinking.^[87]

In the name of fighting an alleged orthodoxy on race, anti‑“CRT” laws have plainly attempted to “cast a pall of orthodoxy over the classroom.”^[88] Academic freedom in the classroom has become a key battleground in the so-called “culture wars.”^[89] The strategic importance of academic freedom in that war is clear: those who can exert control over the terms of academic freedom can control the production of future partisans in the culture war. Colleges and universities shape the speech framed as falling within the scope of academic freedom.^[90] But championing academic freedom and free inquiry by undermining it has become a salient strategy in the fight. Defenses of academic freedom then become swords rather than shields.

Those who genuinely believe in the value of academic freedom must wrest it from disingenuous invocations and truly defend it by wrestling with its genuine difficulties. What is academic freedom for? I believe that academic freedom is essential to the education of citizens for a democracy and creates the conditions for the production of knowledge.^[91] I also believe academic freedom should be defended as including within it the values of nondiscrimination, diversity, and inclusion.

Many think of academic freedom as an individual freedom—the freedom of individual academics or students to express their views and ideas.^[92] But academic freedom is an institutional value, not just an individual right.^[93] Academic freedom is a public good, not primarily a matter of individual conscience.^[94] Properly understood, it does not merely exist to benefit individual professors and students; it enables the production of knowledge that benefits society and humankind.

Universities and colleges participate in the production of knowledge in unsettled areas of inquiry. That frontier of unsettled exploration is a territory in which definitions of academic freedom must be constantly renegotiated in response to evolving social values that change our institutions over time.

As we engage in this negotiation today, we must acknowledge that there has been a change in how a new generation of students coming of age at a time of social upheaval are oriented differently from people of the previous generation to the value of free speech in general and academic speech in particular. Within the university setting today, academic freedom might be perceived as a defense that too often ratifies the infliction of harm on vulnerable people. And in my experience, today’s students are more likely to recoil at the notion of the ACLU defending Nazis marching in Skokie, Illinois,^[95] perhaps because they are coming of age at a time when White supremacists march openly. I understand why they might resist the notion of an entirely content-neutral defense of academic freedom.

In this era, we must be sober and not in denial about the ways in which antidiscrimination principles and academic freedom principles may come into conflict. At the same time, we should not give up on either set of principles that are essential to the university’s mission. The negotiation of this tense balance is difficult and requires vigilance, nuance, sensitivity, and non‑absolutism. And this continuous negotiation and the shifting contours of academic freedom must be measured against its status as a public good because its value is to serve something much broader and more important than the desires of individual academics.

The tension between academic freedom principles and antidiscrimination principles is not something to be resolved or eliminated but rather acknowledged and negotiated. Our world will not get better by pretending there is no tension or that we can resolve it with clever arguments. Universities will get better only when we learn to navigate better the tension between two of our most deeply treasured values. It is by openly living with that conflict that we will be able to engage our students in the most vital discussions and our universities will grow stronger.