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Wednesday, October 05, 2016

Academic Freedom in NYU-Shanghai versus NYU-NYC

Last week, the GAO issued a report on academic freedom at campuses operated by American universities in China. The report has special interest for me, because I spend my Fall terms teaching undergraduate students at one such university (New York University-Shanghai), and I had been interviewed for the GAO report.

The GAO’s conclusions are consistent with my own experience teaching here at NYU-SH: NYU’s campus here in China fosters freedom of speech and thought just as effectively as the campus in Washington Square. My class on constitutional law provides a typical illustration. The course studies the U.S. Constitution with the goal of assessing whether and to what extent its text, precedents, and basic concepts (freedom of speech, separation of powers and judicial review, federalism) are relevant to China. Toward that end, the class is divided into two teams – the “Left Party” (左派)and the “Western Liberal Party” (西自由派) who are charged with trying to persuade or dissuade the chair of Central Political and Legal Affairs Commission of the Communist Party of China (Zhongyang Zhengfawei, 中央政法委) to adopt an American constitutional practice. The two teams debated last week whether Article 105 of the Chinese Criminal Code prohibiting “subversion of state power” should be construed narrowly to exclude prosecutions of Chinese human rights lawyers. Thanks to NYU-Shanghai’s outstanding VPN, they had the same access to newspaper accounts of these arrests, detentions, and coerced confessions. The ensuing debate was no-holds-barred, with impassioned denunciations of censorship and prosecution vying with Leninist calls for protection of stability against “western outsiders.”

Of course, one could argue that these outward manifestations of freedom merely hide the reality that Chinese students are cowed by the Party, whose spies deter them from saying what they really think. After the jump, I will explain why I think that it is unlikely that NYU-Shanghai students’ speech – and, by extension, students at other American universities in China – is chilled by fear of the Chinese Communist Party. Indeed, I will suggest that, if anything, freedom of speech at NYU-Shanghai might be greater than at NYU-Washington Square or other schools on American soil. My reason for this suspicion is that the major culprit suppressing freedom of speech on campuses is less the government than other students, and the diversity of nationalities at NYU-Shanghai breaks up the usual cartels of opinion that make so many American campuses oppressive hothouses of ideological uniformity. I will also suggest why well-meaning demands from people like Marty Flaherty that American law schools operating in China denounce the Chinese government for their sins against freedom actually undermine the sense of ideological openness that our students enjoy.

1. First, why do I think that campus life might actually be freer in Shanghai than New York City? Americans have been arguing with each other about law and politics for a long time. Our American classroom quarrels, therefore, tend to have the parochial and repetitive quality of a grumpy siblings’ rehearsal of decades-old family grievances over one more Thanksgiving dinner. I vividly recall the students in my constitutional law class at Yale hissing at a student who dared to question freedom to obtain an abortion by asking whether the reasons for getting an abortion should matter. (To deflect the class’s ire, he felt the need to use Judith Jarvis Thompson’s article as political cover). During my office hours, Yalies would come by just to see what a real-life Republican looked and sounded like. Yale admittedly is a special case where orthodoxy on politico-religious values has, since the days of Federalist Timothy Dwight, always been treasured. But even at the more easy-going NYU, professors and students tread with exquisite care whenever sensitive topics arise, for fear of tripping over a half-hidden live wire of political resentment. I have had colleagues caution me that I should not ask the students an exam question about the Prison Rape Elimination Act, because rape was too controversial a topic to broach in a high-pressure context like a final exam. (I asked the question anyway, and the students did fine). As one NYU-Shanghai student has noted, “at NYU New York, between the university’s decision to actively investigate undesirable speech and the palpable social pressures to step in line politically, campus speech is more than chilled; it is frozen” while “[a]t NYU Shanghai students felt comfortable discussing taboo topics and defending free speech.”

Why the difference? My personal hypothesis that national diversity drives out ideological orthodoxy. The students at NYU-Shanghai, coming from dozens of countries, are simply too unfamiliar with each other’s mores and peeves to know whether and when to be offended. There are no longstanding family quarrels that we all know we must avoid to maintain a chilly peace. What is the consensus position on, say, the legality and morality of a ban on porn or a Muslim woman’s entitlement to religious exemptions from a public school’s uniform requirements when the discussants are a Dutch atheist, a Pakistani Muslim, and a Chinese Communist Youth League kid? What is the orthodoxy on which the majority is supposed to latch? What anxieties must be anticipated by a trigger warning? It helps to disrupt expectations about who speaks for privilege and power that there is a division of power between Americans (who make up the majority of the faculty) and Chinese (who make up a majority of the students and have ultimate power to shut down the school). What is “left” or “right” at such an institution, where “New Left” look back to the halcyon days of Chairman Mao’s Cultural Revolution but also denounce the Chinese government’s arrest of 新左leafleters who attacked the government's profiting from land ground leases?

The fact that authoritarianism is on the table as a real option makes much more vivid classroom discussions of democracy and freedom of speech. You have not really discussed Robert Filmer’s attack on popular sovereignty until you have discussed it in a city where party-run newspapers regularly denounce multi-party elections. The usual lines from Mill or Oliver Wendell Holmes’ dissents about freedom of speech do not inspire drowsy nods of agreement but rather pushback from the Communist Youth League kids.

2. Should American legal academics in China denounce the Chinese government for its human rights abuses? Marty Flaherty has argued that we sell our birthright for a mess of tuition dollars if we hold our tongues. His thoughtful essay urges American universities in China to denounce human rights abuses when they can do so, as “carefully and prudently as possible.”

I myself do not, however, do much denouncing. To my mind, my job is to create a safe space, not to take sides. Rather than urge American liberal or libertarian values, I provide a forum in which they have a chance to defend themselves against people who do not share them. My credibility in performing this role, however, depends on my assiduous neutrality when the CYL student is attacking western intermeddling. There are plenty of “angry, young Chinese” (so-called 愤青) who feel patronized by Americans’ attacks on their government – even attacks that an American regards as morally unassailable defenses of universal human rights. It is not my job to make that defense: It is my students’ job. Since every student must debate on both the 西自由派 and 左派teams, that CYL patriot will eventually have to make a plug for freedom of speech and limits on arbitrary detention, just as the western liberal will have to argue in favor of the Party-State’s limitless discretion. (The requirement that everyone debate every side also has the advantage of giving everyone political cover of mandated insincerity, just in case the Party is keeping tabs).

Martin Flaherty implies that such neutrality is a form of moral cowardice, but I regard it as liberalism in action. The Chinese get horse doctor’s doses of political preaching. If NYU-Shanghai can provide something unique to Chinese students, it is a place where the professor does not preach and where everyone has to listen to everything and make up their own minds. I do not want any student at NYU-Shanghai, whether western liberal or 愤青CYL patriot, feel that they must hold their tongue because their faculty and classmates are preaching some orthodoxy that it is hazardous to question. There is enough of that sort of thing in America already.

Posted by Rick Hills on October 5, 2016 at 06:34 PM | Permalink


The notion of academic freedom in China is comical. Censorship is employed and the NYT is unavailable on the net. The US achools are there to make money that is the bottom line. As China rises, calls for reform will be stifled out of self interest.

Posted by: Guest | Oct 7, 2016 9:52:21 AM

I am guessing that you've never been to China, Guest.

Anyone with a semi-decent VPN can access the New York Times: my students regularly read it. You do not even need NYUSH's gold standard VPN: Astrill or Golden Frog does the trick. (I have seen Chinese patrons of Costa Coffee near my apartment browse the Times on their devices, and my Chinese friends say that ordinary commercial VPNs are quite up to the task of jumping the vaunted firewall. The government shuts them down periodically, and then the VPN services upgrade their software in a perpetual game of tag that seems to leave the Chinese readers with plenty of access).

As for making money, the GAO reports that 5 out of 11 of their respondent schools in China either broke even or lost money. The way to make money is to admit PRC kids to universities in the United States, charging them full freight. No U.S. school in China can charge the high tuition that American soil schools charge, because the Chinese will not pay it.

Posted by: Rick Hills | Oct 7, 2016 10:19:31 AM

oh tnx for this post , very useful

Posted by: خرید vpn | Oct 7, 2016 5:58:16 PM

I applaud Rick Hills taking the time to respond to the recent GAO report on academic freedom on campuses run by American universities in China. That goes double in light of his references to my reflections on the topic. It is always comforting to discover that someone is reading work one has published at all, much less years ago, much less a scholar of Rick Hills stature. Hills’s own observations are no less worthy of a response.

Hills’s contribution makes two points. First, he suggests that campus life may be freer in Shanghai than in New York, let alone New Haven. Second, he questions whether US professors in China should be engaged in “denouncing” the human rights abuses of the Party and CCP. The initial point invites a dose of healthy skepticism. The second, which tilts at a straw man, requires clarification, both descriptively and normatively.

1. Are students at NYU/Shanghai freer than their counterparts at Washington Square or in the gothic confines of Yale?

Hills’s observations have the classic, provocative, and counterintuitive ring of arguments that thrive in law reviews. Yet like the arguments in more than a few law review articles, the evidence does not always match the originality. For starters, I am skeptical of mere anecdotal evidence. That said, my own experience teaching in China – during a much freer period – pointed to the opposite conclusion. My students’ discussions on US Constitutional law and even the Chinese Xianfa, were surprisingly open. Still, numerous topics were simply understood to be off limits: Tibet, Xinjiang, Falun Gong, alternatives to CCP rule, and not least the Tiananmen “incident” (never say “massacre,”) and there was palpable tension when I came close to raising any of them. If Hills’s experience is different, I welcome the development. Even then, I find a personal story or two on either side of the question hardly convincing.

More important are the comparative mechanisms for chilling speech. At the end of the day, Hills’s case for coercion in the US comes down to peer group pressure, including political resentment -- even hissing! I concede that this kind of groupthink can be significant and should be condemned. Kudos to Hills for ignoring colleague’s warning not to bring up sensitive topics. Yet surely there is a world of difference between these types of pressures and arrest, disappearance, torture, extra-judicial beatings, exile, and reprisals against families. Especially under Xi Jinping, exactly these human rights violations have been meted out against even the most moderate lawyers (which is to say, law graduates), activists, and indeed, not a few prominent academics, several of whom serve as guest speakers in my classes at Princeton given that going back to China for them would mean immediate imprisonment. See Committee to Support Chinese Lawyers, Plight and Prospects (2015), http://leitnercenter.org/files/Plight%20and%20Prospects_FULL%20FOR%20WEB.pdf. Thankfully, I’m not aware of any students either at American or Chinese campuses who have been subject to such measures recently, though I have taught several Fordham LLM who were exactly in that position. Nor does the official harassment of Hong Kong student leader Joshua Wong provide much assurance. I have no doubt that Chinese students, whether through the censored media of Weibo or WeChat or through more open VPNs, are unaware of the very tangible consequences of speak up to freely in China. I do know not a few Chinese students, graduates, and academics who would be more than happy to return to their homeland if hissing was the worst they had to face. For that matter, I would be interested to see what would happen if anyone at NYU/Shanghai invited certain leading American academics to speak in their classes, such as Andrew Nathan at Columbia or Perry Link, formerly at Princeton and now at UC Riverside, and see what happens. Last I checked, Richard Epstein was allowed to enter New Haven, even if only just.

2. The Responsibilities of American Academies and Academics.

On this point, I fear, Hills’s analysis is even further wide of the mark. In part this is because he does not fully convey my own views. And where he comes close, he justification for inaction in the face of oppression is simply indefensible.

Hills never says outright that I don’t do much more than advocate that American professors in China “denounce” the host country’s human rights abuses. I would not blame a careful reader, however, from having that impression. Actually, the talk I gave – which Hills graciously cites – was, I hope, more nuanced. As an initial mater, its focus was less on individual professors than on US academic institutions. More importantly, it suggested five considerations that such institutions should address when doing business with or in any authoritarian regime. First, a US university or law school should undertake due diligence to determine whether and to what extent is might be dealing with a repressive state, a task readily done via NGO, press, and government reports, among other readily available and credible sources. Second, a US institution should consider a less authoritarian alternative if one exists. At least when I spoke, Hong Kong was clearly a preferable location for freedom of expression than Singapore for institutions, such as NYU or Yale, looking for an English-speaking Asian “gateway” city. Third, I counseled, “do no harm.” Here the idea was to avoid facilitating human rights abuses in the manner of Yahoo!, which notoriously turned over information that led to the arrest of human rights activists. Fourth, my remarks argued for US institutions, and for that matter individual academics, to self-consciously promote, if not American ideals, at least universal human rights precepts to which China formal subscribes. With one caveat, it appears that much of Hills’s efforts in China do exactly this.

Only then did I advocate anything approaching “denunciation.” What should an American academic institution – and here I’ll expressly add professor – do if a given Chinese academic or student is detained, arrested, beaten, disappeared, put on trial for political offenses? Worse, what should be done if the Chinese academic or student is affiliated with one’s own institution? It is in this context that I advocate that American institutions take up the issue “as carefully and prudently as possible.”

Why? For one thing, reports of former Chinese detainees consistently indicate that conditions improve when the outside world shows concern. That alone should be enough. But there are other reasons, too. Quite simply, drawing no lines suggest that no lines exist. If an academic institution stands idly by when a colleague, broadly or narrowly defined, faces persecution for exercising academic freedom, such inaction cannot help but affirmatively signal the authorities there is nothing wrong with what they are doing. Silence, indeed, can go one step further and suggest actually assent or approval. For these and other reasons, Hills’s own colleague, Jerome Cohen, for decades the most eminent Chinese law scholar in the US, regularly speaks up in response to egregious cases, whether activists, such the blind legal advocate Chen Guangcheng, or academic, such as the Nobel Laureate, Liu Xiaobo. Nor does advocacy need always, or primarily, be “denunciation.” Often concern may be expressed most effectively behind the scenes to relevant officials “carefully and prudently” as well. One would do well to consult Professor Cohen on this approach as well.

Consider the case of Ilham Tohti. Tohti was a professor at what was then called Central Nationalities University in Beijing. He is also a Uyghur, the Turkic mostly Muslim ethnic group mainly residing in China’s far western province of Xinjiang. Recently, discriminatory and repressive policies against Uyghurs in Xinjiang have produced a violent backlash, including rioting and acts of terrorism. Tohti argued against both violence and against further repressive government measures that might be counterproductive. For this he was detained just as he was boarding a plane for the US to be a visiting scholar at Indiana University. He has since been tried for separatism and sentenced for life in prison. His daughter, who proceeded to the plane on her father’s urging, has remained in effective exile in the US ever since.

Should members of the Indiana community remain silent then? Or Princeton? Fordham? NYU? Yale? I, too, like to believe that my classroom efforts, whether in the US or abroad are noble and worthy. But I am not so enamored of those efforts that I believe they preclude my taking up the issue outside the classroom. As for the classroom itself, I find it a fairly easy call to conclude that the tacit acquiescence that silence would convey to my students is far more troubling than the potential chilling effect that my speaking out would have on any student. More generally, I’ve found it more healthy, honest, and effective to tell students, here or abroad, that from time to time I’ll make clear certain positions on which I feel strongly, but add that I welcome, respect, even reward any student with the temerity to disagree. Seems to work. Perhaps that’s why – beware the anecdotal evidence! -- conservative students tend to speak out more in my classes than progressives. That been so, at any rate, on mundane matters, such as my disagreement with Rick Hills on US separation of powers. If it has been less so when I’ve indicated my discomfort with torture or extrajudicial murder, perhaps it is because those values have a greater claim to universality.

I hope that in the type of situation I actually discussed, neutrality in the form of silence would not be taken to be “liberalism in action.” Not that I would even then suggest that such failure would be “cowardice.” Rather, for institutions, I would suggest that such silence too often places such matters as applicant pools, global presence, and revenue above core academic and legal values – values that have long since ceased to be “liberal Western,” as witness the numerous international human rights instruments that China has ratified and for which countless Chinese activists, lawyers, and academics daily sacrifice. For individuals, hardly cowardice either. More like self-satisfied indifference.

Posted by: Martin Flaherty | Oct 10, 2016 6:22:37 PM

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