"A Grimace and a Shrug"

I have the pleasure today of attending a conference on "Academic Freedom and Free Speech on Campus" at Emory, whose Center for the Study of Law and Religion has been kind enough to host me as a visiting scholar this semester. The speakers include Nancy Leong, Jacob Levy, Sasha Volokh, Julie Seaman, David Bernstein, Sigal Pen-Porath, Deborah Lipstadt, Greg Lukianoff, and many more.

The conference is closely tied to Emory's Open Expression Committee, chaired by Sasha Volokh and including stakeholders from across the university. I applaud Emory for having a committee like this, which does an excellent job of avoiding what seems to me a problem with current university management of campus speech issues: that different offices and constituencies with potentially very different views about free speech and/or the university mission or their own office's mission are often spread across campus, and don't necessarily address the same issue at the same time or speak with one voice. (Would that my own university, which more than deserves the "yellow light" rating given it by FIRE--and which has managed the neat trick, not of prioritizing "liberty" over "equality" or vice versa, but of doing a poor job on both--had such a committee, and one that was as active as Emory's committee is. On these issues, Alabama's faculty is at least as responsible as its administration for not doing all that it could and should be to protect free speech and academic freedom.)

The conference turns out to be even more timely, given President Trump's issuance yesterday of his executive order on "Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities." The key paragraph of the order with respect to campus speech is this:

To advance the policy described in subsection 2(a) of this order [to "encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions"], the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

As Scott Greenfield nicely summarizes it at his Simple Justice blog, FIRE's statement responding to the order amounts to "a grimace and a shrug." On the one hand, it says, "To the extent that today’s executive order asks colleges and universities to meet their existing legal obligations, it should be uncontroversial." On the other, the order and its implementation bear watching for "unintended consequences that threaten free expression and academic freedom," and the order is unclear about "how or by what standard federal agencies will ensure compliance, the order’s most consequential component."

One could say a little more--one might grimace a little more heavily. That colleges and universities should meet their existing legal obligations, or abide by their own clearly stated standards in the case of private institutions, should indeed be uncontroversial. But whether the federal government should take a heavy role in ensuring that they do can be much more controversial. That can be true even for those of us who believe strongly in vigorous protection for both academic freedom and free speech on campus; think that universities should take a broad view of both; and worry that many administrations have shown very little willingness to do so, especially if it might mean getting bad publicity or upsetting (or disciplining, as it sometimes should) students, who to those universities are also "customers" in a national market for students and their tuition dollars.

I'm reluctant to either repeat myself and thus ride a hobby horse, or do too much to promote old work, but I'll end up doing a little of the latter to avoid doing too much of the former. The federal executive order comes after years of similar efforts on the part of state legislatures and proposals in Congress, so there's plenty of existing literature out there. With apologies for linking to Twitter and with the caveat that I take no statement there as anyone's fully worked out position, I do not think, with Jamal Greene, that such an order "would very clearly be illegal and unconstitutional." (To be fair, Greene was writing before the text of the order was issued.) Such bills or orders might be unconstitutional. It depends very much on what they do, and how far they intrude upon such academic governance issues as hiring; even if one favors greater ideological diversity on campus, that doesn't mean government can force that outcome by commandeering what ought to be disciplinary and departmental decisions. But Greene's broad conclusion is far from "very clear," and--obviously depending on what such a law or order says and how it is implemented--there are reasonable arguments that such a law or order can be constitutional. In the case of this order, the "consistent with applicable law, including the First Amendment" language suggests that it may turn out to be somewhere between self-limiting and meaningless in any event. (At The National Review, Stanley Kurtz argues that the order is "not the weak and largely symbolic move some claim. On the contrary, it’s a game changer." He may be right that the order will encourage universities to give a higher priority to ensuring that campus speech is protected. Beyond that, I find his assertion far too confident and exaggerated, and suspect it is more of an effort, all too common in public discourse, to make things so by saying they're so.) 

There are also very good arguments that such laws are a bad idea regardless. Again, they may be a bad idea even if one strongly believes in the protection of free and open expression on campus and of academic freedom, and thinks universities have done a poor job of meeting their duties on this score. Those of us who have argued that the law, and citizens and institutional stakeholders, should be more attentive to the role and function of various institutions in facilitating free speech, among other First Amendment freedoms, might argue that: 1) a vital, and in the long run valuable, aspect of these institutions is self-governance; 2) government interference with that self-governance, even in the service of the crucial value of free speech, might be a cure worse than the disease; 3) there may be room, especially in a nation with more than hundreds of public and private colleges and universities, for varied visions of the university mission; and 4) a key element of self-governance is the responsibility of both stakeholders--like faculty--and citizens to argue about those visions and to hold these institutions to account. At least for folks like me, that means insisting that if they are to have autonomy in governing themselves, they meet their corresponding duty to do so consistently with the respect for free speech and academic freedom that are certainly part of my vision of. the university.

On these points, I recommend a pair of posts by Keith Whittington. And from my own older work, you might look at this 2007 article, arguing vehemently against academic bills of rights on institutional autonomy grounds while insisting that that autonomy carries grave responsibilities with it for universities and their stakeholders, or pages 128-30 of my book First Amendment Institutions. I cite to other scholars who have argued that "such bills might survive a constitutional challenge," while arguing that things like an Academic Bill of Rights (or the new executive order) are "a mistake." Such efforts misunderstand the truth for search, and neglect the value and potential of both institutional autonomy and institutional pluralism. 

[Comments are closed, partly for irony value and mostly because I am otherwise occupied and don't have time to moderate the comments, as I prefer to do.]