War protests expose double standards in higher ed

Ted Eytan CC BY-SA 4.0

I've refrained from commenting on the Israel-Hamas war, specifically and especially on the eruption of conflict, mostly, fortunately, non-violent, in higher ed in the United States, in which my own interests in academic freedom and free speech are most immediately implicated.

Despite my reticence—I'm under water with exams and a textbook deadline, though I follow the war closely in the news and remain in contact with friends in Tel Aviv—I read something in The New York Times that hit the nail on the head, so I want to amplify it.

In "Why Campus Speech Is Vexing" for The Morning from the Times, David Leonhardt wrote today:

[U]niversity leaders do face a basic choice. Do they want to expand the list of restricted speech to include more statements that make conservatives, Jewish students and others feel unsafe? Or do they want to shrink the list and tell all students that they will need to feel uncomfortable at times?

What since-resigned UPenn President Liz Magill said to Congress—essentially that the First Amendment protects a call for the genocide of Jews in the political abstract, absent hallmarks of unprotected speech such as incitement to imminent violence, or the severity and pervasiveness that characterize harassment—however socially and politically tone deaf, was technically a correct statement of the law from the former professor of constitutional law and Stanford Law dean.

The problem that Leonhardt recognized is that the First Amendment is not the standard that university administrators and their henchpersons have been applying on campuses for decades. Rather, hate speech codes, anti-discrimination policies, anti-bullying rules, and related prohibitions have proliferated and been enforced vigorously, First Amendment notwithstanding. And the standard has been a double one, because enforcement has been variable based on viewpoint, protecting only favored classes of minority persons or condemning disfavored, read: politically incorrect, viewpoints.

The problem is only compounded for university faculty, who are supposed to be the standard bearers for free expression, but have our livelihood hanging in the balance. At renowned schools where misdoings garner headlines, faculty might have a fighting chance to protect themselves. But what I've seen at the universities where the rest of us work, in the trenches, faculty routinely are intimidated, disciplined, and terminated for not toeing the line. When it happens in flyover country or in the lowest tiers of rankings, no one bats an eye.

When I was accused of stepping out of line years ago at another institution, Foundation for Individual Rights in Education founder Harvey Silverglate gave the local paper a quote condemning me. He apparently responded to the paper's inquiry with the assumption that a typically liberal law prof had gone off the rails. He failed utterly to learn anything about the case before he opined on it. When a mutual friend reached out to tell him that "he got it wrong," FIRE adjusted its public position thenceforth. But Silverglate never retracted his remarks, nor ever said anything apologetic to me.

At the University of Massachusetts Law School, which ranks at #167 in the U.S. News ranking of U.S. law schools, I've been told that University of Massachusetts policy, which requires that all employees show "respect" for all other employees, is violated by calling out misfeasance. So when I see an opportunity through faculty governance to do things better for our students and our community, I keep my mouth shut.

Tenure means nothing in these fights. I wrote many years ago about that paper tiger. Big-name-school academics, who don't have to toil at the hamster-wheel-spinning labor of assessment data collection and interim-strategic-plan-benchmark-attainment reports, don't well understand how faculty governance roles, as distinct from teaching and research responsibilities, are weaponized against faculty in the schools of the trenches.

Just last week, I completed a survey on academic freedom by the University of Chicago NORC that asked about ideological intimidation of faculty. The check-all-that-apply list of contexts in which intimidation or suppression of viewpoints might happen named a range of research and teaching contexts, but, true to form, University of Chicago, said almost nothing about school and university service roles. I added the response in "Other."

Professor Keith E. Whittington recently published a characteristically compelling paper on faculty "intramural speech" and academic freedom. It doesn't cite my 2010 work, in which I coined the term "penumbral academic freedom." I was working in a flyover state then, so it's like the paper never existed. Or maybe, as an east-coast, Duke Law would-be mentor once gently advised me when I was toiling voicelessly in flyover country, I should accept that my writing just isn't very good.

Well, I digress. My aim here is principally to say: When Magill fell, and as Harvard President Claudine Gay flounders, I'm torn between a head-shaking sorrow for the supposed quintessential marketplace of ideas and a mite more than a modicum of schadenfreude.

Back to work. The provost's dusty bookshelf is crying out for another strategic plan, and these exams aren't going to grade themselves.