Is Free Speech on Campus in Peril?

Not a week goes by without controversy erupting over academic freedom, free speech on campus, cancel culture, and political correctness.  Recent examples include well-publicized hullabaloos at two leading law schools:

• At the soon to be renamed University of California Hastings Law School, student protesters drowned out a guest speaker “with shouting, table banging, profanity, and personal insults, calling him a ‘f**king coward’ and saying things like, ‘When did you start balding?’”
• At Yale Law School, “More than 100 students at Yale Law School attempted to shout down a bipartisan panel on civil liberties,” making it “difficult for audience members to hear or focus upon the speakers at times,” and even disrupting “classes and a faculty meeting taking place in other parts of the building.”

As the legal analyst David Lat laments, free speech in American laws schools is increasingly becoming “a lost cause.”

Of course, I should add, the most dangerous threats to academic freedom will come not from activist students but from legislatures that mimic the restrictions they are placing on K-12 schools.

The time has come, in my view, to reframe the conversation about academic freedom.

If I might be so bold, I’d submit that the current discourse surrounding free speech on campus tends to lapse into one of two forms:

• There’s a discourse built around images of intolerant students, craven leadership, and mid-level administrators who enable, encourage, and abet assaults on free speech, and weaponize laws and regulations intended to prevent hostile learning environments learning environments as instruments of power. The subtitle of a recent article by the communication scholar Laura Kipnis sums up this attitude in especially graphic language:  “The university bureaucracy has been hijacked for political grudge matches and personal vendettas.”
• Then there’s a counter-discourse that holds that true free speech is not incompatible or inconsistent with vocal dissent and with protests that are rowdy, annoying, loud, or disruptive. There are words or positions that are so abhorrent and reprehensible that they deserve to be protested.

In the opinion of Mark Joseph Stern and John K. Wilson, protesters, too, have a right to engage in debate and express their beliefs.  That’s what a “a free and open” clash of ideas requires, so long as it is not violent or prevents parties from speaking.  To require protests to be “civil” and “well-mannered” is also, in this view, a restriction on free speech.

So how might we move beyond this bitter divide?  

1. We might begin by recognizing that within the academy not all ideas or positions are equally valid.  
There are ideas and points of view that deserve to be dismissed or repudiated as racist, sexist, and intolerant.  But we mustn’t automatically close off debate on issues, however highly charged, that should be surely open to debate.

2. We need to understand, as the legal commentator Ken White has observed, “that norms of ‘civility’ and ‘decorum’ can be deployed in a way that’s one-sided or unfair.”
Free speech policies that require individuals to remain silent in the face of ideas that they consider repugnant, objectionable, or hateful have the effect of privileging and sanctioning those ideas or arguments. 

3. Academic institutions can quite rightly insist on a level of intellectual rigor and expertise that society doesn’t expect of pundits or politicians.  
Yes, colleges and universities should indeed be marketplaces of ideas. Yes, these institutions should encourage provocation and lively, if at times annoying, debate.  But that doesn’t mean that they shouldn’t be able to make judgments, including judgments over academic fitness so long as appropriate procedural protections are in place.

4. Protest needs to be understood as a form of protected speech.
Campus policies need to balance competing interests.  One way to do this, as the First Amendment scholar Eugene Volokh has argued is to establish transparent viewpoint-neutral restrictions, for example, by setting aside a designated time for questions and comments or by allowing groups of students to hold events with their own groundrules.

Another approach is Yale Law School’s “three-strikes” policy.  At public events, protesters are to be informed about the institution’s free speech policies, warned a second time if the protests are so disruptive as to silence speakers, and only then, if the protests continue, to be removed.  What apparently happened at Yale, according to the legal analyst David Lat, is that Yale’s administrators failed to follow their own policies when the protesters persisted in disrupting classes and a faculty meeting.

5. We should recognize that much of what we frame as threats to academic freedom or free speech should in fact be understood as attempts to impose intellectual conformity that do need to be repudiated in the strongest terms.
I wholeheartedly agree with something that the family researcher Kay Hymowitz has written: That free speech is the wrong way to frame a genuine campus problem, a narrowing of the Overton window – that is, the window of acceptable discourse — on important issues related to identity, equity, crime, foreign policy, university admissions, and the like.

What are the policy implications of these ideas?

1. That ensuring a safe and positive learning environment should not serve as a pretext for punishing pedagogies or research or points of view that serve a genuine academic purpose.  

2. That we should not only expect but encourage and facilitate robust debate over central public policy issues – and instructors would do well to integrate those debates into their courses.

3. That at a time when social norms are rapidly shifting, we should not, in general, treat a single act – an ill-conceived comment or pedagogical approach – as grounds for cancelation.  

4. Institutions need to do much more to encourage faculty and students to reflect seriously about the concept of academic freedom: its historical roots, its value, and, yes, the tensions embedded within this construct.

Civility is quite rightly prized as a civic virtue, but it is not the highest value within the academy.  I, like you, try to behave in a polite, courteous, respectful manner.  But within our universities, our Summa Theologiae is vigorous, full-bodied, ear-piercing debate.

Let’s do more to encourage argument.  Let’s invite our students to contest and challenge received ideas and the conventional wisdom.  Let’s model impassioned yet informed debate.

However uncomfortable we may find contention, conflict, and controversy, and however much we might value harmony and consensus, we need to reassert a basic academic principle:  That a true education isn’t a matter of passing down knowledge, but grows out of disagreement, dispute, and debate.

Steven Mintz is professor of history at the University of Texas at Austin.