Rarely have I read a book with whose core thesis I so fully agree but which nonetheless so sets my teeth gnashing. I begin with the agreement, which is more important, and return later to the gnashing.
A recipient of the Gladys A. Kammemer Award of the American Political Science Association for his earlier work on the politics of pornography, Donald Alexander Downs argues in Restoring Free Speech and Liberty on Campus that over the past two decades, we have seen a dangerous rise in “progressive” (that is, liberal) censorship on college and university campuses that threatens academic freedom and betrays the most fundamental values of American liberalism. Embodied in various forms of speech codes, this new censorship, he argues, is deeply connected to the pervasiveness of affirmative action and to the unthinking willingness of liberals to sacrifice free expression on the alter of diversity. Rather than teach students—minority students, in particular—the fundamental values of autonomy, self-reliance, independent thought, and intellectual and personal resilience, advocates of affirmative action and speech codes seek to coddle these students by shielding them from the slings and arrows of uninhibited and robust debate. In short, the price of admitting academically unprepared students in order to achieve diversity is the suppression of ideas that might threaten their security and sense of self-worth.
Downs observes that universities serve a range of often-conflicting ends. They pursue truth, prepare students to be thoughtful and informed citizens, and promote civility and mutual respect. Speech codes, he maintains, undermine all of these values. Even more important, he chastises institutions of higher learning for failing in their responsibility to instill in the next generation of America's and the world's leaders an appropriate understanding and appreciation of the essential principles of freedom. Universities, he concludes, must get over their obsession with sensitivity and get on with the task of preparing their students for the challenges of contributing to self-governance in a free and open society.
The author argues that to combat the pressures for political correctness and censorship, the defenders of civil liberties—professors, students, trustees, and administrators—must stand fast against hysterical and unfounded claims of racism, sexism, homophobia, and the like. They must learn to act strategically, to organize politically, to form effective alliances with the general media and the public, and to use outside organizations and individuals who can help refute the claims of those who demand suppression. To substantiate these claims, he uses several case studies, examining in extraordinary detail controversies that arose at Columbia, Berkeley, Wisconsin, and Penn in recent years. Those case studies comprise some 75 percent of the book.
Although Downs's analyses occasionally strike me as over the top, for the most part he gets it right. Universities are institutions dedicated to the discovery and transmission of knowledge, understanding, and truth. They are designed, at their best, to nurture and shape the intellectual, scientific, moral, artistic, political, and economic leaders of the future. They are committed to free and uninhibited discourse, not because such discourse is a law of nature but because it is the best means to these ends. As Robert Maynard Hutchins once observed, universities that do not permit the full and open discussion of even the most odious and unnerving ideas are not universities. The commitment to eschew censorship is so elemental that it constitutes the very definition of a university.
What are the limits of this proposition? If a professor has a right to teach communism, does another have a right to teach intelligent design? Does a university violate its commitment to free expression when it makes faculty appointment and promotion decisions based on the “merits” of the candidate's ideas? Does a mathematics professor have a right to teach history? Does a professor have a right to give a student a low grade because of a disagreement with the student's ideas? Does a professor have a right to teach in a course on American history that African Americans or women are genetically inferior to white men? Does he or she have a right to refer to African American students as “darkies” or women students as “chicks”? Does a student newspaper, which is funded by a university, have a right to advocate violence against Muslim students?
It is often easier to celebrate a principle than to apply it. Downs makes much of the idea of academic freedom, but he never quite defines it or explains its relation to the First Amendment. This was one cause of my gnashing. Throughout the book, Downs invokes the First Amendment as if it governs private as well as public universities. It does not. Like the Constitution more generally, the First Amendment regulates only the government. Although the University of California and the University of Wisconsin can violate the First Amendment, Columbia and Penn have no capacity to do so. As private institutions, they are not in any way subject to the constraints of the Constitution. This is a fundamental point about constitutional law. It is disappointing that Downs exacerbates the general confusion on this point—all the more so because he clearly understands it. (At least once in the book, he properly draws the distinction.) This matters because when we speak about speech codes, Columbia and Penn are in a completely different legal and constitutional position from Berkeley and Wisconsin. Downs's failure to make this point plain is deeply discouraging, especially to a constitutional lawyer who relishes the notion that citizens should have some understanding of their Constitution.
Moreover, it is not enough simply to assert the principle that academic institutions should not engage in censorship and then condemn speech codes as incompatible with that principle. The source of the principle (whether it be the First Amendment or “academic freedom”) is important, and as I hope my hypothetical examples make clear, the substantive meaning of the principle is hardly self-evident.
So, is academic freedom simply another name for the First Amendment? Are private institutions “bound” by the same principle as public institutions, even though only the latter are governed by the Constitution? If so, what is the source of that constraint, and who enforces it? In fact, academic freedom is quite different both in its origins and its meaning from the First Amendment. The First Amendment in the university setting is directed primarily to the types of restrictions public institutions may constitutionally impose on free speech. May the University of Colorado fire a professor for publishing deeply offensive statements about the victims of September 11? May the University of Texas expel a student for calling another student a “fag”? In answering such questions, the First Amendment may constrain the decisions of the public university, and it is the courts who may ultimately resolve the issue.
Academic freedom exists wholly apart from the First Amendment and it exists (or may exist) in private as well as public institutions. It is not imposed by any external source of law. It is a commitment each college or university makes to itself and to its various constituencies (that is, faculty, students, alumni, etc.). It is often unenforceable in a court of law (although it may sometimes be enforceable if it is embodied in some form of contract between the university and its faculty or students). Most fundamentally, academic freedom is less about what restrictions a college or university may impose upon free expression than about who may impose those restrictions. The central meaning of academic freedom is faculty governance. It promises that faculty members, applying professionally accepted scholarly and pedagogical standards, rather than administrators, trustees, students, or legislators, will determine the manner in which the quality of one's ideas and expressions may be evaluated within the academy.
Downs's failure to articulate the essential difference between academic freedom and the First Amendment compounds the failure to distinguish clearly between public and private institutions. He presents higher education as largely unitary when, in fact, the legal and cultural restraints that govern these institutions, and the sources of those restraints, may vary widely. In short, the analysis of speech codes, or of any restrictions on expression in the setting of higher education, is much more complex and nuanced than Downs acknowledges.
Having said all this, I ultimately come out pretty close to Downs. As he documents in his four case studies, college and university speech codes too often have been ideologically motivated devices designed to cleanse the academy of politically incorrect ideas. To that extent, they are incompatible with both First Amendment principles and the values of academic freedom, and he is right that they should be excised from higher education.
Why, then, my gnashing (apart from what some might dismiss as my merely “legalistic” points)? Let me offer three criticisms. First, too often Downs sounds like a shameless pitchman for his heroes, Alan Kors, Harvey Silverglate, FIRE (Foundation for Individuals Rights in Education), and CAFR (Committee for Academic Freedom and Rights). Granted, they have made significant contributions, but Downs's incessant celebration of their courage, wisdom, integrity, and zeal is downright embarrassing.
Second, and related to this point, Downs's tone is too often self-satisfied, high-minded, self-righteous, and far too cocksure. Good advocacy (and this is a book of advocacy) requires credibility. It demands the ability to get inside the skin of one's opponents and to understand the complexity of the issues from their perspective. Restoring Free Speech does not do this. Too often, it lapses into free speech slogans and seemingly self-evident assumptions that are not self-evident at all. Too often, it fails to exhibit that very self-critical thinking, empathic reasoning, and scrupulous scrutiny of argument that free speech at its best is all about.
Third, Downs sometimes makes important leaps that are largely unexplained. Consider the incident at Penn, which involved a student who shouted “Shut up, you water buffalo!” to a group of African American women students who were making noise late at night outside his dorm. He was accused of using a racist epithet in violation of Penn's speech code. Was it a racist epithet? Downs says “no” because the student was Jewish and in Hebrew a phrase similar to “water buffalo” means a rude or rowdy person. If the student had shouted “Shut up, you rowdy person!” no one would have construed his exclamation as racist. But is that the central point of the incident? Should the central question not be whether the incident had anything to do with academic freedom? What is the connection between our precious academic freedom, which is designed to promote free and robust academic discourse, fierce intellectual debate, and courageous scholarly inquiry, and a student shouting “water buffalo” from his dorm room at a group of boisterous students? What does this have to do with academic freedom? (Note that because Penn is a private institution, the incident has nothing to do with the First Amendment.)
It is incumbent on those of us who believe that punishing a student for such speech poses a serious threat to academic freedom and, in a public university, a serious infringement of constitutional rights, to explain why this is so. There are good and compelling reasons to support this conclusion, but they do not make much of an appearance in the book. Of course, there are “slippery slopes.” If you can punish this student, then why not punish the teacher who refers to his African American students as “darkies”? And given those two cases, which way does the slope slip, anyway? Even Downs concedes that he would allow speech in a university to be punished if it constitutes a threat or harassment. But why draw the line there? Simply to assert this is not to make an argument, let alone to win one. He would have done well to devote fewer pages to applauding his heroes and obsessing over the details of these incidents and more to setting forth the subtle and critical reasoning on which his principles rest.
I have been hard in this review. I do not know Downs, but I know he will understand, for that is what his book is all about. This is a very good and very useful book. It is right in its conclusions and passionate in its convictions. I just wanted it to be even better. Here is a test: Would a reader who did not agree with Downs at the beginning of the book agree with him at the end? My guess is not. To the contrary, I suspect that the reader would be even more convinced at the end that he or she was right all along. Alas, that is usually the price of overstating one's case.
