Academic freedom

The U.S. military hasn't had much luck in occupying Iraq, but now it's planning to invade more territory often deemed hostile to its interests. No, not Iran. We're talking about American colleges.

Last month, the Defense Department announced a proposed rule for implementing the 2005 Solomon Amendment, requiring access to colleges receiving federal funds. The rule represents an extraordinary attack on academic freedom and institutional autonomy, and goes far beyond the text of the Solomon Amendment or the ruling of the Supreme Court last year in FAIR v. Rumsfeld that supported it. If this proposed rule is not changed, colleges will be forced to give the military extraordinary access to campus, to allow ROTC programs without any restrictions, and to ban all protests against military recruiters.

The Solomon Amendment prohibits a college from receiving federal funds if it bans military recruiters, prevents the military "from maintaining, establishing, or operating" an ROTC unit at that college, or prohibits a student from enrolling at an ROTC unit at another college.

But what does it mean to establish an ROTC unit? For example, no college prohibits any students from enrolling in ROTC at another college. Likewise, to my knowledge, there is no college that has actually banned the military from renting space on campus like any other group and holding ROTC training sessions. The proposed rule explicitly rejects the concept of equal treatment; instead, the military is demanding special rights to control curriculum and faculty that no other outside group is ever granted.

It's common to refer to campuses "banning" ROTC, but it apparently never happened. For example, in 1969, Yale University never "abolished" ROTC; it simply denied ROTC academic credit and faculty rank, and the military chose to withdraw under these conditions. In 1970, Stanford's Faculty Senate voted to end academic credit for ROTC courses because the courses were not open to all Stanford students, and the military (instead of Stanford) chose the teachers.

The proposed rule not only prevents a college from prohibiting ROTC, but also bans a campus from doing anything that "in effect prevents" an ROTC unit from operating. This would include neutral rules applied to everyone on campus, such as nondiscrimination rules, faculty control over the curriculum, or academic freedom. According to the proposed rule, "The criterion of 'efficiently operating a Senior ROTC unit' refers generally to an expectation that the ROTC Department would be treated on a par with other academic departments." Since in other academic departments, professors are given faculty rank and students receive college credit, this provision would effectively revoke faculty and campus control over the curriculum. It appears likely that the military will demand academic credit for ROTC classes (including those held at other campuses) and faculty rank for instructors who are selected and controlled by the military. Yet there is nothing in the Solomon Amendment to require this.

If colleges allow students in ROTC classes to receive credit, they should be careful to impose the same conditions offered for all other classes: the faculty must be appointed by the college, not the military; the faculty, not the military, must determine the content of the classes; and all qualified students, regardless of sexual orientation or enrollment in the military, should be able to take the class. Nothing in the Solomon Amendment reverses these common rules, and if it did so, it would be unconstitutional, as this proposed rule is. In FAIR v. Rumsfeld, the Supreme Court ruled that allowing military recruiters on campus did not affect academic freedom; plainly, the same cannot be said about the freedom to determine course content and faculty hiring.

The FAIR v. Rumsfeld case challenged only one part of the Solomon Amendment -- the least objectionable part about allowing military recruiters on campus. Thus, the reasoning used by the Supreme Court about military recruiters cannot be equally applied to ROTC units or used as an excuse to ban student protests. The Supreme Court based its decision on "the difference between speech a school sponsors and speech the school permits because legally required to do so." As the Supreme Court noted, "recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students-not to become members of the school's expressive association. This distinction is critical." The Supreme Court declared, "In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions." But clearly, colleges (and their faculty) are speaking when they hold classes and offer credit.

Of course, this does not mean that ROTC units are banned from campuses, nor should they be. ROTC units can be run by the military using facilities rented from a college. Or they can created as registered student organizations open to all and run by students, or departments run and controlled by universities. But decisions about academic credit and faculty appointments cannot be removed from colleges and handed over to the military. Forcing colleges to give academic credit for courses at other colleges run by the military without academic supervision is a clear violation of higher education's autonomy; forcing colleges to create academic programs controlled by the military is an even worse violation.

The military seems unwilling to give up control over the selection of ROTC faculty and the curriculum. The choice of faculty and content for courses must remain the authority of faculty at each campus, and not be handed over to the government. Decisions on whether a particular department or course is legitimate must be determined by the faculty, not by a government fiat.

Nor should military recruiters be exempt from protest or criticism. The proposed rule makes it a violation if the college "has failed to enforce time, place, and manner policies established by the covered school such that the military recruiters experience an inferior or unsafe recruiting climate, as schools must allow military recruiters on campus and must assist them in whatever way the school assists other employers."

It is essentially impossible for any college to prohibit an "inferior ... recruiting climate" for military recruiters without banning all such protests. Obviously, if military recruiters are being protested, then their recruiting climate is inferior to recruiters who are not being protested. And according to the Department of Defense, that's justification for withdrawing all federal funds. If a college has any kind of time, place, or manner policies -- and essentially all of them do -- these rules would force the colleges to ban anti-recruiter protests.

In FAIR v. Rumsfeld, the Supreme Court reported that even the solicitor general acknowledged that a university "could help organize student protests." Now, the Bush Administration is seeking to ban these very same student protests.

FAIR v. Rumsfeld allows the institution to engage in criticism of the military policy. The colleges that lost this case over military recruiters should continue their resistance in the face of the far more serious threats to academic freedom from this proposed rule. But they should go further in protecting the right of protest and counterspeech. Colleges should pass policies protecting the right of students to peaceably protest recruiters of any kind, and to allow anyone to provide potential recruiters with counterspeech. Colleges should also adopt a "Truth in Recruiting Policy" that requires any recruiters who engage in discrimination to fully disclose this fact in all recruiting materials.

Some critics may contend that since colleges can simply give up federal funding (the rules don't apply to student financial aid), there's nothing wrong with these rules. However, colleges are effectively obligated to obey these rules because the federal government's funding is so essential to higher education. A college cannot ethically ban all government grants, because to do so would affect the academic freedom of scholars who need these grants for their work. And the government cannot impose unconstitutional conditions on its grants.

Another problem with the proposed rule is its enforcement. In interpreting these rules, the "decision authority" is the "principal deputy under secretary of defense for personnel and readiness." It is inappropriate for the military to serve as the judge of all disputes between the military and colleges. Plainly, one would expect the military to win all such arguments and unilaterally order federal funds to be cut off to colleges that disagree with it. A far better solution would be to have an independent committee comprised of leading scholars and some retired military officials who would deal with disputes to offer a kind of arbitration in order to avoid endless litigation over enforcement and interpretation.

The Solomon Amendment (especially as interprted by FAIR v. Rumsfeld) was a massive expansion of federal power over private individuals and corporations. If you sell any product or service (such as research, or education) to the federal government or receive any subsidy, according to the court in FAIR v. Rumsfeld, the government can now order you to be their propaganda agent and use your property for the government's recruitment purposes. Conservatives, seething in their hatred of universities, didn't seem to notice or care about this attack on the sanctity of private property.

The flaws of the Solomon Amendment and the Supreme Court's interpretation of it need to be addressed with legislation and further judicial challenges. But there is no excuse for the Defense Department to go far beyond these legislative boundaries with an unprecedented attack on academic freedom and free expression.

Many conservatives believe the firing of University of Colorado Professor Ward Churchill will now reduce liberal politics in academia. Many liberals believe that his firing will uphold high standards of academic scholarship. Both are wrong -- because the firing of Churchill reveals a very pernicious kind of exclusionary dogmatism in scholarly research and writing and media reporting. The firing of Professor Churchill for alleged research misconduct ignored evidence to the contrary provided by professors who know his work best, ignored evidence from a committee of scholars who found the investigating committee itself guilty of research misconduct, and ignored all Indigenous evidence and perspectives that are critical of Eurocentric versions of the history of the European invasion of the Americas.

Research misconduct is in the eye of the beholder. Euroamerican teachers and scholars have taught and written for several centuries that Columbus discovered America. That is a more profound and easily provable case of research misconduct than anything of which Churchill has been accused. The Indigenous peoples of the Americas have been here at least 13,000 years and more likely, according to recent DNA research, 50,000 years. This Columbus lie, which is at the foundation of Eurocentric American history, dehumanizes all those who are now called American Indians by discrediting any of their accomplishments as not being human accomplishments. Everyone who has perpetuated this myth over the years should be found guilty of deceit, research misconduct and racism, according to the standards of the investigating committee.

The 1987 edition of the standard American history textbook, American History: A Survey begins by saying, “For thousands of centuries - centuries in which human races were evolving, forming communities and building the beginnings of national civilizations in Africa, Asia and Europe - the continents we know as the Americas stood empty of mankind and its works” The book informed its readers that American history “is the story of the creation of a civilization where none existed.” Now that is a very egregious form of “research misconduct.” That statement bears no resemblance to the truth and serves only to continue to misinform and to indoctrinate students in Eurocentric lies.

The committee should have read the 2005 national best selling book 1491, by Charles Mann, for a thorough critique of the statements quoted in American History, and for extensive support for Churchill’s arguments about the history of the Americas. Summarizing research and writing over the last 30-40 years, Mann shows that in 1491 the population of the Americas surpassed that of Europe, that American cities such as Tenochtitlan were larger than any found in Europe at the same time and, unlike European cities, had running water, beautiful botanical gardens and clean streets. I would add that nowhere in Indigenous America in the areas of my research (North and Central America) have any jails been found, so far as I have been able to determine. The earliest American cities were thriving before the Egyptians built their pyramids, and the feats of Indigenous American agriculture were unparalleled anywhere else. The journal Science recently pronounced the development of corn from its ancient noble grass ancestors as probably the greatest botanical achievement of genetic engineering in human history.

The European invasion of the Americas reduced an Indigenous population estimated by many scholars at nearly 100 million or more by 90-95 percent. Shelburne Cook and Woodrow Borah of the University of California at Berkeley spent decades reconstructing the aboriginal population of central Mexico where they determined the population to have been 25.2 million before Cortez’s invasion. Just 100 years later in 1623 only 700,000 had survived the Spanish conquest which destroyed not only millions of people but amazing architecture, art, culture and science, burning nearly all the books in their extensive libraries. The highly regarded historian Richard White has described the results of the invasion of Indigenous America as “the greatest human catastrophe in the history of the planet.”

Most people think the Churchill problem began with his planned speech in 2005 at Hamilton College -- after it was shown that he had written that some of the victims of 9/11 were not entirely innocent (CIA agents housed in the building and some technocrats of Western militarism and financial imperialism according to Churchill's clarification of what he meant in a later press release) and were instead akin to "little Eichmanns." My essay is not intended to discuss the appropriateness or validity of his statement or its clarification, but to discuss the attack on Churchill from the perspectives, perceptions and practices of research misconduct as they apply to American history and American Indians. The truth about the beginning of the Churchill controversy is that it began with the right wing attack on Churchill after Churchill and others protested a Columbus Day parade in Denver in October 2004.

The Historical Context

It should be pointed out here that in 1861 Cheyenne leader Black Kettle had been invited to Fort Lyon to negotiate a peace with the the United States. He did so, ceding much of Cheyenne territory to the U.S. and agreeing to live south of Sand Creek. The Cheyenne were given a U.S. flag that they were told they should raise whenever threatened and no one would attack them. In 1864, the Reverend Colonel Chivington led 800 troops of Colorado territorial militia in an unprovoked attack on a sleeping village of mostly women and children at Sand Creek (the younger men were out hunting). The villagers raised the U.S. flag as a sign of peace, but Chivington wanted genocide, massacring the village of 53 older men and 110 women and children, mutilating the bodies of the Cheyenne villagers. They took the Cheyenne scalps and genitalia back to Denver, marching down the streets with Indian genitalia held up on sticks, celebrating their genocidal trophies and their evidence that Indians would never again be able to reproduce.

In 1864 The Rocky Mountain News, one of the Denver papers that convicted Churchill in the press and called for his termination, described the massacre of 110 women and children and 53 older men by 800 Colorado volunteers this way: “Among the brilliant feats of arms in Indian warfare, the recent campaign of our Colorado volunteers will stand in history with few rivals, and none to exceed it in final results.... Among the killed were all the Cheyenne chiefs, Black Kettle, White Antelope, Little Robe, Left Hand, Knock Knee, One Eye, and another, name unknown. Not a single prominent man of the tribe remains, and the tribe itself is almost annihilated.... All acquitted themselves well, and Colorado soldiers have again covered themselves with glory.” History has shown the account of this massacre to be a gross case of research and journalistic misconduct.

One historian called Sand Creek the American My Lai. Former Sen. Ben Nighthorse Campbell called Sand Creek "one of the most disgraceful moments of American history."

One of the participants in this massacre was David Nichols who was honored by the University of Colorado by having a dormitory on campus named after him. In the 1980s my daughter and other First Nations students at UC protested this name, and the name was eventually changed in 1989 to Cheyenne Arapaho Hall. This local history is not irrelevant to understanding how Colorado to understanding the protests of the Columbus Day parades in Denver, and how Colorado has dealt with Churchill his termination or extermination.

Angry over the acquittal of Churchill and the other protesters of the Columbus Day parade, the right wing searched Churchill’s writing for something with which they could destroy him. That is when they found and publicized his comment, written in 2001, about some victims of 9/11 not being totally innocent. Later they discovered that it would be difficult to fire him on the grounds of his unpopular essay, so they went after his scholarship, looking for something they could call “research misconduct.” Forty-four pages in the “official investigation” (or shall we call it an inquisition) are devoted to trying to disprove Churchill’s contention that U.S. agents deliberately gave Indians small pox invested blankets in 1837-1840, while this represents only three paragraphs in any of Churchill’s 12 books and represents less than a thousandth of one percent of the genocide inflicted on Indigenous peoples. This attack on his position is all done from Eurocentric perspectives, biases and paradigms, totally discounting Indigenous perspectives and oral traditions. Yet universities like Colorado hypocritically claim to support and cherish diversity and dissent while denying validity to non-Euroamerican perspectives and traditions.

University officials said their deliberations did not consider Churchill’s essay about the causes of the 9/11 attack in which a short phrase found in one sentence has been used to indict and convict Churchill in the press. That position is, to say the least, not credible, and is being put forth simply to position the university in the upcoming court battle. Churchill’s attorney, David Lane, says that in order to show that Churchill’s First Amendment rights were violated all he has to do is show that Churchill’s unpopular phrase in that essay was a factor in his dismissal, not the whole cause. Everyone knows that without the publicity surrounding that phrase promoted by the right wing, there would never have been any investigation of his scholarship, which in the previous 30 years the university had found exemplary and worthy of promotion and reward.

Those who deny or ignore the American Holocaust are not being investigated. The scholars and journalists who perpetuate the Eurocentric biases disguised as American history are not being investigated for research misconduct, and are not being fired from their teaching or their positions in the media. The protestations of the university about preserving academic and research integrity ring hollow. The firing of Churchill is itself a form of research misconduct and represents a clear attempt by the right wing to silence Indigenous perspectives and to deny the American Holocaust.

The case of Professor Ward Churchill has received considerable national attention over its two-plus year run. With the next act to be played out in the courtroom, the talk shows will soon be on to other things.

But the ripple effects for higher education will be much longer lasting. The University of Colorado Board of Regents on Tuesday accepted my recommendation that Professor Churchill be dismissed from the faculty for engaging in serious, deliberate and repeated research misconduct. The reaction to the regents’ decision from the university’s constituents has been overwhelmingly positive. Yet in the higher education community across the country, things are a bit more unsettled.

There are those on one end of the spectrum who believe Churchill is free speech martyr who was persecuted because of statements that flew in the face of prevailing winds. On the other end of the spectrum are those who think he is a charlatan, selling snake oil while disguised as an academic. Perhaps the largest group is the one in the middle, which recognizes that his academic misconduct sins were egregious, but remain decidedly uncomfortable that those sins came to light after he engaged in controversial speech.

The case’s implications for academic freedom are also compelling. The term being employed, particularly by those who either support Churchill or are concerned for his free speech rights, is that the decision to fire Churchill may have a “chilling” effect on academic freedom. That’s understandable, but holding Ward Churchill up as the poster child for academic freedom runs counter to the facts.

His own writing shows us why. His essay, "About that Bering Strait Land Bridge ... Let’s Turn Those Footprints Around," which takes archaeologists to task for holding to a migration theory, he writes, "Tailoring the facts to fit one’s theory constitutes neither good science nor good journalism. Rather, it is intellectually dishonest and, when published for consumption by a mass audience, adds up to propaganda."

Three separate panels of more than 20 tenured faculty, from the University of Colorado and other universities, unanimously found that important pieces of Professor Churchill’s research and writing met his own criteria for intellectual dishonesty. The faculty members, to a person, agreed that he engaged in research misconduct and that it required serious sanction. The faculty found a pattern of serious, repeated and deliberate research misconduct that included fabrication, falsification, improper citation and plagiarism.

The tenured faculty who reached these conclusions, like all faculty, have a significant stake in academic freedom. The bedrock of any university, particularly public research universities, is academic freedom. The scholars and researchers who investigated Professor Churchill’s work understood this relation to the work they did. They have the same stake in this bedrock principle that all academicians have.

If there is any real chilling effect in this matter, it is the threat posed to academic freedom by the types of serious academic misconduct in which Churchill engaged. Academic freedom exists only because tenured faculty can be trusted to act responsibly. When Churchill breached the obligations of trust imposed upon him, responsible scholars had no choice but to act.

Still, there are those willing to give his shoddy work a free pass because his intellectual dishonesty came to light after complaints about his controversial speech. There is no doubt that Churchill drew attention to himself when writing and speaking about 9/11 victims. It is also clear that allegations of research misconduct, unrelated to his 9/11 comments, were brought to the attention of the university.

Indeed, Professor Churchill invited his readers to challenge his work. In the introduction of his 1997 collection of essays, A Little Matter of Genocide, he writes, “I do believe that when making many of the points I’ve sought to make, and with the bluntness which typically marks my work, one is well-advised to be thorough in revealing the basis on which they rest. I also believe it is a matter not just of courtesy, but of ethics, to make proper attribution to those upon whose ideas and research one relies. Most importantly, I want those who read this book to be able to interrogate what I’ve said, to challenge it and consequently to build on it.”

The ethics of proper attribution and the basis on which his work rests were what the University of Colorado investigated after learning of potential research misconduct. His courting of public controversy on one occasion does not immunize him from adhering to professional standards in all his professional work. The university had an obligation to investigate serious allegations of research misconduct. Our policy statement on research misconduct prohibits us from turning our back on such allegations. Hiding behind the First Amendment is a smokescreen aimed at distracting people from the real issue: academic integrity.

In the final analysis, the Board of Regents of the university had little choice but to dismiss him. His acts of academic fraud were numerous, serious and intentional. Professor Churchill refused to apologize or correct his errors. He did nothing to indicate he would refrain from fraudulent research in the future.

Fraudulent scholarship violates the public trust and damages the profession. Faculty integrity is the cornerstone of any great university. The quality of the faculty’s work is at the heart of everything we in higher education do. To excuse the kind of academic fraud Professor Churchill engaged in would do irreparable damage to all universities.

In the morning class, an undergraduate survey of American literature since the Civil War, I used The Beverly Hillbillies as an analogy, asked students for a short list of classic American film directors, and reviewed the disputed election of 1876. I had opened the class by writing on the board things like “Food and Drug Administration,” “Securities and Exchange Commission,” “unemployment insurance,” “Antitrust Act,” “Social Security,” and “the weekend." “These,” I explained, “are just some of the things we take for granted today -- and that didn’t exist when the action of The Rise of Silas Lapham opens in 1875.”

In the afternoon class, a senior seminar on recent American fiction, I spoke of the ubiquity of television -- in automobiles, convenience stores, elevators, and even refrigerators; I mentioned the Union Carbide chemical disaster in Bhopal; I explained the school of thought in communications studies, which links mass communications to totalitarianism; referenced the importance of Chuck Yeager in Tom Wolfe’s The Right Stuff; and responded to a student’s remark about 9/11 by talking about aspects of Don DeLillo’s White Noise -- for that was our assignment -- that look either dated or prescient after the events of that day.

It was just an ordinary day in the classroom, in other words.

Every time college professors enter their classrooms -- any one of the thousands of classrooms on the thousands of campuses across the United States -- they know they are presiding over an extraordinary and potentially volatile space. Not all classrooms are charged with drama, of course; some contain students sitting in remote corners of the lecture hall, catching up on some much-needed sleep. But classrooms that depend on student discussion, commentary, and debate are quite another thing -- and seasoned teachers know what every inexperienced teacher dreads: Class discussion can go in any direction whatsoever. Students can pick up on a professor’s analogy -- for example, my slightly facetious comparison of Silas Lapham to the Beverly Hillbillies, or my more serious comparision between two characters’ discussion of American literary figures and our own sense of the “canon” of American directors -- and run with it anywhere they like; every day, they bring to the classroom their own analogies, obsessions, fully-formed arguments, and passing concerns, as well as the ideas that just popped into their heads a few minutes ago. And in response, professors can pick up on students’ responses and take them wherever on the syllabus -- or wherever in the world -- seems most pedagogically promising.

This is so common and ordinary a feature of college classrooms that it should need no defense. Quite literally, it should go without saying that college classrooms are places where students and professors can pursue illuminating analogies, develop trains of thought, play devil’s advocate, and make connections between past and present.

But, for reasons well known to readers of Inside Higher Ed, these things no longer go without saying. Conservative ideologues (whose names escape me at the moment) have tried, in recent years, to redefine “academic freedom” as a shield that protects conservative students from the opinions and convictions of their professors; they have introduced bills in state legislatures that would mandate “intellectual diversity” in college courses and curricula -- presumably to give conservative interpretations of The Rise of Silas Lapham and White Noise a fair hearing, or perhaps to require the assignment of texts more congenial to the conservative world view. And these initiatives have spawned a minor cottage industry of Student Protection Plans, as state legislators craft bills that would make it illegal for professors to challenge students’ cherished beliefs, or require professors to “respect” students’ determination to defend their opinions, however misinformed these might be.

In response, the American Association of University Professors’ Committee A on Academic Freedom and Tenure has drafted a 5500-word statement on “Freedom in the Classroom,” explaining just what it means that -- as the AAUP 1940 Statement of Principles says -- “Teachers are entitled to freedom in the classroom in discussing their subject.” The document will be published in the forthcoming issue of Academe, and it is -- in the humble opinion of this longtime AAUP member (who had no hand in its composition) -- as clear and as compelling a defense of academic freedom in the classroom as one could wish.

The statement takes up the right’s four most prominent complaints about professors’ classroom demeanor: “(1) instructors ‘indoctrinate’ rather than educate; (2) instructors fail fairly to present conflicting views on contentious subjects, thereby depriving students of educationally essential ‘diversity’ or ‘balance’; (3) instructors are intolerant of students’ religious, political, or socioeconomic views, thereby creating a hostile atmosphere inimical to learning; and (4) instructors persistently interject material, especially of a political or ideological character, irrelevant to the subject of instruction.” In its discussion of “indoctrination,” for example, the statement argues that: "It is not indoctrination for an economist to say to his students that in his view the creation of markets is the most effective means for promoting growth in underdeveloped nations, or for a biologist to assert his belief that evolution occurs through punctuated equilibriums rather than through continuous processes. Indoctrination occurs only when instructors dogmatically insist on the truth of such propositions by refusing to accord their students the opportunity to contest them. Vigorously to assert a proposition or a viewpoint, however controversial, is to engage in argumentation and discussion -- an engagement that lies at the core of academic freedom."

This, too, should go without saying -- but because it doesn’t, conservative ideologues (whose names are just at the tip of my tongue) have been able to mount campaigns against individual professors and entire campuses based on the most specious of assumptions. In North Carolina, for instance, a group calling itself the Committee for a Better North Carolina complained bitterly that the University of North Carolina had assigned Barbara Ehrenreich’s Nickel and Dimed to incoming students. Do such people really need to be told, in the words of the AAUP statement, that “it is fundamental error to assume that the assignment of teaching materials constitutes their endorsement”? Do we really need to explain in so many words that “classroom discussion of Nickel and Dimed in North Carolina could have been conducted in a spirit of critical evaluation, or in an effort to understand the book in the tradition of American muckraking, or in an effort to provoke students to ask deeper questions about their own ideas of poverty and class”? Yes and yes. In recent years, I’ve dealt with any number of people (none of them my students) who find my contemporary American literature syllabus objectionable, as if my assignment of writers like Ishmael Reed, Maxine Hong Kingston, and Richard Powers is incontrovertible evidence of liberal “bias.” And last year, a conservative organization (whose name I forget, but whose acronym is ACTA) released a shameful little pamphlet that used course descriptions as prima facie evidence of imbalance and indoctrination -- even in the case of a course entitled “American Masculinities,” which apparently set off ACTA’s alarms because there seemed something kind of queer about it.

The AAUP statement also addresses another common right-wing shell game. Lately I’ve been told by conservative critics of academe that they don’t want to restrict professors’ academic freedom in the classroom; they merely want to point out abuses of the classroom that masquerade as “academic freedom.” This is a dicey matter, because sometimes these critics have a point: there are indeed college professors who think that the principle of academic freedom covers everything they do and say in the classroom, regardless of whether it has any bearing on the course material. (Those professors need to read the AAUP statement, as well.) Certainly, no professor of analytic number theory has any business subjecting his students to a soliloquy about the war in Iraq, and no professor of introductory cosmology has any business fulminating about illegal immigrants. And no professor of anything has any business haranguing or intimidating students -- for any reason.

But here’s where the shell game comes in. The 1940 AAUP Statement of Principles notes that professors “should be careful not to introduce into their teaching controversial matter which has no relation to their subject.” In 1970, the AAUP clarified this guideline, explaining that “controversial” matter, in an of itself, is not a problem; rather, irrelevant material is the problem.

The intent of this statement is not to discourage what is “controversial.” Controversy is at the heart of the free academic inquiry which the entire statement is designed to foster. The passage serves to underscore the need for teachers to avoid persistently intruding material which has no relation to their subject.

Time and again, conservative critics of higher education have paid lip service to this principle, claiming that they object only to the persistent intrusion of material that is irrelevant to the course. But then -- sometimes in the same breath -- they go after entire disciplines, from women’s studies to ethnic studies to Middle Eastern studies, which they regard as illegitimate. Some critics, for example, are willing to countenance women’s studies so long as it does not involve “feminism” -- which, they think, crosses the line into advocacy and indoctrination. Yet it is not clear -- to anyone who takes education seriously, that is -- why the history of feminism (just to take one possible subject) would not be appropriate material for a women’s studies course.

Some critics make a superficially more careful case, arguing that the criterion of “relevance” should be determined by the course description (and studiously ignoring the fact that outfits like ACTA routinely attack course descriptions). But, as the AAUP statement demonstrates, this is an exercise in literalism so extreme as to amount to pettifogging: "The group calling itself Students for Academic Freedom (SAF), for example, has advised students that '[y]our professor should not be making statements ... about George Bush, if the class is not on contemporary American presidents, presidential administrations or some similar subject.' This advice presupposes that the distinction between 'relevant' and 'irrelevant’ material is to be determined strictly by reference to the wording of a course description.... But if an instructor cannot stimulate discussion and encourage critical thought by drawing analogies or parallels, the vigor and vibrancy of classroom discussion will be stultified."

The course description is not a contract signed by professors and students; it is not an advertisement for a bill of goods or a demarcation of rigid intellectual boundaries. As the mundane examples of my own courses go to show, class discussion exceeds the bare minimum of the course description on a daily basis; I don’t indoctrinate, harangue, or intimidate my students, but I do introduce them to all kinds of relevant material that doesn’t appear in the course description or on the syllabus; and over the course of a day, a week, or a semester, I try to demonstrate how and why this material is relevant to the discussion. I am aided in this, I have to add, by bright, energetic students who bring their own analogies, obsessions, fully-formed arguments, and passing concerns to class, and who try to show me (and their peers) why these things are relevant to the course material.

I’m happy to say that so far, I haven’t had any timorous, excessively-literalist students who squeak in distress when I bring up television sitcoms or toxic chemical spills in class even though I haven’t mentioned them in my course description. And I’m also happy to say that so far, I haven’t had any timorous, excessively-literalist university administrators who’ve cautioned me against talking about presidential elections, regulatory agencies, or the events of 9/11 in class.

For everyone who has ever dealt with such students or such administrators, and for everyone who might, the AAUP “Freedom in the Classroom” statement is a timely and forceful document. No other organization in higher education could have issued it, because no other organization is capable of enunciating and defining the core principles of academic freedom. And though I do not expect that all academe’s critics will respond to “Freedom in the Classroom” warmly or in good faith, I do hope this statement will decisively clarify the meaning of academic freedom in teaching -- not only for teachers themselves, but for students, parents, administrators, trustees, alumni, and lawmakers.

The American Association of University Professors last week issued "Freedom in the Classroom," a report evidently intended as a landmark answer to an increasingly common class of criticisms about the behavior of college professors. The report takes issue with critics who complain about professors who use their classrooms to indoctrinate students, present imbalanced perspectives on contentious issues, demean students who disagree, or intrude irrelevant political opinions. According to the AAUP, these abuses are fictitious; or if they are not fictitious, they are not really abuses; or if they are abuses, they are rare; and anyway, the critics are acting in bad faith because their real motive is to silence professors by exciting public opinion to support a crack-down on academic freedom using “the coercive power of the state.”

The AAUP sent the report (which you can read here) electronically to 350,000 U.S. faculty members and is issuing it in French as well, for faculty members in Quebec. It has already stirred sympathetic interest in the press and I expect it will be cited in court cases and legislative hearings as “proof” that conservative critics have grossly overstated their case.

Speaking as one of those critics, I don’t think we have. For a point by point rebuttal of the AAUP report, see the reply on the National Association of Scholars’ Web site, here.

Whose Report?

The report, however, is a somewhat strange document. Contrary to the AAUP's long-standing practice, it appears to have been issued without having first been broadly vetted among members and outside experts. The report was announced with fanfare, including a press release that firmly declares it as a report that speaks for the AAUP. The preface of the report, however, mentions only the approval of a committee and, when I and others questioned this, one of the report’s authors offered an eyebrow-raising explanation: "It has been approved for publication, which is to say for public comments. After public comments, AAUP might consider whether to endorse it as an organization. It is endorsed by Committee A at the moment."

As far as I can tell, the AAUP never publicly said the report was a trial balloon, so which is it, the official opinion of the AAUP or the ruminations of a special committee? The answer is of interest for several reasons. A handful of people appear to have assumed the right to speak authoritatively for the whole organization. If this is so, it suggests that the authors, “Committee A,” and the drafters of the AAUP’s press release, despite their self-assured tone, lacked confidence that the report would indeed be supported by the larger organization. It would also represent a serious act of intellectual dishonesty toward both the public and the membership of the AAUP.

In any event, on purely intellectual grounds, “Committee A on Academic Freedom and Tenure” would have been better advised to seek a broader preliminary review. That's because, regardless of one's views about the propriety of bringing political opinions to the college classroom, the report is ill-executed. It takes aim at arguments that the critics haven’t made; it caricatures other criticisms; and it insists on strange premises -- the most singular of which is the idea that “truth” is whatever the members of a discipline say it is.

Besides enunciating the AAUP's dismal view of conservative scholars, the report makes one other theme abundantly clear. If we take the corporate authorship of the report at face value, the nation’s largest association of faculty members cares far more about the freedom of professors than it does the education of students. In the AAUP's view, the freedom of faculty members is as broad and open-ended as a circus tent. The freedom of students to be taught in classes that focus on the subject at hand, unadorned by their instructors’ opinings on President Bush, global warming, or immigration -- that freedom -- hardly exists.

The AAUP Then -- and Now

It wasn’t always so. The AAUP was founded in 1915 by Arthur Lovejoy and John Dewey, who had been moved by the firing of a Stanford University faculty member because of his political views. The AAUP made its first mark with its publication of a “Statement of Principles” that laid out a compelling account of what academic freedom should be. First sentence: “The term ‘academic freedom’ has traditionally had two applications -- to the freedom of the teacher and to that of the student.” The AAUP’s founding document is primarily concerned with the freedom of the teacher, but it includes a powerful set of caveats. As this paragraph does not appear in more recent AAUP statements or as far as I can tell elsewhere on the Internet, I offer it here in its entirety:
Since there are no rights without corresponding duties, the considerations heretofore set down with respect to the freedom of the academic teacher entail certain correlative obligations. The claim to freedom of teaching is made in the interest in the integrity and of the progress of scientific inquiry; it is, therefore, only those who carry on their work in the temper of the scientific inquirer who may justly assert this claim. The liberty of the scholar within the university to set forth his conclusions, be they what they may, is conditional by their being conclusions gained by a scholar’s method and held in a scholar’s spirit; that is to say, they must be the fruits of competent and patient and sincere inquiry, and they should be set forth with dignity, courtesy, and temperateness of language. The university teacher, in giving instruction upon controversial matters, while he is under no obligation to hide his own opinion under a mountain of equivocal verbiage, should, if he is fit for his position, be a person of fair and judicial mind; he should, in dealing with such subjects, set forth justly, without suppression or innuendo, the divergent opinions of other investigators; he should cause his students to become familiar with the best published expressions of the great historic types of doctrine upon the questions at issue; and he should, above all, remember that his business is not to provide his students with ready-made conclusions, but to train them to think for themselves, and to provide them access to those materials which they need if they are to think intelligently.

The AAUP in 1915 saw the potential for faculty members to abuse academic freedom, and it warned that for the profession to protect itself it would have to “purge its ranks of the incompetent and the unworthy” who included those who engage in “uncritical and intemperate partisanship.”

In 1915, the AAUP regarded college students as vulnerable to those who would take “unfair advantage of the students’ immaturity by indoctrinating him with the teacher’s own opinions before the student has had an opportunity fairly to examine other opinions upon the matters of question, and before he has sufficient knowledge and ripeness of judgment to be entitled to form any definitive opinion of his own.” The AAUP recommended that colleges teach students to look “patiently [and] methodically on both sides” of controversial issues.

That was then. The AAUP has long since attempted to distance itself from the 1915 statement. It adopted a new “Statement of Principles on Academic Freedom and Tenure” in 1940; issued “Interpretive Comments” in 1970; and in recent years has leaned exclusively on these later declarations that quietly retired the strong caution of 1915. Even the more diluted 1940 statement, however, stipulated that, in the classroom, teachers “should be careful not to introduce into their teaching controversial matter which has no relation to their subject.”

Why stir these ashes? The AAUP remains arguably the most authoritative voice in the United States on what academic freedom is and what it should be. It derives that authority not from anything it has done in recent decades -- some of which has been quite embarrassing, such as its 1991 issue and quick retraction of a report attacking critics of political correctness as having “animosity toward equal opportunity.” Rather, its authority derives from Arthur Lovejoy, John Dewey, the 1915 “Statement of Principles,” and the decades of strenuously principled struggle for academic freedom that followed.

Thus when the AAUP speaks on academic freedom today, it is in the awkward spot of invoking the authority of documents and traditions that it has, in substance, repudiated. The new report, “Freedom in the Classroom” is a marvel of this disingenuousness. It refers repeatedly to the 1915 Declaration but in a manner that completely disguises the original points. The whole long paragraph quoted above, which was meant to safeguard students from their professors’ excesses of ideological zeal, is instead turned against students and reduced to this:

Students must remain free to question generally accepted beliefs if they can do so, in the words of the 1915 Declaration of Principles on Academic Freedom and Academic Tenure, using "a scholar's method and . . . in a scholar's spirit."

That comes in the midst of an argument that critics who complain about professors engaging in “indoctrination” are quite mistaken. The professors are engaged “in instruction, not indoctrination,” and the AAUP asks us to think about the need for “professors of logic [to] insist that students accept the logical validity of the syllogism.”

An Army of Straw Men

Of course, critics are not complaining when logic professors uphold the validity of the syllogism. They are complaining when professors use their classrooms gratuitously to pronounce political views. Far from the world of syllogisms, the contemporary student often finds himself in a land of scare tactics. Here is an example I’ve gleaned from the useful Web site, Noindoctrination.com. On March 30, 2007, a student posted an exchange he had with a management professor whose required course on the contest of contemporary management he had taken. (The case is documented here.) The student alleged that the course had a pro-immigration “liberal” bias. He wrote (entire text) to his professor on November 1, 2006:

here is are a few articles that present the detriment of immigration to the United States
first one is a complete anti-immigration
http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=1836
and the 2nd one is something i would really like you to consider adding to give a conservative view to immigration
http://www.phxnews.com/fullstory.php?article=7205
thanks for reading
tony
“Tony” received this response two hours later (exact text):
Subject: Re: takes from the 'other side' to consider on illegal immigration
I get really tired of right wing stuff. Surely you get enough of it. Do you ask for additional readings in your right wing classes. Obviously not. I resent your insulting assumption that you have the right to teach my class or that students are not familiar with right wing racist crap on immigration. Of course they are. My course is not being taught to reinforce right wing ideology. Don't you get enough of this in other classes, or do you need EVERY class to be consistent with extremist views.

I quote this exchange to give a little touch of reality to the discussion. Examples of what the critics are actually complaining about are mostly absent from the AAUP report. The few that are offered are selected in the spirit of finding clay pigeons. For instance, the AAUP’s sole example of someone complaining about a “hostile learning environment” is a crank Web site claiming that the earth is the unmoving center of the universe and decrying the pernicious influence of Copernicus.

The critics who warn that professors are misusing the classroom have an intellectually serious case, but the AAUP has chosen to ignore that case in favor of rebutting a purely imaginary set of critics. Hence the report features a stunning defense of the right of an English teacher to choose whether or not to teach George Eliot’s 1876 novel, Daniel Deronda, as a way of enhancing the study of her 1872 novel, Middlemarch. We might think of the AAUP report as an army of straw men slumping across American higher ed.

Disciplinary Infallibility

Notwithstanding the parade of irrelevancies, “Freedom in the Classroom” does have a consistent theme. The core idea is that “truth” is defined by the prevailing view within an academic discipline. Therefore, if a faculty member asserts something in class that strikes ordinary people as preposterous but which is held to be “true” according to the prevailing view of the faculty member’s discipline, the faculty member has engaged in a perfectly worthy example of academic freedom.

This view has some merits when it comes to the more challenging frontiers of science. The consensus of experts really does count for something in quantum physics. But the chasm between the natural and applied sciences and most everything else is wide and deep. The prevailing view of “experts” in women’s studies, post-colonial theory, queer studies, and even fields like political science, history, anthropology, and English doesn’t reveal “truth” in any dispositive manner that most of us would accept. We know that these fields trade in approximation, hypothesis, and -- increasingly -- in mere opinion. We also know that many of the professors who hold positions in these fields have granted themselves the privilege to pronounce on all sorts of topics in which they hold no expertise at all.

Back in 1915, the AAUP warned professors that academic freedom pertained to their areas of expertise, not to their opinions on random topics. But in 2007, many of our academic disciplines are so distended that it impossible to identify any actual area of expertise. In that context, faculty members often claim a license to connect their political views to whatever happens to be on the syllabus that day.

Does anyone really believe the AAUP's new doctrine of disciplinary infallibility? Perhaps somewhere we could find an intellectual who is so theory-besotted as to believe such a pretense, but disciplinary infallibility is really just a flag of convenience for the AAUP. What the doctrine actually represents is an attempt by the postmodern academy to hide illiberal practices behind fake version of liberalism. The liberal tradition to which Lovejoy and Dewey belonged, celebrated differences of opinion. In 1919, when Justice Oliver Wendell Holmes, Jr. spoke his famous dissent in Abrams v. United States that “the best test of truth is the power of thought to get itself accepted in the competition of the market,” he crystallized the liberal conception of fostering free expression as a path toward truth-finding.

But liberalism has been jettisoned by postmodernists, who rejecting the assumption that the best ideas win out over time, espouse the view that the ideas that typically win are those that are backed by political and economic power. The world in this view is made of up of interest groups that use all sorts of tricks -- advertising, mass media, state propaganda, and the like -- to lull people into believing whatever the powerful find convenient. In that light, why should the post-modernists themselves agree to play by the old rules? The demand for rational arguments and evidence, as they see it, is just a device to intimidate the intellectuals, lest they start spilling the beans about how things really work. What is truth? “Truth” is just a “construction” meant by the powerful to hide the reality, and reality, of course, is the relentless exploitation of people by race, class, gender, etc.

Get into a really candid conversation with a good many liberal arts professor these days and you will hear something much like this. But obviously if you believe this is how the world works, you’re best strategy is to obfuscate what you are really doing. Using your classroom to spread political views is a good way to liberate students, who might otherwise fall for the prevailing “lies.” At the same time, it is important to fend off the critics who might interrupt these wholesome attempts to disrupt the stale orthodoxies of liberal thought.

What better way to do than hijack liberalism itself? The AAUP report is an exercise in this vein. Instead of seeking one big Truth, in which the results of rigorous research in many fields and theories that have withstood hard and critical interrogation contribute to a better overall understanding of reality, the AAUP offers us a university in which fluidly defined “disciplines” posit their own “truths.” Instead of Holmes’ marketplace of ideas, we have an oligarchy of ideologues, each with his own do-not-compete zone.

Plain Facts

If this sounds like too bleak an assessment of what the AAUP is up to, we at the NAS would be glad to hear a better explanation. My colleagues and I examined the report in detail and have posted on the National Association of Scholars’ Web site an extensively annotated version of it, taking issue with matters large and small. We didn’t write our reply thinking that a large percentage of the report’s original audience would “patiently and methodically” want to follow such a line-by-line analysis. That would be nice, but our real aim is to be sure that when the AAUP report re-surfaces as “evidence” that the conservatives critics got it “all wrong,” a thorough and detailed answer will be on record. Someone will be able to say, “That report? It’s unreliable. Look at the errors that have been found in it.”

In other words, we still have confidence in the marketplace of ideas. The “powerful” in this case are represented by the AAUP, an organization many times the size of the NAS, and by the substantial number of faculty members who are indeed politicizing their classrooms. But contrary to the postmodernists, the powerful don’t define the truth, and their armies of straw men don’t really stand a chance against the plain facts.

About two weeks before the 2004 presidential election, one of the students in a government class that I was teaching raised his hand and demanded to know who I was supporting for president. I paused for a moment, somewhat taken back by the stridency of the student’s request. Noticing my reaction, he offered some background, explaining that he was not the only one in the class who had this question. We had, after all, been talking about the election during nearly every session, and my reticence with regard to what seemed to the students to be a crucial point was a source of confusion.

Despite his protests, I refused to answer, and quickly moved to the topic of the day. Later on, however, I had some time to consider the exchange. And the more that I thought about the student’s question, the more pleased I became. This was, I thought, one of the best evaluations that I had ever received. Here was real evidence that I was doing my job!

Here’s why: My students should not be able to tell, at least from what I say in class, who I prefer to sit in the oval office. For one thing, this would be a form of “bait and switch,” since nothing about the sharing of my political opinions appears in the catalogue that the students presumably consult before paying their money and scheduling my course.

More to the point, however, is that I am not qualified to teach students about who should be elected. In fact, I am no more qualified to tell people who they should vote for than I am to teach a class in quantum mechanics. I have colleagues over in the physics department who are qualified to offer a course in the latter subject; none of us has the same credibility when it comes to the former. Indeed, in an important way, this blanket incompetence is a part of the class lesson -- particularly, though not exclusively, in a class on American government. It is an implicit argument for democracy, or at least democratic equality. It is also, however, an argument about education.

If professors, or anybody else for that matter, actually "knew" who the president should be, then voting, especially by those who did not know, would be unnecessary, and probably counterproductive. This is easy to illustrate by considering the following example: Suppose that I feel ill, and would like to know what I might do to feel better. One approach would be to poll my friends, asking each of them what I should do. But suppose that among my friends was a medical doctor. Would it not make sense to follow her advice, eschewing the opinions of the rest of my friends? Now, what if I were on a deserted island, with no trained medical professionals available? Then, I might as well seek out the advice of friends, summing their opinions. When we are all equally ignorant, we might as well vote.

Most Americans seem to intuitively grasp this notion, and have gradually moved our political system away from any form of “rule by the experts.” The best example of this may be found within the evolution of our electoral system for choosing the president. .If one reads carefully through the Constitution, one finds that the document does not call for the popular election of the president. Instead, state legislatures are charged with appointing presidential electors (the real voters) in any manner which they see fit.

By practice, though not amendment, Americans have reformed this process. Indeed, fairly quickly, legislative appointment was replaced by the popular election of presidential electors. The reason why elections like the one in 2000 -- in which the electoral and popular votes do not reach the same outcome -- are so disturbing is because most Americans think that they do, and should, select the president. No one stands up for an independent board of electors, because scarcely anyone believes that a qualified electoral elite exists. Again, where there are no experts, let’s let everyone have their say. This should serve as a reminder -- particularly to my colleagues in the academy -- about equality. We are all equally entitled to our opinion on electoral matters. That is why we vote.

This understanding has implications for the classroom that extend beyond politics. What we know, we should teach. We ought to keep our opinions to ourselves. This is an important point to keep mind as we read polls, including a recent one by the Zogby organization, that suggest that the public thinks that political bias among academics is a real problem. The public might well have a valid point.

Too much is made of the fact that the views expressed by these academics seem at best out of the mainstream, and at worst dangerously radical. One would, after all, expect those who have dedicated themselves to the careful study of a subject to know more than most about their area of expertise. And those who know should not be bound by -- or be expected to teach about -- the opinions of those who do not know, even if those opinions are held by a majority of people.

This leads to the real objection that ought to be lodged against those who bring their political opinions into the classroom: Do they know what they are talking about? In the classroom, a basic distinction ought to be maintained between knowledge and opinion. To return to my earlier example, I “know” how the mechanics of the electoral system work. I have an opinion about who should be elected using this system. Therefore, I should teach only the former; not because I might offend the delicate political sensibilities of my students, but rather because this distinction between knowledge and opinion is fundamental to any academic endeavor.

Ideally, what scholars seek -- indeed what every educated person hopes to attain, however partially -- is to replace opinion with knowledge. Through both what and how we teach, instructors inspire in their students a sense of both what is known, and how much remains to be discovered. This is what the philosopher Socrates meant when he argued that the first step in the educational process is "to know what we do not know." By becoming aware of how little we know, we are motivated to learn.

The sin committed by any teacher who spouts his or her political views in the classroom is, therefore, not political, but academic. By feigning certainty where there is only opinion, they encourage ignorance in their students. Teachers are free to hold and express (outside of the classroom) any opinions that they wish. What they must not do (in the classroom) is to pretend to know more than they do.

As the writer G. K. Chesterton wisely observed, "It is not bigotry to be certain we are right; but it is bigotry to be unable to imagine how we might possibly have gone wrong." This type of bigotry does not serve our students or our democratic system. Avoiding it is not always easy, but it is our job.

In the weeks since Columbia University’s president, Lee C. Bollinger, introduced his invited guest speaker, Iranian President Mahmoud Ahmadinejad, as a “petty and cruel dictator," the media have been full of support for Bollinger’s treatment of Ahmadinejad. Many of the writers piled on more insults. One prominent blogger described the Iranian president as a “brown-skinned, terrorist-enabling, nuclear-proliferating certifiable nut.”

The we-hate-Ahmadinejad writers were divided on tactics. Some believed Ahmadinejad should never have been invited. Others thought Bollinger handled it right by bringing him into the spotlight and then lashing into him.

The only rebuttal to the hate-Ahmadinejad stance came from a minority -- the writers of perhaps 1 or 2 out of every 10 published letters -- who held that in the interests of academic freedom Ahmadinejad should have been treated politely and allowed to speak.

At my university, we think there is a third way that should have been taken at Columbia. It’s one that has been successfully taken with Iran by our academics, staff and students since the 1990's. It’s called active, but respectful, engagement. We hold our dissenting views. We express our views clearly and with integrity. But we do so in the spirit of transforming conflict rather than pouring fuel onto it. And we do so with the knowledge and humble admission that we, too, are fallible people and that we are part of a fallible nation. While this essay centers on contact with Iranians, this could be a model for how colleges might handle any number of controversial figures who come to their campuses, whether from around the world or down the street.

My small university in the Shenandoah Valley of Virginia tends to be better known among people who work at places like the United Nations, World Vision, and Catholic Relief Services than it does among academics at large North American universities. We’re situated in the shadow of James Madison University in Harrisonburg, far from the media circus we saw at Columbia. We have about 1,600 students, two-thirds being liberal arts undergraduates, one-third being graduate students. About half come from faiths other than the pacifistic Mennonite church, including from non-Christian traditions. By virtue of our path-breaking programs in conflict transformation -- through which 3,000 people have passed since 1994 -- EMU is widely known by people around the world working in conflict or immediate post-conflict zones, such as in Croatia, Sudan, Sierra Leone, Nepal, the Philippines and Indonesia. Beginning with relief work after the 1990 earthquake in Iran, EMU and its sister Mennonite agencies have worked hard to earn the trust of Iranians of various persuasions, enabling a unique level of educational exchanges.

On October 9, 2007, two weeks after Ahmadinejad was insulted at Columbia, EMU president Loren Swartzendruber sat near me at a lunch round-table with one of Ahmadinejad’s advisers, Ali Akbar Rezaei, a senior member of Iran’s Foreign Ministry.

Swartzendruber, who holds a doctorate in ministry, opened the lunch with a prayer in which he asked for God’s blessing on the food we were about to eat and on the dialogue we were about to have. Swartzendruber then excused himself from the lunch with Rezaei with the explanation that he was heading to a lunch presentation on building peace through interfaith dialogue, study, and exchange, given by a pastor-scholar who had spent 1997-99 in Qom, Iran, studying Islam as well as Persian language and literature.Yes, it may seem hard to believe, but here in Harrisonburg, Va., we manage to have competing lunch events about Iran!

For Rezaei -- who had been responsible for setting up meetings for Ahmadinejad in New York in September -- this was the beginning of 24 hours of contact with the faculty, staff, and students of our university and its Center for Justice and Peacebuilding. The center houses a master’s-level graduate program that attracts students from around the world. Among its 100 graduate students are 9 from the Middle East, mostly Fulbright students. Some of these students, joined by six Muslim students from other countries, had a meeting with Rezaei in which they respectfully, but frankly, disagreed with most of Rezaei’s characterizations of Iran’s policies, particularly with his description of Iran as a “status quo” state. Rezaei counter-challenged them to not take Fox News about Iran at face value. He encouraged people to come to Iran and see for themselves.

I had met and been impressed by Rezaei seven years ago when he came to my university’s annual Summer Peacebuilding Institute. At the time, he was a young scholar in Iran’s Institute for Political and International Studies. Rezaei took five successive classes, including one on strategic nonviolence and one on inter-religious peacebuilding taught by Marc Gopin, an orthodox Jewish rabbi who is now director of the Center on Religion, Diplomacy and Conflict Resolution at George Mason University.

During the two months that Rezaei was at EMU, his first child was born in Iran, and we all celebrated with him. After his return to Iran, we followed his career with interest. He spent four years in London, working in the Iranian embassy there, and then returned to work in the Foreign Ministry in Tehran as director of the North and Central America Department. On the home front, two more children were born.

It was a pleasure to see Rezaei again after all these years and to see that his intelligence, open-heartedness and curiosity were undiminished. Over the lunch -- attended by more than a dozen faculty and staff members -- Rezaei expressed concern that both the United States and the Islamic world contain an influential minority of people who “think they are 100 percent right, that God is with them, that everyone else is wrong, and that they are the only good guys in the world, so they should impose their views on everyone else.” He noted that those who planned the invasion of Iraq and the men who organized and executed the 9/11 terrorist attacks on the United States demonstrated similar biases in their thought patterns.

Rezaei lamented mutual ignorance about each other’s countries. He said many Iranians view Americans as being uncivilized people who don’t believe in God, who like killing people and who want to eradicate Muslims. He said, “We desperately need ways to overcome this ignorance.”

He didn’t have to articulate how most Americans view Iranians. All of us sitting at that lunch table were painfully aware of the ignorance about Iran in our own society. I had experienced this myself when I visited Iran as part of a Fellowship of Reconciliation delegation of “civilian diplomats” in March. We thought we would be viewed as the “enemy” in Iran. Instead our group of Americans, seeking to exchange ideas with a broad range of Iranians, was extended warm hospitality wherever we went. Since only about 300 Americans have visited Iran this past year, people seemed surprised to hear we were from the United States. And invariably, the first thing out of their mouths was “We love you!” They would sometimes go on to say that we don’t like your president or we don’t like your government, but their feelings about “Americans” were demonstratively warm-hearted.

In the last 18 months, faculty and students from various departments of Eastern Mennonite have taken trips to Iran. Two students attended a human rights conference in Qom in May, giving presentations on human rights from a Christian perspective. One of our seminary professors gave a theological paper at a conference in Iran on messianism. EMU has also hosted a number of Iranian visitors, including several university professors and an Iranian researcher from the University of Tehran, who attended two sessions of the Summer Peacebuilding Institute.

To be sure, there are numerous issues between Iran and the United States that deserve very serious scrutiny. No one is served by naiveté or ignoring those concerns. One of our Indonesian Muslim students raised concerns about Mennonites interacting with Iranian officials in this e-mail message to me:

“I’m writing this e-mail just to ‘remind’ the Mennonites to be careful in building networks and relationships with the Iranian government. Who takes benefit from this ‘peacebuilding project’: Iranians, Mennonites, Muslims, the United States? I am afraid there is a ‘hidden agenda’ behind the meeting.

“They just use the Mennonites to send their ‘peaceful message’ to the American public, while at the same time they produce uranium, discriminate against non-Shi’ite communities and non-Muslims, massacre members of the Baha’i faith, and so on and so forth.

“Last, but not least, hopefully what I was thinking does not happen. Hopefully, by the Mennonites’ intervention, justice and peace will greet Iran, like in the Harrison Ford movie ‘Witness.'"

We in the peacebuilding field cannot know whether eventually “justice and peace will greet Iran,” just as we cannot know whether eventually the United States will choose the path of equitable peace in the world instead of military and economic dominance. But we are certain that to transform conflict and lay the groundwork for a better future, one must treat others the way – yes, to borrow from our holy book (but not the only book to say this) – one would want to be treated. In our conflict transformation program, we teach our students to move toward differences of opinion without fear, dealing with it open-heartedly, rather than trying to suppress or avoid conflict. Iran’s president undoubtedly has his own agenda for promoting exchanges with American colleges and academics, but our agenda is to promote respectful talking and listening, knowing that none of us has a corner on the truth and that each of us views matters through a particular lens. The more effort we make to peer through the lens of the “other,” the less likely we will end up in violent conflict.

Seeking to “practice what I preach,” I was one of about 120 people from a dozen religious groups and institutions who met with Ahmadinejad two days after his speech at Columbia University. Requested by Iranian officials, the meeting was organized by the relief and service agencies of the Mennonites and Quakers, but included Catholics, Episcopalians, Methodists, Christian university leaders, and many others.

During the two-hour session, Ahmadinejad addressed the audience for 20 minutes. Five panel members, selected for their range of perspectives, responded to his speech and asked their own questions. The dialogue covered the differences many of us have with Ahmadinejad, but it was conducted with respect and civility on all sides.

I believe this model is a better one for encouraging positive change – on both sides – than verbal attacks. I agree with the petition circulated by Columbia students, which was signed by 660 people online as of this week, in which the petitioners expressed distress that “inflammatory words were delivered at a time when dialogue with Iran is of the utmost importance in an effort to forestall war.”

One petitioner who identified herself as Alena, class of 2009, in the School of International and Public Affairs at Columbia, wrote: “As someone who grew up in the U.S. State Department world, I was often exposed to how difficult it was for my father to dialogue with leaders with whom he deeply disagreed. However, it was always his imperative to treat others with human dignity and respect and that U.S. Foreign Policy is best served by always having a platform for dialogue. There is always room for decorum and respect – even if you are faced with your worst enemy.”

We in the academic world must always be open to dialogue, which means respectfully listening as well as frankly speaking in a civil manner. I often disagree with positions that President Bush takes, but I would never presume to change his views and behavior through refusing to speak to him or insulting him.

Instead of limiting our choices to, on one hand, treating Ahmadinejad hatefully or, on the other hand, inviting him to speak without rebuttal in the interests of academic freedom, we advocate a third way: respectful, but active, engagement with those with whom one disagrees. This is what Martin Luther King did and wrote about in his “Letter from a Birmingham Jail.” It’s what Gandhi did in India with the British. And it is what Nelson Mandela did with the leaders of the South African regime that jailed him for 27 years.

We advocate this third way both for intellectual and spiritual growth, as well as for combating injustice and achieving peace. Nothing is ever gained by pouring fuel onto a simmering fire.

The following is a speech delivered by Professor Kaplan this month to the Rotary Club of Madison, Wisconsin. The text is reprinted here with his permission.

On February 15 of this year, in a class in legal process at the University of Wisconsin Law School, I commented on problems encountered by Hmong people who have immigrated to Wisconsin. My comments were misreported in student e-mail correspondence which became public and was published in the local press. As a result, a distorted view of my February 15 class became international news.

I do not intend to repeat the details of this controversy today. My own account is available in a letter of March 5 to the dean of the Law School. The letter was made public with my permission and is available on the Internet. In the letter, I expressed my regret at the pain that any of my actions may have caused. However, this controversy has left important issues of principle unresolved. Today I shall attempt to address these issues through a description of the goals of my legal process course as they were reflected in my class on February 15. I devote my legal process course to the legal, cultural, and political questions that will face my students when they enter practice in a global world where the old truths are increasingly discredited and new thinking is imperative. But one cannot arrive at the new without an awareness of the history from which the new derives and by which it is shaped, even though, as I teach my students, that history may itself be contested.

My starting point is the liberal state. The modern liberal state guarantees individual rights, without itself being committed to any particular view of the common good as the object of human aspiration. When academics speak of the liberal state, they do not mean Democrats or Republicans. They do not mean Christian or Social Democrats in Germany or any other political regime. For academic purposes, each of the European and North American states is a liberal state with its own political, legal, and cultural norms.

In the United States, we claim enumerated rights held personally by each citizen, but not necessarily by everyone who lives here, since citizens may have rights that non-citizens do not. As these rights are constitutionally based, they are subject to review by the U.S. Supreme Court, and the rights analysis of many major political and social issues is, in fact, contested. The Supreme Court is currently reassessing basic questions of rights; abortion, affirmative action, stem cell research, church and state relations, habeas corpus, national security, executive power in an age of perpetual terrorist threat and even academic freedom are examples of the sensitive issues with which we are faced.

These debates raise larger questions: Is our talk about rights really meaningful or merely rhetoric? Though we pay lip service to universal rights, non-citizens in the United States may get something less. Even citizens may get less than a “right to happiness” if the state does not establish the material conditions necessary to make such a right possible.

Each of these issues inspires passionate responses. We can and will disagree about them for very cogent reasons, and that disagreement can become inflamed and unreflective. But in a law school, in which students learn to be lawyers, the issues must be addressed rationally and analytically, and learning must have primacy. It is a law school’s obligation to provide an environment in which faculty can address and teach students how to assess volatile issues. The maintenance of an appropriate environment must take precedence over the issues being discussed. If a law school fails to do this, our rights and the rule of law itself may be put at risk.

The background for my class on February 15 was a text by Schlomo Avineri that I had assigned earlier in the semester: Hegel’s Theory of the Modern State. I use the text in my course to establish some of the historical roots of the liberal state and to consider certain problems identified by the 19th century German philosopher, G.W.F. Hegel. Hegel developed a critique of what was then shaping up as the liberal state in Europe, not only in Germany, but also England, France, and the United States.

Hegel set out the conditions required for an ethical modern, mass state. He was not a utopian. He saw rather clearly that the liberal state, notably in the United States, presented only civil society and not the ethical state. Hegel's ethical state would not only recognize each person as an individual, but would also make available the material conditions necessary for each person to thrive. Hegel argued that providing rights while ignoring familial and communal bonds fails to provide the conditions necessary for individual fulfillment. Therefore, for Hegel, the principle of one person, one vote is not enough. If people lack community, the abstract right to vote and any other abstract right is ineffective. In Hegel's view, a liberal state must foster community -- through labor organizations, political organizations, fraternal organizations, and the like. It must ensure that individuals can express themselves and know that their views are taken into account in the community. This point needs to be underscored. Rotary, for example, is a group with disparate views of politics, culture and religion. But we are bound together for a series of reasons including the ideal of service and the four-way test that may sound laughable to cynics.

Hegel identified two problems that were central to the class on February 15. First, he understood that the liberal state must address the poverty that follows from a pure capitalist political economy. Here he followed the thinkers of the Scottish Enlightenment, most famously, Adam Smith. Hegel’s ethical state would have to intervene in market arrangements to help the poor, but without disabling market efficiency. This problem is still with us.

The second problem is pluralism. We all talk about pluralism. The concept has invoked a huge literature. The existence of such a large literature suggests that there is no great clarity concerning the concept. Yet pluralism is a central problem for the liberal state. (I would argue that it is also an essential problem for a neo-liberal, market-driven, world economy.) Hegel understood the need in mass societies for people of diverse languages, religions, ethnicities, and today we would add gender identifications, to get along politically.

That is not an easy task. Carl Schmitt, a leading theorist for the Nazis and an apologist for Hitler’s democratic seizure of power, claimed that liberalism is impossible because it requires a commitment to a heterogeneous population. Schmitt insisted that pluralism, in any event, is not a worthy value. He argued that to be vital, a political community must be homogeneous. For Schmitt, liberalism stands only for marketplace and profit, not for the vitality of a unified sovereign purpose beyond individual greed. In accord with Schmitt, Hitler sought to create a
homogeneous population of Aryans. The example of Schmitt, Hitler and Weimar Germany underscores the importance of the problem of pluralism.

Hegel spotted the issue. He did not solve it. And neither have we. To commit to pluralism is to commit to living with people whose practices are very different from our own, so long as their behavior is not criminal. But the line between what is normative and what is criminal is very often difficult to draw, and it is always negotiated. For example, if many believe that abortion is a transgression against divine law, it is hard to find a pluralistic compromise on this issue.

On February 15, I had assigned a reading from Neil Duxbury, Patterns of American Jurisprudence, to illustrate the interplay between legal formalism and the problems of the liberal state. In the 1890s, legal thought in the United States was dominated by two tendencies of what Duxbury calls formalism, each deriving from different historical sources. Duxbury identifies one formalist tendency with Christopher Columbus Langdell, a famous dean of Harvard Law School. Langdell created the case method for teaching law at Harvard. He believed that he could present a taxonomy of cases and that the great number of cases in each area of law would reduce to a few from which he could abstract even fewer fundamental principles. He thought that once students learned these principles, they would be able to apply them and reach the correct outcome in specific cases.

The other formalist tendency was the adoption by American courts of the ideology of the marketplace. American courts assumed, for example, that every party to a contract had the capacity and the autonomy necessary to enter an agreement. Courts considered the relative knowledge and strength of the parties irrelevant. In several famous cases, the U.S. Supreme Court ruled that attempts by state legislatures to protect the economically powerless were unconstitutional. The ideology of freedom of contract, not economic reality, was paramount.

Formalism in law tends to assume that legal rules can be identified and applied scientifically to the facts in controversy in order to yield a reasonable outcome. But the mechanical application of a rule of law to difficult cases can lead to injustice. For example, Robert Cover, in his book, Justice Accused, points out how abolitionist judges in the North and Midwest felt that they had to give full faith and credit to the U.S. Supreme Court’s ruling that fugitive slaves were property and therefore had to be given back to the bounty hunters who captured them. Cover argues that this kind of injustice put the law into disrepute and also caused great distress to the judges themselves.

To highlight the problem of unjust formalism, in my class of February 15 I brought up the difficulties that liberal states have with absorbing and integrating newly immigrant cultures, not always successfully. I talked about Muslims in Amsterdam, Pakistanis and others in London, Algerians in Paris, Turks in Germany and Somalis in Lewiston, Maine. I also talked about the Hmong experience in Wisconsin.

There is an established legal literature on the problems the Hmong have faced in the American legal system. These problems are not simple and commentators do not always agree. One good example is a comment by Choua Ly in the Wisconsin Law Review in 2001 titled "The Conflict Between Law and Culture: The Case of the Hmong in America," Ly’s article discusses the use of evidence of Hmong cultural practices, including marriage arrangements, as an affirmative defense in criminal cases. Another example is an article by Jennifer Ann Yang, “Marriage by Capture in the Hmong Culture: The Legal Issue of Cultural Rights Versus Women’s Rights” in Law and Society Review at UCSB (2004), which argues against legal recognition of the cultural practice of “marriage by capture”, preferring gender equality for Hmong women.

My class discussion on February 15 was intended to be sympathetic to the Hmong people. I intended to illustrate the inadequacy of legal formalism. My examples of cultural practice were directed against the legal system, not against any immigrant group. My examples were intended to show the disorientation that new immigrant groups can feel when confronting a formalist legal system. My point was that if our formalist legal system treats everyone as if they are the same, new immigrant groups from very different cultures could suffer a form of injustice. The resulting controversy lost this point entirely.

There are important principles at risk here. We have an obligation to our students. We best meet that obligation by showing legal principles at work in difficult and controversial settings. We are all harmed if professors avoid controversial material in deference to some accepted or imposed correctness or an apprehension that a topic may offend sensitivities. The law inevitably must resolve questions that many find offensive. If law professors avoid these questions, they no longer teach law. Most of us want security and to be left alone. Learning to question assumptions and values can be painful. But if professors avoid certain issues because they might offend someone’s sensitivities, we will cease to be a university in all but name.

A politics of personal identity, based on ethnicity, religion, race, or gender, may employ the discourse of rights within the liberal state, and properly so. But, like the formalism discussed in my class of February 15, identity politics can also mask or distort more complex issues. Any claim of right that censures or restricts examination of unpleasant realities is at risk of becoming adverse to the very idea of a law school or university. A misdirected politics of personal identity may in this way advance self interest at the expense of the common good and foreclose any authentic pluralism.

I also think that professors are losing authority, in part by failing to raise these difficult issues. Academic literature has been cautioning about what has been called the twilight of authority. Law students are in danger of becoming mere consumers and not students, law professors of becoming entertainers and not teachers. From what I can tell, legal scholarship is less connected with the practicing bar and courts than it was a generation ago. The judiciary, too, has become politicized. Richard Posner, an eminent federal appeals judge and legal scholar, writes that the public does not have to worry about judicial politics because the appointment process creates a pluralism in the judiciary, and ideological commitments of individual judges are thereby balanced out. Both the fact that he brings up the issue and his justification are disconcerting. They suggest the loss of a neutral judiciary and a loss of trust in our court system, reflected, for example, in the fact that Congress and many state legislatures have tried to take discretion away from the judiciary in criminal sentencing.

I want my students to have the tools necessary to address the kinds of questions that lawyers must confront. I have had a good career, and friends and colleagues who have always, or almost always, offered support and encouragement. So I offer my remarks here in the Rotarian spirit of doing no harm, or as little harm as possible, but recognizing that truth, like learning, may sometimes be painful. Immanuel Kant said about the Enlightenment that it augured a time when our species was capable of mature reflection. We have not progressed beyond Kant on this, and we have not answered Hegel’s challenge on poverty or pluralism.

We have community leaders in this room. We must all take responsibility for our community, including the university, as an environment in which pluralism and authentic respect for others are nurtured. Every generation has to renew its own basic commitments. No one will do this for us but we ourselves. Our institutions are not self-preserving. We are the people in them. We can talk about rights and the rule of law, but rights and laws are not self-executing. We ourselves must fashion institutions that support and preserve these commitments. My
experience should give us all pause and force reflection.

Jews use the word “shalom” to greet each other and to say goodbye. It means peace. Arabs use a variation. I thank you and wish you shalom -- peace.

I recently had a discussion that led me to a basic question: Why is the concept of academic freedom as a semi-protected activity limited by custom to people who teach in universities? Why doesn’t it apply to any person engaged in research and publication on issues important in our lives? What is the theoretical underpinning of the argument that non-faculty don’t have academic freedom in the same sense that faculty do? What is it that faculty actually do that is different from what I do, at least part of the time?

Is it that faculty need to be free to publish important books and articles? I have published four books as author or contributing editor (three with a university press), one of which is a five-pounder and is considered the definitive modern work in its field. I have published chapters in other major books, 36 articles or commentaries on education issues, 75 on ornithology (mostly in non-refereed outlets) and another two dozen that don’t fit neatly into categories. This doesn’t count work that I produce in my job as a college evaluator. I’m also the new book review editor for a small, well-respected refereed journal and a glorious but undiscovered poet.

Because I work as a college evaluator and routinely review faculty qualifications, I can say that my actual output of what would normally be considered scholarly work is quite similar to what I would expect of a mid-career professor at a mid-level college. In short, in terms of tangible product, I do what they do.

Is it that faculty teach? Let us define teaching. Let me know when you’re done -- with luck, I will have retired by then. I suppose we have an obligation to at least attempt to answer the question, but allow me to argue that teaching and learning take place all the time in all parts of society, whether or not a traditional cage is constructed around the putative teachers and learners.

Is the difference that I as a non-faculty member have been classified by society as fit for some tasks but not for others? By whose order? Under what theory? With what brief? Certainly as a state employee I am obligated to perform the tasks that are in my job description, and likewise obligated not to go about publicly trashing the goals of my employer. Beyond this, am I not free to pursue the truth wherever it may take me?

Universities have traditionally been assigned by society the role of pursuing truth and transferring knowledge in a semi-protected setting, if not beyond the reach of interfering powers, at least having some defenses against those powers. This is a good thing, but doesn’t it seem strange that a special kind of institution in society must be set aside for this purpose?

I do not think that the traditional collegiate cloister as our sole reservation for academic freedom works very well any more. The ability of independent scholars to operate outside institutions has increased along with the utility of the Internet. The Supreme Court wrote, in an era before the personal computer, PDA and cell phone (to say nothing of iPhone), that:

“Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” (Keyishian v. Board of Regents, 1967)

Where, and what, is the classroom today, 40 years downstream from Keyishian? If a friend of mine publishes a detailed study of hospital spending practices, molt strategies in the American Wigeon or the perfidy of Donald Rumsfeld on a blog, Web site or other nontraditional venue, and invites comment from all comers, isn’t that just as much a classroom as an enclosed space in which one human is bleating in person at a roomful of (mostly) younger humans? Certainly the gray area is taking on more and more layers and shades with the advent of more varieties of distance-learning.

To spend a moment longer in the relatively cramped legal arena, the Supreme Court has also granted certain kinds of academic freedom protections to universities themselves, under a theory that they as institutions have a special role in society and need to have some protection from unseemly attempts to influence their work. Yes, to be sure, that is true, but there are other institutions in society, e.g., publishers, think tanks, foundations; whose role is, if not the same in structure, surely overlapping in goal and function.

At a time when more and more people of all ages get their news and information off the Internet, and when young people of traditional college age do a vast amount of their fact-gathering online (whether the facts are, if you will, true, is another question), the argument that universities need a special protected status as our principal conductors of information and values to young adults has been losing weight for years.

We see more and more corporate sponsorships of research or faculty positions and degree programs that, as a practical matter, relate solely to the products of one or two companies. The idea that the university is separate from the pressures of the outer world (and therefore that people who work there should have a special status for themselves and their work) is getting harder to sustain. Should people employed by banks, supermarkets or governments who publish academic work be afforded protection under an academic freedom theory from retaliation by their employer if the employer happens to dislike the work? I can’t think why not.

When we have resources as good as, for example, Reginald Shepherd’s teaching-blog on poetry, the argument that the traditional classroom is necessary as a baseline for the theory, practice and legal protections of academic freedom begins to look like an argument that a sufficiency of draft horses is necessary for national security.

Norms move forward. I argued a while ago ("Accrediting Individual Instructors," The Independent Scholar 18(1):10-12, Winter 2004) that we need to stop accrediting colleges and start accrediting teachers. The fact that a top-flight poet like Shepherd now contracts with students privately and engages in significant dialogues on poetry and culture via a blog is but one example of an educational trend that militates toward recognition that academic freedom, in its purposes, results and legal classification, needs to be decoupled from the nature of an individual scholar’s employment.

Academic freedom adheres to the purpose and function of academic inquiry, not to technicalities of institutional affiliation. Anyone who engages in inquiry and publication according to the norms of academe is entitled to the scholar’s woolen cloak. It may not protect against all enemies, but it serves to reduce the chill of unpopular thought.

This month in an important victory for free speech on campus, the U.S. Court of Appeals for the Third Circuit held that Temple University’s former sexual harassment policy was unconstitutional. While free speech advocates from across the ideological spectrum cheered the Third Circuit’s ruling in DeJohn v. Temple University, some critics expressed dismay at what they deemed a “very ominous” example of “activist judging.” These critics are wrong -- and it’s important for both students and university administrators to understand why.

In February of 2006, Christian DeJohn filed a complaint in federal district court alleging that Temple had violated his First Amendment rights by punishing him for political expression. Among other serious allegations, DeJohn’s complaint charged that Temple’s sexual harassment policy (which, for example, prohibited “generalized sexist remarks”) violated his First Amendment right to free expression. DeJohn asserted that he felt inhibited from discussing his views on the role of women in the military, among other issues, and worried that he could be punished under Temple’s policy for expressing his opinions.

Seeking to obviate DeJohn’s First Amendment challenges, Temple revised its sexual harassment policy in 2007 by scrapping the sections of its policy at issue before the district court. Having done so, Temple asked the court to dismiss the portion of DeJohn’s complaint that related to the sexual harassment policy. However, the district court denied Temple’s motion, arguing that nothing prevented Temple from reinstituting the original policy following the conclusion of DeJohn’s suit. In March 2007, the district court found Temple’s now-abandoned sexual harassment policy to be unconstitutional on its face and issued an injunction against its enforcement.

Temple appealed the district court’s ruling to the Third Circuit in April 2007. This month, the Third Circuit ruled in favor of DeJohn, concluding that Temple’s former sexual harassment policy was unconstitutionally overbroad and affirming the lower court’s holding. Explaining that “[d]iscussion by adult students in a college classroom should not be restricted,” the court found that Temple’s former policy prohibited constitutionally protected speech and was therefore unacceptably overbroad.

Some critics of the opinion argue that the court should have found DeJohn’s claims moot since the university voluntarily revised the policy before the appeal was heard. But in the opinion, the Third Circuit rejected the mootness argument. Following U.S. Supreme Court precedent, the court held that a finding of mootness is only appropriate if “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur.” Because Temple, in its appellate brief, defended both the constitutionality of its former policy and its particular necessity on Temple's campus, the court held that it could not be certain that Temple would not simply reinstate the policy once the litigation was over.

Indeed, Temple’s brief on appeal argued vehemently for the constitutionality of its former policy. Temple’s aggressive defense of its policy was fueled by outside events: between the time the District Court found the policy unconstitutional and the Third Circuit was to hear the appeal, the U.S. Supreme Court issued a significant decision that Temple hoped would change the outcome of its case.

In Morse v. Frederick, decided in June 2007, the Supreme Court held that a public high school did not violate the First Amendment in suspending a student for unfurling a banner that read “BONG HiTS 4 JESUS” at a school-sponsored event. In their appellate brief, Temple seized on Morse and sought to expand its holding. Temple contended that Morse granted public colleges broad authority to restrict the speech of adult college students in the same way that high schools could regulate the speech of their students (who are generally under 18) -- an expansion particularly threatening to free speech and academic freedom on college campuses. As a result, Temple argued, its sexual harassment policy was acceptable in the post-Morse environment.

Given Temple’s argument that its sexual harassment policy was constitutionally permissible in light of new legal precedent, it is not surprising -- and hardly a mark of activism -- that the Third Circuit felt compelled to issue a decision on the case. But in reaching its decision on mootness, the Third Circuit did not fashion new legal principles out of whole cloth. Rather, the court followed the explicit guidance of its own precedent -- which, as the opinion notes, “articulate[s] the burden for the party alleging mootness as “‘heavy,’ even ‘formidable.’” Indeed, every aspect of the Third Circuit’s decision relies heavily on appropriate precedent, whether from its own appellate decisions or those of the Supreme Court. If anything, Temple’s brief argued for the more “activist” outcome by claiming that the Supreme Court’s narrow holding concerning high school students in Morse could be used to justify maintaining an overbroad speech code in the collegiate setting. Had the Third Circuit applied a high school case like Morse to colleges and universities, the resulting opinion would have represented a sea change in our legal thinking about college students’ rights, opening the door to the wholesale evisceration of free expression on campus.

Not only is the Third Circuit’s ruling in DeJohn not “activist,” it is not political, as some have charged. DeJohn is squarely in line with 50 years of Supreme Court decisions placing special emphasis on the importance of free speech in higher education, as well as two decades of district court decisions uniformly ruling that at public colleges, speech codes (often masquerading as anti-harassment policies)are unconstitutional. In this case, opposition to Temple’s speech code brought together groups as ideologically varied as the ACLU of Pennsylvania, the Christian Legal Society, Feminists for Free Expression, the Student Press Law Center, Students for Academic Freedom, Collegefreedom.org, and the Alliance Defense Fund. If anything, opposition to speech codes has transcended partisan divides, as judges and advocacy organizations from all over the country and the political spectrum agree that such codes are incompatible with fundamental First Amendment freedoms and the unique role of the university in American life.

DeJohn’s critics also argue that the Third Circuit erred by considering DeJohn’s claims against Temple without what they consider to be ample evidence that DeJohn had been specifically harmed by Temple’s sexual harassment policy. Robert M. O’Neil, executive director of the Thomas Jefferson Center for the Protection of Free Expression, told Inside Higher Ed that he found the Third Circuit’s opinion to be “very ominous” because he believed the court did not sufficiently consider whether DeJohn was actually affected by the policy. O’Neil said the court offered “no proof that this plaintiff was in any way put at risk or threatened or even reasonably felt threatened by the existence of the policy.”

Facial challenges for overbreadth are a unique, well-established and crucial aspect of First Amendment law. Recognizing that First Amendment rights are “supremely precious in our society,” the Supreme Court developed the overbreadth doctrine to protect speech from the chilling effect that occurs when a law or regulation is written so broadly that it reaches substantial amounts of protected speech. Plaintiffs may challenge allegedly overbroad statutes “as written,” rather than “as applied,” on behalf of those not in front of the court. The idea is that anyone subject to a law or policy that restricts his or her right to freedom of speech may challenge it on behalf of all citizens negatively affected by the constitutional violation.

Contrary to O’Neil’s characterization that there existed “no proof” that DeJohn “reasonably felt threatened” by Temple’s policy, the Third Circuit determined that, as a Temple student, DeJohn suffered from the policy’s existence. As the court noted, DeJohn argued that the policy made him feel “inhibited in expressing his opinions in class concerning women in combat and women in the military.” In other words, the policy had an impermissible “chilling effect” on his right to free expression. DeJohn was “concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the university” -- and by concluding that Temple’s policy “provide[d] no shelter for core protected speech,” the Third Circuit accepted these concerns as legitimate and reasonable. Because the Supreme Court has held that even a fleeting loss of First Amendment freedoms “unquestionably constitutes irreparable injury,” the Third Circuit was absolutely correct in determining that DeJohn had suffered sufficiently to entertain his facial challenge.

The DeJohn opinion should come as no surprise to public universities. District courts have been striking down overbroad harassment policies for nearly 20 years. Rather than reaching unexpectedly “ominous” or “activist” legal conclusions, DeJohn simply provided a reaffirmation of clearly established law.

The Third Circuit adhered strictly to the standard for student-on-student harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, a 1999 opinion holding that actionable harassment is limited to that behavior so “severe, pervasive, and objectively offensive ... that the victims are effectively denied equal access to an institution’s resources and opportunities.” The Third Circuit made clear in DeJohn that Davis’s standard must be carefully followed, writing that “[a]bsent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work,” harassment policies like Temple’s provide “no shelter for core protected speech.”

If anything, the most noteworthy aspect of the Third Circuit’s ruling was the court’s refusal to import Morse’s restrictions on student speech into the university setting. That is a victory, because treating the First Amendment rights of university students as functionally equivalent to those of high school students fundamentally confuses the unique pedagogical missions of each level of schooling. The Third Circuit’s clear pronouncement that the First Amendment rights of adult college students must not be abridged should be welcomed by public universities, not feared.