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With its recently released update to its “Scholars Under Fire” database, the Foundation for Individual Rights in Education wants us to know that the threats to scholarly speech have “risen dramatically” since 2015, and that the primary threat comes from students from the political left.

It’s worth examining how (and perhaps why) FIRE came to this conclusion, what their system of classification misses, and also to understand why attempts to quantify threats to free speech and academic freedom are generally unhelpful when it comes to navigating these complicated issues.

Inside Higher Ed’s Colleen Flaherty outlines some of shortcomings of FIRE’s methodology in her write-up of the database. For one, FIRE chooses to not count instances of harassment that don’t carry at least a potential threat of professional sanction as threats to speech.

This leaves out the kind of intimidation of scholars covered in a recent AAUP study, which documented the coordinated harassment campaigns triggered when faculty are featured in a story on the Campus Reform website. The AAUP surveyed 213 of the 338 individuals who were targeted by Campus Reform, 40 percent of whom reported receiving threats of harm, including physical violence or death.

Not professional sanction or having students criticize you in the school paper, for sure, but, you know, not great.

The database also does not include incidents such as Boise State University suspending dozens of sections of a diversity and equity course over a report of bias against a white student that it turns out did not happen.

It does not include mention of the recent vote by the University of Nebraska regents on a resolution to ban the teaching of critical race theory. The resolution lost 5 to 3, but FIRE classifies even potential sanctions as incidents, and one would think this should qualify.

There is no mention in FIRE’s database of the multiple attempts in the Iowa Legislature to “dismantle” tenure at the state’s public colleges.

Numerous similar actions perpetrated by Republican officeholders are occurring in other states, but they are beyond FIRE’s scope when it comes to their concerns about free speech on college campuses. There is a reasonable argument that including these incidents would change the nature of the database, but to exclude them leaves an incomplete picture of the state of free speech and academic freedom on college and university campuses.

As to why FIRE chooses to exclude these incidents that no doubt have a chilling effect on free speech (the cause the organization is committed to), perhaps it is because Campus Reform (via its sponsor the Leadership Institute) and FIRE share sources of funding, such as Donors Trust and the Lynde and Harry Bradley Foundation.

If the Bradley Foundation sounds familiar, it’s because as Jane Mayer reports at The New Yorker, it is the chief funder of the organizations that continue to work to overturn the 2020 presidential election through various election “audits” in Arizona and elsewhere. I believe undermining an entire democratic system is a threat to First Amendment rights, but I’m not a constitutional scholar, so judge for yourself.

But let’s set aside that FIRE is primarily funded by right-wing ideologues that also support organizations that engage in coordinated harassment of higher education faculty, and that securing this funding may require FIRE to perpetuate narratives (left-wing censoriousness is on the rise!) friendly to those writing the checks that resulted in over $13.5 million in 2020 donations.

Even assuming all good faith reveals how and why, we cannot let the data speak for itself.

Let’s look at FIRE’s accounting on its face to see what it reveals, or perhaps obscures, about issues of free speech and academic freedom on campus.

FIRE does do the service of cataloging numerous incidents that indeed show untoward pressure put on scholars for speech that is undoubtedly protected under the First Amendment and principles of academic freedom. A common thread in these incidents is college and university administrations either retaliating against faculty who are critical of institutional operations (such as the cases of Garrett Felber at Ole Miss and Lora Burnett at Collin College), or being insufficiently committed to defending conservative faculty from criticism or calls for sanction from the left.

I argue in in Sustainable. Resilient. Free.: The Future of Public Higher Education that this is not so much a left/right phenomenon or a problem of viewpoint discrimination on campus, but an operations/mission disconnect. Too often institutions reflexively respond to controversy like customer service representatives, rather than leaders invested in an academic mission. This leads to knee-jerk overreactions treating incidents like a PR problem, rather than something that requires engagement with deeper institutional values.

But these incidents are also mixed with cases such as Thomas Brennan of Ferris State, who promulgated conspiracy theories about the coronavirus (“a stunt to enslave humanity”), the atomic bomb (actually big piles of TNT) and the moon landing (fake). In his mind, this is all part of the “fulfillment of the prophecy of the mark of the beast.”

Academic freedom is not a blanket protection against sanction, and in the case of Brennan, a suspension that allows them to look deeper into what’s up with this dude seems perhaps prudent. It makes sense that it’s in the database, but to fully grapple with the issue and seek solutions, we can’t allow all cases to be flattened into an aggregated number that suggests they’re all the same or even similar.

Going through the database incidents bit by bit reveals many shades of gray.

The cases of John Eastman, who shows up twice, are interesting to consider. One involves an Eastman op-ed that questioned Kamala Harris’s eligibility for the vice presidency since she is the child of two immigrants. Eastman was criticized with some vague “calls” for his termination from a visiting position at the University of Colorado at Boulder, but university chancellor Philip DiStefano made it clear that while he thought Eastman was wrong, he wouldn’t be terminating his temporary position.

Because someone somewhere said Eastman should be canned, FIRE logs this as a threat, but given Colorado’s stand behind Eastman’s rights, couldn’t this also be seen as a victory? What is the end goal of quantifying these incidents, tallying the number of times faculty get in hot water publicly or acknowledging the number of times institutions act in accordance with the values of academic freedom? Eastman should’ve expected criticism for the op-ed. Should we refrain from that criticism because it may get logged as a challenge to academic freedom?

Who is chilling speech now?

Eastman’s other incident involves being a warm-up act at the rally preceding the riot at the U.S. Capitol on Jan. 6, when he pronounced with certainty that the election had been fraudulent and said some other vaguely insurrectionist stuff. Eastman ultimately resigned from his full-time position at Chapman University, but he remains in good standing with the Federalist Society.[1]

Is fomenting insurrection really an offense that should go by without comment or potential sanction by a university body?

There is one recent event that accounts for nearly 20 percent of the total number of incidents logged by FIRE for 2021[2], an event that also highlights the inherent tension between First Amendment and academic freedom rights and what happens when those rights are exercised under an institutional umbrella.

It involves Stanford University and its resident think tank, the Hoover Institution. Those familiar with the Hoover Institution know that it is home primarily to conservative figures united by a belief in limited government. We may also recall that numerous Hoover Institute fellows were the source of controversial, even destructive actions related to the coronavirus pandemic.

Hoover fellow Richard Epstein, who reportedly had the ear of President Trump early in the pandemic, famously first estimated in an article published under the Hoover Institution banner that the United States would experience 5,000 deaths from the COVID-19 virus. After admitting to a math error, he revised that upward to 50,000 cases, saying, “My adjusted figure, however tweaked, remains both far lower, and I believe far more accurate, than the common claim that there could be a million dead in the U.S. from well over 150 million coronavirus cases before the epidemic runs its course.”

We should note that the U.S. has experienced almost 650,000 documented deaths, with a study published in May arguing that a more accurate count puts us at 900,000 deaths.

Epstein is a lawyer.

Another Hoover fellow, Scott Atlas, was President Trump’s chief pandemic adviser toward the end of his term, advocating for a herd immunity policy to ending the pandemic, an approach that most experts believe would lead to significant avoidable severe disease and death.

Unlike Epstein, Atlas is a doctor -- a radiologist.

In the wake of these and other problematic actions by Hoover fellows, a group of Stanford faculty presented a report to the Stanford Faculty Senate calling for the establishment of “an impartial committee … to delve deeper into the relationship between Hoover and Stanford.”

In the report, the presenting faculty argue that “academic freedom is a privilege … dependent on the complementary principle in a responsible manner, and to make the world a better place for everyone.” They argue that this is consistent with Stanford’s mission, and that activities by some members of the Hoover Institution are inconsistent with that mission.

They additionally note that actions such as Mark Moyar’s call to rescind “The 1619 Project,” and an attempt by Niall Ferguson working with Stanford College Republicans to conduct opposition research on an undergraduate student with the purpose of “intimidating” them during open discussions, are affronts to free speech. Neither of those incidents are logged by FIRE.

In response, three Hoover fellows, Atlas, Ferguson and Victor David Hanson, published a call to censor the speech of the faculty who presented the report to the Faculty Senate. This incident is logged in the FIRE database.[3]

A thorny mess, no doubt, but what does this say about free speech and academic freedom? The report to the Faculty Senate is consistent with the governing rules of the institution. It calls for no specific sanction and instead advocates for open debate and discussion. The retaliation from Atlas, Ferguson and Hanson is crude, and if enacted would result in damage to free speech and academic freedom, but it is also pure political posturing.

I’ll grant that minds can differ about the import of this particular controversy, and perhaps I am underplaying the threat to free speech, but surely by lumping this in as part of a database meant to quantify an apparently “rising” threat, FIRE is generating much more heat than light. That it is logged as 11 incidents all by itself (and could be more) calls into question how meaningful it is to look at these things as quantified findings.

The database has many uses as a source of information from which one can seek out even more information, and I’m glad it’s around. It is a conduit for deep, qualitative information that many will be able to make use of. In fact, I couldn’t have written my criticism of FIRE in a relatively short time without it.

The FIRE database is a tool, not a font of answers by itself, and like any tool, we should understand its origins, its strengths, its limitations.

[1] Another outfit that shares a source of funding with FIRE.

[2] Eleven different faculty members or fellows are involved, so while everything stems from one dispute, it counts 11 times in FIRE’s database. As we’ll see, this is actually an undercount of those affected.

[3] Though, there is a mistake in the database as one of the report authors, Stephen Monismith is logged as being attacked “from the left” when it is the Hoover fellows who are doing the attacking from the right. Really, the left/right divide is a red herring if we’re truly dedicated to finding a solution, since the solution will be grounded in shared values, as opposed to partisan opposition.

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