Keith E. Whittington, professor of law at Yale Law School and director of the Center for Academic Freedom and Free Speech, argues in The Chronicle of Higher Education that in the wake of the Kirk assassination, professors need to self-censor and refrain from offensive comments or else the rights of academic freedom may be scaled back. Although Whittington is trying to defend academic freedom by urging discretion rather than repression, it’s a misguided argument to claim that freedom will survive only if professors censor themselves more.
Whittington is wrong about some limits he claims are imposed on faculty. Whittington says about professors in the classroom, “They are expected to limit themselves to speech that is both germane and competent. Classroom speech that hampers or departs from those professional duties can subject a professor to appropriate discipline. Professors who told their students that Kirk deserved to die will likely have little defense against punishment.”
Whittington is incorrect. Professors need to generally teach their classes in ways that are germane to the subject and competent (the standard is “avoid persistently intruding material which has no relation to their subject”). But it does not follow that professors must always “limit themselves to speech that is both germane and competent.” This view that uttering one word deemed off-topic or incorrect in the classroom would subject a professor to punishment and they would have “little defense” is a standard far too restrictive under any meaningful sense of academic freedom.
Thousands of professors across the country violated Whittington’s “germane” rule in their classes by expressing horror and sadness about Kirk’s assassination, but Whittington never suggests that they would have “little defense” for speech unrelated to their course content. Only a tiny number of faculty who were critical of Kirk (typically outside of class) are facing investigation and punishment, which is clear evidence of how viewpoint discrimination and bias dominate any “germaneness” standard wrongly applied to fleeting remarks.
Whittington fears that if professors offend their overlords, it will undermine the legal protections for academic freedom: “Constitutional doctrine that treats professors as different and special compared to other government employees depends on a judgment that professors make positive contributions to our public discourse, even when those contributions are controversial. If professors are seen as polluting the public environment and contributing to political polarization and intolerance, the calculation of how to balance the competing constitutional interests is likely to change.”
That may be correct as a cynical evaluation of how unprincipled judges will view academic freedom. I think that the right-wing Supreme Court may only uphold academic freedom if it hears a case involving a conservative being censored. But it’s certainly not a model principle of academic freedom to say that a right should only exist if professors self-censor their polarized political views.
Academic freedom is an important right because it contributes to intellectual honesty, and truth, not imagined reductions in political polarization, is the goal. We protect academic freedom for everyone in academia as a fundamental right even when an individual professor says something terrible or stupid. We don’t revoke the First Amendment because one idiot says something awful, and the same approach should apply to the right of academic freedom. What justifies academic freedom is not the brilliance and inoffensiveness of all professors, but the importance of free expression to academic work and a free society.
According to Whittington, “The American Association of University Professors once emphasized that, when speaking in public, professors should remember that the public will ‘judge their profession and their institution by their utterances,’ so they should conduct themselves with discretion when speaking in public. That remains good advice.” But is it good advice to urge professors to act with discretion and avoid offending people? Or is it promoting censorship and encouraging punishment of those who disobey?
This quote Whittington cites is in the 1940 Statement of Principles created by both the AAUP and what is now the American Association of Colleges and Universities, and the statement was a compromise that sometimes reflects the values of administrators rather than the faculty. The AAUP’s emphasis was always that this line must be a moral guide to persuade faculty rather than a rule imposed to punish faculty.
It’s also important to point out that the 1940 Statement of Principles never uses the word “discretion”—that’s Whittington’s gloss on it—and while the 1940 statement urged professors to avoid “controversial” speech, the 1970 Interpretive Comments revised it to clarify the truth: “Controversy is at the heart of the free academic inquiry which the entire statement is designed to foster.”
“The better part of valour is discretion,” says the cowardly Falstaff in Shakespeare’s Henry IV—Part 1, to justify playing dead during a battle. I can’t argue with this sentiment when someone is threatening your life. But in a free society, we strive to eliminate the punishments that make discretion a rational choice—and not glorify discretion as a virtue when it is actually a vice.
Too much of the response to the Trump administration’s repression has been driven by fear and cowardice. We need to fiercely support academic freedom as a fundamental right for all, even the people whose views we hate, rather than require that professors keep quiet about their controversial views in order to avoid offending powerful people. Demanding discretion destroys academic freedom rather than defending it.
