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We now assess Eisgruber’s peculiar take on the relation of the university to the nation that has treated it with increasing hostility in recent decades. Critics may wail that the universities have to be brought to heel for producing fanatics, snowflakes, and crybullies, but Eisgruber turns their argument on its head: it’s actually the nation that could afford to learn from the campus, he argues; to the extent universities are struggling with civility norms, they are simply a dirty mirror for broken civil discourse. Otherwise they are a model for balancing speech and other values with a “more vigorous” culture of speech than “most sectors of society.”
This thesis has two component parts, which can be asked as distinct questions. Are critics wrong to identify a free-speech crisis on campus? And, to the extent such issues arise, are universities merely replicating national problems of polarization in microcosm?
What the series has not yet addressed, however, are the genuinely difficult legal and cultural questions that Terms of Respect has evaded. By seemingly resolving tensions between speech and equality, and reframing what appears to be a free-speech debate as an ongoing push-and-pull about civility norms, Eisgruber avoids discussing ways in which our laws, norms, and culture already treat, and sometimes curtail, expressive freedom, and how universities can apply their obligations and stated commitments faithfully. Relatedly, he relies upon an underexplored approach to chilling effects, the phenomenon recognized in First Amendment doctrine that certain policies or social realities are suspect because they place an informal prior restraint on expression. Eisgruber’s unequal concern with chilling effects — sometimes equating it with censorship, sometimes overlooking it entirely – demonstrates an incomplete theory of how universities get free speech right.
Now we can get to the heart of the book. Eisgruber’s novel approach to campus free speech issues builds on this foundation, to argue that campus free speech issues aren’t really campus issues, and aren’t really about free speech. Rather, campuses reflect national divisions in microcosm, and the division is not about speech and its discontents, but about “the meaning of respect and, ultimately, what it means to treat people as equals.” He ultimately concludes that while speech has to foster constructive dialogue and truth-seeking, the controversies making waves are about the terms on which that constructive dialogue occurs—which is a good thing, as Eisgruber and his critics alike agree—and that universities are closer to being models (albeit imperfect ones) than sources of the problem. It’s this surprising take that gives Terms of Respect its punch and has made Eisgruber a minor folk hero among academia’s defenders.
