What Can be Done? Actionable Solutions to Regaining Academic Freedom

by Leslie Spencer '79

Hardly a day goes by without national media spotlighting controversies involving free speech and academic freedom at universities across the country.  In California, Stanford Law School is scrambling to repair the damage done to its reputation when, on March 9, law students, aided and abetted by Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach, heckled invited speaker 5th Circuit Judge Stuart Kyle Duncan with jeers and obscene insults until, finding it impossible to finish his speech, he escaped with the help of federal marshals.

In Florida, Governor Ron DeSantis’ efforts to overhaul the public university system with aggressive legislative intervention has been the subject of intense disagreement, most notably among advocates of academic freedom.  Detractors claim that in his efforts to expunge Critical Race Theory (CRT), diversity, equity and inclusion (DEI) and other illiberal “woke” dogmas such as gender politics from Florida’s state universities, DeSantis is trampling on academic freedom and tenure protections. Proponents claim it is long overdue pushback against leftist attacks on academic freedom. In “DeSantis’s Terrifying Plot against Higher Education,” Princeton professor Keith Whittington, author of Speak Freely and Chair of the governing committee of the Academic Freedom Alliance (AFA), asserts that the legislation is a remedy worse than the disease.  His colleague, Princeton professor, Sergiu Klainerman, while acknowledging that the legislation contains flaws, counters under the headline “DeSantis’ ‘Plot’: Not So Terrifying After All.” Quillette, which has published many insightful analyses of the perilous state of academic freedom throughout the Anglosphere, was unequivocal in its assessment of Florida’s legislation: “Left or Right, Politicians Should Not be Telling Academics What They Are Allowed to Teach.”  And a lawsuit filed against Florida by the Foundation for Individual Rights and Expression (FIRE), which has become the country’s premier free speech defender, has persuaded a court to put on hold key higher education provisions of DeSantis’s “Stop WOKE Act” by claiming they violate the First Amendment rights of students and faculty.

These are just two among a pile-up of recent controversies and scandals that point in one direction: Higher education’s grip on free speech principles has become tenuous at best.  Voices confirming that this problem is not simply a political fight between liberals and conservatives are gaining traction.

Greg Lukianoff, FIRE’s President and CEO, calls himself a liberal but is a strict non-partisan in his commitment to filing lawsuits against threats from any quarter to free speech and academic freedom. He is giving a talk at Princeton on April 11 titled “The Conformity Gauntlet in Higher Education.”

Although quick to oppose sloppy legislation, Lukianoff is hardly against government action as a way to fix the free speech crisis on America’s campuses. In fact, he recommends imaginative, bold, even radical legislative measures, as long as they can pass constitutional muster.  Although some of the following proposals are not official FIRE positions, he thinks they all are worth considering.  Buckle up.

• Craft a National Leonard Law:  A California law passed in 1992 and amended in 2002, the Leonard Law prohibits non-sectarian public and private colleges in California from punishing any speech that would be protected off-campus. Under the Leonard Law’s terms, students may file civil lawsuits against their institutions and may recover attorneys’ fees. The 2006 amendment to California’s law adds protections for student journalists and newspapers, prohibiting “prior restraint,” which is the censoring of a specific forthcoming publication. A national Leonard Law would break what Lukianoff says is the “pretense” that private universities are in any meaningful sense “private” anymore. “Federal regulation, including so-called anti-harassment provisions, is utilized routinely to limit what you can teach and say on campus without actually applying First Amendment standards to protect academic freedom.”
   
• Place a cap on administrative spending: As a condition of receiving federal funds, Congress could impose a cap on the percentage of a university’s expenses that go to overhead costs. Overhead, defined as costs of administration plus development, can run as high as an astonishing 80 percent, especially at schools like Princeton.  Such a cap would have the ancillary benefit of reducing overall costs generally, and in particular, those costs associated with runaway administrative bloat. It’s important to focus the public’s attention on the fact that in the last several decades, massive amounts of public money have been spent on federally backed student loans, grants and other support. Lukianoff points out that tuition should have been going down. But instead, the cost of attending a four-year college has risen at twice the rate of inflation.  And it’s not going towards teaching and scholarship. It is being spent on highly paid administrators.  Administrative overreach is constraining the lives of faculty and students and is a primary cause of free speech and academic freedom violations. “FIRE would support aggressive efforts to lower the bureaucratization of universities because we know full well that that’s why they’re so activist and illiberal. A university with fewer administrators couldn’t enforce ideological homogeneity to the degree that they currently do.” 
   
• Curtail the protection of qualified immunity for public university administrators:  A doctrine originally designed to protect law enforcement officials from frivolous law suits and financial liability in cases where they acted in good faith or in legally murky circumstances, “qualified immunity” has come to be widely criticized for allowing public officials to avoid consequences for bad behavior.  Since 1982, it shields from liability all public officials performing discretionary functions (those acts requiring individual judgement) when their conduct does not violate statutory or constitutional rights known by a “reasonable person.” Is it reasonable for public university administrators to know when their conduct violates clearly established free speech rights?  “It is ludicrous to suggest that administrators bound by 1st Amendment don’t know they can’t censor people on the basis of viewpoint,” Lukianoff says.  To give such legislation teeth, all public university officials need to be put on notice that they risk personal liability if they deny speech rights to students, fellow administrators or faculty. To make sure the risk is felt personally, insurance should not cover the costs of those who flout the law.  On this point Lukianoff doesn’t hold back: He says universities and insurers “should no more be required to cover these costs than to cover the costs of someone accused of murder.”
   
• Ban political litmus tests: These are clearly unconstitutional, yet widely used at universities throughout the country. A recent FIRE survey reveals that over 80 percent of large universities either include or are considering DEI litmus tests as criteria in hiring and tenure standards. Requiring allegiance to a politicized understanding of “diversity” constitutes “forced speech” and therefore violates First Amendment protections. But with universities routinely requiring such DEI loyalty statements, an explicit ban is necessary. FIRE has published model state legislation designed to ban all loyalty oaths from public universities’ admissions, hiring and promotion policies, taking particular care to avoid replacing one orthodoxy with another.
   
• Designate one flagship state school in each state.  State legislatures could create premiere state universities which would admit only top students based purely on academic merit – test scores and grades. These schools would compete for students directly with the “fancies” – Lukianoff’s shorthand for the likes of Princeton, Harvard and Stanford.  Wise employers would prefer to draw from these flagship state schools as alternatives to Ivy league and other elite schools whose graduates increasingly bring with them the ideological baggage of intolerance for diverse viewpoints.
   
• Ban Legacy Admissions:  Under such legislation, which has been attempted in New York, Connecticut and Colorado in the last few years, colleges and universities receiving federal funds would be barred from giving preference to legacies in admission. While it’s obvious that legacy admissions disfavor promising students from less affluent families, the link between legacy admissions and threats to academic freedom and free speech is more subtle. But Lukianoff’s reasoning is intriguing. The “fancies” are way too powerful, perpetuating a kind of intolerant monoculture across the land. A primary reason for their excessive power is the “self-perpetuating cycle” in which the wealthy elite, generation after generation, continue sending their children to the same few schools. Historically, these elite schools have had an unhealthy alliance with this demographic. They have reaped enormous gifts from these families, who in turn secure admission for their children, grandchildren, and often the children of people in their extended networks. Lukianoff fully acknowledges that schools like Harvard, Princeton and Yale also admit some of the brightest and most hard-working students who do not come from great wealth, and that many of those students become successful and wealthy on their own merit. “But the research shows that the social network you’re plugged into plays a much larger role in determining outcomes than intellect or work ethic alone,” he says.  Elite institutions will, he admits, always find ways to favor children of their major donors, but he thinks that banning legacy admissions, combined with his idea of designating flagship state schools that admit solely on the basis of grades and SAT scores, could, he says, “put a serious dent in the stranglehold that the elite colleges continue to have on the culture.”

• Increase Competition. Whole new institutions committed to academic freedom, like the University of Austin in Texas, Ralston College in Savannah Georgia, and Minerva University in San Francisco, constitute one form of competition, as do new centers at existing institutions, like University of North Carolina’s School of Civic Life and Leadership and Arizona State’s Center for American Institutions. 

But promoting competition can go much further, and could be accomplished through state legislation:

• Create an extremely difficult test:  This test might be called a BA GED which would allow those highest performing high school seniors who pass it to bypass college altogether and go directly to graduate school or to employment. Lukianoff anticipates that this would “scare the living hell” out of the Ivy League and other top schools, because they know that many of the best and brightest would pass this test and then choose to avoid both the costs of an undergraduate degree and the orthodoxy that has come to saturate so much of university life and contribute to the decline in quality.
   
• Create an independent institution for academic study replication. The concept would require a group of politically balanced and esteemed scholars who, through repetition of experiments and observations in studies and reports, would evaluate the quality of research produced in higher education. Lukianoff thinks it is likely that much university-sanctioned scholarship, particularly in ethnic and gender studies departments, does not replicate. Ideally, all the scholars involved would be known to the public, but the authorship of individual reports would be anonymous so that the research remains untainted by social pressures.  “People are absolutely desperate for a neutral authority that they can trust. I’m confident that a realignment around new institutions that people can trust is inevitable, it may be a role that Ralston or UATX could play, but that remains to be seen,” he says.
   
• Conduct massive state-funded studies to test the value of a college degree. A 2012 study called “Academically Adrift” revealed that about half of students studied showed no improvement in critical thinking skills after college compared to before. Lukianoff is willing to bet that a control group of 18-22 year-olds working regular jobs rather than attending college would show the same, or perhaps even greater, improvement in their critical thinking faculties.  Updating the Academically Adrift study and communicating the results to the public “could expose the scandal that we are paying billions of dollars to universities with little to no improvement in the fundamental thing they are supposed to offer....If people are fed up, skeptical, feel like they are getting ripped off or that the product is lacking, it will be easier to push for change.”

What about campus-based administrative reform? Here’s some structural changes that could shift incentives of administrators, faculty and students in favor of adherence to free speech principles.

• Presidents lead from the front:  Adopt some variant of the University of Chicago’s trifecta: The “Chicago Statement” that guarantees free speech on campus, with clear sanctions to deter those who disrupt others’ speech; the Kalven Report principle of institutional neutrality, which forbids the university and its units from taking official positions on issues of the day; and the Shils Report, which mandates that faculty hiring and promotion be based solely on academic merit and excellence in research and teaching. Presidents should endorse and promote institutional adoption of these principles publicly and conspicuously, and explain their roles and rationale. Once adopted, college Presidents should find opportunities to reiterate them loudly and often.
   
• Faculty, get organized:  Although data shows that faculty do not necessarily want to protect speech they don’t like, it also shows that the ubiquitous administrative meddling in how faculty conduct classes and even how they conduct research makes them fear speaking freely and is very unpopular.  To recenter the core mission around faculty, academic freedom proponents, with the protection tenure provides, have started to organize. “University of Chicago Free” and Harvard’s “Council on Academic Freedom,” to name just two, each have about 50 faculty who have agreed to be publicly named.  They share ideas via Listserv, organize plans to enforce existing academic freedom principles, promote candidates for faculty committee positions, and advocate for hiring reforms, like the requirement that academic job listings contain a statement welcoming all viewpoints. A goal should be to make sure that alumni can designate their gifts to these groups.
   
• Teach free speech from day one:  Freshman orientation should introduce students to the principles underlying academic freedom, constitutionally protected free speech, viewpoint diversity, and truth-seeking, how these principles work in practice, and why a university cannot educate well without them. To institutionalize this orientation requirement, some suggest that faculty deans committed to academic freedom principles should take over orientation planning from administrators, who currently favor using it to mold morals and attitudes towards race, gender, sexuality, and other “identities” in ways that favor some groups’ rights over others, and encourage self-censorship. To help change course, FIRE offers a curriculum of orientation lessons and materials about free speech rights.
   
• Require free speech and academic freedom ombudsmen. Students and faculty need immediate recourse when their free speech rights are violated. Most campuses contain armies of DEI administrators eager to generate and encourage complaints alleging discrimination or other subjectively determined “harms” committed by fellow students or faculty members.  In contrast, when a student or faculty member’s free speech rights have been violated, to whom can the victim turn? Is there a single campus administrator anywhere whose job centers on the protection of student and faculty free speech rights? Let’s have some. “Turning administrators against administrators may not be a bad thing,” says Lukianoff.
   
• Conduct annual campus climate surveys.  Such surveys would address attitudes towards free expression and reveal how free students, faculty and staff feel to state their views and engage in debate.  They would preferably be done in a way that would allow comparison across time and institutions. The questions in the surveys should be crafted to get to the bottom of the campus culture for debate and dissent, as well as the tolerance for faculty to pursue lines of scholarship and inquiry wherever they may lead.  FIRE’s survey results show that 63 percent of students nationwide think that the climate on their campuses prevents them from speaking freely. A majority of faculty report pressure to self-censor for fear of losing their jobs or undermining their reputations. If this data is accurate, then the campus climate is hostile to education.
   
• Take away power from those who can punish. Currently, from a student’s or professor’s perspective, the process is the punishment. This should end.  When an accusation of discrimination or emotional “harm” is made against a faculty member, student or other employee, a summary judgement process should be in place, led by people who know the difference between protected speech and unprotected conduct.  If the accusation is against speech that is protected, then the case is summarily dismissed. To bolster this reform, universities should be required to give out a Miranda-type warning, so the accused knows that there is no obligation to comply with any investigation into protected speech. Commitment to this process should be written into a university’s speech and expression policy and in the faculty and student handbooks, which in many states are legally binding. Presidents and Provosts should assert boldly and often that punishment for unpopular or controversial speech will not occur at their institutions.

Greg Lukianoff might be seen as an unstoppable force of nature – just when we need that. He will appear on Tuesday, April 11 at 4:30pm in Robertson Hall on Princeton’s campus. Don’t miss it.

Leslie Spencer, a former journalist, is Vice Chair of Princetonians for Free Speech