After a summer spent on the law practice and some time on the Cape, it is time to pick up the cudgel of posting on the law and, as the name of this site suggests, also about anomalies.
Which brings me to our societal battle over policy of universities, where much criticism (and student rioting) has grown from the cauldron of foreign affairs and the interface between academic freedom for faculty and students and its occasional constriction of what is perceived as a right of free speech.
A major effort at clarification appears in the current issue (September-October) of Harvard Magazine by eminent professor Robert Post, whose central thesis is that the Constitutional protection of free speech relates to the public marketplace of ideas, where all ideas except those causing overt evil are to be protected, no matter how odious or illogical. But the university is not a public forum for political society. The university is a location for the search of truth within the confines of academic discourse. A professor can say in society whatever he wants; a professor (and all students) within the academy need to be accurate as to facts, making supportable points within academic rigor. Thus, “tenured scholars have the authority to veto the ideas and speech of untenured scholars and students if the do not meet those standards. In this institutional sense, all that speech in search of truth is not equal.” [italics in original]
Post charges universities with making sure that, in public discourse, academics can say what they wish but that in the theoretical geography of academia they cannot. He accuses us of conflating the two different sets of freedom and in effect getting it wrong: punishing professors for public statements but also allowing inaccurate political speech within the teaching context. Schools cannot purge faculty just because they are communists but faculty cannot seemingly misrepresent communism, reflecting political bias, in teaching it. In rough summary, “academic freedom does not rest principally on the First Amendment rights of individual faculty….”
The articulated theory is facially logical but, even accepting it as correct, there are fine lines to be drawn. I doubt that student occupiers of campuses are attuned to that analysis.
In the September 6 New York Times, another eminent Harvard professor (Cass Sunstein) took a long, subtle look at the proposed distinction and attempted to illustrate it in action. The effort is granular but not easy to parse; I must recommend to you that you do your own reading of this legal/political commentary. But to give you some flavor: First Amendment does not apply to private colleges, only to public officials and institutions; colleges would do well to emulate the First Amendment; students and professors are allowed however to say “the United States is a racist country” or “Israel is committing genocide” or Abortion is Murder;” the Constitution may impose restrictions not permissible elsewhere; religious schools and military academies have distinctive missions which might justify special rules.
Got it? Of course not. You will be more edified but still unsure if you read the two articles. If you cannot obtain access, email me at [email protected] and I will help.