The Chronicle of Higher Education is running a very interesting article this morning, concerning free speech on the college campus. The author, Stanley Fish, argues that the mission of the university is not to permit unfettered discourse. That, he contends, is the role of the soap box in Hyde Park. Rather, its mission is unfettered inquiry. What gets disseminated, as journal articles, books, lectures, etc. is subject to many and often rigorous filters and gate keepers. He makes a good point.
Academic freedom is indeed different from free speech. Under the famous AAUP statement, academic freedom involves the right to present ones views in the classroom, provided they are relevant to the course being taught. Many faculty in my experience wrongly believe that it gives them the right to bring the soapbox into the classroom.
Fish also talks about the major Supreme Court decisions on free speech. In case he isn't crystal clear, note that the First and 14th Amendments --- the Constitutional fountains of free speech --- apply only to public universities. They do not reach through the gates of non-profit or for-profit private colleges.
Recent SCOTUS opinions have delineated, as Fish explains, a distinction between public employees speaking in their capacities as citizens and speaking in their capacities as state workers. In the leading case, a prosecutor was fired after he criticized his office's decision not to pursue a case. The former public employee challenged his discharge under the US Constitution. The Court sanctioned his firing on the ground that he was speaking in his capacity as a public employee who owed a duty of loyalty to his boss and the office.
Whether professors at public universities enjoy a broader range of discretion than the plaintiff in that case remains somewhat unsettled.
And what of guest speakers on our campuses? An incident at Middlebury College, which has been prominent (at least in higher ed news sources), has put this question into the spotlight. Charles Murray, author of THE BELL CURVE, was prevented from speaking by a group of vociferous protesters.
Fish's answer to what happened at Middlebury: "My advice to administrators: stop thinking of yourselves as in-house philosophers or free-speech champions or dispensers of moral wisdom, and accept your responsibility as managers of crowd control, an art with its own history and analytical tools, and one that you had better learn and learn quickly."
Go to the Foundation for Individual Rights in Education (FIRE) and you find a different perspective. This organization, which has been getting its own fair share of press coverage lately, argues, "Freedom of speech is a fundamental American freedom and a human right, and there's no place that this right should be more valued and protected than America's colleges and universities."
Like so much of what we higher ed administrators are asked to do, this issue requires us to walk a tight rope. Constitutional law itself is a high-wire act. The SCOTUS and lower federal courts are constantly struggling to set the right balance between individual rights under the Constitution and the rights and responsibilities of "state actors" on the other side of the line. The current controversy over President Trump's executive order on foreign travel is a perfect case on point. His administration contends that the government has a national-security obligation to keep Americans safe from terrorists. It's hard to dispute that. But on the other side of the debate, advocates for civil liberties contend that Uncle Sam is seeking to violate the First Amendment by establishing a religion and discriminating against another faith.
Stanley Fish, if I read him right, contends that our role is to manage the dissemination of speech on our campuses... deciding what speech is worthy of our support... and then ensuring that this speech is disseminated to its intended audience. As I say, he makes a good point.
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