War & Speech E5: The War Comes for Academic Freedom

Jameel Jaffer returns to the issue of free speech on campus with Jeannie Suk Gersen, professor of law at Harvard, contributing writer to the New Yorker, founding member of the Academic Freedom Alliance, and co-president of the Council on Academic Freedom at Harvard. They talk about the challenges facing academic freedom on college campuses since October 7th. 

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Transcript

Jameel Jaffer (00:00):
I am Jameel Jaffer, and this is War & Speech, an exploration of the free speech fallout of the war in Israel and Gaza. In this episode, we'll be returning once more to university campuses, but this time to talk about academic freedom, why it's important, whether it's under threat and how to protect it. My guest today is Jeannie Suk Gersen, professor of law at Harvard, contributing writer to The New Yorker, founding member of the Academic Freedom Alliance and co-president of the Council on Academic Freedom at Harvard. Some of her writing is linked in the show notes and on our website. Jeannie, thanks so much for being here.

Jeannie Suk Gersen (00:36):
Thank you.

Jameel Jaffer (00:37):
Can I ask you to start, really right at the beginning, what is academic freedom and why is it important?

Jeannie Suk Gersen (00:44):
Academic freedom is something that lots and lots of people, this year, have been focused on, but it's a concept that has been around for quite a while. It is to me, a form of free speech. It's not actually, completely synonymous with the concept of free speech, but it's a subset and it's the form that on academic campuses, universities and colleges, and in some form at K to 12 institutions, must exist in order for those institutions to be able to fulfill their purposes. And the purpose is teaching, learning and doing research, and disseminating knowledge, and pursuing the truth. And so in order to do that, because there isn't one version of the truth, that we can only get there through the exploration of differing points of view and differing approaches, there must be a large degree of freedom to pursue opinions, and methods, and approaches, and that freedom is necessary for schools to be able to pursue those purposes. And if that doesn't exist, then the very mission of those institutions would be fundamentally undermined.

Jameel Jaffer (02:06):
Should we think about academic freedom as a freedom that belongs to individual professors or to universities or to both? And it doesn't matter.

Jeannie Suk Gersen (02:16):
A lot of people do think of academic freedom the way they would think of, say, the right to free speech under the Constitution. They think of it as an individual right, that you would use as a shield against the government, or against an institution, or an entity that would try to curtail it. I tend to think of academic freedom more as a collective good, a good that must exist in a community in order for a higher purpose to be possible. And so it's not so much that I have the right to academic freedom and therefore the right to say whatever I want or do whatever I want with it. Academic freedom is something that's serving a common purpose and as a kind of effect of that, my ability to pursue research, and to make statements, and teach as I see, that will be the beneficiary of that common good.

Jameel Jaffer (03:19):
So it seems to me that academic freedom is threatened right now from a lot of different directions, from government, from donors and alumni, from university administrators, from political movements and ideas on the right and on the left, though in different ways and to different degrees, which are the threats that worry you most right now?

Jeannie Suk Gersen (03:44):
The threats that worry me most are, they're twofold. One is, for example, legislation in some red states that attempt to shut down certain forms of teaching on specific topics, whether it's about race or sexuality. I don't believe that is a proper use of government power, even for public universities. The chilling of teachers ability to teach topics like slavery, and American history, and gay rights, homosexuality, that is really, very directly counter to academic freedom. And if you speak to educators in those states, they are describing things like having to clear their bookshelves of certain kinds of books, and to completely revamp their syllabi, and then certain courses not being able to be taught because of those things. Obviously all of that is extremely worrisome and those are very direct violations of academic freedom in the most blatant of ways.

(04:52):
Then on the left you have, what I would call, the expansion of concepts of discrimination and harassment to such a degree that people are being chilled in their ability to teach, and research, and write, because they're wanting to not run afoul of certain sensibilities and concepts of discrimination and harassment, which are just so overly expanded that they often will give effect to people feeling uncomfortable or claiming that they are psychologically harmed by hearing ideas that they consider offensive. That's a real worry because it doesn't seem as heavy-handed as a piece of legislation coming from the government, but at the same time, it can be really insidious and pervasive throughout a student body, and you can essentially acculturate an entire generation. And I believe that that is happening, an entire generation of students, of young people who arrive on campus, many undergraduates have said, "I actively lie about my views, or try to remain silent, or say things that are plausibly deniable so that I can't be pinned down in terms of what I actually am trying to express."

(06:21):
That's a difficult environment in which to actually learn, to explore ideas, to take risks, and to have the kinds of tensions in class and conflicts of ideas that really lead to learning and the pursuit of knowledge and truth. And I see that as a teacher every day, because I've been teaching since the year 2007 and by now I have seen the actual effect on the classroom in all those years.

Jameel Jaffer (06:48):
I want to ask you specifically about the influence of donors, particularly over private universities. My sense is that a lot of what universities are doing now to constrain academic freedom and free speech on campus is being done in response to demands from donors. Some donors, prominent donors, have said publicly that they're withholding donations because universities haven't done enough to, for example, address anti-Semitism on campus. And of course universities should address anti-Semitism on campus. All of us should address anti-Semitism on campus. The concern though is that some donors are defining anti-Semitism in a way that has real implications for academic freedom and free speech. So how worried should we be about the influence that donors have over private universities, and is there anything that you think could be done to either expose that influence or counter it in some way?

Jeannie Suk Gersen (07:45):
I think one of the problems is that some donors think about their status as a donor in the way that they might think about their status as a shareholder of a corporation. And a university is not a corporation in the normal sense, even though sometimes it might be led by an entity called a corporation, and to be a donor, it is not the same as being a shareholder of a company. And I think it's very important for donors, when they're donating to certain institutions, to really have a deep understanding, a good understanding, a good handle on what it is they're donating to. And I really do believe that a university must take the attitude that one appreciates the contributions, because certainly a university couldn't be all that it is without the contributions of philanthropists who are willing to give, that we couldn't do what we do without that. But that does not entail being guided by, let alone being dictated by, the views of the donors, all of whom are really different from each other.

(09:06):
There may be some who are big donors and smaller donors, but really there's a really diverse array of views among donors and all of them, I think, the form of appreciation that must be given is a thank you, and now we will proceed to exercise the trust that you have placed in the university. And I completely get that that may mean that some people don't want to donate to the university, and that is entirely fair. I do think that we should be very concerned if the universities or colleges we're seeing, not just Harvard, Harvard is the most visible right now, but this is happening all over the country at all the different levels of university governance, that there's a threat that, oh, no, board members may resign if we allow this event to go on campus. Literally at that level, it's like if we let this screening of this film go on, then a corporation member may resign and then what will we do? And then there'll be all this bad publicity and then there'll be a cascade of donors jumping ship.

(10:07):
So that kind of thing, that is not the way it should be. That is not the way university presidents should be thinking, and that is not the way that corporations of universities ought to be responsive. Their constituencies are not, in fact, donors. That's not the right way to think about the university.

Jameel Jaffer (10:25):
Do you think the landscape of academic freedom has changed significantly as a result of the October 7th attacks and everything that's happened since? Are you seeing issues now that you weren't seeing, say, a year ago?

Jeannie Suk Gersen (10:38):
The landscape of academic freedom has been changing, at some fast clip, for quite a while, I would say 10 years. And then October 7th just supercharged it, and made it more intense, and then made everyone aware of the issue of academic freedom. I trace my own interest in academic freedom to all of the debates that were happening around Title IX, and I would date that to, I don't know, around 2011. And then a few years later, we started seeing that the fight at schools and in the government against sexual harassment, which seems like something that would be unobjectionable, started to have effects on academic freedom. If you define harassment broadly enough, you are going to get a negative effect on academic freedom.

(11:33):
So harassment obviously can be verbal, and it's defined often as something that creates a hostile environment. And if you think about a hostile environment as something simply that makes people experience a discomfort that they might be able to assert, is impeding their learning, then many things that can happen, say in the classroom, that a teacher could be teaching a topic about sexuality, or about sexual assault, or even about sexual harassment itself, and then you might have a series of complaints being filed. And this is what we started to see, those of us studying Title IX and following what was happening in Title IX. And so there were teachers being brought up on charges or being attempted to be brought up on charges for classroom speech, for classroom teaching under the definition of harassment under Title IX that schools had. And I think that schools struggled to deal with that, and some schools did well and some schools didn't do well. And that's really how I became aware of the way in which anti-discrimination norms could have some, maybe unintended, negative effect on academic freedom.

(12:50):
So since that time, it's been accelerating and it's not just Title IX, but then there's bullying policies that came on board and then other broader concepts of harassment, not even related to sex or sexuality, whether it's race-based harassment or just general ideas that people shouldn't be made uncomfortable in the classroom. That's been happening for a long time. And then October 7th happened and then suddenly speech that is in protest, so core political speech, started becoming characterized as discriminatory, namely anti-Semitic, and of course, if it is discrimination under the university's definition of discrimination, that would be disallowed and disciplinable.

(13:36):
So you've got an extreme clash of things that people intend to be political speech, and then the way that it is perceived and received being characterized as anti-Semitic, or the fact that something is anti-Israel might be an infringement of the rights of Israeli and Jewish students on campus to feel safe in their learning environment. And that conflict is exactly what supercharged the debate about academic freedom. And now I think it's, quite literally, a term that is on everybody's minds. Every student on campus is aware that academic freedom is a thing, that it's an issue, and that in some way interacts with our commitment to anti-discrimination.

Jameel Jaffer (14:31):
In a recent article for The New Yorker, you highlighted this case, a case of Carole Hooven who was a lecturer at Harvard. She experienced, what you described as, a cascade of shunning and condemnation after making certain statements on Fox News about the biological determination of sex. My impression is that Hooven wasn't subject to any official punishment, but was subjected to a great deal of concerted speech and collective action by students and others who objected to her remarks. How should we go about distinguishing legitimate counterspeech from illegitimate censorship in this particular context? Because obviously academic freedom can't mean that we insulate scholars from criticism and condemnation for their ideas, and we need scholars to be able to explore and defend ideas that are intensely controversial. You said that at the top of this interview, but it's also true that if academic freedom is truly concerned with knowledge production and truth-seeking, it would be counterproductive, right, to insulate scholars from criticism and condemnation. So there must be a line somewhere between criticism and persecution. How do we draw that line?

Jeannie Suk Gersen (15:53):
I think that academic freedom and the environment for it is affected by many factors. One of them is discipline and official sanction, and the other is attitudes and actions that are not official, but nevertheless have an effect. And so for example, in her case, it really ultimately, because of this cascade, and of the shunning by her colleagues and the department, and the inability of any of the people in the department to really defend her because they themselves were scared of being condemned, what happened was that she could not get any students to serve as teaching assistants for her. Even for example, ones who would want to serve as teaching assistants because they themselves thought, "Oh my goodness, if I'm going to be associated with Carol Hooven, that would not make it possible for me to have a career in this field." So these are things that you cannot really address with official commands.

(16:55):
You can't have a department policy that people have to volunteer to serve as teaching assistants for someone. You can't do those things, and so I think there are two components at least to academic freedom. One is the forbearance of departments from pursuing official sanctions, and the other is a kind of educational, and pedagogical, and culture related series of moves that I think we need to undertake. And so counterspeech is, in many ways, exactly what we would want, that we would want people to be able to say, "You are wrong and here is why," and is the kind of debate that we want to foster. And in Carol Hooven's case, that could have happened. That is something that could have occurred, that she could have gone on TV or wherever, spoken about her book, and then there could have been, say, events on campus where people debated those ideas, maybe invited her to defend her ideas, and then had someone or many people argue against her ideas, criticize those ideas and things like that.

(18:04):
I think there is very much a desire on the part of those who champion academic freedom to see more of those kinds of ways of dealing with these very contentious issues on which there's a lot of disagreement. But rather than debate, what we're seeing is a culture of condemnation, and avoidance, and just a shunning of a person and also a shutting down of debate, which is not, in my view, counterspeech. Counterspeech is actually speech and that is what should be encouraged, but a shutting down of speech is what we don't think is conducive to academic freedom. And these lines can be subtle and they can be difficult to draw, but I think that that kind of change is going to happen through cultural and educational moves, by trying to convince and persuade the people we're educating as well as each other.

(19:03):
It's not like professors are immune from this, that the way forward is to have debate and disagreement about ideas that we find objectionable, rather than things like condemnation, petitions saying that you've made people feel unsafe, and then fearful avoidance of the people who've made these kinds of statements, and have made them basically an enemy of civilization.

Jameel Jaffer (19:33):
I think I agree with both parts of your answer. First, that it's crucial that we find a way to respond in these situations with counterspeech rather than cancellation, but also that distinguishing those two things can be a very, very difficult thing. Isn't a petition counter speech? Even if the petition says, "You're making me feel unsafe," that that is a form of counterspeech and seems to me like a legitimate response to some kinds of arguments. So I think it's really hard. You said this already, I'm just agreeing with you. I think it's often very difficult to draw this line and hard to find principles to help us draw that line.

Jeannie Suk Gersen (20:20):
Yes, as an occasional signer of petitions, of course, I consider petitions to be forms of speech and sometimes counterspeech. I think it's about attitudes. Is a signatory of a petition doing it in order to start a conversation that maybe that isn't there and a debate? Is the signer of the petition doing so in order to basically ostracize a person and characterize them as someone who is unworthy of being engaged with on speech? And the first category I heartily embrace, and the second category, I would say there's some failure there on the part of educators in educating if we're going to see that as a prominent mode on university campuses.

Jameel Jaffer (21:06):
As you know, Columbia's president, Minouche Shafik, testified before Congress on April 17th, alongside the two co-chairs of Columbia's board of trustees. They were questioned very aggressively about, among other things, faculty who had made controversial statements regarding the October 7th attacks. What was your reaction to the hearing?

Jeannie Suk Gersen (21:26):
It was very disappointing, very disheartening, and frankly terrifying as to the position that universities are in right now. I felt that the officials from Columbia who testified had learned their lesson, I guess, from the hearing in the fall that brought down Claudine Gay and erred completely on the side of, yes, we will crack down on any views that you, peer in Congress, tell us are unacceptable. One specific question that was asked was whether they would approve tenure for Joseph Massad who was a Columbia professor who is alleged to have glorified October 7th attack. I am not myself familiar with the exact statements that he made, but I think that a university president had the obligation to say and to really believe that the university does not engage in tenure denials based on the viewpoint of the professor. And essentially that he would be evaluated today, as hopefully he was back then based on his track record of scholarship, its academic rigor, its standing in the field and its profession. And that as a university professor, she should not be considering herself to have the authority to reject or to accept a scholar based on their viewpoint.

(23:03):
I understand that that may have been politically difficult for people to stomach, but that is the actual job of a university president, to make that view very clear. This is about as close to a McCarthyite situation as I have seen in my lifetime, where someone's brought to Congress, and this is not like the president or CEO of a private corporation or a company. This is the president and leaders of a university, and basically in my view, they were tripping all over themselves to throw the basic values of a university under the bus as fast as they could, to every single question. This hearing was a demonstration of the trouble that we are all in, and I certainly feel for these university leaders who would want to be in that position right now, but it's going to take extraordinary courage and bravery, and then a whole set of administrators, and supporters, and members of the public who are going to have to come together and reject the direction this is going in, and that members of Congress want to take us in.

Jameel Jaffer (24:19):
Where do you think all of this is going? What do you think the committee's next move is going to be?

Jeannie Suk Gersen (24:25):
If you look at the post-hearing subpoenas that were issued to Harvard one after another, you can see that they're not about only the narrow topic of anti-Semitism. Harvard is being asked, in these extremely broad subpoenas, to answer for and to reveal all kinds of things about its operations that clearly would touch on academic freedom. And I do hope that Harvard is resisting. I believe it is, but I'm not involved of course, in that decision. But it's resisting that broad scrutiny to that extent, because these are really core matters that will impinge on the central mission of the university. I would certainly expect Columbia to be similarly subject to subpoenas. This could go on for a long time, but over time, it's not just one moment in time, over time, the acquiescence to this way of treating a university as an entity that is just not the kind of entity that you can treat in this way if you want to preserve what is actually useful or good about a university.

(25:39):
That's going to have an effect. And I think that the Columbia hearing was extremely important and eye-opening because what it showed was that it's actually not going to take very long to dismantle a university if you have a president as distinguished as President Shafik, getting up there and basically just giving it all up for everyone to see.

Jameel Jaffer (26:02):
One thing that was striking to me about the hearing is that the phrase, academic freedom, didn't come up at all. Columbia's witnesses didn't even mention it.

Jeannie Suk Gersen (26:11):
It's very telling, and it's probably because somehow, at the last hearing, which was considered to have gone disastrously, academic freedom became a perceived mask for tolerating anti-Semitism. I think that that was the conclusion that some people drew, that by invoking academic freedom, you're basically giving anti-Semitism a pass. And so academic freedom became a buzzword or a code word that some people, I guess, need to avoid. And it's really sad that the president of a world-class university, at one of the top universities in the world, couldn't actually help the public understand the importance of academic freedom and the fact that by invoking it, one does not by necessity condone anti-Semitism or any other kind of discrimination.

(27:07):
That is the job of an academic leader, and she really missed an opportunity to do that. But hey, I understand, I feel for all of these university presidents. It is impossible what they're being asked to do. And so Claudine Gay was fired for erring on one side, and I understand the attitude of going there and saying, "By God, I'm not going to get fired for the reason that Claudine Gay did." But it really was, some people called it an overcorrection, but I really think of it as a tragic dereliction of duty to not stand up for the most important value that a university must have.

Jameel Jaffer (27:52):
Jeannie, thanks so much for making time to talk with me.

Jeannie Suk Gersen (27:55):
Thank you.

Jameel Jaffer (27:57):
In our next episode of War & Speech, we'll be talking about censorship on social media with Deborah Brown from Human Rights Watch and Evelyn Douek from Stanford University. Views on First is produced by Ann Marie Awad, with production assistance and fact-checking by Isabel Adler. Research and fact-checking by Hannah Vester. Candace White is our executive producer. The art for our show is designed by Astrid de Silva. Views on First is available on Apple, Spotify and wherever you get your podcasts. Please subscribe and leave a review, we'd love to know what you think. To learn more about the Knight Institute, visit our website knightcolumbia.org and follow us on social media. I'm Jameel Jaffer, thanks for listening.