Rebuilding a Culture of Academic Freedom – Law & Liberty – Keith Whittington

Richard Reinsch (00:04):

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with Keith Whittington of our new organization he is the chair of, called the Academic Freedom Alliance. Keith Whittington has been on Liberty Law Talk on a number of occasions. He’s also contributed to Law & Liberty. He is the William Nelson Cromwell professor of politics at Princeton University. His scholarship record is incredibly impressive. He’s the author most recently of Repugnant Laws: Judicial Review of Acts of Congress from Founding to the Present, which won the Thomas Cooley Book Prize. He’s also the author and ties into our podcast I think, of Speak Freely: Why Universities Must Defend Free Speech, and is the author, a co-author, and editor of a number of other publications. Keith, welcome to the program.

Keith Whittington (01:05):

Thanks for having me. I appreciate it.

Richard Reinsch (01:06):

So this new organization, the Academic Freedom Alliance that you’re the chair of, tell us about it, what its work is, what it’s doing, and what sparked it?

Keith Whittington (01:16):

Yeah. So at heart, this is a faculty-led organization committed to defending academic freedom and free speech rights of faculty at American universities. Our concern over the last several years has been free speech on campus is under threat from lots of directions that affects lots of members of the campus community, including students and others. I’ve had conversations for some time now about the kinds of problems we’re seeing on college campuses, the growing dispute about whether or not free speech is actually valuable on college campuses and what the scope of it ought to be. It’s partially through that kind of concern and those conversations I wound up wanting to write the book, Speak Freely. Then, more recently, a series of conversations led to thinking about, “Well, what else could we be doing that might help advance these principles and secure them more effectively?” The opportunity rose to try to launch an organization like this.

So, it’s essentially committed to, as I said, defending academic freedom principles and doing so in part by intervening in particular disputes that arise between faculty and their employers over things that the faculty member has said. Often, professors that find themselves in the midst of these free speech controversies feel very isolated and alone and don’t really know what they ought to be doing under these circumstances. So, partially we want to emphasize to people that they’re not alone. We want to emphasize to the university administration that the faculty member is not alone, that we want to help inform people of what their rights are and help them navigate that situation, try to bring attention and public pressure when appropriate on universities to actually live up to their commitments on free speech. We want to provide legal assistance to faculty in those situations and so we have funds to provide something of a legal defense fund for individuals who find themselves in these situations. I think it’s crucial when faculty find themselves under investigation, under threat or sanctioned by their university, that they have good legal advice that can help them navigate through often a maze of internal disciplinary proceedings and if necessary, that they be prepared and able to defend themselves in court and vindicate their rights against the university if it turns out the university has behaved badly.

Richard Reinsch (03:40):

So the Academic Freedom Alliance primarily is going to be working with academics?

Keith Whittington (03:44):

It is. That’s the primary goal.

Richard Reinsch (03:46):

So what are academics facing? We know what students go through, I think, fairly well in terms of problems they face. So academics are actually experiencing more censorious conduct as well?

Keith Whittington (04:00):

Professors are facing it as well, so it is certainly true that a lot of the free speech controversies involving students get a fair amount of attention, that those are real and the problems facing students are quite real. There are some very good organizations, including the Foundation for Individual Rights in Education that spend a lot of resources and time trying to defend students who find themselves in these situations and there’s important work that needs to be done there. But it’s also true that professors find themselves in these situations as well. Sometimes those become very public controversies and they do get a fair amount of attention, but a tremendous number of times, they get no attention at all. They’re really local conflicts that don’t attract any media attention, but nonetheless, faculty find themselves facing sanction from their employers for something they said and it can involve a wide range of situations. So we’ve seen lots of examples and they’re often very public examples in some ways.

Part of what I think we need to be doing is making sure universities are aware that there are costs to doing that, that the path of least resistance is not necessarily to undermine faculty free speech rights, but instead, sometimes to actually live up to those rights is also the easier thing for universities to be doing, but that requires putting public pressure on universities. It requires making them aware there’s a cost to be paid for not living up to their commitments.

We literally see them they are more transparent of a professor saying something controversial in public and then there’s reaction to it that calls on universities to fire those faculty members for saying something controversial. So the rise of social media, because it really made a big difference in this regard, it’s allowed faculty to reach a much broader audience in expressing their views than might, otherwise, have been the case. When you reach a much wider audience, that means there’s a lot more people that can potentially be offended and it’s, unfortunately we’re living in an environment where people, when they are offended or upset, want to organize themselves to try to punish the person that’s offended them or upset them. It means that a lot of people are now exposed to the unfiltered opinions of professors sometimes those are fairly inflammatory and controversial and so we do see public reactions that occur to those kinds of public statements.

But there’s also lots of instances of faculty saying something in the classroom, saying something on campus that upsets other members of the campus community, in particular, that leads to complaints against them and then the university’s investigating them. We still see examples of faculty being attacked because of their scholarship and things that they have published. Unfortunately, a lot of those attacks results in things like journals retracting journal articles. I think that’s, unfortunately, not as easily remedied because it’s not as if you have any kind of legal rights normally to those publications. But when employers get involved and universities started threatening employment sanctions on individuals for their scholarship, then that’s a serious issue and one that people do, in fact, generally have rights that prevent universities from doing that. We’re concerned, we’re trying to vindicate those rights.

Richard Reinsch (06:39):

My understanding on faculty speech is a number of precedents from the early Cold War period where professors who are accused of Communist or accused of traitorous conduct on behalf of the Soviet Union litigated claims and they were, ultimately, vindicated in federal court. So is this just a matter of getting people to sue, getting people to stand up and getting these in the federal courts and you have a really good chance of prevailing?

Keith Whittington (07:06):

Well, it’s more of a mixed bag of that, but it is true that, in general, I think American academics are fairly well situated in this regard, partially as a consequence of a lot of efforts by professors and their allies in the early 20th century. So the American Association of University Professors was founded in the early days of the 20th century in order to advance the principle of academic freedom in the United States. It was a principle that was really first advanced in Europe and was being brought into the United States in the context in which American universities simply didn’t recognize those kinds of principles. At the same time, they were encouraging universities to adopt a system to tenure, to protect faculty from being fired in the midst of these controversies. It took a lot of effort, but they were very successful in convincing American universities to build into their own governing documents, protections for academic freedom for faculty, as well as adopt tenure systems, although those have generally been eroded over time.

So on the one hand, a lot of American universities have fairly robust protections for faculty speech built into their employment contracts, built into their governing documents and the key is to make them live up to those commitments. Then, it’s also true for public universities you have a further backstop of The First Amendment. It is true that the U.S. Supreme court issued some opinions in the mid-20th century, mostly involving Communists and arguments surrounding any Communist efforts in the education environment, in which the court recognized that there were some First Amendment protections for faculty and the kinds of speech they engaged in, in public universities, but the Supreme Court has mostly stepped out of that. A lot of the subsequent cases dealing with those kinds of controversies have been handled in the circuit courts and it is a bit of a mixed bag. The court sent somewhat unclear signals about how to think about those protections, how exactly individual faculty members are protected by the First Amendment and in what context and certain courts, I think, have struggled to some degree with those protections. So in a public university context, there are some First Amendment backstops, but I think even in those contexts, faculty would better off so they have a robust protections for academic freedom built into their employment relations with their universities. That’s also, of course, true in the private university context where the First Amendment generally is not applicable.

Richard Reinsch (09:26):

Do you see the Academic Freedom Alliance assuming a major public role in its efforts, or is it just going to be their word-of-mouth, people know it’s there and it’s a formal organization with principles and procedures and things it’s going to do, or do you see the organization becoming an advocate as well?

Keith Whittington (09:45):

I think it would be both. I think part of our hope is to be advocating for these principles in public. I do think that we’re in a situation where people don’t really appreciate the value of academic freedom principles or even understand them very well. I think we’re in a context in which there’s a fair amount of concentration over whether or not we should want those kinds of principles and we ought to continue them to the future. So one reason why I’m very interested in organization like this is precisely because I think we need to be continually reaffirming the importance of these principles, thinking about how they apply in new and evolving contexts. So a certain amount of public advocacy needs to be done on behalf of these values because we live in a world in which these values are not taken for granted and there are people pushing in the other direction. So in the long-term, I think there’s a battle for hearts and minds that has to occur surrounding free speech principles in general and in this specific context. It’s also true that I think you, sometimes, can bring public pressure on universities in ways that will lead them to do the right thing in the midst of these controversies. Often, the way free speech controversies play out now is the people that want somebody fired get a lot of attention. They make a lot of noise. Universities feel under a lot of pressure from one side in these disputes and so the path of least resistance, the universities often just give in to those demands and throw the faculty member under the bus.

Part of what I think we need to be doing is making sure universities are aware that there are costs to doing that, that the path of least resistance is not necessarily to undermine faculty free speech rights, but instead, sometimes to actually live up to those rights is also the easier thing for universities to be doing, but that requires putting public pressure on universities. It requires making them aware there’s a cost to be paid for not living up to their commitments. It’s also true I think we’re going to have to do a lot of behind-the-scenes work as well, so especially when these kinds of controversies arise in a way that’s not very public when faculty members find themselves under attack, but this is not drawing media attention. The professors involved would often prefer that it remained quiet. They think it would damage their professional reputation if the controversy became more public. They’d prefer, simply, to have this resolved as quickly and quietly as possible, but they need to help in doing that. So we want to be sensitive to that. We want to help people in the situations they’re in and try to make things better for them. Sometimes that will mean trying to work behind the scenes to help persuade university officials to live up to their own commitments and particular cases. Hopefully, a fair number of those situations can be resolved without having to draw regular public attention to what universities are doing.

Richard Reinsch (12:18):

Well, I thought as well, the presence in higher education of a large number of non-tenured faculty, of adjuncts, and their situation, obviously, much more delicate than a tenured professor. So I imagine they would be reluctant to press their claims, but it seems to be that’s where the Academic Freedom Alliance and building culture rules and institutions better, the thinking about academic freedom could really help them in a way that they might be reluctant to press a claim on their behalf because they would worry about getting renewed.

Keith Whittington (12:50):

I think that’s absolutely right. When individuals find themselves in individual controversies, they need help and we want to provide help to them. But often, that’s a worst-case scenario, right? You’re already in trouble at that stage and we’d be far better off, if we can build a better culture, build better institutions, build better rules that are more protective of academic freedom in general, so that we don’t find ourselves having to fight each one of these individual battles and one of those really important institutions, from this perspective, is tenure. So as I noted in the early 20th century, American universities didn’t even have tenure systems. They built them up over the course of decades. Though, we’ve seen over recent years is an erosion of those tenure protections, in some cases, because universities are actively trying to get rid of or undermine tenure protections, but in lots of cases, simply by hiring faculty outside the tenure track and so hiring faculty who were going to be doing teaching and research on the campus, but have no hope of getting protected by tenure rules and that’s just extraordinarily damaging to the intellectual environment on those campuses.

In the long run, it’s certainly the case that reversing this trend toward having more contingent faculty who are on these semester- by-semester or class-by-class contracts is really important because one thing that we find in these kinds of controversies involving speech of faculty members is that if somebody has tenure protections, it’s not that they have more academic freedom. All those professors are entitled to academic freedom, whether they’re tenured or not tenured, but those who are tenured have more procedural protections from being disciplined as a consequence of their speech. So it’s easier to force universities to explain themselves as to why they’re taking action against a faculty member and it’s easier to mount a defense of those people when the reason for sanctioning the faculty members are not good ones and can’t be justified under the university’s own rules. In the context of untenured faculty members, as you say, it’s very easy simply not to renew a contract, provide no explanations as to why and as a consequence, it becomes very difficult to defend those individuals and hold universities to account, precisely because the procedural protections for academic freedom are so minimal in those contexts. So we certainly hope that we can help out contingent faculty who are in some of these situations. They are the most vulnerable people who find themselves in these controversies, but in the long run, far better solution is to bring more faculty under the protection of tenure.

Richard Reinsch (15:21):

Talk about the membership of the Academic Freedom Alliance because I think that’s an interesting story as well. This isn’t just a conservative or libertarian organization. This has wide support, from my review of the website, across academia.

Keith Whittington (15:34):

Yeah, that was absolutely the goal. I do think this is a common threat for academics across the political spectrum. Unsurprisingly, when you talk to people, you find that both inside of academia and outside of academia, that people have a picture in their head of who is vulnerable, who comes under attack under these circumstances. In our polarized world, they often imagine that one side is particularly vulnerable coming under attack for these things. But if you talk to a range of faculty, what you find is everybody’s very anxious. Everybody feels like they could easily come under attack. Everybody thinks that people like them are under attack and I think that reflects the reality is that it’s not just faculty on the right who are threatened for consequences of their speech; it’s faculty on the left as well. Under those circumstances, there’s an opportunity there to try to build a broad coalition in support of these universal principles of free speech and academic freedom for everybody, but there are also some challenges. There are weary coalitions that have to be built across the political aisle to convince people that even though they may disagree with each other about all kinds of substantive issues, on this issue, they actually have agreement. Moreover on this issue, there’s actually a commitment to defending people across the board. That does mean sometimes you have to hold your nose and defend somebody with which you have very deep disagreements, that you think that they had said things that by your own lights, are in fact offensive or dangerous or wrong-headed are false in various ways. Nonetheless, when they’re acting within their rights, they ought to be defended because that’s beneficial, I think to all of us, so that’s the kind of coalition we built.

We very much explained to the faculty who have joined the organization about what our principles are and that we have this broad civil libertarian view and I was very pleased by how many people wanted to sign on. When we first started talking about this kind of organization and what it might do and what it might look like, we initially started thinking, “Well, it might be good to get a few dozen faculty together who would be willing to sign some petitions, for example, on this issue.” Then we started reaching out to people and realized that there was just going to be a lot more interest than we initially figured, that people were eager to join up, that it was easier to reach across the aisle and persuade people on both the left and the right to join an organization like this than we thought. So we wound up, by the time of our public launch, having over 200 founding members who were willing to join up, which was far beyond what we were initially hoping to get. Like I said, I think, on the one hand it’s very encouraging because it’s very good. I think that people see this as a problem and are willing to do something about it. On the other hand, the fact that there is so much eagerness to join up with an organization like this is also reflective of just how nervous everybody is and how much of a problem people think universities are in at the moment.

Richard Reinsch (18:28):

That was my question, is it increasingly the case that progressive or liberal academics find themselves under strain? This isn’t just a right of center problem, but it’s under, say, critical race theory with your students, with certain deans that saying things that were once normal or considered standard in thinking about race in America no longer are and people find themselves on the wrong side.

Keith Whittington (18:53):

Yeah, I think that’s absolutely right. I think sometimes that the source of the attack is different, whether we’re talking about faculty on the left or the right. So it is often true that for more conservative members of faculty that when they come under attack for something that they’ve said or written, it’s an attack that’s coming from inside the house, so to speak. It’s coming from on-campus; it’s students, it’s colleagues, it’s university administrators who were upset and trying to get that faculty member sanctioned in some way. When it’s faculty on the left to come under attack, that is sometimes true too, they find themselves under attack from other members of the campus community, but they often find themselves under attack from people outside the university campus.

Political activists to media figures, politicians, donors, and alumni are often disproportionately likely to be criticizing faculty on the left side of the political spectrum. But it is still true that faculty on the left as well are often nervous about people you might think of as being their own ideological and political allies on the left there on the college campus itself. Some of this, I think, is a generational divide and that younger faculty, students are much less supportive and much less appreciative of broad, civil libertarian principles of free speech. And they’re much more willing to attack people that they disagree with and not just argue that they’re wrong and we shouldn’t be persuaded by what they say or that they ought to change their mind, but to argue that they ought to be silenced, suppressed or terminated as a consequence of what they’ve done.

Americans, in fact, don’t value free speech, even as an abstract principle let alone in the context of particular controversies. That I think is particularly discouraging and worrisome about where we’re headed in the longer term.

I think that’s part of what makes this a very worrisome situation that if we don’t explain why these values are important, I think we will, over the course of the next several years, find ourselves in a much worse situation where the majority of the members of a campus community, students and faculty alike, no longer support ideas of academic freedom and free speech and are perfectly happy to abandon them entirely, which has just be an extraordinary reversal of 100 years of effort to try to get these protections built into the university environment. It would not shock me that if current trends continue 30 years from now, those protections will no longer exist.

Richard Reinsch (21:08):

Wow. Do you see a litigation opportunity or opportunities for your organization regarding diversity statements that many academics or many on campuses period are required to sign of ways in which they’re going to advance diversity in their teaching or in their job on campus? This seems to be something like compelled speech and it’s almost like a loyalty oath. Have you thought about that?

Keith Whittington (21:32):

I think that’s why, as an organization, the Academic Freedom Alliance does not have a position on diversity statements. We have not taken up the case. I personally do think they are quite troubling and do represent a real threat to intellectual diversity on campuses and to academic freedom principles, more generally, as you say, that they are very comparable to the kind of loyalty oaths the faculty are required to sign at many public institutions in the mid-20th century, swearing they were not Communists and didn’t believe in Communist principles. These current diversity statements often take the form of a kind of statement that really is trying to filter by people’s political views in order to out conservatives, for the most part, although not entirely.

So it has political consequences. I think they’re designed to have political consequences. They are a form of compelled speech, which this court has ruled as unacceptable. I think they are contrary to other university policies in many places, so there are versions of this that I think are probably more acceptable, but there are increasingly versions of diversity statements being adopted on university campuses that really are just requiring compelled political statements from prospective faculty members. I think these things can be very hard to litigate, in part, precisely because they are being included in the job application, so there’s not a requirement that current faculty find these documents. Instead, they’re incorporated into application packages for graduate school, for jobs. As a consequence, then, it becomes much more difficult to determine if a given individual has been excluded from a university, that they’ve been denied to start in their graduate program; they’ve been denied a job because of what they said in the diversity statement or for some other reason. So they will be, I think, complicated to litigate in ways that was less true of the loyalty as where you required faculty or across the board to sign them. But it will not surprise me if we don’t wind up with litigation. It may not be litigation that the Academic Freedom Alliance is involved in, but I’d be very surprised if at some point we don’t get some litigation over these statements because they clearly run afoul. It seems to be some existing constitutional doctrine regarding compelled speech.

Richard Reinsch (23:55):

On just, in general, the campus environment, I had a sense that things were going to get better maybe 20 years ago, with regard to free speech and that FIRE’s work and other public interest firms, their work generally would improve the tenure on campus. Yet, I think things have gotten worse, particularly, in the last 10 years. Why do you think that is? One part of it, to me, is when I was in college in the late ’90s, if you were offended by something that happened on campus, in particular in the classroom, what we were told is, “That’s probably a good sign you’re learning,” or that you need to do some more reading, some more thinking. But that the professor got your attention, then that’s a good thing and learning, at times, should be hard as things that you’ve held dear maybe take on a different color. Now it’s, “If I’m offended, the person who offended me has violated my constitutional rights,” or, “my human rights,” or something like that. How did that switch take place?

Keith Whittington (24:50):

Yeah, I think it’s a good question. I do think that you’re right, that we’re in a worse situation now than we were several years ago. On the one hand, I think these are perpetual battles. I don’t think there’s ever been a golden age of free speech in which everybody embraced these principles and were consistent and good about actually implementing them. It’s long been the case that people will endorse the abstract value of free speech, but in particular contexts, they tend to want to carve out exceptions and exclude examples of speech that they find particularly troubling. That’s just a persistent problem that requires a constant vigilance, I think, to try to defend these principles because it just runs against human nature in the midst of particular emotional controversies.

But we’ve had cycles of when things were better and when things were worse in this regard and I think we’re certainly on a downturn right now when things are much worse. Some of it is that we actually are seeing a reversal of that basic tendency that’s been true for several decades I just mentioned, which is if you ask people on surveys, for example, “How important is free speech?” That traditionally, the answer Americans gave was, “It’s a very important value,” and then the challenge is to get them to actually live up to that value in the context of specific speech that they find offensive or disturbing. Now, increasingly, and this is a generational issue as well as especially true of younger people, Americans don’t think that anymore. Americans, in fact, don’t value free speech, even as an abstract principle let alone in the context of particular controversies. That I think is particularly discouraging and worrisome about where we’re headed in the longer term.

We absolutely need to turn that around and persuade people that free speech itself is valuable once again, and really, in some ways, the starting point for making that defense and providing that explanation has got to be the university campuses because, in part, it is younger faculty. It is students who simply don’t think this is an important value or think it’s not a very important value. It has a consequence. It can easily be trumped by lots of other kinds of concerns. I think it’s also true that this generation, it’s not a single generation, it’s a range of people, but particularly younger people, have come up in a different environment than older generations that as as a compass, their reference points for thinking about free speech controversies and what it means to talk about free speech are just a whole different set of reference points. So if you talk to people, faculty members, for example, who are older than me, their reference points are often things like the Civil Rights Movement, the free speech the ant-war controversies of the late 1960s and early 1970s and those kinds of conflicts. For them, those are the exemplars of free speech and why free speech needs to be protected. On the other hand, if you talk to, for example, the current generation of college students, that’s ancient history. It’s off their radar entirely. That’s not their reference point for when they think of free speech controversies. When they think of free speech controversies, they’re much more likely to think about neo-Nazis demanding free speech rights to harass people online or worse, right?

So their context in which they hear people waving the flag of free speech is very different than older generations. As a consequence, they often see it being used in a manipulative way, in a hypocritical way, in a way that simply seems to be designed to protect the harassing behavior that doesn’t advance ideas, particularly, or seem to serve any larger value. So that’s what they think of when they think of people who talk about free speech. It’s unsurprising, that they don’t find that a very sympathetic kind of value or something that we ought to care about, particularly. Of course, it’s because a lot of their reference points are online as well, for them, it’s also easy to imagine, “Well, the right thing to do when people are bugging you online is to get them thrown out,” right? You block them. You get them removed from the forum or whatever. So if that works in the online world, then surely, that ought to work in lots of other contexts where you could also block people and remove them from the environment as well. So it’s just we’ve encouraged and, I think, supported a kind of cultural expectation about how these dynamics play out and what free speech looks like that once you export it into this larger context, is just extraordinarily troubling for the future of a free society.

Richard Reinsch (29:25):

It seems to me, also, and in the last five years, and now it’s spread throughout the general population, I think, is just the idea of I don’t come to these debates or discussions or arguments using reason or logic alone, but I come to it through an identity and that may be the most crucial thing. What you have to think or say about the identity matters above all such that that becomes another way in which I might cancel you because the view is that you’re questioning my existence or something like that and that seems to be the source of the, “Well, I’m offended; therefore, it stands you should have to be escorted out.” Or think about the recent example at the University of Virginia where the medical student questioned microaggressions in a seminar and was escorted off campus, I’m told, by a dean and then removed from the program. I think a federal judge is going to, I don’t know if he’s going to reinstate him, but he’s getting some sort of redress of that. That’s one example of it, and then you’ve got now the diversity, equity and inclusion dean or administrators increasingly being hired. It seems to me this makes it all the more difficult just to think about ideas themselves apart from whatever we attach to them about our personal meaning.

Keith Whittington (30:41):

Yeah. I think there’s multiple things going on that all lead to very bad outcomes to a libertarian perspective. On the one hand there’s lots of forms of speech and expression of ideas that you can easily wind up leverging the mechanisms of harassment and discrimination and equity policing inside of organizations and inside universities to wind up excluding people who express that speech. So you would hope that when we set rules and procedures in place to deal with harassing behavior, that that will not have significant implications for the ability of people to express opinions and engage in arguments and discussion. It’s certainly possible to leverage those kinds of tools to try to suppress each end and people have. Unfortunately, universities I think, are on the leading edge of being willing to use their policies and allow their policies to be used for the purposes of suppressing speech. So we need to do a much better job of weeding through those procedures and rules and practices so that we can simultaneously address harassing behavior while also protecting a robust speech environment and we just are not doing a very good job of that right now.

It’s not enough for the universities just to articulate them; not enough to just have them in the faculty handbook. You’ve got to have institutional rules and practices and procedures and a culture that supports those principles and increasingly universities don’t.

So we’ve created a whole administrative structure that is easily exploited to suppress speech, and unfortunately, they are aggressively doing that. It’s also true, though, that I think that we just have a serious problem with a rise of illiberal tendencies on both the left and the right in our culture in general and they get expressed on university campuses, but they can express in lots of other contexts as well, in which people would much rather suppress their opponents than actually have to deal with them. So if you give people with those illiberal tendencies an option, their preference would be to suppress and exclude anyone who disagrees with them to silence them so that they can’t respond. Unfortunately, there’s a lot of desire to do that and we see that play out in lots of contexts. I think the identitarian concern is one aspect of it, although I don’t think it’s exclusively that, but there is also, I think, and unfortunately, a general pessimism about the ability of reason and persuasion to actually make any difference, right? So I don’t think it’s necessarily the case that people don’t think ideas are important, but they have, I think, increasingly lost faith in the idea that conversations about ideas are important.

Instead, people, and not everybody, but certainly lots of activists on both the right and the left, have adopted the attitude that what politics is, is a power game. It’s a mobilization of resources and numbers and instruments of power to defeat your opponents and advance your preferences. But it has nothing to do with actually persuading people and it has nothing to do with actually talking to people and coming to some common accommodation. It has nothing to do with negotiation or bargaining or recognizing and reacting to people’s disagreements or different interests. It’s all about gaining the upper hand and then using it and that’s just depressing. That’s not a good situation, certainly, for how universities ought to operate. This is not a good situation for how free society, more generally, ought to operate. If we give up on the idea that you can actually persuade people, you actually have some obligation to talk to people that you disagree with and try to find some common ground in order to make decisions about how we ought to live together, then as a democracy, we’re just at a very bad place. Unfortunately, I think that’s increasingly where we are in the views of an awful lot of people.

Richard Reinsch (34:38):

As you think about the future as the chair of the Academic Freedom Alliance, short term, medium term goals that you have for the organization to achieve?

Keith Whittington (34:47):

Well, I think in the short term, certainly, we hope to be successful in trying to defend some individuals who find themselves in these speech controversies. We’ve already been involved in some cases and we have, in fact, been successful in those cases and so that’s encouraging. It’s encouraging that the model might work. I think we are still in this situation where the rules on the books are actually good and favorable for these issues and so it really isn’t a situation where we’re trying to get administrators to live up to the rules rather than trying to have to change the rules. That’s a relatively good position to be in and so we want to take advantage of that. I think we’re still in a situation where sunlight is a good disinfectant, but if you make what’s happening transparent, it can put pressure on university officials to uphold the values of free speech rather than to suppress it. So, and that’s still encouraging about what our current situation is in. I think in the longer term, you hope that these kind of individual offenses become less necessary, that university administrators will behave better on the whole. You hope that you have some deterrent effect that university officials will get the message that they can’t simply railroad faculty members, that they have to actually respect people’s rights and it will be costly for them to try to take advantage of them in that way.

So you’ll get fewer of these individual fights and you hope in the long term that you can build a better culture and a better set of practices surrounding these kinds of principles so that these values of academic freedom and free speech are better protected than they are now. But that certainly is a long-term goal, right? That’s a very important cultural battle that has to take place. I think organizations like this are part of that cultural battle and I think it can go either way, I’m cautiously optimistic. I wouldn’t be doing this if I didn’t think that there was a chance of success, but things could go very badly, I think, if we aren’t willing to engage these fights and if we can’t successfully persuade people that free speech is actually a good thing and matters and we ought to uphold it. Likewise, I think changing the institutional practices of universities, for example, getting more faculty on a tenured basis will be a very difficult long-term challenge that universities like contingent faculty, not only because it makes it easy to fire problematic or troublesome faculty members, but also, because it gives the university administrators a lot of flexibility. It’s a cost-cutting move. It’s cheaper to have contingent faculty. It’s easier to rearrange faculty, if you don’t want them. It’s easier to run a university where you don’t have permanent tenure track faculty around that can push back against administrators.

So there are lots of forces that encourage universities to prefer a contingent faculty to a tenured faculty and it would be a very hard challenge, I think, to try to turn those trends around and get more universities to offer tenure. I think we are increasingly in a situation like we were in the early 20th century where for the bulk of faculty and local people doing teaching and research on college campuses that they don’t have tenure protections and they don’t have any hope of tenure protections and getting that for them, changing the basic practices of universities I think it’s going to be pretty important to really implementing the principles of academic freedom. It’s not enough for the universities just to articulate them; not enough to just have them in the faculty handbook. You’ve got to have institutional rules and practices and procedures and a culture that supports those principles and increasingly universities don’t. It’s going to take time and a lot of effort and not just by us, but by lots of other organizations as well, to try to turn that around.

Richard Reinsch (38:25):

Keith Whittington, thank you. We’ve been talking with the chair of the new organization, the Academic Freedom Alliance, about their work. Thank you so much.

Keith Whittington (38:33):

Thank you. I appreciate it.

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