Among the most controversial and widely publicized controversies during the recent autumn of student unrest was that surrounding the incident at Yale University, where a residence hall adviser’s email about Halloween costumes prompted a national debate over the allegedly competing values of free speech and racial justice.  I previously commented at some length on the Yale events in a November post, “Racism and Academic Freedom at Yale.”  Now, renowned First Amendment scholar and Georgetown law professor David Cole has weighed in on the controversy with an excellent and welcome piece, “The Trouble at Yale,” in the latest issue of the New York Review of Books.  It is well worth reading [unfortunately the entire article is available only to subscribers].

I almost entirely agree with Cole’s approach, but I do want to raise in this post two minor, yet not insignificant, caveats. Before doing so, however — and to ensure that my criticisms will not be taken out of context — let me briefly summarize Cole’s main argument, using his own words.  Cole’s central point is that

. . . the Yale controversy has been portrayed as pitting racial equality against free speech. But that diagnosis misses the broader picture. Most of what has taken place at Yale and other colleges reflects the best traditions of free speech: students of color and others have been organizing politically, holding rallies, and speaking out. They are using their speech rights to communicate their experiences and demand equal justice. That’s exactly how the freedom of expression should work.

And the core of what they are fighting for is critically important, indeed necessary: an inclusive community that treats them as equals. . . .

So rather than condemning students at Yale and other colleges for trampling on free speech, we should commend them for using their speech rights to push their institutions to take more seriously their obligation to all their students. . . .

If we want to understand the controversy at Yale, or at any of the many colleges that are experiencing similar protests, we must take seriously the deep and lasting wounds that continue to afflict the African-American community. We must demand, with the students, more diversity in faculty and staff, greater resources for minority students, and greater sensitivity to the challenges of building an integrated community of mutual respect and academic inquiry.

I agree completely and wholeheartedly.  I agree as well in principle with Cole’s second argument, in which he opposes some of the demands raised by students, at Yale and elsewhere, that would specifically suppress or punish speech.  He writes:

Wholly apart from the values of academic inquiry, it is a mistake to seek to suppress speech in the name of equality. Free speech and association are rights of special importance to the minority—as the Yale students themselves have demonstrated. The freedom of speech empowers them to express their views, to dissent from majority policies, and to organize politically to advance their interests, just as, before them, it lent protection to Martin Luther King Jr., Malcolm X, and other civil rights activists. The last thing a minority group should seek is the suppression of nonviolent free expression.

Focusing on offensive speech also distracts from the more significant issues of racial injustice that persist more than sixty years after Brown v. Board of Education declared segregation unconstitutional.

Again, I agree.  But I disagree with Cole’s related suggestion that “demands to remove the names of ancestors with racist views from college buildings” and institutions are ipso facto among such attempts to suppress speech.  To be sure, these  efforts may often be, as Cole puts it, “misguided” or “a sideshow,” but they should not be dismissed out of hand.  According to Cole, “it would be far better to commission new monuments, and to use new naming opportunities to express a message of inclusion, than to airbrush disturbing facts about our past.”  While that may sometimes be the case, it certainly cannot be taken as a universal rule.

What, for example, might Cole have said about Nikita Khrushchev’s renaming of Stalingrad, site of arguably the most important battle in human history, or his removal of memorials to the late dictator more generally?  Should these have been left in place but supplemented with, say, memorials to Khrushchev or even to Stalin’s victims?  And what of efforts in post-Soviet regimes to remove the omnipresent statues of Lenin?  Closer to home, one might ask about all those honorary degrees awarded to Bill Cosby.  Or consider my colleague and fellow Committee A member Michael Berube’s anguished decision to resign from the Paterno Family Professorship in Literature in the wake of the disgrace of that chair’s namesake and donor in the Jerry Sandusky scandal.  Personally, I can see both sides in the debate over retaining Woodrow Wilson’s name at Princeton, but unlike Cole I can see no rational reason to keep the name of the notorious ideologue of slavery and racism, John C. Calhoun, at Yale just because he was an alumnus.  Wilson was indeed a racist, but he was also, at least arguably, a progressive internationalist and domestic reformer.  Calhoun was just a racist and, sadly, a far too successful one.

The point is that these are legitimate topics of discussion and debate and protesting students are well within their rights to raise them, even if they are not the central concern of their movement.  Names are just symbols, to be sure, but symbols do matter.  Moreover, such discussions cannot be removed from the broader context of institutional naming today.  Cole’s recommendation to use new naming opportunities to send new messages, misses the reality that overwhelmingly such “opportunities” are in our time almost always for sale to the highest bidder, to those who donate the most and whose money increasingly calls the shots at a growing number of higher education institutions.  Perhaps we need a discussion not only of “hallowed” names like Wilson or Calhoun, but of the broader messages that all “naming opportunities” convey, messages not only of racial dominance but of corporate and private power in general.

My second concern with Cole’s piece is his seemingly naive assumption that Yale is a bastion of academic freedom.  To be sure, I agree with Cole that Yale was correct not to accept calls to dismiss the Christakises for their offending email, although I have expressed some concern about Erika Christakis’s resignation from the faculty.  [I would also repeat that as an official communication to students, sent in her administrative capacity, Christakis’s email was not strictly speaking the kind of personal expression (like, say, an op-ed piece or social media post) necessarily protected by academic freedom.]  But I do disagree with Cole’s contention, expressed almost offhandedly, that Yale has “fully endorsed” the doctrine of academic freedom.

In support of this view Cole calls not only upon the university’s recent response to the Christakis case but on its 1974 report on free expression authored by the historian C. Vann Woodward, which argued for “the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” Cole quotes at length from that report:

“A university…is not primarily a fellowship, a club, a circle of friends…. Without sacrificing its central purpose, it cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect. To be sure, these are important values…and a good university will seek and may in some significant measure attain these ends. But it will never let these values, important as they are, override its central purpose. We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox.”

He also notes further that “to this day” Yale informs all incoming freshmen that they “join a community where ‘the provocative, the disturbing, and the unorthodox’ must be tolerated.”

Woodward was a great historian, a thoughtful liberal, and a stalwart opponent of segregation and racism, but at the same time his report was in good measure a response to a previous student movement toward which his reaction was at least problematic and arguably closer to those conservatives today that Cole’s article implicitly critiques than it was to a genuine endorsement of dissent, iconoclasm, and reform.  More important, however, is whether or not Yale’s deeds actually conform to the fine words of the Woodward report.  I submit that they often do not.

First, there is the matter of Yale’s unrelenting and excessive opposition to all efforts by its graduate students (not to mention its nonacademic staff) to organize a union that would, in part, defend their academic freedom.  Surely were Yale administrators as truly dedicated to academic freedom as Cole suggests they are, wouldn’t Yale at minimum permit graduate students a vote on whether or not to unionize, something to which the university has so far failed to commit?

Second, consider the controversy over Yale’s unusual relationship with the National University of Singapore, about which the AAUP has raised significant questions with respect to academic freedom and free expression more generally, given Singapore’s notoriously atrocious record on human rights.  In 2012 the Yale College faculty passed a resolution that states: “We urge Yale-NUS to respect, protect and further principles of non-discrimination for all, including sexual minorities and migrant workers; and to uphold civil liberty and political freedom on campus and in the broader society.”  Prompted by a Wall Street Journal article stating that students would not be allowed to stage protests or form political parties, Human Rights Watch condemned the project, with deputy Asia director Phil Robertson writing that “Yale is betraying the spirit of the university as a center of open debate and protest by giving away the rights of its students at its new Singapore campus.”

Third, and more important, is that Yale has never fully conformed to the principles enunciated in the AAUP and AAC 1940 Joint Statement on Academic Freedom and Tenure or to commonly accepted standards of shared governance.  Specifically, Yale only rarely awards tenure to probationary faculty, choosing instead to hire tenured faculty from other institutions.  This is meant to ensure that only the most highly qualified and prestigious faculty gain tenure at the institution, but it also tends to produce a faculty less dissident or iconoclastic than might otherwise be the case.  So, for example, in 2006 Juan Cole, Professor of History at the University of Michigan and then president of the Middle East Studies Association, was rejected for a tenured position at Yale despite overwhelming faculty support by both the hiring departments of history and sociology.  This followed an intensive media campaign against Cole’s appointment by pro-Israel and right-wing groups, amounting, according to one prominent Middle East scholar, to “an assault on academic freedom and the academic enterprise.”  That scholar called Cole “one of the preeminent historians of the modern Middle East” and said “he’s been attacked on political grounds — because he’s critical of the Bush administration and Israel.”

[Historical digression: The adoption by the AAUP and the AAC in the 1940 Statement of a 7-year standard probationary period was in part a response to a celebrated academic freedom and tenure case at Yale in the 1930s.  Professor Jerome Davis held a series of full-time limited term appointments in Yale’s Divinity School from 1924 to 1936, at which time he was denied permanent reappointment (or tenure) amid considerable outside pressure.  His supporters argued that this was owing to his radical politics.  While the AAUP’s investigation determined (not without controversy) that Davis’s academic freedom had not been violated, it did conclude that

With respect to the question of tenure as distinguished from academic freedom, the Committee is of the opinion that sound principles of university administration require a reasonably prompt decision concerning fitness for a permanent connection with a faculty. A teacher of any professorial rank should, following a reasonable period of probation, be treated like a full professor on a permanent appointment. . . .  Such a delay, in the Committee’s opinion, implies an insecurity of tenure on the part of teachers and scholars of Dr. Davis’ length of service, age and attainments which this Association can not approve.

In part as a consequence of this case the AAUP has, since 1940, recognized that all full-time appointments are either probationary to tenure or, if lasting beyond seven years, entitled to the full protections of tenure, a standard that Yale has still, I believe, failed fully to accept.  For a recent restatement of this principle go here.]

The AAUP’s 1966 Statement on Government of Colleges and Universities, states that

Agencies for faculty participation in the government of the college or university should be established at each level where faculty responsibility is present. An agency should exist for the presentation of the views of the whole faculty. The structure and procedures for faculty participation should be designed, approved, and established by joint action of the components of the institution. Faculty representatives should be selected by the faculty according to procedures determined by the faculty. [emphases added]

Yet Yale University lacks any body, such as a university faculty senate, that might present the views of the whole faculty.  A senate was finally created in 2013, but solely for Arts and Sciences faculty.  And to this day on most university committees faculty representatives are chosen not by their own colleagues but by the administration.

Such, for example, was the case with the recent development of a new policy on Standards of Faculty Conduct, to which my previous post referred.  When first proposed by a committee of faculty hand-picked by the administration these standards raised some serious concerns about academic freedom. “This document is one of the strangest disciplinary procedures I have ever seen,” said Glenda Gilmore, who ironically holds the Peter V. & C. Vann Woodward Chair of History. “I have seen documents from peer institutions that provide much more detail about faculty discipline codes, and documents that are about shared commitment to ethical standards. But this appears to be the administration’s attempt to draw lines without telling what will happen to us when we cross them.”  Christopher L. Miller, the Frederick Clifford Ford Professor of African American Studies and French, said: “It appears” that the committee that drafted the document “gave little if any thought to the importance of safeguards: for academic freedom, for freedom of expression, for dissent and for diversity. Lip service to ‘free expression and inquiry’ in the preamble is not enough.”

Nevertheless, the standards were adopted with almost no substantive change.  Now, as my previous post reported, the Yale administration has proposed another draft of “Review Procedures for Complaints about Violations of the Standards of Faculty Conduct,” about which Gilmore wrote:

The new procedures outline the rules for hearings of faculty members who violate the Standards of Faculty Conduct recently incorporated in the Faculty Handbook. Those standards are capacious enough to invite complaints against faculty for failing to hold office hours as scheduled, being late with a letter of recommendation, breaking a departmental rule, intimidating a colleague, shirking committee responsibilities or publicly demonstrating or speaking in a way that disrupts the “orderly conduct of a University function or activity.” Anyone connected with Yale — student, staff member, administrator or post-doctoral trainee — is allowed to file a complaint.

And:

The Procedures violate basic constitutional rights to due process, including the active role of counsel at hearings, the accused’s right to hear and question witnesses, timely hearings, fair appeals, double jeopardy, equal justice and a jury chosen by a process untainted by bias.

In a four-page letter to Professor Gilmore, which she read to the Arts and Sciences Faculty Senate, AAUP Director of Academic Freedom, Tenure, and Governance Greg Scholtz pointed out numerous violations of AAUP-recommended standards in the proposed procedures.  As a result the Senate voted in November to reject the draft procedures and asked that they be submitted to a faculty vote.

Certainly, Yale University is by no measure one of those schools where academic freedom is either nonexistent or perpetually under siege.  It remains one of the nation’s great institutions of higher learning.  But in practice Yale cannot be said to live up to the lofty standards it purports to uphold and which Cole, in his otherwise excellent and important essay, seems to take for granted.  One can hope that the current controversy at Yale will lead not only to measures to improve the university’s troubled racial climate but also to ones that will solidify its verbal commitment to academic freedom.