BY DON ERON
The following essay was posted on Sept. 8 at the Daily Camera, the Boulder, Colorado newspaper, and is reposted with permission.
Academic freedom has had a rough go of it lately at the University of Colorado Boulder. Nobody seems to like it. Chancellor Phil DiStefano finds it necessary but disagreeable, at least in the case of John Eastman’s recent argument, published in Newsweek, claiming that, constitutionally speaking, Kamala Harris is ineligible to serve as vice president.
Chancellor DiStefano’s ambivalence is not surprising. University administrations have always been uncomfortable when faculty members express unpopular opinions. But in a twist worthy of Bizarro World, 400 members of the CU faculty, who signed an open letter condemning Professor Eastman, find academic freedom even more disagreeable than Chancellor DiStefano does.
Anybody is entitled to an opinion about what academic freedom is, or should be. However, it is not “anybody,” but the American Association of University Professors (AAUP) that formulated the principles that have defined academic freedom as it has been understood and practiced in the United States over the last century – principles that are the basis for institutional policy at every self-respecting university in the country, including CU-Boulder. And it is the principles of the AAUP for which the 400 signatories harbor a contempt almost rivaling that in which they hold Professor Eastman.
In essence, academic freedom needs to be understood as existing on two distinct but overlapping planes. One of the planes, involving individual academic freedom, includes the right of faculty to intellectual inquiry as well as the right to teach as they see fit; the right to speak out on matters of institutional importance without being fired for speaking out; and the right to express their opinions, as private citizens, on matters of public concern.
Academic freedom also includes (on the other plane) the collective right of the faculty to make decisions about the educational product — including curriculum, pedagogy, and personnel decisions related to the educational product — free from outside manipulation.
In other words, a faculty member’s pursuit of intellectual inquiry, or right to teach as he or she sees fit, is only protected if it exists within the scholarly parameters established by his or her discipline. For example, if a history professor teaches that the Holocaust is a hoax, or if a biology professor writes that creationism is true, and those professors are denied tenure, they might claim that they are being punished for their opinions. But in fact their academic freedom has not been violated because their opinions are not acceptable to competent historians or biologists.
If these examples seem extreme, it is because in any academic discipline there are many issues on which opinion is legitimately divided. If professors could be fired merely for disagreeing with the majority of their colleagues, the academic pursuit of knowledge, at least as it has been understood for the last 100 years, would be profoundly restricted.
According to the 400 signatories, Professor Eastman’s argument is “unsound,” “specious,” “racist,” “questionable,” “spurious,” “faulty,” made in “bad faith,” and an opinion against which “others have written rebuttals.” What’s notable is that while Professor Eastman is a constitutional scholar who has made a constitutional argument, only one of the 400 signatories is a professor in the law school, and she is (according to her faculty profile) a specialist in Indian rights law and natural resources.
I don’t know why, of all the constitutional law scholars at CU, the only members of the CU faculty who might claim disciplinary knowledge about the viability of Professor Eastman’s argument, none have signed the letter condemning him. Perhaps they understand that many of their own arguments could be disputed and that if Professor Eastman can be condemned and urged to leave CU, then so could they.
According to the open letter, among the fatal flaws with the AAUP view of academic freedom is that it was formulated “before the defeat of Nazi Germany.” If what the 400 signatories mean is that their views are so important for the good of humanity that all opposing views must be forbidden and their perpetrators punished, they should know that theirs is exactly the concept of academic freedom practiced by the Nazis.
From early in the Third Reich, Jews and professors who didn’t enthusiastically endorse national socialism, or at least claim to, were purged from university faculties. In our time, when democracy is under siege, the 400 signatories should be careful what they wish for.
Don Eron is a retired senior instructor at the University of Colorado Boulder. He served for six years on the American Association of University Professors Committee A on Academic Freedom and Tenure.
A correction to your introduction to Don Eron’s blog entry about academic freedom at the University of Colorado-Boulder. The Daily Camera is NOT the student-run newspaper at CU. it is, in fact, what’s left of the venerable local CITY paper after it was bought by a hedge fund and is currently undergoing the starvation policies common to hedge funds that buy up businesses, sell their assets, parasitize what’s left and then leave. It’s sad, but What’s left of the Camera is all we’ve got in Boulder for local news. As an Emerita professor of CU-Boulder, I’m glad they published Mr. Eron’s op-ed.
“The surest way to corrupt a youth is to instruct him to hold in higher esteem those who think alike than those who think differently.” Nietzsche, The Dawn, 1881
An interesting opinion in that it indicts so many members of the academy. It may be an excellent example of Linde’s “fitness” argument, as the author points to a nearly complete absence of subject matter expertise among the 400 signatories. What, then, is the basis of their assertion? Obviously partisan politics; but it is worse than that: it is ideological gang behavior, which is a dangerous development on our nation’s campuses (see my recent opinion on this issue, below). I’m familiar with Professor Eastman’s argument, and in fact have written a response to another mass protest letter from law faculty at Berkeley, Texas, Harvard, Yale and Chicago. There letter reflects poorly on their legal reasoning, and Eastman’s argument, if you actually read it, is fascinatingly coherent in history and fact–he has performed a great service in scholarly research and if nothing else, it is a provocative and important consideration in constitutional history and interpretation. So, one might ask: what does the AAUP plan to do, to address what the author here seems to be saying is a gross violation of free speech accommodation, and hostile behavior toward a peer? Otherwise, when you get this much mass group-think ad hominem attack, you know you’re on to something! Regards, ’96, University of Chicago
https://dissidentprof.com/index.php/8-home/164-university-greek-life-a-super-spreader-of-independence
This is an appalling piece. It grotesquely misrepresents the “threat” to academic freedom posed by a letter of *protest.* The signatories of that letter have a right, even a duty, to protest what they view as bad faith argument with slim claim to legitimacy in law. There is no legitimate constitutional argument in opposition to birthright citizenship. There may be legitimate arguments that it is ill-conceived or should be reformed; but that it exists and that Kamala Harris clearly qualifies under it as a citizen is well-established. Anyone suggesting the contrary about a woman of color should rightly be accused of promoting racist theories as we saw with the persistent questions about President Obama’s nationality, something that obviously would not have been raised had he been a white man born in Hawaii’i. The racism in this argument is so naked that no pose of just asking a hypothetical question can save it.
What is surprising is that Eastman was invited to visit Colorado in the first place, given the offensive project with which he is associated, one that denies the humanity of LGNTQ fellow citizens. And as to matters that pertain to denying others their humanity, this may be an issue that transcends expertise and is one of those rare subjects about which the very status of the institution is called into question if it does not condemn this sort of claim. What if the author had made a plea for the proposition that the 13th amendment was mistaken or that Jim Crow was a legitimate mechanism to prevent “race-mixing” or if the author’s scholarly project were the promotion of sexual relations between young children and adults? What then?
It is probably not an accident that those who find the letter of protest more offensive than Eastman’s original piece (and what was Newsweek thinking? –probably that it would drive views and clicks….) are retired professors. Some similar phenomenon may be at work in the relative paucity of con law scholars signing the letter. Con law is one of the most prestigious of subjects at most law schools. As such, it is predictably peopled predominately by white men. I have no idea what the make-up is of the faculty at CU on this score, but it may well have some role in their assessment or in their willingness to sign the letter. This is one of those things that seems like an appropriate area for academic freedom by people of some viewpoints or of older generations which later generations may come to wonder how it could ever have been acceptable to engage in this sort of specious argument, just as earlier generations disputed the fitness of women to pursue a profession without permanent damage to her reproductive capabilities, or the fitness of minority students to pursue a college education. I am rather disappointed in the AAUP for giving oxygen to this sort of thing. There is no requirement that it publish viewpoints that seem to be border on white supremacy. I don’t see academic freedom seriously threatened by this letter. Giving the author a platform beyond the one he has already been given simply elevates the message beyond its legitimacy and is an example of how we found ourselves apparently powerless to stop a president from spreading false rumors and specious health cures.
This is an appalling comment. A defense of academic freedom does not “border on white supremacy,” even if you think the person being defended is a white supremacist. Everyone has a right and perhaps a duty to criticize an offensive opinion. But that criticism is radically different from calling for the firing of professors who express offensive ideas. Demanding such firings is also protected speech, but it might not be for long if the undermining of academic freedom being urged in that letter is successful. As for the hiring of Eastman, his alleged opinions are not a legitimate reason to deny him a position. We should question an academic job that apparently required a devout conservative to be hired for the position. But once Eastman was hired, he is entitled to express his ideas, even if they are wrong and dumb and motivated by racism.
You are, of course, free to disagree, but you start with the premise that this was a defense of academic freedom in the first place rather than a racist attack masquerading as argument. Constitutional law scholar at UCLA wrote his own rebuttal of this piece. And given his conservative bona fides, in addition to his long and distinguished scholarly record, I think it should settle the issue of whether Eaton’s argument has any substance. And while Volokh does not believe it is a racist attack, that verdict falls back on a rather acontextual observation that Eaton’s argument does not depend on overtly discriminatory criteria (the way, say a “Muslim ban” would), the fact remains that this argument appears to have only reared its ugly head, after a fairly long slumber, when it was launched against Barak Obama, the first Black president and now, in a true groaner of predictability, against a Black woman (note I did NOT say “African American,” as one of the Trump crowd’s current claims is that she is not descended from slaves; this is a ridiculous distinction here, but presumably, even they will not be able to dispute that she is “Black.”) That context makes the conclusion that this argument is not racist hard to swallow. It is also belied by the VERY lengthy comment Newsweek has appended to the op-ed. I understand that freedom of speech is a fundamental right. But so is equality. As a society we have not done a terrific job protecting either right as much as we have the right to bear arms, but we have done rather better with speech than with equality at universities. There are no clear guidelines about where to draw the line when rights conflict. But I am inclined to think the time is long overdue to give equality more than lip service. Racism puts lives at risk.
Agreed. There are competing goods/values and context matters. This has always been the case; it’s just that different groups prioritized “free speech” over other values at different moments for different reasons. Right now, “free speech”
seems to be primarily invoked by people who resist deepening our understandings of anti-Black racism and who resist the changing norms around equality for LGBTQI people.
You uphold general principles that must guide rational discourse, especially in contentious matters where it is difficult to do so. It is interesting that the Comment comes from a law professor who has written about the First Amendment (“Brandishing the First Amendment”) but apparently argues for its suppression in commercial contexts where value judgments can be asserted in various harm doctrine.
This is great, thank you: “What is surprising is that Eastman was invited to visit Colorado in the first place, given the offensive project with which he is associated, one that denies the humanity of LGNTQ fellow citizens. And as to matters that pertain to denying others their humanity, this may be an issue that transcends expertise and is one of those rare subjects about which the very status of the institution is called into question if it does not condemn this sort of claim.”
I do think the line is moving on what approaches Holocaust denial territory. And there always is a line, John Wilson, as Don explicitly makes clear in his remark. Academic freedom is not anything goes. Don wonders why experts in Eastman’s field didn’t weigh in, since they would be best positioned to assess whether what he says makes any sense at all within their discipline. If they made a case for how his remarks might be controversial or outlying but still reasonable, I’d certainly take them seriously. As it is, I find Tamara’s point of view to be very persuasive. The line does seem to be moving on what’s acceptable — thank god! — and it does seem to be very generational.
Tamara, you should post a piece on this site. You basically have written an excellent one in this response!
Eugene Volokh a colleague at UCLA who I very much respect, although I disagree with him on many things, has written a rebuttal to the original piece. I think he is dead wrong that the piece is not racist, for all the reasons comments to the piece set out, but I otherwise think it is a great summary. And because I am very familiar with his work, while I have never heard of Eaton, I am inclined to credit Volokh. I will post the link if I can manage to get it again.
Jennifer, you appear to endorse Piety’s idea that Eastman’s beliefs (opposing the legalization of gay marriage) should result in him being banned from any faculty job at any college. Is that your perspective? As for his essay, academic freedom is not anything goes, but it should be very close to it. The AAUP’s position is that Eastman’s essay would have to prove “unfitness” for his position. I don’t agree with Don’s view that experts in Constitutional law get to dictate that. However, Volokh’s response to Eastman (https://www.newsweek.com/yes-kamala-harris-eligible-vice-president-opinion-1524969) is very good, but I think it clearly shows both that Eastman is wrong and that his essay is not the equivalent of Holocaust denial. In fact, I think it could be true that many ancient American politicians were narrow-minded bigots who opposed birthright citizenship. Eastman has an erroneous legal theory that leads him to confuse these prejudices with the meaning of the law (past and present), but his support for bigoted views should be refuted, not prohibited.
For those who missed it, on August 17 I posted to this blog a statement signed by over 40 law professors refuting Eastman’s claim about Harris’s citizenship and qualifications to run for Vice-President. It is here: https://academeblog.org/2020/08/17/law-professors-refute-claim-that-sen-harris-ineligible-for-presidency/
Yes: that is the group letter I refer to above, that was published in the blog “Balkinization” by Jack Balkin at Yale Law. It makes its points, but it breaks down in ideology, and under an unfortunate ad hominem liberty taken against Eastman. I have a reposte coming out next week. Eastman makes a wonderful argument in the spirit of inquiry, history and pedagogy–and law. If you dig further, U. Alabama’s brilliant constitutional scholar, Forrest McDonald, shows that the 14th wasn’t even constitutionally ratified, but that, of course, is another argument: https://www.abbevilleinstitute.org/review/was-the-fourteenth-amendment-constitutionally-adopted/
I suspect you write “Yale Law School” and “Balkinization” to serve shorthand for “leftist” or “liberal,” but without responding to or refuting my observation that the academics in that list are NOT all “liberal” or “progressive” or “left” in any sense exception the most reactionary that would describe anyone who does not support Trump as a “leftist.” That is particularly absurd given that Trump himself has no discernible ideology except a desire to dominate. But again, you don’t dispute my observation that the signatories are of associated with diverse political viewpoints. Second, you say the letter “breaks down in ideology” but you do not identify where or how it does so. In terms of the argument that the 14th amendment was not “constitutionally ratified” — a position that is, to put it mildly — outside the mainstream, supposing for purposes of argument that McDonald was correct: at this juncture the appropriate response might be, “So?” And by this I don’t mean that it would not be a matter of some concern and need to be addressed; rather, I mean that I think that the principle that it announces is so deeply embedded in our jurisprudence and our society, that it seems unlikely that it would engender more than a push to correct post haste any technical deficiencies that might exist. Or are you and he arguing that we should, assuming again for purposes of argument, that it was not properly ratified, proceed to undo that precedent and those laws? That would seem to be a good way to remove any doubt about the whether such lines of argument are themselves made in good faith versus made to push a racist agenda. Perhaps next there will be a claim that the South actually won the Civil War (and given propaganda like “Gone with the Wind, maybe it did…). The former Confederate soldiers appear to be the only soldiers who Trump does NOT view as “losers.” Ironic.
I make no coded implications; I merely state facts. The bona fides of the letter writers are relevant, certainly, but they do not reside simply on a political spectrum–they are rather ideologues. They don’t refute Eastman but through narrative storytelling, mixed with logical ad hominem. I can’t otherwise respond to all the issues, subjects or objects you pull into the argument. Mine is simple: Eastman wrote a great paper; he asks fascinating questions; and he serves the art of legal teaching, while being subject to academic mob hysteria. He can otherwise move a legitimate referendum and thereby will be its fate. You may enjoy my monograph on law pedagogy archived at the University of Chicago. Thank you and Regards.