BY JOHN K. WILSON
The new Academic Freedom Alliance launched on March 8, 2021. Below is my interview via email with Keith E. Whittington, Chair of the Academic Committee of the Academic Freedom Alliance. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University, and the author of Speak Freely: Why Universities Must Defend Free Speech. Whittington will be speaking at Michigan State’s LeFrak Forum on Freedom of Speech and Intellectual Diversity on Campus (April 8-10) and the University of California National Center for Free Speech and Civic Engagement #SpeechMatters conference (April 20-21).
Q: What was your motivation for helping to launch the Academic Freedom Alliance, and what do you see happening on college campuses that made you think it was needed?
Keith Whittington: For several years now, some colleagues and I have been discussing how we might help improve the appreciation for the culture of free thought and bolster the practices necessary to sustain it. Those conversations helped spur me to write my book, Speak Freely. This particular effort evolved out of those conversations as well.
I think it is quite apparent that we are in a period of heightened threats to academic freedom. Fortunately, perhaps, I also think that perception is fairly widespread, and university professors at a wide range of institutions, in many disciplines, and across the political spectrum have come to think that their own personal experience of academic freedom is now vulnerable. That puts us in very dangerous territory, but it also creates a lot of common ground and generates a sense of urgency. It might once have been possible to dismiss concerns about academic freedom as outdated or a problem faced by someone else. I think more and more professors are realizing that is not true. They cannot take academic freedom for granted, and they cannot assume that they are immune from the threat of persecution and professional ruin for things that they say.
I suppose the Steven Salaita episode at the University of Illinois was a wake-up call to me on how likely universities were to cave under pressure when faculty speech became the source of a public controversy. But one does not have to look very far to see that these controversies are not going away. Collin College has taken steps to silence faculty who might criticize its administration. State legislatures are considering proposals to restrict what can be taught in a college classroom and to gut tenure protections. Universities have suspended or punished professors who have offended student sensibilities in the classroom, and they have fired or threatened to fire professors whose private political speech is regarded as too controversial or inflammatory. The intellectual climate on college campuses is increasingly one that encourages self-doubt and caution rather than bold thinking and vigorous debate. It is easy to make space for speech and ideas that we find agreeable. It is far more challenging to come to defense of those who say things that we find indefensible, but if we only defend the like-minded then we don’t really believe in the principles of academic freedom and free speech and we should not be surprised when no one comes to our own defense when we most need it.
Q: Like the AAUP, the AFA aims to be a membership organization for faculty that protects academic freedom. Why do we need another national faculty group, how will the AFA be different from the AAUP, and what do you think the AAUP ought to be doing better?
Keith Whittington: The AAUP has done and is doing essential work. Faculty have the kind of legal protections that they do because of the AAUP’s advocacy over the years. As a consequence of those efforts, faculty are much better positioned now than they once were to demand that universities adhere to the principles of academic freedom when there are demands to sanction a professor for his or her controversial speech. There is certainly more work to do to strengthen and expand those protections, but there is a solid set of foundational principles that need to be defended and effectively implemented. I see the AAUP and the AFA as complementary institutions, and I would expect many professors to want to be members of both organizations.
The task is simply too big to depend entirely on any one organization. Hardly a week goes by without some demand for a professor to be fired for his or her teaching, scholarship or public speech. Academic freedom is currently being besieged from many directions. We need more voices speaking up on behalf of these principles. We need to put university leaders under a very bright spotlight when they are deciding whether to cave in to demands to sanction a faculty member for protected speech. We need to be building broad coalitions in support of an academic environment characterized by unfettered critical inquiry, robust debate, and intellectual diversity. I would hope that the AAUP and the AFA would often be fighting side-by-side in these battles.
The AAUP is a big organization with a diverse mission. Unfortunately, academic freedom is not the only challenge that we face these days, and so understandably the AAUP is pulled in many directions. It seemed useful to have an organization with a much narrower mission that could dedicate itself exclusively to academic freedom and faculty free speech and could draw in professors who share that specific set of commitments. The threat of AAUP censure does not seem the carry the weight necessary to sufficiently deter bad behavior by university administrators. Free speech controversies often develop, and are resolved, very quickly these days. The AFA hopes to weigh in on those disputes in a timely fashion to help get a better resolution in the moment. We also believe that legal advice and the threat of litigation are essential tools for vindicating the rights of faculty. Faculty are often outgunned when they find themselves in a confrontation with the university administration. The more support individuals can get in those situations the better off we all will be.
Q: The AFA’s founding was pushed by conservative professor Robert George, funded by a conservative donor, and based on media coverage seems largely aimed at fighting “wokeness.” Why should moderate and progressive professors embrace a group that may seem like yet another right-wing tool in the culture wars?
Keith Whittington: I just think that’s mistaken as an understanding of the group. It is certainly true that we have conservative professors among the founding members and in the leadership of the organization, but we also have moderate and progressive professors among the founding members and in the leadership of the organization. I’m sure that the members who joined us have their own particular concerns and priorities, and those are not always the same, but I can tell you that in my conversations there is plenty of anxiety among moderates and progressives about the state of academic freedom today. I personally have no interest in leading a group that is “another right-wing tool in the culture wars,” and members did not join this group with that objective in mind. Moreover, such a group would miss the larger threat facing American higher education, and it would not be effective in helping to shore up the principles and protections of academic freedom at this time. Our conservative members are just as concerned as our progressive members about defending the right of professors – all professors – to follow their arguments and evidence wherever they lead.
We have brought together people from both the left and the right. There is too much of a tendency in American society generally, and on colleges campuses specifically, to divide people into hostile camps. Our goal was not to replicate or encourage those divisions. Frankly, dividing the professoriate into hostile camps will only make us more vulnerable to attack and weaken our ability to defend ourselves from the threats that surround us. Those who insist that they will only make common cause with those who share all their political commitments and priorities enervate the cause of academic freedom. Our mission is narrow, and our members share a fundamental commitment to academic freedom, even when they share little else. The AAUP was founded on a commitment to universal principles of academic freedom for every professor regardless of their politics or the substance of their views. The AFA stands on that same ground.
We were looking for common ground, and I think there is plenty of it. Every single member of the organization agrees with the universal principle of defending the academic freedom and free speech rights of every professor, regardless of who might be assaulting those rights and or who might be under assault. The donor who provided our seed money to get started might be personally conservative, but he is no culture warrior and he was emphatic that we should be committed to a broadly civil libertarian position and be eagerly defending all faculty, whether they are on the left or the right. Anyone who donates to the organization should understand that is our bedrock commitment as an organization.
I understand that there will be those who will try to portray us as a right-wing soldier in the culture wars because that is the political environment in which we live these days. I understand that there will be those who would like to recruit us into being a right-wing soldier in the culture wars, because the culture wars always need new recruits. There will be occasions in which those on the political right might well see us as allies, but there will also be occasions in which they will see us as foes. We will go to where the battles are, and we will fight on the side of academic freedom and free speech. I hope anyone who cares about their own academic freedom and free speech will join us in that effort. And those who would seek to assault academic freedom and free speech will find us arrayed against them, regardless of whether they mount their offensive from the left or the right.
Q: Do the faculty still matter when it comes to academic freedom? In universities run by vast armies of administrators and influenced by so many others, do the people who run colleges actually care about what the faculty think, and will they be swayed by criticism from you?
Keith Whittington: This is certainly a real issue. The modern university has a lot of stakeholders, and faculty are just one of them. At many institutions, I think it is entirely fair to say that faculty are not understood to be a particular important constituency. The erosion of the status of faculty at many American universities is inevitably accompanied by subtle and not-so-subtle changes in the mission of the university and a reduction of the importance of scholarly values like academic freedom to the operation of the university. It seems likely that at some institutions, university leaders are still likely to care about what a distinguished group of faculty has to say about academic freedom. Some institutions might still prefer to avoid taking a reputational hit from being criticized by a faculty group for impinging on the speech rights of their professors. We certainly want to take advantage of that when we can.
It might still be the case that at least some outside interests can be mobilized by such public criticisms of a university. Even when university leaders do not specifically care what a faculty group says, they might still be responsive to a broader chorus of public criticism of how administrators have handled a campus controversy. Even if university leaders are not as responsive as one might like, the worst thing we could do is leave individual faculty members isolated and alone. It is surely the case that faculty will be worse off if university administrators are left to make these decisions with no concern that they might face outside scrutiny. There is no doubt a need to improve the status of faculty at many institutions, and academics need to do a better job of explaining to the broader public – including alumni, donors and politicians – why academic freedom matters and what damage will be done if it is lost. If there is no external constituency that is sympathetic to the principles of academic freedom, then we will be howling into the wind. We will all be more vulnerable if academic freedom is just seen as a self-serving entitlement of professors with no larger social value.
These concerns are part of why the AFA is willing to turn to the courts when universities do not respect the established legal rights of faculty. Fortunately, many universities have integrated fairly robust protections for academic freedom into their own governing documents that define the contractual relationship between the universities and their professors. In some cases, professors can also fall back on statutory and constitutional protections for their speech. The challenge is to get universities to live up to their legal obligations. When controversies erupt around professorial speech, those professors need to know what rights they have, they need the assistance of competent legal counsel, and they need to be prepared to vindicate their rights in court. When university leaders are deciding the fate of a controversial professor, the professor needs to be able to balance the scales by making it clear that it will be financially costly if a university violates legal rights. It is an uneven battle between a university and an individual faculty member. When professors have acted within their rights, they should not stand alone in defending themselves and they should have access to the resources and expertise that they will need to mount an effective defense. We very much hope that university leaders will be less tempted to behave badly if they realize that such behavior will not go unnoticed and will not be costless.
Great interview and a very thoughtful man. His immediate invocation of free thought, versus free speech, is very important to distinguish, and speaks more to what Harvard Law’s brilliant Charles Fried calls the “Ground Zero Rule” of speech protection which is content (from the mind). The reference to the Salaita event otherwise as “public controversy” is not quite accurate though; it was more a very limited special-interest lobbying that uses effective reputational and other blackmail to intimidate university administration, and certainly their Boards. It was indeed as he says a “wake up call” as to the risks from the “woke.” But where did this all come from? In my experience it is a highly organized political initiative,effectively of the two prior administrations: one (Obama) the advocate and organizer; the other (Trump) the antagonist and accelerator. And now, further consolidated and institutionalized by the new regime. I continue to believe that a professor’s best friend (or anyone’s) in these matters, if attacked, is a smart lawyer, with his or her business card in your front pocket at all times. You have to fight, and fight aggressively, for your rights. When you do, the opposing party in this case always backs down: while they may be motivated by ideology and group solidarity, they are more motivated by fear. Regards, ’96, UChicago; ’84, UTexas Austin
> The AFA’s founding was pushed by conservative professor Robert George, funded by a conservative donor, and based on media coverage seems largely aimed at fighting “wokeness.” Why should moderate and progressive professors embrace a group that may seem like yet another right-wing tool in the culture wars?
I’ve never met Profs. Jason Kilborn, Laura Kipnis, Bret Weinstein, or Ronald Sullivan. But I should personally be greatly surprised if it transpired that any of them have ever pulled a lever opposite the letter “R” since they were old enough to vote.
After the experience of the twentieth century, it seems extraordinary that academics can be unaware that authoritarianism, and the propensity to abuse power, never reside at just a single coordinate on the political axis.
A few of the questions John didn’t ask:
1. What is the connection to FIRE? How explain the overlaps of leadership/membership?
2. Who is the conservative donor? and what is their record?
3. There are members of the board who have been notorious backers of attacks on professors critical of Israel. How will that play out in deciding who merits defending?
4. What are the guiding principles for deciding whom to defend or not to defend? Is the decision to be ad hoc on the perceived merits of the case? What do the merits of the case consist of?
5. What about Title IX issues? Laura Kipnis has a very sharp position on this. Will she be the person deciding those issues?
6. Why do they think that the threat of law suits will have any more impact on recalcitrant administrations than the threat of censure from AAUP?
7. How do THEY define academic freedom?
> Is the decision to be ad hoc on the perceived merits of the case? What do the merits of the case consist of?
In fairness, the same questions might be asked of the AAUP itself.
As for question 6, that one surely answers itself. Courts can compel compliance with their rulings. Judging from the institutions that have continued on their merry way despite spending decades—in one case, I believe, more than half a century—on the AAUP’s censure list, that sanction does little or nothing to modify the behavior of offending universities and colleges.
Thanks for this. I don’t want to drag this out in the comment section, so let me just be brief.
I do now serve on the board for FIRE, and we would hope to coordinate some of our activities in the future since we have a partly overlapping mission. But AFA is an independent organization with its own decisionmaking structure and mission to advance.
Our initial donor is listed on the AFA website, and is the John and Daria Barry Foundation. The foundation has primarily focused its philanthropy on K-12 education, veteran health issues, and local water pollution problems.
We have a diverse membership and a governing board committed to broad protections for free speech and academic freedom. if professorial speech rights are violated, we intend to defend them regardless of the content of the speech.
For members, we are committed to defending them when they have a legally defensible claim. For non-members, we will necessarily be more selective. The priorities in such cases will no doubt be influenced the clarity, prominence and significance of the case, the resources that might be needed, and the broader support available to the individual.
Title IX as such is not in our wheelhouse, but there may be circumstances in which it is apparent that a Title IX investigation raises important issues of faculty speech. Kipnis does not currently serve on our academic committee.
I am not necessarily optimistic that the threat of litigation will be any more effective at motivating recalcitrant administrators. We shall see. At worst, litigation can sometimes be useful in vindicating rights violations and the threat of litigation might be helpful in achieving better resolutions for individual professors.
I take the 1940 AAUP statement on academic freedom as my touchstone, and I expect that will generally be the posture of the AFA. But ultimately, we are focused on legally defensible claims within particular institutional environments, and individual cases may well turn on what policies have been adopted locally — though those local policies might well be inadequate and quite appropriately criticized.
Joan Scott asks what I’ll take to be a serious question: “6. Why do they think that the threat of law suits will have any more impact on recalcitrant administrations than the threat of censure from AAUP?”
My only mildly cynical assumption is that censure by the AAUP has no effect on any college or university. Has there ever been a case of a prospective student or faculty member declining to go to Bob’s University because Bob’s University is on the AAUP censure list? Has there ever been a case of AAUP censure that causes any college or university any pain whatsoever? Being labelled a party school might be a worse thing. And, on the flip side, while the threat of a suit might also be rather toothless, an actual suit can have palpable effects. I’m very happy to be wrong, but many of us have long felt that AAUP “censure” is theater.
One of the challenges in the overall governance structure of universities is that administration often, if in most cases strictly, come from the faculty departments in their own institutions, or others. Chicago’s new president, a Ph.D alum, and former Berkeley chancellor, is an example. They are usually chosen precisely because of their academy, research and discipline bona fides, so other faculty, or the AAUP that may direct their sanction against the larger institution, are conflicted because among other reasons, these administrators often go back into their professor role: it is a revolving door problem. Moreover, the Trustee, Regents and other board member types, usually have a fairly casual relationship to the institution, just as in their commercial corporate counter-parts, and remain largely disconnected and unresponsive to the operations of the institution. So, the AAUP and others (like graduate students) are effectively pushing on a string: they have no “equity” claims in the university corporation like a shareholder or debt provider, and moreover, a university management structure is explicitly designed to be this way, so as to endure (or avoid) wave after wave of successive classes and professors that may seek innovations or changes, but the institution’s traditions–ivy and gothic buildings all–still stand. This cuts both ways. Should the academy own “shares” of the college? Or perhaps as in the original University of Bologna law school, the students ad alumnae owned the institution.
The purpose of the AAUP’s investigations, Walter Metzger noted, has been “to warn and to illustrate, rather than to avenge and redress.” Their primary purpose is to defend the profession and the association’s principles, developed over more than a century. While the AAUP hopes its activities will win redress for individuals whose academic freedom has been violated — and such redress is generally one criterion for removal from the censure list — that is not the principal goal. Nor is the censure list intended to promote boycotts, by students or faculty members. The goal is to encourage the adoption of AAUP-approved policies.
The record shows that many, arguably most, institutions, especially those with greater prestige, do seek aggressively to get themselves removed from the censure list, usually after there has been a change in administration. In arguably the premier academic freedom case of this century, for example, the Salaita case at Illinois, subsequent to reaching a settlement with Professor Salaita, the UI administration worked diligently with the AAUP to change its policies and take other measures designed to ensure a healthier atmosphere for academic freedom, none of which had been part of the legal settlement. These measures resulted in removal from the list in about two years.
As for the courts, many legal scholars have noted that academic freedom can claim limited, at best, legal standing, Justice Brennan’s famous claim that it “is a special concern of the First Amendment” notwithstanding. As the 4th Circuit noted in the 2000 case of Urofsky v. Gilmore, “any right of ‘academic freedom’ . . . inheres in the University, not in individual professors,” adding, not entirely correctly, that the Supreme Court “has focused discussions of academic freedom solely on issues of institutional autonomy.” Legal scholar Philip Lee contends that “while constitutional law is still the proper mechanism for defending institutional rights from government interference, contract law should be the primary mechanism for protecting professorial academic freedom.” That is why the AAUP focuses on getting its policies incorporated into collective bargaining agreements and faculty handbooks, a process that investigation and censure can facilitate.
As a First Amendment right, academic freedom unfortunately can claim limited, at best, legal standing. As former AAUP Senior Counsel Rachel Levinson-Waldman has written, the AAUP over the years “built a multilayered ‘common law’ of academic freedom . . . considered by many academics to be the ultimate arbiter on the matter.” That common law can provide the basis not only for contract language but also for the enforcement of professional standards by means of moral suasion and political pressure. By contrast, the approach of the judiciary “has generally been a series of gut feelings in search of a coherent philosophy.”
Hank’s description of the purposes of AAUP censure illustrate how and why it is not effective, and offer Joan Scott a more detailed and perhaps less cynical — though certainly naive — answer to her question about the relative power of AAUP censure and lawsuits.
And cynic that I am, I would take Hank’s description of the Salaita case with a grain of salt. After all, Salaita did sue and received a considerable settlement from Illinois, so the university had sufficient reason to reconsider its policies completely apart from AAUP censure. Avoiding another costly suit was, I would hypothesize, a more compelling reason to “ensure a healthier atmosphere” at Illinois. I am glad that the AAUP could offer advice to Illinois in its effort, but to believe that Illinois did so simply to end its censured status might be naive.
Hank’s further comments on academic freedom, while perfectly interesting, are not sequitur to the issue. I am happy that the AAUP can play a valuable role in a variety of regards. But Joan Scott asked about AAUP censure versus suits, and I still believe that suits ultimately have more power to accomplish change. Sadly.
It has always been my advice to students, professors, staff and even alumnae to always have your lawyer’s business card in your front pocket (or backpack, briefcase, or electronically) when on a university campus (or anywhere). They have become almost “extra-legal” territory where law is casually violated, unenforced, or simply left stale and dormant. You must assert aggressively your manifold rights, and immediately. Indeed, administration has its own internal legal team on campus every day, plus retained outside corporate legal counsel available 24/7, and at many campuses, its own effective police force, security guards, private jet (yes), limos, security cameras, data and intel systems with now your biometric information, facial recognition, even your DNA, and an army of staff to carry it all out. That is the reality of the modern corporate university and technocracy.
My comments that you find irrelevant about the legal environment concern what kinds of law suits might be effective. Like it or not, the record shows that suing for wrongful dismissal on First Amendment grounds has been of limited (and, given the increasingly conservative composition of the courts, worsening) success. Suits on a contractual basis may be more effective, but that depends, in part, on what is in the contract. Hence, an institution that adopts strong protections for academic freedom, including at the impetus of removing AAUP censure, in employment agreements and faculty handbooks will likely be more vulnerable to a favorable verdict in a suit that alleges violation of those policies. That’s one reason why the AAUP has always emphasized various ways of getting our policies adopted and has not been focused solely on individual cases.
As for the Salaita case, I can only say that in multiple conversations between AAUP staff and leaders, including me personally, UI administrators repeatedly expressed a strong motivation to get off of the AAUP censure list both before and after they reached a settlement with Professor Salaita and his attorneys. They might well have acted without censure, of course, but because of censure they did so in close consultation with the AAUP, which in effect helped shape (even to an extent may be said to have directed) the reforms they adopted. In that sense, censure was a success.
In other cases, however, it is not. Take, for instance, the Teresa Buchanan case at LSU, which remains on the censure list. Her First Amendment law suit, filed with the assistance of FIRE, was dismissed on appeal (https://www.aaup.org/brief/buchanan-v-alexander-no-18-30148-5th-cir-march-22-2019). And, sadly, LSU remains reluctant to work with AAUP to remedy the policies that led to censure, so in that case neither strategy has as yet been effective. Frankly, for both the AAUP and the legal system, one might say, we win some, we lose some. But we don’t stop fighting in either arena.
Sorry Hank, you have a way of wandering off into side issues. Please read Joan Scott’s question again.
Apparently the AAUP agrees. The e-mail it sent me this morning is full of details of the *amicus* briefs it has filed in various legal cases.
> Is the decision to be ad hoc on the perceived merits of the case? What do the merits of the case consist of?
In fairness, the same questions might be asked of the AAUP itself.
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The AAUP’s analyses of alleged violations of academic freedom are based solely on the policy statements adopted over the course of more than a century, Since the founding of the AAUP in 1915, those statements first defined academic freedom, and then explored its parameters as new technologies and political developments shaped higher education.
These policy statements guiding the profession are transparent, published in the Redbook: https://www.aaup.org/reports-publications/publications/redbook
My point was not in respect of what the AAUP’s policy documents state, but rather the cases in which the Association takes action to uphold them. For example—and I’m open to correction if I’ve missed something—I haven’t been able to find an AAUP statement in defense of Prof. Bret Weinstein of Evergreen State College, one of the more flagrant (and high-profile) cases of academic-freedom violation of recent times. Prof. John Wilson recently told us in this venue that we need not expect the Association to have anything to say about the dismissal and suspension, respectively, of Profs. Sandra Sellers and David Batson, late of Georgetown University Law School, notwithstanding his persuasive argument that both actions constituted “a clear violation of both Georgetown’s rules and AAUP guidelines.” In fact, considered strictly on the merits of the cases concerned, I find it impossible to predict the violations about which the AAUP will speak out and those it won’t—consider, e.g., Prof. Reichman’s public warning that the dismissal of Prof. Garrett Felber of Mississippi “may at some point become the subject of an AAUP investigation and a possible recommendation by Committee A that the school’s administration be censured for violating academic freedom” and the Association’s silence about what appears to be the no less pretextual firing of Prof. Charles Negy of Central Florida.
My initial reaction, therefore, is to welcome the AFA’s creation. I don’t know if its donors’ politics are the same as mine, and I don’t particularly care. If it takes up the cudgels to counter those violations of academic freedom that the AAUP is unwilling or unable to address, it will be performing a very useful service for the profession as a whole.