University of Chicago Law School Chicago Unbound

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2005

Free Speech and Academic Politics (reviewing Donald Alexander Downs, Restoring Free Speech and Liberty on Campus (2005))

Geoffrey R. Stone

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Recommended Citation Geoffrey R. Stone, "Free Speech and Academic Politics (reviewing Donald Alexander Downs, Restoring Free Speech and Liberty on Campus (2005))," 4 Perspectives on Politics 740 (2005).

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Restoring Free Speech and Liberty on Campus. By Donald Alexander Downs. New York: Cambridge University Press, 2005. 318p. $28.99 cloth, $19.99 paper.

Review Editor's Introduction Nancy J. Hirschmann, Jeffrey C. Isaac The University of Pennsylvania D onald Downs's RestoringFree Speech and Libertyon The stated themesof Donald Downs's book areones with Campus is an important book. Like his earlier which most readersof this journalwill be sympathetic: books, it integratespolitical theory,jurisprudence, Intellectual freedom is themost important commodity and policy analysis to addressa matter of contemporary academics have; it is under siege on a variety of fronts; concern. In this case, thematter at hand is directly rele some of these frontsmight appear innocentbut areoften vant to all scholarsand teacherswho work in the contem only the thin edge of thewedge; and facultymust recog porary American university. Since this includes most nize these threatsand organize themselvesto resist.This is political scientists, it seemed like a good idea to open the a timely reminder,for thereare many threatsto academic pages of the PerspectivesBook Reviews to a rangeof per freedomfacing us today:Campus Watch, which has posted spectiveson thebook. I have thus soughtout a "balanced" online the dossiersof professorswho supposedly sympa cast of distinguished commentators, in the hope that the thizewith Islamic terroristsand encourages students to juxtapositionof different reviewswill help to promote "inform"on theirprofessors for allegedanti-American sen seriousdiscussion of academic freedom issuesof concern timents;David Horowitz's so-calledacademic bill of rights, to all of us. Some of these issuesare juridical,and regard which targetsprofessors who supposedlydisplay that favor theways inwhich universities,academic departments, and ite shibbolethof the rightwing, "liberalbias"; the Patriot perhaps even professionalassociations are called upon to Act; and government surveillanceand wiretapping. More codify "diversity"considerations and balance thesewith over, the strength of these efforts to suppress speech is other considerations, including "academicexcellence" but frightening:Well funded, but not very thoughtful, they also civil liberty and robust debate. Some of them are often hijack the truth in vitriolic hatred of academics. principally ethical, and regard the habits of mind most Unfortunately, thebulk of thisbook takesus in a direc conducive to intellectual inquiry and liberaleducation. tion opposite the one his urgent title suggests.Although These issuesare complicated and controversial.In featur Downs acknowledges some of the aforementioneddan ing theDowns volume and the three reviewsthat follow, I gers in his eloquentlywritten preface, thebook focuseson sought to stimulateintelligent discussion about themwithin events that happened in the 1980s through the mid the political scienceprofession. It ismy intention to orga 1990s, in response to race-and sex-harassmentcodes on nize similardiscussions of other importantbooks in future various university campuses.His focus is not on dangers issues. to the academy from the outside but on dangers from within, and he cites "politicalcorrectness" as the prime enemy.He claims that the lessonswe can learn from the events surrounding the defeat of these codeswill help us figureout how to dealwith the new assaultson intellec tualfreedom. But thatconclusion isharder to grasp,because he excludes from his analysisa considerationof the roleof political power. One could argue that the reasonfor this lack is that the book is reallya memoir; Downs teaches,after all, at the University ofWisconsin, the subjectof themajority of the chaptersin thebook, and he iswriting primarilyabout his own efforts to defeat that university'sspeech code. His book ismore a narrativeof events than an intellectual

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analysisof the concepts and idealsat work. And as a nar throughprocesses that are too often secretand potentially rative,it isobviously rather one-sided, reflectingthe author's corrupt by administratorswho are not reallyqualified to own experiencesand perspectives. oversee them.But that is amatter of incompetent admin A memoir isnot reallythe kind of book thatPerspectives istration,not ideologicalbias. Any procedure can be per on Politicswould be reviewing,much less featuring in a verted, includingdue process. symposium, however.And in his preface and conclusion, The ideabehind thesecodes is something else.And that Downs tries to link his own experience to a broadersocial is to level the playing field of power. In an intellectual phenomenon, to go beyond memoir to quasi-academic community that depends on the free expressionof ideas, study.Hence, there is a chapter on my own institution, thepower dynamics that systematicallysilence certain peo theUniversity of Pennsylvania,one on Berkeley,and one ple by virtue of who they are is self-defeating, if not self on Columbia. This iswhere things become more prob contradictory.Women andminorities are still less likely to lematic.The Penn chapter, for instance, is filledwith a speak in class, less likely to be called on by professors, less narrativeof events that is skewedby ideology.Downs relies likely to assume campus leadershippositions. Certainly, on Penn law professorAlan Kors as his primary source Downs does not expect us to believe that this is because (with some referencesto various campuspublications and themarketplace of ideas reallyworks, that the deck isnot the Chronicleof Higher Education), complaining thatmy stacked,or thatmore speechwould somehow fix this.As colleagueSheldon Hackney, Penn'spresident at the time, vital as the FirstAmendment is,we must acknowledge and others at Pennwould not consent to be interviewed. that it ismore often used to shore up the power of those Yet Hackney haswritten a book about the incident him who alreadyhave it.The liberal ideal is that free speech self,and fairnesswould suggestreliance on it aswell. Downs allows theminority, the personwith the unpopular view, cites it only a few times in a ratherpatronizing tone, pre to be empowered to speak up. But that is not generally ferring to rely on Kors, who ismore sympathetic to the what happens.The FirstAmendment ismore often used storyDowns wishes to tell. to protect pornographerswho want to beat up and rape This is the sort of thing thatmakes me, as a scholar, women for fun and profit or it isused to protectNazis and suspiciousof the restof the book. The advocatesof uni Klansmen (asDowns showed in his firstand much better versityprocedures to servevictims of sexualassault, sexual book, Nazis in Skokie, 1985). harassment,or racismare uniformly presented by Downs One could argue that free speech iswhat enabled the as extremists,devious radical ideologues, andMachiavel civil rightsand feministmovements, but did it?Free speech lian "masterstrategists" (p. 252), while those interestedin did not preventMartin Luther King, Jr., from getting maintaining the statusquo aredescribed as heroic defend killed, or black freedommarchers from being beaten, ers of basic human liberties. In the Columbia chapter, burned, and arrested;it does not keepwomen from get rapevictims are reducedto "accusers,"advocates are "activ ting harassedor passed over for tenureand promotion.At ists,"and a lawyerwho ismore concernedwith the accused best, speech is one of a group of ideals, such as equality, than the victim is described as "brilliant"(p. 75) without democracy, recognition, and diversity, that animate the any evidence to back up that assessment.Downs mocks a claims of disadvantagedgroups. All of these ideals, not Wisconsin colleague'saccounts of victimization by racist just free speech, are needed if the academy is to be truly epithets, claiming that his "dramatic"style during a fac inclusiveand accessible to all. ulty senatedebate over a harassmentcode, ratherthan the The Millian notion of equal liberty is at the heart of validity of his argument, "assuredour defeat" (p. 208). Downs's book, though it is unacknowledged.The liberal Downs's justificationfor these selectivenarratives is, as saying thatmy right to swingmy fist endswhere the other in the Penn chapter, that relevantpeople refused to be guy'snose beginsmeans that themore people thereare in interviewed.But arewe not, as social scientists, supposed a given space, all swinging their arms, the less freely they towrite the book towhich the evidence leadsus? Ifwe are can swing them.White, professional,heterosexual males, facedwith difficulties in gathering reliabledata, arewe who have been used to swinging their fistswherever they not obliged to reconfigureour thesis? wish, are now constrainedby the fact that they have less Perhaps evenmore troubling than the unreliabilityof room becausewomen, racialminorities, and sexualminor the narrative is the booWsinadequate analysis of the con ities are seeking to share their space.This is a classicprin cept of free speech,of power,of the dynamicsof academic ciple of liberalism thatDowns seems tomisunderstand: and intellectual communities, and of the ambiguity in For everyone to have equally free speech, each of usmust which the principle of in locoparentis places colleges and exertmore self-controland limit ourselves from the free universities.These ideasare mentioned in passing at var dom thatwe used to have at others' expense.Understand ious points, but never seriouslydiscussed. ably, those in power do not want to do that. For the record, I do not really trustharassment codes, Power also defines the termsof the debate, a point that for the reasonsthat Downs illustrates:They do not accom Downs alsomisses. For instance, he relabelsharassment plish what they are supposed to, for they are enforced codes as "speechcodes," which then enables him to shift

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This content downloaded from 128.135.12.127 on Tue, 29 Apr 2014 13:24:52 PM All use subject to JSTOR Terms and Conditions the reader'sperspective of events in amisleading manner. suchcomments as racist,whether thewhite studentsadmit For example, he discusses an incident of a colleague at ted to such intentionsor not. Wisconsin saying "Seigheil, comrades!"to graduate stu Whether this amounts to full-scale racialharassment is dentswho were being rude to him. Is thatneeded? Because extremelydubious, and the fact that the student offered to one student was "partGypsy, and the other'swife was apologize should have ended it, asDowns suggests,per Jewish,"they brought a chargeof racialharassment against hapswith some campuswide race awarenessdiscussions. the professor,and Downs complains that it should have At the same time, however, escalating this incident into a been seen as an issue of "uncolleagiality,"rather than as "freespeech" issue, and a caseof "progressivecensorship," harassment (p. 28). Supposedly, the professor was is at leastas problematic.Labeling insultsas "freespeech," unawareof the students' racial ties, but does that really thoughperhaps in keepingwith the law,nevertheless triv make a difference?This is not talk radio, after all; it is ializes the importanceof speech and makes speech the theuniversity, where facultywield considerablepower over universal stand-in for bad behavior. In the academy, in studentsand where such antagonisticexpression isbound particular, the importanceof speech has to do with the to silencestudents dependent on these facultyfor approval vitality of intellectualdiversity, theMillian insight that of theirexaminations, dissertations, lettersof recommen unpopular ideasmight have some truth in them.Hence, dation, and ultimately jobs.Courtesy and respectmust go when Downs claims that "thesingle most importantpoint both ways. in this book" is that "aproblem ariseswhen philosophical The Penn case illustratesthese points aswell. As Downs and political differences are dealtwith not by discussion describes it, someAfrican American sorority sisterswere and debate but by the recourseor referenceto coercive, engaging in very loud celebratingoutside a dormitory late punitive measures and powers that in effect 'criminalize' at night, and severalmale residentsof the dorm shouted disagreement" (p. 215), he expressesa philosophywith insultsat them, including "Blackbitches," "Blackasses," which all readersof this journalundoubtedly agree.But and themost infamous insult: "Shut up, you water buf exactly how is calling someone awater buffalo a "philo falo, if you want a party there'sa zoo amile from here." sophicalor political difference?"Did the studentput forth The women entered the dorm, demanded to know who an argumentdefending this choice of insulton political or shouted the insults,and were referredto the Jewish fresh philosophicalgrounds? Did Downs's colleaguedo sowhen man who shouted thewater buffalo insult.A charge of he called his students "feminazis"(p. 30)?Not as far as racialharassment was brought before the university judi Downs's narrativereveals. As a result,his elevationof these cial administratorand the studentwas facedwith the pos acts to "philosophical disagreement" or "political sibilityof expulsion (pp. 169 ff). difference"-both of which would be defensible under a The question'of how this got out of hand is certainly freespeech rubric-seems ratherdisingenuous. But it illus puzzling and dismaying.As Downs quotesmy colleague tratesthe ways inwhich power operates in this issue:Who Will Harris, the student'sinsult did not evenviolate Penn's gets to saywhat constitutes freespeech, who gets to define code (p. 175). But Downs ignores the largerissue of how harassment, are usually not the victims but the people the terms of "speech,""racism," and "harassment"got with power to protect. defined in this case in favorof focusing on how the uni Harassment codes no doubt have drawbacks.But the versity seemed to run roughshodover an 18-year-oldkid solution isnot simply to get ridof the codes because that who ended up being the scapegoat for pent-up hurt and just leavesracism and sexism in place.Rather, we need to anger on a campuswhere racism and sexismwere too establishdifferent ways of challenging the power of race commonly encountered.He saysthat itwas "widelyunder and gender privilege in the academy, to createmore space stood" that the slurwas not racist (pp. 17, 170-71). But forwomen and minorities to enter the marketplace of amongwhich audience:the white administratorswho pros ideas, to be listened to and heard. It is too bad thatDowns ecuted the case or thewhite facultywho defended the did not write about that,because thatwould be an appro white male student?Certainly not among the African priate focus for the organized faculty efforts that he says American female students. Indeed, the easewith which should be marshaled against censorship. Instead, it looks undergraduatewhite men shouted "blackbitches" out their as if in his view, free speech isnot for everybody-just for dormitorywindows-instead of, say,"Hey, keep it down, thosewho alreadyhave it. I have confidence that this is we're trying to study/sleep,"or even (imagine this!)walk notwhat he intended.But given his constrictedapproach, ing downstairs to ask thewomen to be quiet-suggests skeptical readerscan hardly be blamed forwondering. the disturbingnormalization of racistand sexistattitudes among these students and the freedom and power that they felt to express those attitudes at will. Furthermore, that particular insult invokes a long racist "tradition"of consideringAfrican Americans as animals ratherthan peo ple. So itwas not unreasonablefor thewomen to interpret

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Jeremy Rabkin, tapping into this extraordinarywealth of informationand Cornell University commentary. Downs can counter that a university ismore than a The title reflects the background premise of this recent mere location for personal research,more, that is, than a work: restoring free speech and libertyon campus. Free libraryor an Internetconnection. What troubledhim about speech has been threatened on campus but it can be the code atWisconsin was the possibility that itmight restored.That is themessage thatDonald Downs wants inhibit professors from speaking freely in the classroom. to convey.He is a professorof political science and law at He remainsconcerned that studentsmight be inhibited theUniversity ofWisconsin (Madison)and an unabashed by restrictiverules on other campuses.These are serious champion of free speech.He cites John StuartMill with concerns, particularlygiven that such campus standards respect, and he is something that has become less com areusually entrusted to bureaucratswho do not place high mon on American campuses, an old-fashioned liberal. value on preservingvigorous debate. Nearly a quarterof the book, in fact, is a personalmemoir If the issue is the qualityof intellectualchallenge on the of Downs' success,at Wisconsin, in persuading the faculty campus, however, formal restrictionson offensive speech senate to repeal its overly restrictivespeech code. are hardly themain threat.Challenging debate requires One of the book's central points is that threats to free divergent views. Yet on most American campuses today, speech on campus have come from unexpected quarters the rangeof opinion stretches through all the variations in recent years.Where in the past, academicsworried found between the soft Left and themore extreme Left. about threatsfrom state legislatures,Downs notes, "attacks Certainly the rangeof opinion on college faculties is less on free thought" since "the later 1980s ... have arisen broad than the rangeof opinion in, say, theU.S. Congress from leftist sources inside the ivory tower."It is hard to or even on theU.S. SupremeCourt. believe that this claim can still be "provocative"(as a Advocatesof affirmativeaction have claimed thatminor blurb on the back cover calls the book). Surely, this is old ity studentswill be hesitant to voice theirviews if they are news. Nor does it seem quite right to call this book toomuch in theminority. So, for example, theUniversity "inspiring" (as another dust jacket blurb has it). The of Michigan Law School insisted, in defending its racial challenges to "free thought" are not easily redressedby preferencepolicies for admission, that a "criticalmass" of the kind of counteroffensive the author celebrates at minority studentswas requiredto provide the full benefits Wisconsin. of "diversity"for the general student body.Whether this The nub of Downs's argument is that constraints on argumentmakes sense for the articulation of "black"or speech interfere,as Mill argued,with the searchfor truth. "Latino"viewpoints, it surelyhas a point when it comes Therefore universities,of all places,must be open to all to socialconservative or libertarianviewpoints: It isharder arguments.Probably the greatmajority of professorssym to speakup or speakout if you must expect to be entirely pathizewith this claim, at some level of abstraction. It isolated. does not follow, however, that removing official speech Yet, hardly anyone seriously argues that universities codesor abusivedisciplinary codes will assure"free thought" should try to ensure a representativesampling of Ameri or do much to promote any kind of "thought." can opinion in theirstudent bodies or their faculties.Cer The grounds for skepticism startwith the fact that, as tainly conservatives,who regardrace-based admissions or Downs himself acknowledges,free speech is alreadyquite hiring policies as insulting (as I do), cannot be pleased well protected outside the academy,at least in the formal with the prospect of bureaucratic tallies for student or sense of freedom from government controls. As courts facultyopinions. Apart from the indignityof such classi have interpretedthe FirstAmendment, government has ficationschemes, there is thehard fact thata good debate very little power to impose content-based controls on whether in a seminar,a campus publication, or a campus speech (or images, for thatmatter). Since the remaining event-requires more than a set number of participants government restrictions(on such thingsas libel,copyright from differentviewpoints. The contending views need to infringement,or extreme pornography) alreadyapply to be articulatedby peoplewho are intelligentand informed universities, almost any separate campus policy will be and seriousabout theirarguments. If thecontending views more restrictivethan rulesapplying to the generalpublic. are left to dolts or crackpots,no one will be much chal Downs decries the fact that some universitiesdid try to lenged. Formere rant, you can always find a chat group imposemore restrictiveor protective campus policies, but on the Internet. it is hard to argue that access to truth is greatly inhibited There may not be any direct policy to assurewider by such policies. In recent years, certainly, faculty and intellectual diversity on campuses. It is not reassuring, students have had access to an incrediblevariety of argu though, thatDowns's paean to intellectualfreedom skips ments, sources, statistics, and official and historic docu over this entire problem. As he says several times in the ments through the Internet. Even if they wanted to, course of the book, free speech rests on "formal"legal universitiescould not prevent studentsor professorsfrom principles. But the ultimate goal of universities-let us

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This content downloaded from 128.135.12.127 on Tue, 29 Apr 2014 13:24:52 PM All use subject to JSTOR Terms and Conditions call it intellectual challenge or serious inquiry-is not insulting stereotypes-but the paper did not apologize. assuredby formalities. The author again includesa reproductionof the cartoon, Even if one goes beyond the formalities,one might which most readersprobably would not regardas offen agreewith Downs (as I do) that speech codes aiming to sive ormalicious. protect studentsfrom a "hostileenvironment" are lesslikely We may not hearmuch demand thesedays for protec to encouragerespectful exchange than to stifleworthwhile tion of women from sexualized languageor imagery,but dissent.But I do not think theWisconsin experiencereally we are likely to hear quite a bit more demand for rules to tellsus asmuch about thevitality of free speech asDowns protectMuslim studentsand perhapsother minorities from suggests. "stereotypes"that affront them. Calls for such restraints There aremany reasonswhy the pressure for speech will be hard to sort out. There have been some episodesof codes, largelychampioned by feminists,had alreadybegun violence or vandalism againstMuslim institutions,and it winding down by the end of the 1990s.The Clinton scan is easy to sympathizewith efforts to reassurestudents who dals,which saw feminists retreatinto silence rather than feel threatened,particularly if theyhave come to anAmer embarrassa political ally,probably helped undermine the ican institutionafter growing up elsewhere.To draw sharp momentum of feministmoralism. At the same time, it linesbetween proper restraints on harassmentand improper was hard to reconcilefeminist warnings about discomfort constraintson free speechmay not be easy-particularly to women (from sexual innuendo generating a "hostile if people demanding protection claim to be insulted by environment")with demands of gay rights advocates for quite general political comment (of the sort exemplified open discussion and display of alternate sexuality.Some by theDaily Cal cartoon). feministswanted to restoreold rulesof demure speech, The most difficult problem, though, is not the chal while otherswanted to attackgender rolesand stereotyp lengeof protecting protestorsfrom overreaching rules but icalassumptions about the specialvulnerability of women. from abusive or intimidatingprotests. At theDaily Cal, Itwas never going to be easy tomaintain political disci protestors took their protest to the offices of the news pline in a constituency-"women")-so large, so diverse, paper.Was that threateningor just communicating?Else so entangledwith its supposedopposite ("men").Perhaps where, protests against newspapers (usually smaller feminismsimply ran through the usual lifecycle of protest conservativepapers) have taken the form of interfering movements, achieving some goals and then dissipating as with theirdistribution. At a college inMinnesota recently, activistsmoved on to other priorities. a professortried to post copies of theDanish cartoons that In any case, it did not requiregreat courage,by the late sparked attacks on Danish embassies inMuslim coun 1990s, to question the proprietyof campus speech codes. tries.The cartoonswere repeatedlyripped down frombul It is not particularly inspiring tome that theWisconsin letin boards, evenwhen placed under awarning labeland faculty senate agreed to disavow its codes in that era. a separatecover to assure that no one would have to see Downs's account of what happened there takes the trou themwithout wanting to see them.Century College seems ble to highlight the roleof student activistsurging repeal to have made no effort to find the perpetratorsof this of the speech code atWisconsin-conveniently including abuse or to prevent its recurrence. a gay rights advocate, severalwomen, a black, a Latino, What Downs actuallydemonstrates, in his case studies, and so on. There is no reasonat all to doubt the sincerity is thatuniversity administrators typically do not have strong of these individualsand others who responded to their convictions and tend to follow thepath of least resistance. arguments.But one may doubt that by the time they Facultymembers tend to be preoccupiedwith their own entered thesedebates, the campuswas reallyhighly polar work and not very engagedby debates about standardsfor izedon the issue. the campus in general. So activists tend to have a highly In addition to theWisconsin experience,Downs reports disproportionateimpact, whether theyare arguing for wider episodes atColumbia, theUniversity of Pennsylvania,and freedomor tighter inhibitions. In otherwords, "the aca Berkeley.Only in his discussionof Berkeleydoes he touch demic community" is not, in fact, a very strong commu on an experienceof recentyears. In response to student nity, and so it iseasily prodded or bullied by smallelements protests, theDaily Cal apologized to readersfor accepting in itsmidst. a paid advertisementby David Horowitz, which derided Ido not think thatcampus speech can be greatly imper the notion thatAfrican Americans should receive"repara iled in themidst of a largersociety that remainsso accus tions"for slavery.Downs provides the textof the ad, allow tomed and so attached to free debate. But assuring ing his readersto verify that itwas not, whatever itsother conditions for civil debateon campusesmust be an ongo attributes,an argument thatcould reasonablybe described ing effort. It will not be "restored"just by repealing a as racistor insulting.The same student paper published a feministspeech code. cartoon, shortly after the 9/11 attacks,depicting bearded and turbaned figures in a flaming hell. Here, too, there were protests-on thegrounds that the cartoon purveyed

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Geoffrey R. Stone, Although Downs's analyses occasionally strikeme as The University of Chicago over the top, for themost part he gets it right.Universities are institutionsdedicated to the discovery and transmis Rarely have I reada bookwith whose core thesis I so fully sion of knowledge, understanding, and truth.They are agreebut which nonetheless so setsmy teeth gnashing. I designed, at their best, to nurture and shape the intellec beginwith the agreement,which ismore important,and tual,scientific, moral, artistic,political, and economic lead return later to the gnashing. ers of the future. They are committed to free and A recipientof theGladys A. KammemerAward of the uninhibited discourse,not because such discourse is a law American PoliticalScience Association forhis earlierwork of naturebut because it is the bestmeans to theseends. As on the politics of pornography,Donald AlexanderDowns RobertMaynard Hutchins once observed,universities that argues inRestoring Free Speechand Libertyon Campus that do not permit the full and open discussion of even the over thepast twodecades, we have seen a dangerous rise in most odious and unnerving ideasare not universities.The "progressive"(that is, liberal)censorship on collegeand uni commitment to eschew censorship is so elemental that it versity campuses that threatens academic freedom and constitutes the very definitionof a university. betrays themost fundamentalvalues of American liberal What are the limits of this proposition? If a professor ism.Embodied in various formsof speech codes, thisnew has a right to teach communism, does another have a censorship,he argues, isdeeply connected to thepervasive right to teach intelligentdesign? Does a universityviolate nessof affirmativeaction and to theunthinking willingness its commitment to free expressionwhen itmakes faculty of liberalsto sacrificefree expression on the alterof diver appointment and promotion decisions based on the "mer sity.Rather than teach students-minority students, in its"of the candidate'sideas? Does amathematics professor particular-the fundamental values of autonomy, self have a right to teachhistory? Does a professorhave a right reliance, independent thought, and intellectualand per to give a student a low grade because of a disagreement sonal resilience,advocates of affirmativeaction and speech with the student's ideas?Does a professorhave a right to codes seek to coddle thesestudents by shielding them from teach in a courseon American history thatAfrican Amer the slingsand arrowsof uninhibited and robustdebate. In icans or women are genetically inferior to white men? short, theprice of admitting academicallyunprepared stu Does he or she have a right to refer toAfrican American dents inorder to achievediversity is thesuppression of ideas students as "darkies"or women students as "chicks"?Does thatmight threatentheir securityand senseof self-worth. a student newspaper,which is funded by a university,have Downs observes thatuniversities serve a rangeof often a right to advocateviolence againstMuslim students? conflicting ends. They pursue truth, prepare students It isoften easier to celebratea principle than to apply it. to be thoughtful and informed citizens, and promote Downs makes much of the ideaof academic freedom,but civility andmutual respect.Speech codes, he maintains, he never quite defines it or explains its relation to theFirst undermine all of these values. Even more important,he Amendment.This was one causeof my gnashing.Through chastises institutionsof higher learningfor failing in their out thebook, Downs invokes theFirst Amendment as if it responsibilityto instill in the next generationof America's governs private aswell as public universities. It does not. and theworld's leadersan appropriateunderstanding and Like the Constitution more generally, the FirstAmend appreciationof the essential principles of freedom.Uni ment regulatesonly thegovernment. Although theUniver versities,he concludes,must get over theirobsession with sity of California and the University of Wisconsin can sensitivity and get on with the task of preparing their violate the FirstAmendment, Columbia and Penn have students for the challenges of contributing to self no capacity to do so.As private institutions, they are not governance in a free and open society. in anyway subject to the constraintsof theConstitution. The author argues that to combat the pressures for This is a fundamentalpoint about constitutional law. It is political correctnessand censorship, the defendersof civil disappointing thatDowns exacerbatesthe general confu liberties-professors, students, trustees,and administra sion on this point-all themore so because he clearly tors-must stand fast against hysterical and unfounded understands it. (At least once in the book, he properly claimsof racism,sexism, homophobia, and the like.They draws thedistinction.) This matters becausewhen we speak must learn to act strategically,to organize politically, to about speech codes, Columbia and Penn are in a com form effective allianceswith the generalmedia and the pletely different legal and constitutional position from public, and to use outside organizationsand individuals Berkeleyand Wisconsin. Downs's failureto make thispoint who can help refute the claims of thosewho demand plain is deeply discouraging,especially to a constitutional suppression.To substantiate these claims, he uses several lawyerwho relishes the notion that citizens should have case studies, examining in extraordinarydetail controver someunderstanding of theirConstitution. sies that arose at Columbia, Berkeley,Wisconsin, and Moreover, it isnot enough simply to assert the princi Penn in recent years.Those case studies comprise some ple that academic institutions should not engage in cen 75 percent of the book. sorship and then condemn speech codes as incompatible

740 Perspectives on Politics

This content downloaded from 128.135.12.127 on Tue, 29 Apr 2014 13:24:52 PM All use subject to JSTOR Terms and Conditions with that principle.The sourceof the principle (whether patiblewith bothFirst Amendment principlesand theval it be the FirstAmendment or "academic freedom") is ues of academic freedom,and he is right that they should important,and as I hope my hypothetical examplesmake be excised from higher education. clear, the substantivemeaning of the principle is hardly Why, then,my gnashing (apartfrom what somemight self-evident. dismiss as my merely "legalistic"points)? Let me offer So, is academic freedom simply another name for the threecriticisms. First, toooften Downs sounds likea shame FirstAmendment? Are private institutions"bound" by the less pitchman for his heroes,Alan Kors, Harvey Silver sameprinciple aspublic institutions,even thoughonly the glate, FIRE (Foundation for Individuals Rights in latterare governed by theConstitution? If so,what is the Education), and CAFR (Committee forAcademic Free sourceof thatconstraint, and who enforces it?In fact, aca dom and Rights). Granted, they have made significant demic freedom isquite differentboth in itsorigins and its contributions,but Downs's incessantcelebration of their meaning from the FirstAmendment. The FirstAmend courage, wisdom, integrity, and zeal is downright ment in the university setting is directed primarily to the embarrassing. typesof restrictionspublic institutionsmay constitution Second, and related to this point, Downs's tone is too ally imposeon freespeech. May theUniversity of Colorado often self-satisfied,high-minded, self-righteous,and far firea professor for publishing deeply offensive statements too cocksure.Good advocacy (and this is a book of advo about thevictims of September 11 ?May theUniversity of cacy) requirescredibility. It demands the ability to get Texas expel a student for calling another student a "fag"? inside the skin of one's opponents and to understand the In answering such questions, the FirstAmendment may complexity of the issues from theirperspective. Restoring constrain the decisions of the public university,and it is FreeSpeech does not do this.Too often, it lapsesinto free the courtswho may ultimately resolvethe issue. speechslogans and seeminglyself-evident assumptions that Academic freedom existswholly apart from the First arenot self-evidentat all.Too often, it fails to exhibit that Amendment and it exists (ormay exist) in private aswell very self-criticalthinking, empathic reasoning,and scru as public institutions. It is not imposed by any external pulous scrutinyof argument that free speech at its best is sourceof law. It is a commitment each college or univer all about. sitymakes to itself and to its various constituencies (that Third, Downs sometimesmakes important leaps that is, faculty,students, alumni, etc.). It is often unenforce are largelyunexplained. Consider the incident at Penn, able in a court of law (although it may sometimes be which involveda studentwho shouted "Shutup, youwater enforceable if it is embodied in some form of contract buffalo!"to a group of AfricanAmerican women students between the universityand its facultyor students).Most who weremaking noise lateat night outside his dorm.He fundamentally,academic freedom is lessabout what restric was accusedof using a racistepithet in violation of Penn's tions a college or universitymay imposeupon freeexpres speech code.Was it a racist epithet?Downs says "no" sion than about who may impose those restrictions.The because the studentwas Jewish and inHebrew a phrase centralmeaning of academic freedom is faculty gover similar to "waterbuffalo" means a rude or rowdyperson. nance. It promises that facultymembers, applying pro If the student had shouted "Shutup, you rowdyperson!" fessionallyaccepted scholarlyand pedagogical standards, no one would have construed his exclamation as racist. rather than administrators,trustees, students, or legisla But is that the centralpoint of the incident?Should the tors,will determine themanner inwhich the quality of centralquestion not bewhether the incidenthad anything one's ideasand expressionsmay be evaluatedwithin the to do with academic freedom?What is the connection academy. betweenour preciousacademic freedom, which isdesigned Downs's failure to articulate the essential difference to promote freeand robustacademic discourse, fierce intel between academicfreedom and theFirst Amendment com lectual debate, and courageous scholarly inquiry,and a pounds the failure to distinguish clearly between public student shouting "waterbuffalo" from his dorm room at a and private institutions.He presentshigher education as group of boisterous students?What does this have to do largelyunitary when, in fact, the legaland culturalrestraints with academic freedom?(Note thatbecause Penn is a pri that govern these institutions, and the sources of those vate institution, the incident has nothing to do with the restraints,may varywidely. In short, the analysisof speech FirstAmendment.) codes, or of any restrictionson expression in the settingof It is incumbenton thoseof uswho believe thatpunish higher education, ismuch more complex and nuanced ing a student for such speech poses a serious threat to thanDowns acknowledges. academic freedom and, in a public university, a serious Having said all this, I ultimately come out pretty close infringementof constitutional rights, to explainwhy this tODowns. As he documentsin his fourcase studies, col is so. There are good and compelling reasons to support legeand universityspeech codes tOOofren have been ideo this conclusion, but theydo not make much of an appear logicallymotivated devicesdesigned tOcleanse theacademy ance in the book.Of course, thereare "slipperyslopes." If of politically incorrectideas. To thatextent, theyare incom you can punish this student, thenwhy not punish the

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This content downloaded from 128.135.12.127 on Tue, 29 Apr 2014 13:24:52 PM All use subject to JSTOR Terms and Conditions mposum I Free Speech and Acadei Politics

teacherwho refers to his African American students as I have been hard in this review.I do not know Downs, "darkies"?And given those two cases,which way does the but I know hewill understand, for that iswhat his book is slope slip, anyway?Even Downs concedes that he would all about. This is a very good and very useful book. It is allow speech in a university to be punished if it constitutes right in its conclusions and passionate in its convictions. I a threator harassment.But why draw the line there?Sim justwanted it to be even better.Here is a test:Would a ply to assert this isnot tomake an argument, let alone to readerwho did not agreewith Downs at the beginning of win one. He would have done well to devote fewerpages the book agreewith him at the end?My guess is not. To to applaudinghis heroes and obsessing over the details of the contrary,I suspect that the readerwould be evenmore these incidents and more to setting forth the subtle and convinced at the end that he or she was right all along. critical reasoningon which his principles rest. Alas, that is usually the price of overstatingone's case.

742 Perspectives on Politics

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