The recent past demonstrates that freedom of expression on college campuses has attained a breadth and intensity of support, within academe and without, that is unprecedented in the nation’s history. President George Bush illustrated this when he charged in a commencement address at the University of Michigan in 1991 that “political correctness” was threatening the Bill of Rights on some college campuses.
There was a time when the accusation that an administrator was “letting things get out of hand” meant that he or she was allowing faculty members and students too much liberty. Now, the danger of being accused of dictatorially imposing authority or letting curbs on speech flourish is the risk that haunts many college deans and presidents.
Such apprehension is reasonable. Publications such as The Wall Street Journal, The New Republic, and The National Review; journalists such as Nat Hentoff, George Will, and Richard Bernstein; and groups such as the American Civil Liberties Union and the National Association of Scholars all are poised to challenge the college administrator who, in their view, silences politically incorrect or constitutionally protected speech on campus. (It is worth noting, though, that the condemnation and ostracism rightly visited upon the Nation of Islam’s anti-Jewish ranters were not typically portrayed as evidence of politically correct coercion.)
In their zeal to combat despotism on campus, some champions of freedom of expression are propounding doctrines that are at odds with the best interest of the nation’s system of higher education. Some insist, for example, that it is a good idea, amounting virtually to a moral obligation, for private universities to guarantee the same degree of freedom of expression on campus that is required of public universities under the First Amendment.
This position has been embraced by a number of leading universities. For example, the Free-Speech Guidelines of the Faculty of Arts and Sciences at Harvard University, where I teach, contain the assurance that judgments relating to freedom of expression on campus “will be consistent with established First Amendment standards.”
The Constitution does not restrict officials at private universities; it only binds directly officials of states and of the federal government. In the absence of obligations imposed by local authorities, officials at private universities have the right to control -- and should do so -- the norms under which students and faculty members conduct themselves on campus. In some cases, states may have the authority to regulate such norms, but colleges and universities should certainly refrain from voluntarily ceding any more academic judgments to government than they have to.
Judges are the arbiters of the First Amendment. But they are not academics committed first and last to advancing the mission -- perhaps the peculiar mission -- of a lone, distinct scholarly institution. Judges are governmental agents who, when called upon to interpret the First Amendment in adjudicating a lawsuit, take many considerations into account -- such as the relationship of the courts to other branches of government or the effect of a judgment in a given case upon other areas of judicial decision making. Such considerations, however, need not bother college officials setting rules only for the governance of their own institution.
In opting to submit to a nationwide rule that may or may not be tailored to the specifications of an academic setting (not to mention a particular academic setting), college officials trade the power to construct rules finely tailored to the peculiarities of their circumstances for off-the-rack rules that are destined to be ill fitting.
Consider the recent case of Jeffries v. Harleston. Leonard Jeffries, Jr., chairman of the black-studies department at City College of the City University of New York, was ousted from his position by the college administration because of an infamous, highly publicized speech he delivered that was, among other things, anti-white and anti-Jewish. Mr. Jeffries sued, claiming that by removing him from the chairmanship because of his speech, college officials had wrongly deprived him of his right to free speech under the First Amendment. U.S. District Judge Kenneth Conboy ruled in Mr. Jeffries’s favor, reinstating him and awarding him damages.
What if an analogue to the Jeffries case were to arise at a private college? Should its officials, in light of Judge Conboy’s ruling, decide that they have no right to remove a Jeffries from an administrative or teaching post?
Before confronting that question directly, two preliminary points need to be made. First, most well-run institutions would have been sufficiently prudent to have prevented an outspoken bigot like Mr. Jeffries from becoming the chairman of a department. They would have engaged in a low-visibility, pre-emptive act of discipline -- the sort that predominates in academic life -- by declining to select him in the first place.
Second, it is worth noting one of the bases on which Judge Conboy stated that chairman Jeffries could have been properly disciplined by authorities at City College. Judge Conboy said that the college could have demoted Mr. Jeffries without violating his First Amendment rights if it had shown that his speech hampered the effective and efficient operation of the college by, for example, discouraging donations made to the college by alumni or others.
Giving judicial blessing to that excuse for demoting an academic administrator enhances the power of forces outside the college to shape its actions toward controversial employees. Such a doctrine may produce bad results. It would appear to permit a college, consistent with the First Amendment, to demote an academic administrator who made anti-racist speeches if his activity hurt contributions from the institution’s racist alumni.
So, should a private college feel bound to follow Judge Conboy’s ruling?
No.
If college officials decide that the presence of a person like Mr. Jeffries advances the intellectual mission of their institution, then they should by all means retain him. It is quite conceivable, for instance, that officials might decide that the debates occasioned by his egregious utterances were ultimately enlightening or that sacking him would unduly erode the sense of job security considered necessary to promote excellent academic work by most professors. On the other hand, if officials conclude that, on balance, retaining him would hurt the academic mission of the institution, they should fire him and feel unapologetic about doing so.
Tolerating the presence of Leonard Jeffries or a visiting speaker such as Khallid Abdul Muhammad or the many other morally obtuse ignoramuses who have made an industry of exploiting mere controversy on college campuses is not a necessary feature of a first-rate institution of higher education.
One reason that some institutions are quick to accept the dictates of the First Amendment is that all too frequently educators give little sustained thought to the content and boundaries of their educational mission. They assume that any and every college should be a marketplace of ideas. But I can easily imagine a vibrant, rigorous, intellectually distinguished college whose governing authorities reject such a notion. I have in mind a college whose authorities focus on something else: a core set of values and knowledge that is inculcated and transmitted by a carefully and tightly planned program of instruction. The college would include those ideas and people that administrators thought would be helpful in advancing this program and exclude those thought to be distracting.
I can easily imagine, that is, a first-rate Catholic or conservative or feminist or socialist university at which the curriculum, hiring of faculty, and rules regarding access to the campus by outsiders were governed by policies aimed at infusing the student body with the college’s overarching religious or ideological commitments.
I can imagine such institutions because many of our leading colleges and universities already resemble such a model in some of their practices. Their officials frequently speak as if they were wholly indifferent to politics and ideology in determining what or who is included or excluded from the collective life of their institution. But, of course, that is not so.
The leaders of Harvard University, for example, have indicated in innumerable ways that the institution is officially committed to a policy of non-discrimination toward racial minorities, women, and other groups. Against this backdrop, it is inconceivable that university officials would appoint a dean or even a mere professor notorious for his or her racist views -- no matter how intellectually superior or administratively competent that person might be -- even though enforcing this prejudice against bigots surely runs afoul of First Amendment standards.
Several years ago, arguing on behalf of the proposition that Harvard should bind itself to First Amendment requirements governing freedom of expression, President Derek Bok stated that he had “great difficulty understanding why a university such as Harvard should have less free speech than the surrounding society -- or a public university.” His comment reveals a common impatience with two sorts of distinctions: one separating lay society from the university, the other separating private from public universities. But it is just such distinctions that are in dire need of clarification and defense.
The distinguished sociologist Nathan Glazer anticipated this problem 25 years ago in an essay titled “Campus Rights and Responsibilities: The Rule of Law?” Noting apprehensively the increasingly important role being played on major college campuses by law-school professors, Mr. Glazer cautioned against their tendency to import into the academic realm the antagonistic stance that lawyers typically adopt against adversaries in commercial litigation or criminal prosecutions.
“The introduction into the university of legal principles and practices drawn from the operation of the body politic and civil society” will, Mr. Glazer predicted, “hurt rather than help the universities and colleges.” A committed foe of arbitrary or ignorant authority, Professor Glazer nonetheless recognized that “the advancement of knowledge seems to demand its own settings and its own rules, and these are not the same as those which the democratic process requires.”
Mr. Glazer’s point deserves wider attention. One of the key precepts of the First Amendment, at least as presently interpreted by the Supreme Court, is the idea of “content neutrality.” Except in extraordinary circumstances, the government cannot discriminate against certain messages on the basis of the content of the viewpoint expressed. The First Amendment protects erroneous, sloppy, or even vile thought and speech. To a great degree, it is largely indifferent to viewpoint.
By contrast, at least part of the mission of many colleges is to exalt the good and the true, which means suppressing the bad and the false in the process of constructing hierarchies of intellectual virtue.
The First Amendment or something like it is essential to the democratic process. It is not essential, however, to scholarly excellence in teaching and research or to the inculcation of political, moral, or religious values that various sorts of colleges may want to protect and preserve. Indeed, for these tasks, the First Amendment -- and all that formally embracing it entails -- may well constitute a hindrance.
Randall Kennedy is professor of law at Harvard University.