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While we have a right as Americans to liberty and autonomy, during the Covid-19 pandemic we were all restrained in ways that some found intolerable and that under normal circumstances might have constituted an unlawful infringement of those rights. But in the midst of a global pandemic, stay-at-home orders were widely enforced by courts around the country in the interest of public health and safety. As important as individual liberty is, these courts recognized that no person has the right to threaten the health and safety of others. In this, as in other instances involving a clash of rights, the law requires courts to consider the evidence and weigh competing interests before rendering judgment. There is room for nuance and for attention to the facts and circumstances of individual cases, even when our most revered rights are involved.
Academic administrators, much like judges, need to take seriously the responsibility to weigh the competing interests involved when academic freedom and DEI efforts collide. They must measure the relative harms, evaluate facts and circumstances, and render judgments that elevate the needs of the many over the needs of the few. The First Amendment, and the principle of academic freedom which emanates from it, is not exempt from the rule that no right is absolute. The authors, in fact, acknowledge this need for balance by recognizing that “there is no academic freedom without academic responsibility.”
In particular, academic freedom may sometimes (perhaps also increasingly often) need to cede to the responsibility academic administrators have to effectuate the institutional commitment to diversity, equity, and inclusion. Equally important, academic administrators also have an obligation to protect members of the community from discrimination and harassment on the basis of protected characteristics, including but not limited to race, ethnicity, gender, sexual orientation, and religion. In discharging these responsibilities, some people’s right to express themselves cannot come at the expense of other people’s right to dignity, safety, and equal participation in the academic community. More pointedly, the faculty’s academic freedom cannot always trump student well-being.
Mediating between academic freedom and DEI is difficult; the answers are not always clear. But academic administrators cannot abdicate their responsibility to serve both of these interests, and all members of our academic communities, equally. These decisions, much like the adjudication of rights by courts, require close scrutiny, delicate balancing of interests, and context-dependent inquiries.
One person’s right to participate fully cannot be sacrificed to another person’s right to speak freely.
Academic freedom is often defined by reference to two common sources — statements from the AAUP and the University of Chicago. Both of these sources trace their origins to a time (the 1940s and earlier) when DEI was not a widely embraced value of academic institutions, and moreover when these institutions themselves overtly excluded the very populations of students — racial, ethnic, sexual, gender, and religious minorities — for whom DEI efforts were designed and on whose behalf they are most often enforced.
That is no coincidence. When these statements defining academic freedom were conceived and drafted, academe was largely governed by and on behalf of a narrow set of interests (most notably white, male, and Christian). In this context, the content and the terms of the academic-freedom debate were largely ideological (references to Communism, for instance, were common). Accommodating the presence or needs of other (historically marginalized) groups was neither contemplated by nor reflected in the statements about academic freedom that were developed in these earlier periods. The focus was exclusively on promoting the free exchange of ideas among equals.
Both the composition and the landscape of higher education have changed radically since those days. Colleges have made significant progress in diversifying their student bodies, but their faculties remain stubbornly homogenous by contrast. Consequently, there is a growing gulf between the diversity of students and the diversity (or lack thereof) of faculty. Today, debates about academic freedom are much more likely to involve faculty and students from different identity groups, not just different ideological perspectives.
The fact that many students occupy marginalized identities different from those of the faculty is exacerbated by the inherent power differential between faculty and students. Concerns for the equal status, dignity, and contributions of students who are very differently situated than many faculty members increasingly lie at the heart of recent controversies over academic freedom. These conflicts are not just about competing ideas; they are about whose identity and perspective matters. Rather than about what people can say, they are about whose views (and indeed very presence in academe) we value.
Some recent, high-profile examples reveal the nature of these conflicts. Consider, for example, a professor who refused to use a student’s preferred pronouns, or another who repeatedly requested a student use an Anglicized name in class, or another who instructed international students to speak English while on campus. In cases such as these, professors commonly defend their actions as protected, sometimes even well-intentioned, speech. A more common example are the numerous instances when a professor has defended the right to use racial epithets or other content considered highly offensive and demeaning to some students in the classroom. Intentions notwithstanding, the impact of this speech on students matters.
Each of these examples highlights the clash between principles of academic freedom on behalf of faculty and equally pressing concerns for both promoting DEI broadly on behalf of the academic community, but also for preserving other important rights on behalf of some students. Those rights include, among others, the right to individual dignity, protection from threats to psychological safety and emotional well-being, and the right to full and equal participation in the academic enterprise. These are not trivial concerns. They carry both legal (especially under anti-discrimination laws like Title IX and Title VI) as well as practical and moral significance. They cannot be dismissed out of hand as mere pandering to sensitive students. Nor should these concerns be minimized as inherently subordinate to principles of academic freedom. Faculty may well be entitled to academic freedom, but so too are students entitled to participate in the academic enterprise fully, equitably, and without fear of reprisal.
Balancing academic freedom with academic responsibility will sometimes require harmful and offensive speech to be condemned, especially when it serves no legitimate educational purpose. Even within the hotbed of academic freedom, Geoffrey Stone, a University of Chicago law professor and an avowed defender of faculty free speech, has recently agreed to forgo use of a racial epithet that he has used in class for many years. The reason? He realized that it was causing real harm to his students (both Black and white), and their harm matters. Also, “things change,” according to Stone.
There may have been a time when academic freedom need not have considered the interests of students (or other members of the academic community) beyond mere intellectual disagreement, but things are no longer that simple. If academic freedom is about protecting the robust exchange of ideas and the full engagement and participation of all members of the academic community, it must account for the interests of both faculty and those students who are or feel marginalized. One person’s right to participate fully cannot be sacrificed to another person’s right to speak freely. To the extent that statements of academic freedom do not reckon with these competing interests and inherent trade-offs, they must be reconceived. In the meantime, academic administrators must balance academic freedom against academic responsibility.
Finally, Khalid and Snyder suggest that recent efforts to oppose the teaching of critical race theory are aligned with, and should therefore be treated the same as, DEI efforts. But facts matter, and nuance is important. It is true that the opposition to CRT and the defense of DEI both raise concerns for harms to students’ self-concept, psychological safety, and their sense of comfort and belonging, but there is no equivalence between the two. In defending DEI, academic administrators can marshal decades of research and data showing the harmful and exclusionary effects of threats to minority students’ self-concept, psychological safety, and sense of belonging that arise from the kinds of dignitary harms faculty seek to defend in the name of academic freedom. Opponents of CRT, however, can offer nothing more than conjecture in support of their claims of harm. In addition, the opposition to CRT is designed to silence, further marginalize, and diminish the value of minority voices and experiences. This is the antithesis of DEI.
If the opposition to CRT serves neither to support an institutional commitment to DEI, nor to advance the values of free speech, then there is no countervailing value for these efforts that would outweigh the competing concerns for preserving academic freedom. DEI not only reflects the academic commitment to ensure that all members of the community are able to fully participate in and contribute to the academic enterprise, it reflects basic principles of our pluralist, multicultural democracy — that all members of society deserve equal dignity and respect, regardless of race, ethnicity, gender, sexual orientation, or religion. It is time academe started defending these commitments to DEI as seriously as it defends the commitment to academic freedom. Sometimes DEI will win, other times academic freedom will prevail, but it cannot be that we continue to value academic freedom at all costs.