The Review

During last month’s Chronicle Festival, while moderating a discussion between the Carleton historian Amna Khalid and the Rutgers law professor Stacy Hawkins about tensions between DEI and academic freedom, I was struck anew by a problem I’d wondered about but had no real clarity on: Does academic freedom apply to administrators? The question came up during a discussion of the infamous incident at Stanford Law earlier this year in which Kyle Duncan, an appellate judge invited to speak by the Federalist Society, was shouted at by students and scolded by Tirien Steinbach, at the time the Law School’s associate DEI dean. “So you’ve invited me to speak here, and I’m being heckled nonstop,” Duncan says to Steinbach. Steinbach responds:

I’m uncomfortable because this event is tearing at the fabric of the community I care about and am here to support. And I don’t know, and I have to ask myself, and I’m not a cynic to ask this, Is the juice worth the squeeze? Is this worth it? … For many people in this law school who work here, who study here, and who live here, your advocacy, your opinions from the bench, land as absolute disenfranchisement of their rights. And it impacts directly their people, humans, their families and their communities. And it’s uncomfortable to say this to you as a person. It’s uncomfortable to say that for many people here, your work has caused harm. And I know that must be uncomfortable to hear. [Turning to students, who have begun clapping]: Let me please finish. I want to give you space to finish your remarks too, Judge Duncan. I’m also uncomfortable because many of the people in the room here I have come to care for, and in my role at this university my job is to create this space of belonging for all people at this institution. And that is hard and messy and not easy, and the answers are not black or white or right or wrong. This is actually part of the creation of belonging. And it doesn’t feel comfortable and it doesn’t always feel safe, but there are always places of safety, and there is always an intention from this administration to make sure you all can be in a place where you feel fully you can be here, learn, grow up to be amazing advocates and lawyers and leaders that you are going to be.

I’m also uncomfortable because it is my job [turning here to Duncan] to say you are invited into this space. You are absolutely welcome in this space. In this space that people learn and again live. I really do wholeheartedly welcome you, because me and many other people in this administration do absolutely believe in free speech. We believe that it is necessary. We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity of people, that one way to do that is with more speech and not less. And not to shut you down or censor you or censor the student group that invited you here. That is hard, that is uncomfortable, and that is a policy and a principle that I think is worthy of defending even in this time. And again I still ask, Is the juice worth the squeeze? Is it worth the pain that this causes and the division that this causes? Do you have something so incredibly important to say about Twitter and guns and Covid that that is worth this impact on the division of these people who have sat next to each other for years, who are going through what is the battle of law school together, so that they can go into the world and be advocates, and this is the division this caused? When I say, Is the juice worth the squeeze? that’s what I’m asking: Is this worth it?

And so on, for several more minutes. This, certainly, is speech. And it pertains to core matters of academic concern. But the administration considered it inappropriate. Steinbach was chastised, albeit not by name, by the law school’s dean, Jenny Martinez: “When a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion” that Stanford’s speech policies are meant to forestall. Martinez has since been promoted to provost of Stanford; Steinbach no longer works there at all.

Is that an appropriate outcome? In our pages, Jennifer Ruth defended Steinbach and noted that her six-minute speech ultimately quieted the hecklers and gave Duncan room to proceed. On this view, the sympathy Steinbach expressed for the protesters was both appropriate in its own right, because the protesters’ concerns are valid, and a tactical success: It ended up ensuring Duncan’s right to speak.

During our ChronFest event, Hawkins supplemented that defense with another one. She mentioned a proposed American Bar Association rule change that would broaden academic-freedom protections to include staff members. “One of the things I think gets completely lost in this discussion,” Hawkins said, “is the academic freedom … of Dean Steinbach,” who, after all, “wasn’t the one shutting down speech. … All she did was counter speech with more speech, and I’m not sure why she suffered such condemnation on grounds of academic freedom for having done that.” Khalid disagreed: “I don’t think she had any academic freedom in that context.”

It’s a fascinating problem, and as far as I can discover not a particularly well-theorized one. Discussions of administrative academic freedom are scattered and unsystematized. In his 2021 book Understanding Academic Freedom, Henry Reichman, the former chair of the American Association of University Professors’ Committee on Academic Freedom, offers a brief and useful overview of some recent cases in which administrative speech has been either criticized or defended on academic-freedom grounds; the picture that emerges is one of general uncertainty about what academic freedom means, and for whom, when it comes to administrative speech.

In 2018, for instance, the chancellors of the University of California released a statement condemning the boycott, divest, and sanctions movement, which calls for academic boycotts of Israel. Such boycotts, they said, posed a “direct and serious threat to academic freedom.” But a group of Berkeley faculty members felt that the chancellors’ official statement was itself an incursion on the academic freedom of faculty members. “For the chancellors to take a side in such a political debate,” they wrote, “can only have a chilling effect on campus speech, especially giving faculty pause as they consider taking a public position that is well within the purview of their academic freedom.” Carol T. Christ, Berkeley’s chancellor and one of the signatories of the original statement, defended herself by insisting, as Reichman writes, “that she was exercising her own individual academic freedom.”

To my mind, Christ’s claim would be more plausible if she had been writing in her personal capacity rather than issuing a group statement alongside other California chancellors. The University of Chicago’s Kalven Report specifically proscribes corporate political speech of the kind Christ had joined: “The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic.” The Berkeley faculty members’ concern that Christ’s speech stifles their own involves precisely the sort of conflict the Kalven principles are meant to prevent.

Then there’s the interesting case of Andrew Potter, the erstwhile director of McGill University’s McGill Center for the Study of Canada. In 2017, Potter published an essay in Maclean’s titled “How a Snowstorm Exposed Quebec’s Real Problem: Social Malaise,” the thesis of which was that the botched response to a recent blizzard had revealed that the Québécois were, in Potter’s words, “an almost pathologically low-trust society, deficient in many of the most basic forms of social capital that other Canadians take for granted.” Public outrage followed, and Potter was forced to resign. McGill’s leader, Suzanne Fortier, explained that, while administrators do have academic freedom, such freedom could in theory come into conflict with “their obligation to execute their administrative responsibilities effectively.” That, she implied, is what had happened here.

The Canadian Association of University Teachers, or CAUT, Canada’s equivalent to the AAUP, disagreed strongly. “There is no valid distinction to be made,” the organization insisted in a formal report on the matter, “between the academic-freedom rights of academic administrators and those of all other members of the faculty.” Failure to extend the protections of academic freedom to administrators “makes it highly likely that those who become administrators will be conformist bureaucrats with little taste or capacity for the critical commentary and engagement necessary for academic life.”

This is the most uncompromising formula in defense of academic freedom for administrators that I am aware of. Reichman agrees with CAUT that, at least “with regard to their extramural expression,” academic administrators “should be entitled to the same academic-freedom rights as faculty members,” though he adds a crucial caveat: “Such expression should only be relevant when it bears upon the individual’s fitness for the [administrative] position.” A lot hangs on what is meant by “fitness,” a criterion that CAUT’s statement downplays. Moreover, while Reichman specifies that it is extramural speech he has in mind, CAUT would not limit the protections of academic freedom for administrators to extramural speech. Rather, such protections “must be seen to cover all of their activities, both intramural and extramural, so that they are not treated any differently as administrators with respect to academic freedom than they would be if they were academic staff without administrative duties.”

Reichman might have added to his review the case of Leonard Jeffries Jr., which presents a parallel situation from much longer ago — the early 1990s — and in a U.S. context. Jeffries, at the time in the first year of a three-year appointment as chair of the Black-studies department at City College of New York, had become infamous for making a series of conspiratorial antisemitic statements on the speaking circuit, as well as for his public espousal of some eccentric notions about the superiority conferred by higher melanin content. Jeffries’s antisemitism became a major reputational liability for City College; New York’s Gov. Mario Cuomo demanded that the college “take action or explain why it doesn’t.”

It did. Jeffries was demoted from his role as chair. As New York University Law’s Stephen A. Newman describes in his comprehensive treatment of the case, Jeffries sued on First Amendment grounds. He won, and then won again after the university appealed. But the Supreme Court vacated the appeal on the basis of Waters v. Churchill (1994), which expanded the capacity of public employers to fire employees for speech. When the case was remanded to the appellate court, Jeffries lost.

Newman argues that this decision was the correct one from the point of view of academic freedom. To arrive at that conclusion, he relies on a sharp distinction between faculty member and administrator: “Jeffries is protected from dismissal as a faculty member … This does not mean he is protected in his position as chairman.” It is axiomatic for Newman that “academic freedom offers only limited protection for professors acting in administrative roles.” And he points out that, if a college president had made the kind of remarks that Jeffries had, “there is little doubt the trustees could have dismissed him.”

City College’s Faculty Senate condemned Jeffries’s antisemitic speech but nevertheless insisted that his demotion had been “inconsistent with academic freedom”: “Any attempt … to discipline a faculty member, because he or she expresses provocative and controversial, even offensive, views” runs afoul of the rights of the faculty. But Newman’s claim that a university president would not be insulated from dismissal for language like Jeffries’s is undeniable, and surely applies to other high-level leadership roles as well. So if you are inclined to think, as I am, that the Faculty Senate was correct in defending Jeffries, you need some formal criterion distinguishing those administrative roles that forfeit full academic-freedom protections from those that don’t.

Then there is the question of the difference between extramural speech like Jeffries’s and intramural speech. “For a department chair, a dean, or a provost, intramural speech is the bulk of their job,” as the Princeton political and legal theorist Keith Whittington writes. When does such speech forfeit the protections of academic freedom? Only, Whittington says, when administrators are speaking as administrators, rather than as faculty members. (Because Whittington is focused on First Amendment law and academic freedom, his concern is with public universities specifically, but the principles he articulates strike me as generalizable.) “When professors speak as professors, they speak for themselves — just as they do when they speak as citizens.” By this logic, both Jeffries’s public speech and his crackpot scholarship should be protected, even though he is chair. “When professors speak as academic administrators, by contrast, they do not speak for themselves but rather speak with an institutional voice.”

Which brings us back to Tirien Steinbach’s role in the Stanford Law controversy. Steinbach was not a faculty member, but she could have been (such deans sometimes are); would that have materially altered the kinds of freedom she should have enjoyed when speaking at Kyle Duncan’s Federalist Society appearance? The distinction Whittington raises between speaking as an administrator and as a faculty member is germane here. There is a wide difference between writing an op-ed criticizing conservative judges in one’s role as a faculty member and siding with protesters in one’s role as an administrator.

It seems to me that Jeffries should not have been fired from the position of chair. I agree with Bernard Sohmer, one of Jeffries’s victims (Jeffries called him City College’s “head Jew”), that any action against Jeffries posed “a terrible threat to academic freedom.” Likewise, I do not think that Potter, of McGill, should have been removed from his leadership position. Steinbach’s case seems different to me, because her responsibility as an administrator at the Kyle Duncan event should have circumscribed her right to express her own opinions about Duncan. She had a very specific duty to discharge — the maintenance of a neutral space in which an invited speaker could speak unimpeded — and in Stanford’s view, she eschewed it in favor of political opinionizing extrinsic to, and undermining of, that duty. But these issues remain highly ambiguous. Until the AAUP, or the courts, articulate a fuller theory of administrative academic speech, a troubling vagueness will prevail.

Read Henry Reichman’s “Are Academic Administrators Entitled to Academic Freedom?” and Stephen A. Newman’s “At Work in the Marketplace of Ideas: Academic Freedom, the First Amendment, and Jeffries v. Harleston.” I’m grateful to Stacy Hawkins, Amna Khalid, Henry Reichman, and Keith Whittington, each of whom alerted me to one or more of the articles discussed here.

Recommended

• “While my opinion of Peretz and his tenure at TNR hasn’t particularly improved since completing the memoir, I have to admit he’s performed a service for history by putting his life down on paper.” In The Baffler, David Klion reviews Martin Peretz’s memoir, The Controversialist.
• “Neurocentrism is no longer the calling card of the mind sciences.” In Liberties, Noga Arikha explains how “the reductionist enthusiasm” for neuroscientific explanations of the mind “has ebbed.”
• “I am a Manet freak … ‘Olympia’ is the kill shot of European tradition, and the daybreak for an estranged visual regime still with us 160 years later.” In The New York Times, Jason Farago previews “Manet/Degas,” opening later this month at the Met.

Write to me at len.gutkin@chronicle.com.

Yours,

Len Gutkin