The next four years will see intensified government scrutiny of higher education. What will that mean for academic freedom? That depends on what you consider academic freedom to comprise. When it comes to undergraduate admissions, colleges will probably become more careful to comply with SFFA vs. Harvard’s ban on affirmative action. As Stacy Hawkins wrote recently in our pages, that would impose a limit on colleges’ ability to decide whom to admit, which the Supreme Court listed as a component of academic freedom in 1957. The use of identity as a decisive factor in faculty hiring — an open secret for years, as Michael Clune and Gregory Conti have both discussed in our pages — will likely be curbed in the face of more vigorously applied antidiscrimination law. That will constrain one area of faculty action, though there is hardly any consensus that such preferential hiring falls under the umbrella of academic freedom. Then there’s the question of legislation banning diversity, equity, and inclusion trainings and other diversity efforts, like the use of diversity statements in hiring and promotion. Some groups, including the American Association of University Professors (AAUP), consider that such legislation threatens academic freedom; others, including the Foundation for Individual Rights and Expression, find DEI programs themselves to be a threat to academic freedom.
All of these areas, it seems to me, are at best ambiguously related to academic freedom’s main concerns: the freedom of research, the freedom of choice when it comes to what to teach (and what to learn), and the freedom, for both faculty members and students, to speak extramurally — as citizens — about the matters of the day. But one prong of ramped-up scrutiny touches academic freedom’s core. That’s the use of Title VI of the Civil Rights Act to punish politically disfavored speech by claiming that such speech is discriminatory.
I discussed one such case last summer: the suspension and investigation of the political scientist Jodi Dean by her employer, Hobart and William Smith Colleges, over a blog post she’d written endorsing Hamas’s tactics. Here’s what I wrote then:
This militant position is, of course, open to criticism on all sorts of grounds. But it is exactly the kind of controversial position-taking academic freedom is meant to protect. In a healthy academic environment, Dean would have been robustly debated. Instead, she was removed from the classroom, excoriated by her institution’s president, and investigated for violations of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, religion, and national origin. As of July 11, she has been cleared of all charges and reinstated.
