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Campus Speech and Academic Freedom, A Guide for Difficult Times
149 Plays4 months ago
In the season five premiere of the SpeechMatters podcast, host Michelle Deutchman speaks with Center Co-chairs Howard Gillman, Chancellor of UC Irvine, and Erwin Chemerinsky, Dean of Berkeley Law, about their upcoming book, Campus Speech and Academic Freedom: A Guide for Difficult Times. Against the backdrop of recent controversies — from legislative restrictions on teaching and campus protests to political pressure on colleges and universities — the episode explores how higher education leaders can navigate free speech, academic freedom and institutional governance in 2026.
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Transcript
Principles of Free Speech and Justice
00:00:03
Speaker
I think what we need to do is explain how our principles of free speech, free inquiry, will help serve the cause of justice.
00:00:12
Speaker
The First Amendment, the constitutional freedom of speech and freedom of conscience that is the bulwark of our democracy.
00:00:22
Speaker
There was a passion in what was being said affirming this, what people consider a sacred constitutional right, freedom of speech and freedom of association.
Introduction to 'Speech Matters' Podcast
00:00:34
Speaker
From the UC National Center for Free Speech and Civic Engagement, this is Speech Matters, a podcast about expression, engagement, and democratic learning in higher education.
00:00:44
Speaker
I'm Michelle Deutschman, the Center's Executive Director and your host.
Howard Gilman & Erwin Chemerinsky's Contributions
00:00:49
Speaker
We are honored to be kicking off season five of the podcast with two nationally recognized higher education leaders, Howard Gilman, Chancellor of University of California at Irvine,
00:00:59
Speaker
and Erwin Chemerinsky, Dean of the University of California at Berkeley Law School.
00:01:04
Speaker
In addition to these august positions, they serve a special role here at the Center as co-chairs of our National Advisory Board.
00:01:12
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They've been instrumental in the Center's founding, growth, and development over these last eight years, for which I am incredibly grateful.
00:01:20
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Both are the authors of numerous law review articles, op-eds, and books.
00:01:24
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As a pair, they wrote the book on free speech on campus in 2017.
00:01:28
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They're joining us today to discuss their new book, Campus Speech and Academic Freedom, A Guide for Difficult Times, which is available later this month.
00:01:38
Speaker
But before we dive into today's conversation, let's turn to class notes, a look at what's making headlines.
Texas A&M's Rule on Ideology Teaching
00:01:45
Speaker
Texas A&M University seems to be the leader in news hits this month.
00:01:50
Speaker
On January 6th, the university's College of Arts and Sciences alerted an instructor in a contemporary moral issues course to remove two one-day units on race and gender ideology, including readings from Plato's symposium, in order to comply with a revised system-wide rule that says no system academic course will advocate race or gender ideology or topics related to sexual orientation or gender identity.
00:02:17
Speaker
The university sent similar notices to other faculty members whose courses underwent syllabus reviews by administrators to comply with the revised rule.
00:02:26
Speaker
In an official statement, A&M attempted to placate outraged faculty and students by saying that PLAIDO will continue to be taught widely, assuring them that the syllabi review only ensures that no core curriculum courses teach race or gender ideology.
00:02:41
Speaker
Just a week later, Texas A&M canceled a graduate ethics class during the ongoing course review after administrators said the professor did not specify when and how race, gender, and sexuality might be brought up in the course.
00:02:55
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The revised policy allows non-core curriculum and graduate courses to request an exemption from the rule in limited circumstances upon demonstration of a necessary educational purpose.
00:03:07
Speaker
Administrators allege that they could not identify the specific information needed for an exemption request and therefore canceled the course because the professor declined to provide it.
00:03:18
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The professor contested this by arguing that issues of race, gender, and sexuality are not peripheral but integral to the class
00:03:25
Speaker
and it was inappropriate for them to limit or censor discussions in the course.
00:03:30
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These restrictions on teaching have drawn widespread criticism and are among the many examples of how academic freedom is being undermined and dismantled across the country.
PEN America's Report on Educational Censorship
00:03:39
Speaker
The Texas A&M examples fit the profile of education censorship that PEN America details in its newest report released last week.
00:03:47
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Expanding the web of control finds that more than half of United States college and university students
00:03:54
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now study in a state with at least one law or policy restricting what can be taught or how campuses can operate.
00:04:00
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The report also notes that state legislatures set new records in 2025.
00:04:05
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For instance, 15 states passed 21 laws censoring higher education.
00:04:11
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We all have our work cut out for us this year.
00:04:14
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Collaboration and collective action will be vital.
00:04:18
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If I shared the full biographies of both of today's guests, there would just be no time for an episode.
00:04:24
Speaker
So I'll give you the Cliff Notes version.
00:04:26
Speaker
Chancellor Howard Gilman was appointed by the University of California Board of Regents as the sixth chancellor of the University of California, Irvine on September 18th, 2014.
00:04:37
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He is an award-winning scholar and teacher with expertise in the American Constitution and the Supreme Court.
00:04:43
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He holds faculty appointments in the School of Law and the Department of Political Science, which is within the School of Social Sciences.
00:04:50
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Dean Erwin Chemerinsky became the 13th Dean of Berkeley Law on July 1, 2017, when he joined the faculty as the Jesse H. Chopper Distinguished Professor of Law.
00:05:00
Speaker
Prior to assuming this position, from 2008 to 2017,
00:05:05
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He was the founding dean and distinguished professor of law and the Raymond Pryke professor of First Amendment law at the University of California, Irvine School of Law.
00:05:15
Speaker
The dean and the chancellor were guests on Speech Matters in our first season, which kicked off in 2022.
00:05:21
Speaker
But that does feel like a lifetime ago.
New Book on Campus Expression Post-2022
00:05:23
Speaker
We're thrilled to welcome you both back to season five of Speech Matters.
00:05:28
Speaker
It's a pleasure to be with you.
00:05:30
Speaker
Michelle, you're always one of the people we want to talk to most.
00:05:34
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So we're really looking forward to the conversation.
00:05:35
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Me too.
00:05:36
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I hope you feel that way after the conversation.
00:05:38
Speaker
No, I'm just teasing.
00:05:40
Speaker
As I noted at the top, the two of you have been longtime partners, including co-authors of numerous op-eds, as well as your 2017 book, Free Speech on Campus.
00:05:49
Speaker
2017 was an auspicious free speech year with notable campus controversies taking place at UC Berkeley, including the visit of Milo Yiannopoulos at Middlebury College with the visit of Charles Murray and at University of Virginia the evening before the Unite the Right rally.
00:06:05
Speaker
Before we get into the substance of this latest book, I want to ask a bit about your decision to write the book and the writing process itself.
00:06:13
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Following campus expression issues in higher ed during the last five years in particular could easily give anyone whiplash.
00:06:19
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After Biden's inauguration in 2021, he immediately undid many of the executive orders that President Trump issued during his first term, only to have President Trump do the opposite upon his re-election.
00:06:32
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Alongside the executive orders, there have been increased dear colleague letters and investigations by the Department of Education's Office of Civil Rights, as well as ever-increasing activity by state legislatures,
00:06:43
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who are attempting to employ lawmaking as a way to control what can be taught in college and university classrooms.
00:06:50
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And then, of course, there are the federal and district court judges who've been ruling on these issues, often creating circuit splits that create further inconsistency.
00:06:58
Speaker
So during all of this campus expression ping pong, when did the two of you decide it was time to write a book?
Debates on Free Speech & Academic Freedom (2022 Onwards)
00:07:05
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Chancellor.
00:07:07
Speaker
Yeah, ping pong is one metaphor to be used.
00:07:10
Speaker
So it was really around 2022.
00:07:12
Speaker
We had been reflecting on all of the debates that occurred since we wrote the first book.
00:07:17
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The first book, as you remember very well, Michelle, was written at a time when even basic principles about whether
00:07:24
Speaker
the expression of ideas on campus could be regulated, how they could be regulated, was a contested issue.
00:07:30
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And back in 2015-16, a lot of university leaders didn't have the vocabulary, the arguments to understand how to defend speech that people found disagreeable.
00:07:40
Speaker
And a lot of students had never really been taught the value of free speech principles.
00:07:44
Speaker
They'd been taught the importance of toleration and the like, but not really why you should
00:07:49
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tolerate and embrace protections for speech that you might otherwise find offensive.
00:07:55
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So we thought we needed to write a book that dealt with the basics.
00:07:59
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After a number of years, though, in the wake of that book, a lot happened.
00:08:03
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There were tremendously disruptive, even violent protests on campuses, ongoing disruption of campus activities, increased government intervention, new developments in the way in which the federal government, even under the Biden administration, was thinking about non-discrimination principles.
00:08:21
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and the protections of Title VI in the university environment.
00:08:25
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And so what we realized was, even if you accepted and understood and agreed with our basic point about the importance of free speech values, there were so many issues that nevertheless had to be
Campus Protests & Free Speech Challenges
00:08:38
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addressed.
00:08:38
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whether it came to protests on campuses or whether it was about what faculty said in professional environments or how you deal with social media or what to do about, especially in the latter part of the Trump administration, efforts on the part of both the federal and a number of state governments to regulate higher ed.
00:09:00
Speaker
All of those issues were really not addressed.
00:09:02
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They were beyond the scope of the first book.
00:09:04
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which is about first principles.
00:09:05
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So we thought we needed to do a book that dealt with, even if you agree with the basics, there are many, many issues that still need to be addressed.
00:09:13
Speaker
And by around 2022, we started to map out the book.
00:09:18
Speaker
One of the things that I thought was interesting about the book, and I'm curious to know if you had planned this, is you ended up bringing in so many of your personal experiences that you had in your roles.
00:09:28
Speaker
And I'm wondering if that just seemed natural or that was something that you had to really kind of grapple with.
00:09:34
Speaker
No, when we were thinking of the book, we didn't imagine that so much of it would need to be in the first person.
00:09:40
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We were very much focused on the national events that were occurring.
00:09:44
Speaker
And Howard mentioned several of these.
00:09:46
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The disruption of speakers, including at some law schools.
00:09:50
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The adoption of anti-critical race theory laws and stop woke acts in states across the country.
00:09:57
Speaker
We go on with the many incidents of particular faculty members who
00:10:01
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facing discipline for their speech in and out of the classroom.
00:10:05
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And we realized, as Howard said, that the book we wrote in 2017, Free Speech on Campus, just hadn't dealt with these.
00:10:13
Speaker
It didn't make sense to us to try to do a second edition.
00:10:16
Speaker
We're really talking about a brand new book.
Personal Experiences in Book Writing
00:10:20
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And our hope was when we signed the contract with Yale Press, that it was a book that would be due, the manuscript turned in, in the summer of 2023 for a publication in 2024.
00:10:32
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For many reasons, we didn't have the manuscript done at that point.
00:10:38
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And so much happened during the following year, including, of course, things on the Irvine campus, things at the Berkeley campus,
00:10:48
Speaker
the encampments across the country, so much so that our terrific editor at Yale Press, Bill Freck, said he was never so glad that a manuscript was not turned in on time and we were able to write the book.
00:11:02
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And we recognized that the book is inevitably a snapshot.
00:11:07
Speaker
It's at that moment in time.
00:11:10
Speaker
And so we picked, I think, an important moment in time and turned in the manuscript in the fall of 2024 to be able to talk about just the monumental events that occurred, including ones that we experienced over that year.
00:11:24
Speaker
I can only imagine that there must have been
00:11:27
Speaker
many moments in the writing process when you thought the manuscript was complete only to wake up the next morning to headlines that necessitated edits or additions.
00:11:35
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And I imagine that it was hard to decide when to quote unquote call it.
00:11:39
Speaker
And I think it is a snapshot.
00:11:41
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It's a little bit like a
00:11:42
Speaker
For people who do this work every day, a little bit of a like, this is your life episode, all the kind of greatest hits, so to speak.
00:11:49
Speaker
But I think there's already so many more issues for the next book.
00:11:53
Speaker
So let's dig in.
00:11:55
Speaker
Your book focuses and discusses the phenomenon of campus protests and encampments following the events of October 7th, 2023.
00:12:03
Speaker
One of the reasons it's good that you didn't turn the manuscript in before then.
00:12:08
Speaker
It notes that in the spring of 2024, college students set up roughly 121 protest encampments at 117 universities.
00:12:16
Speaker
In chapter one, you go to lengths to answer the question, is nonviolence enough to comply with university policies?
Peaceful vs. Rule-violating Protests
00:12:23
Speaker
Throughout that spring, there was much confusion about the difference between a peaceful protest and one that violates university regulations.
00:12:32
Speaker
And I would appreciate it if you could talk a little bit about this important distinction.
00:12:37
Speaker
Dean?
00:12:38
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Dean?
00:12:39
Speaker
I want to start a step back from your question, and that's at the premise of both Free Speech on Campus and the premise of this book is that a campus has to be a place where all ideas and views can be expressed, that it's integral to what we think a university has to be about.
00:12:58
Speaker
But of course, there can be time and
00:13:01
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place, manner restrictions as to the when and how speech can occur.
00:13:06
Speaker
Even if there's a right to use government property for speech, it doesn't mean that there's the right to use every piece of property at every time.
00:13:14
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I'm teaching constitutional law.
00:13:17
Speaker
No one has the right to come into my class and use that classroom for a forum for other things because the time, the place, the manner are all specified.
00:13:27
Speaker
Well, it's in this context that I think when we focus on protests, it's important to draw distinction between peaceful protests that are in accord with the rules of the campus in the law, protests that violate campus rules that still remain peaceful, and protests that violate the law, and that would include violent protests.
First Amendment & Peaceful Protest Rights
00:13:53
Speaker
And the First Amendment doesn't provide a right to ever engage in violence.
00:13:59
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And generally, the First Amendment doesn't provide a right to violate campus rules.
00:14:03
Speaker
Now, the punishment, the sanctions may be different, depending whether you're talking about campus rules or violating the law.
00:14:11
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But ultimately, the First Amendment has to be about a right for peaceful protest, not violence.
00:14:17
Speaker
And Michelle, thank you for asking that question, because even before the extremely tumultuous year that occurred in the wake of October 7th, it was a
00:14:28
Speaker
very basic straightforward principle of any conception of free speech that you have a right to express yourself, but not anytime, anywhere, in any way you want.
00:14:38
Speaker
So these time, place, and manner restrictions.
00:14:40
Speaker
And they apply not only with respect to encampments, but with respect to whether you should disrupt an activity on the campus and the like.
00:14:47
Speaker
So, you know, we wanted to make sure that people understood that it's a straightforward principle, even of the most hardened free speech advocates.
00:14:58
Speaker
that there are legitimate regulations.
00:15:00
Speaker
There's rules about the regulations.
00:15:02
Speaker
They can't be so onerous that you really effectively don't have an ability to reach your audience, right?
00:15:08
Speaker
They have to be reasonably related to, you know, a legitimate interest of the campus.
00:15:13
Speaker
But, you know, before the encampments of that year,
00:15:16
Speaker
No one would have said that under ordinary circumstances, any group that wants to come in and commandeer a space on the campus for its own purposes and disrupt campus activities has a free speech right to do that.
00:15:30
Speaker
So there was a lot of emotion with respect to that year.
00:15:33
Speaker
A lot of people were in sympathy with the students who were out there.
00:15:38
Speaker
engaged in that activity.
00:15:39
Speaker
But sometimes you just have to get back to first principles.
00:15:42
Speaker
So we did want to make sure that, sure, if there wasn't active violence, you know, that might be one observation about what some of the encampments were like.
00:15:52
Speaker
But the idea that there's a right, if you believe in free speech, to commandeer as your own a space on the campus,
00:16:00
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in violation of university principles and, you know, act in that way.
00:16:06
Speaker
That is something that most people under ordinary circumstances would understand is not a right.
00:16:11
Speaker
We don't have any doubt, for example, that if people from a different political vantage point, let's say anti-immigrant activists, decided to go onto the campus, put together an encampment,
00:16:25
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with signs that were considered very hostile to students on the campus who had immigrant status that people wouldn't say, well, that's simply a right and you can't interfere.
00:16:37
Speaker
And just because they're not engaged in violent activities, you know, we should allow them to be accommodated.
00:16:43
Speaker
So, you know, one of the aspects of free speech is that there has to be viewpoint neutrality.
00:16:48
Speaker
The rules that you apply to some protesters have to be the same rules you would apply in other circumstances.
00:16:55
Speaker
And so, you know, in that chapter in the new book where we talk about protest activity on the campus, we do want to make it not just about what happened with the encampments, but every campus activity, disruptions of campus events, all the same.
00:17:09
Speaker
Very important to apply it regardless of who the protests protesters are and what their viewpoints are.
00:17:16
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And just lay that out as a basic principle and
00:17:19
Speaker
We think in the wake of that year, people have a slightly better understanding of it.
Consequences & Education in Campus Protests
00:17:24
Speaker
But it was very painful that year to think about how divided the campuses were under those circumstances.
00:17:30
Speaker
But as we say in the book, the way that you manage through incredibly contentious moments is that you have an understanding of what the first principles should be and what the basic principles are.
00:17:41
Speaker
And part of the reason of the book is to reassert these basic principles, even when people are divided politically on particular activities.
00:17:49
Speaker
Well, I was, one of the reasons I picked up on it is because I definitely noticed when I would go and speak to not just students, but faculty and administrators, there was a misperception that if you, as long as it was peaceful, it was okay.
00:18:03
Speaker
And that also, if you were committing civil disobedience, there was a,
00:18:07
Speaker
chasm between breaking rules and then being ready to accept consequences.
00:18:11
Speaker
And so there was a lot of discussion about that.
00:18:13
Speaker
And I don't know if either of you wants to talk a little bit about the role of administrators thinking both about consequences and proportionality, but at the same time thinking about the role of the university as an educator and how you sort of balance those things, especially when passions are so high.
00:18:33
Speaker
In fact, one of the most important decisions that administrators had to make during that year, when really these encampments have been quite unprecedented as political activities, many university leaders had faced particularly that form of protest, was, well, if it violates university rules, what does it mean about how you should respond?
00:18:53
Speaker
And so just to give you a sense, and we discussed this in the book of the complications, right?
00:18:58
Speaker
You can imagine that, well, it's a violation of a university rule, but not necessarily a broader criminal law.
00:19:05
Speaker
So under those circumstances, do you use police to enforce university regulations or not?
00:19:13
Speaker
And under normal circumstances, we don't use sworn officers to enforce university rules that don't implicate larger aspects of criminal law.
00:19:23
Speaker
And so one decision is, do you use the administrative processes, for example, of student conduct proceedings to address those issues, or do you involve other people?
00:19:33
Speaker
If you believe that those administrative processes might not be sufficient to deal with the issue under those circumstances, can you call in police?
00:19:41
Speaker
Does it depend on whether local police jurisdictions are available to you to assist if the activity is more than can be handled?
00:19:51
Speaker
by the police at a particular university.
00:19:53
Speaker
The layers of complications are extraordinary.
00:19:56
Speaker
And every university leader that we talked to was working through those issues in an unprecedented way in real time.
Handling Encampments & Administrative Responses
00:20:03
Speaker
And one of the things we want to convey in the book is sure,
00:20:06
Speaker
Let's say you believe that those kinds of activities should not be permissible.
00:20:10
Speaker
It still raises lots and lots of questions about what the actual implementation strategy should be, how far you should go.
00:20:18
Speaker
And then, as you say, what the proper response should be.
00:20:22
Speaker
Is the response always going to be a response that is a criminal justice response?
00:20:28
Speaker
Is some of that going to be within student conduct?
00:20:30
Speaker
If so, are issues of proportionality and the like relevant?
00:20:34
Speaker
All of those have to be worked through.
00:20:36
Speaker
And too often, especially when these issues get pulled into the culture wars, people just say, you know, stop it no matter what.
00:20:44
Speaker
Use any force necessary or you're being too accommodating.
00:20:48
Speaker
But the decisions that actually have to be made by administrators in real time are much more common.
00:20:53
Speaker
One of the things we wanted in this book, like on Free Speech on Campus, is to give guidance to campus administrators.
00:21:00
Speaker
We didn't want to just offer platitudes, but to be quite specific in terms of how we could be useful.
00:21:07
Speaker
And one of the things that we realized is that campuses had the legal authority to stop the encampments.
00:21:15
Speaker
It wouldn't violate the First Amendment to enforce those time-placed manner restrictions, but it was much more pragmatic about what they should do.
00:21:23
Speaker
And so, in accord with what we were trying to do in the book, we list some criteria here.
00:21:28
Speaker
How much is the activity disrupting the campus and educational research mission?
00:21:34
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How great is the risk of violence and destruction of property?
00:21:38
Speaker
How much harassment is happening?
00:21:41
Speaker
What have been past practices and what are implications for the future?
00:21:45
Speaker
What actions would be necessary and what are the likely consequences of taking them?
00:21:51
Speaker
These don't always point in the same direction.
00:21:54
Speaker
But we think they are such important considerations when campus administrators are facing things like the encampment situation of the spring of 2024.
Nuanced Guidance on Campus Speech
00:22:04
Speaker
Well, that's one of the things I like about both of the books.
00:22:07
Speaker
And I'm a very pragmatic person.
00:22:10
Speaker
So obviously I love the law, but I think that people ultimately, even when you give them basic principles, this book is all about nuance.
00:22:18
Speaker
And that's what this whole experience has been about.
00:22:21
Speaker
So I want to pick up on something that the chancellor said, and maybe you can speak to it a little bit, which is that so many people analogize the spring of 2024 with the Vietnam War protests and
00:22:33
Speaker
And you point out in the book that a key characteristic of the Vietnam protests was that students were largely unified against the war.
00:22:40
Speaker
And you contrast that with the current divisiveness of the student body and faculty on the issue of Israel-Palestine.
00:22:46
Speaker
And maybe, Dean, you can speak to this and add in any of your own thoughts about how did this affect things on campus?
00:22:54
Speaker
And do you think that the larger national divisive political climate, the polarization, is contributing to this?
00:23:02
Speaker
I'm not going to ask you how to solve it, but we'll just talk about your general thoughts.
00:23:07
Speaker
I'm old enough that I was in college during the Vietnam War and participated in anti-war protests.
00:23:14
Speaker
And at least where I went to college at Northwestern, the student body was overwhelmingly anti-war, quite different from the spring of 2024 on our campuses, where there was intense division in
00:23:29
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between those who were supporting Palestinian actions and those who were supporting Israel.
00:23:38
Speaker
There wasn't much common ground often between those.
00:23:41
Speaker
There was a group that believed that Israel should not exist as a country.
00:23:45
Speaker
They took literally the phrase from the river to the sea.
00:23:49
Speaker
And those believed that the existence of Israel was essential.
00:23:54
Speaker
In one way, which was similar to the anti-Vietnam War protest, is that people felt very personally affected.
00:24:01
Speaker
I know that when I was in college, one of those frequent topics for conversation is, what are you going to do if you've got a low draft number?
00:24:09
Speaker
And for those who care deeply about
00:24:12
Speaker
What's going on in the Middle East is often tied to their religion, to their identity.
00:24:18
Speaker
My answer to your question is that in the end, it has to be a process conclusion, that it has to be that the campus is a place where everyone is made to feel welcome.
00:24:30
Speaker
Everyone is included.
00:24:32
Speaker
Everyone can express their own views and ideas.
00:24:35
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that the campus has to be this forum where all ideas and views can be expressed.
Student Divisions on Israel-Palestine vs. Vietnam
00:24:40
Speaker
And I think that was true in the 1970s.
00:24:42
Speaker
And it's true with the deep divisions that occurred in spring of 2024 and the remain on our campuses.
00:24:48
Speaker
And when I talked to my colleagues around the country who were university leaders under these circumstances, every single one of them said that the most challenging issue they've had to face as a leader if they had been in the job for a while wasn't COVID shutting down the entire university, fundamentally transforming education on the campuses and the like.
00:25:08
Speaker
It was this issue.
00:25:09
Speaker
And it was this issue because the amount of pain
00:25:15
Speaker
that was directed within the university community and other members of the university community divided the campus in a way that seemed impossible to try to overcome.
00:25:26
Speaker
We're so used to at a university when people disagree, falling back on what we think are the basic scholarly norms.
00:25:34
Speaker
Well, our job is to deepen the conversation
00:25:37
Speaker
rather than reproduce all of the problems of social media and political culture.
00:25:42
Speaker
Let's get people to talk.
00:25:44
Speaker
Let's focus on facts.
00:25:45
Speaker
Let's do teach-ins and law.
00:25:47
Speaker
And one of the things, as Erwin and I were talking to each other during those early months, we realized was that there are certain moments when people are not in a position to talk.
00:25:59
Speaker
even if they've agreed to be part of a university community, even if they understand that in that community, their job is to listen more deeply than they would in other circumstances.
00:26:08
Speaker
Sometimes the moment presents itself in a way where you can't overcome that divide.
00:26:14
Speaker
And that was part of what was so painful.
00:26:17
Speaker
All of the normal tools we had to try to manage the situation didn't become available because of the pain, the personal experience, even in many respects, the deep hatred.
00:26:27
Speaker
So
00:26:28
Speaker
The other thing that's different about the Vietnam circumstance is that on both sides, there was an argument that when you let the other side express their view,
00:26:41
Speaker
The other side of that view felt that the expression of that view made them feel less safe on the campuses, right?
00:26:49
Speaker
There are very few people who, as a result of their identity or protected class during the Vietnam War said, well, if some people are opposed to war, that makes me feel as though I'm being discriminated against on the campus.
00:26:59
Speaker
They just knew that that was a political argument.
00:27:02
Speaker
But on both sides of this issue, people thought that if you express a particular view, if you said, for example,
00:27:09
Speaker
chanted from the river to the sea.
00:27:12
Speaker
As a Jewish student, you would say that is making me as a student feel as though I cannot have an equal educational experience on this campus.
00:27:20
Speaker
But the same thing was true for pro-Palestinian students who would hear pro-Israel statements.
00:27:27
Speaker
And part of the complication of this debate that we wanted to address in this book
00:27:32
Speaker
is that federal anti-discrimination law, the Title VI framework, where everyone has a right to be on a campus and to experience campus activity in a way that is non-discriminatory so that they have the same ability to get an education in
Title VI vs. First Amendment on Campuses
00:27:48
Speaker
others.
00:27:48
Speaker
All of that almost immediately got pulled in to these debates.
00:27:53
Speaker
So it wasn't just how painful it was to try to bridge the gap.
00:27:58
Speaker
We knew we couldn't bridge the gap.
00:27:59
Speaker
But hovering over all of this activity,
00:28:02
Speaker
were actually under the Biden administration, you know, letters from the Office of Civil Rights to campuses that were, from our point of view, were not especially clear about how if we didn't do something with something not being done,
00:28:19
Speaker
That well expressed.
00:28:21
Speaker
We may be in violation of Title VI.
00:28:24
Speaker
If, for example, we allowed pro-Palestinian demonstrators to say certain things that Jewish students felt created a hostile environment, the campus may be violating federal law.
00:28:35
Speaker
And Erwin and I at that time wrote,
00:28:37
Speaker
not better to saying this puts campuses in a very difficult position because what we think people are saying, what pro-Palestinian protesters are saying, may be very distressing to pro-Israel students on the campus.
00:28:50
Speaker
But from our point of view, they were clearly constitutionally protected speech activities.
00:28:56
Speaker
And so what is a campus to do when we think the First Amendment requires the campus to protect that speech, but you're getting signals from the federal government that if you don't do something,
00:29:06
Speaker
about the fact that some people are expressing themselves that way, you may be in violation of federal law.
00:29:11
Speaker
And one of the things we think is really important about how the book addresses these issues is that it layers in this additional layer of complexity about how campus leaders are trying to figure out how to manage free speech issues with these new claims of non-discrimination and the obligations of federal law.
00:29:32
Speaker
Well, you just covered a lot there.
00:29:34
Speaker
I'm going to pick up on a couple things.
00:29:36
Speaker
I think during that period of 2023 and 2024, I did think that one of the sad ironies was that the common ground often was the amount of pain that people experienced.
00:29:50
Speaker
And then, of course, Title VI, you have the director of the Office of Civil Rights saying there's no rub between Title VI and the First Amendment, and yet you've just articulated all of the
00:30:02
Speaker
pressures, right, that are being brought to bear on administrators.
00:30:06
Speaker
Yeah, maybe we should, for those listening, explain a little bit about what Title VI is and its relationship to this, because I think in our comments, we've assumed that people are familiar with it.
Title VI Impact on Campus Speech
00:30:17
Speaker
Title VI of the 1964 Civil Rights Act says that recipients of federal funds can't discriminate under the basis of race.
00:30:25
Speaker
The Supreme Court has expanded this to include ethnicity, to discriminate against people for being Jewish, being Muslim,
00:30:33
Speaker
being Israeli or Palestinian, would violate Title VI.
00:30:37
Speaker
And the standard under Title VI is that a university receives federal funds, and all do, can't be deliberately indifferent to a hostile environment on the base of race or ethnicity.
00:30:51
Speaker
And it's just as Howard said that the presence of, say, pro-Palestinian speech could make Jewish students feel uncomfortable and say it's a hostile environment.
00:31:01
Speaker
Or speech that was defending what Israel was doing in Gaza could make pro-Palestinian students feel it was a hostile environment.
00:31:10
Speaker
And the question is, well, what happens?
00:31:13
Speaker
It can't be that the university, at least we're talking about a public university governed by the First Amendment, could punish the speech.
00:31:21
Speaker
Title VI, a federal statute, can't override the First Amendment and the Constitution.
00:31:27
Speaker
And it was in this context that Catherine Lehman, who was the Assistant Secretary of Education for Civil Rights, the head of the Office of Civil Rights, made a number of statements that said,
00:31:37
Speaker
that campuses have a duty under Title VI to not be deliberately indifferent, but that doesn't mean that they can prohibit and punish the speech.
00:31:48
Speaker
So what is it that the university must do to avoid being deliberately indifferent?
00:31:54
Speaker
It's here that the Office of Civil Rights didn't give much guidance, and there's still not much guidance in that regard.
00:32:02
Speaker
And for university administrators, that's the key question.
00:32:05
Speaker
What is it that they have to do to be able to avoid liability under Title VI?
00:32:10
Speaker
And what's so important about that is that that precedent where you didn't have to suppress the speech, but you had to do something, and if you didn't do enough,
00:32:23
Speaker
to demonstrate that you were not deliberately indifferent, you could be in violation of federal law.
00:32:27
Speaker
That created a deep concern among universities not knowing how much is enough, right?
Federal Funding & Title VI Compliance Concerns
00:32:34
Speaker
That same ambiguity, if it's left ambiguous, can then be used by any administration to create a fear at universities that, well, this speech happened.
00:32:48
Speaker
You didn't suppress it and you didn't have to suppress it, but you should have done something.
00:32:52
Speaker
And if we think you didn't do enough, then we're going to put you in a situation where
00:32:58
Speaker
your entire federal funding can be put at risk because in our judgment, you should have done more.
00:33:05
Speaker
And the lack of clarity about what constitutes enough to avoid deliberate indifference is still
00:33:15
Speaker
central to what universities are facing, especially as the Trump administration has decided to use this rubric as a way of telling universities that unless they change certain practices and do more from the vantage point of the Trump administration, they could risk the loss of federal funding.
00:33:35
Speaker
Now, Irwin has been part of litigation where it was very clear in the Title IX situation that universities were simply shrugging off the responsibility and not trying to do anything to protect, for example, women who felt that they were in a objectively hospital environment.
00:33:51
Speaker
So we kind of know what it looks like to not care at all and do nothing and therefore, in a legitimate way, risk vulnerability for a violation of federal law.
00:34:02
Speaker
But this area of law right now is so ambiguous that it really puts at risk any understanding of what is permissible and not permissible, when universities should protect the free expression of ideas and when they should do something different.
00:34:15
Speaker
And so we think it's going to be a little bit uncertain for a while longer.
00:34:21
Speaker
But one of the things we want to emphasize in the book is that this is a larger issue that university leaders have to address, not just with respect to the Trump administration, but structurally embedded
00:34:31
Speaker
in how the Office of Civil Rights under the Department of Education has been talking to universities over many years about what their obligations are under Title VI.
00:34:41
Speaker
And I should simply add what Howard said, the Trump administration has used Title VI in saying it's cutting off funds to certain universities because they didn't create a sufficiently conducive learning environment for Jewish students.
00:34:56
Speaker
There's a hostile environment.
00:34:57
Speaker
But what the Trump administration didn't do was follow any of the procedures that are prescribed in federal law.
00:35:03
Speaker
Federal law says that before a university's funds can be cut off from Title VI, they have to have notice,
00:35:09
Speaker
There has to be a hearing.
00:35:11
Speaker
There have to be findings of fact.
00:35:13
Speaker
There's to be 30 days notice given to both the House and the Senate before any cutoff of funds under Title VI.
00:35:19
Speaker
Funds can be cut off to only the part of the program that itself was deemed to violate Title VI.
00:35:26
Speaker
And none of these have been followed over the course of the last year.
00:35:30
Speaker
I mean, I think the key here is the words you used, uncertainty and ambiguity, and the fact that universities are really between kind of a rock
Navigating Title VI Compliance
00:35:40
Speaker
and a hard place.
00:35:40
Speaker
And I know that I think a lot about how fear of losing federal funds is terrifying and could easily lead to overcompliance.
00:35:50
Speaker
And I guess I'm seeing that less on the side of the First Amendment, but also the
00:35:56
Speaker
These cases are very fact specific.
00:35:58
Speaker
I mean, I don't know if you would agree, but when you look at, for instance, there was one case, a Title VI issue that was brought, you know, by Harvard and one by MIT, and they came out different ways.
00:36:08
Speaker
And it really involved a very fine and granular reading of the facts, which I don't, again, I don't think helps to pull out
00:36:19
Speaker
larger principles that councils and administrators can follow.
00:36:23
Speaker
And I don't know how long it's going to take until we have enough decisions.
00:36:28
Speaker
And then I think there's also the question of the way that OCR interprets terms like deliberate indifference and how courts interpret terms like deliberate indifference.
00:36:36
Speaker
And I know I'm getting a little in the weeds, but I think it's important.
00:36:40
Speaker
And, you know, Michelle, we would agree that what you want is very careful deliberation of what is really happening in a fact-specific way.
00:36:49
Speaker
This is what happens in the law all the time, right?
00:36:52
Speaker
And usually it's in a forum where you have a chance to make your case and there's a record that's being developed in the life.
00:36:58
Speaker
One of the challenges is if a lot of activity or conversations or negotiations are happening before you ever get to court, then you don't have that normal process where you can work through the specifics.
00:37:11
Speaker
It probably, I mean, when Erwin has been involved in some of this litigation,
00:37:15
Speaker
It was very important to understand very clearly what were the threats to women at this particular college, right?
00:37:23
Speaker
And what did the university specifically do or not do?
00:37:26
Speaker
Every university, I think, would be happy with a process by which you had a chance to make a record and clearly indicate how you responded to different circumstances.
00:37:35
Speaker
The problem that we've seen really over the last year or so is that so far, there hasn't been an opportunity to get into those kinds of things.
00:37:44
Speaker
Okay, so we could continue down this rabbit hole, but I'm going to move us to a different rabbit hole.
00:37:48
Speaker
It's something that, Chancellor, you mentioned at the top, which has to do with firing of faculty and lecturers and another big issue, which is extramural speech.
Extramural Speech & Academic Freedom
00:38:00
Speaker
And I'd like to kind of talk a little bit about that.
00:38:03
Speaker
I believe that extramural speech of faculty members is one of the most misunderstood and contentious issues playing out right now.
00:38:10
Speaker
And I thought that maybe Chancellor, you could start by refreshing our listeners' recollections about the difference between free speech and academic freedom.
00:38:19
Speaker
And then we can move into some more specific questions about what's been happening and discuss the rash of faculty firings based on comments that people are making on their personal social media and other places.
00:38:32
Speaker
Yeah, thank you, Michelle.
00:38:33
Speaker
One of the things we think is most important about the new book, which by the way is called Campus Feast and Academic Freedom, is that free speech and academic freedom are both related in the sense that they have to do with protections of people to express themselves in certain ways.
00:38:48
Speaker
But the dynamics are very, very different.
00:38:50
Speaker
And one, free speech applies to everyone.
00:38:55
Speaker
And it has to do with the ability of everyone to express a viewpoint without getting in trouble merely for expressing a point of view.
00:39:02
Speaker
And the other, academic freedom is very specific to the privileges and obligations of faculty members when they are doing their jobs at university.
00:39:13
Speaker
So to give you an example.
00:39:15
Speaker
And Michelle, you and I, when we were teaching a course on free speech and academic freedom, used this example in that course.
00:39:22
Speaker
So if you're a person off the street and you believe the moon is made of green cheese, you can go to City Hall and get a sign and say the moon is made of green cheese outside the mayor's office and no one is going to
00:39:37
Speaker
censor you or punish you for expressing a viewpoint that a lot of people think may be wrong because you're just some person who has a point of view about the moon being made of green cheese.
00:39:45
Speaker
But you're a faculty member in an astronomy department at a university trying to get tenure.
00:39:51
Speaker
And your tenure file is rooted in your off-the-cuff belief that, by the way, everybody should think the moon is made of green cheese.
00:39:57
Speaker
That is subjected to
00:39:59
Speaker
normal peer review, whether or not you have the competence to be a professional faculty member with that area of expertise.
00:40:08
Speaker
And if people think that point of view is not a legitimate or competent point of view, you could be denied your position, right?
00:40:14
Speaker
You could be denied tenure.
00:40:16
Speaker
You could be not hired.
00:40:17
Speaker
Lots of things could happen.
00:40:19
Speaker
And so the difference between academic freedom and free speech is that free speech is the right that everybody has to express a point of view without getting in trouble merely for expressing that point of view.
00:40:29
Speaker
That we think is central to any free society.
00:40:32
Speaker
Academic freedom has to do with the rights and obligations of professional scholars.
00:40:38
Speaker
What do you expect of professional scholars when they are doing their job in the classroom, in the lab, or otherwise speaking to a broader community as a expert?
00:40:50
Speaker
And the obligation of academic freedom is that as well-trained professionals, they have a right to express themselves in their teaching of advanced knowledge, in the research they want to do, and in the way that they are expressing their expertise to a broader audience, as long as that expression reveals their fundamental competency as experts in that field and is ethical in relationship to their professional responsibilities.
00:41:19
Speaker
Think of it as the same kind of protection we think of physicians having.
Faculty Free Speech vs. Professional Competence
00:41:24
Speaker
That is to say, a physician needs some discretion as an expert as to how to imagine what standard of care is for a patient.
00:41:33
Speaker
And the main obligation they have is to do their best as a professional to take good care of their patients.
00:41:39
Speaker
The clinical environment in a hospital is not their free speech area where they could say or do whatever they want, right?
00:41:44
Speaker
If they say things that demonstrate that they're simply not competent as physicians, that could get them in trouble.
00:41:50
Speaker
But what should be evaluated is whether they have competency as assessed by other experts in the field.
00:41:57
Speaker
So the reason how this applies to external speech is
00:42:03
Speaker
of faculty members is that when a faculty member is expressing themselves about topics that have nothing to do with their expertise, some faculty member in, I don't know, physics has a blog on restaurants, you know, in Irvine, California.
00:42:18
Speaker
Maybe you disagree with every single one of their recommendations.
00:42:21
Speaker
Nobody cares.
00:42:23
Speaker
Having a wrong point of view about a restaurant in Irvine doesn't necessarily mean you can't be a decent physics professor at Irvine.
00:42:31
Speaker
But if a faculty member in those rare circumstances expresses themselves externally to a broader audience in a way that is supposed to reflect their scholarly competence, but in that speech demonstrates a lack of scholarly competence,
00:42:50
Speaker
then that can be taken into account the way any kind of evidence of scholarly competence can be taken into account.
00:42:57
Speaker
So a history professor, a European 20th century history professor who has an opinion about restaurants in Irvine should never get in trouble because they expressed an opinion on their blog about restaurants in Irvine.
00:43:12
Speaker
But if they express an opinion, for example, that the Nazi Holocaust never occurred,
00:43:18
Speaker
That can be taken into account the way any other evidence of their scholarly competence can be taken into account.
00:43:25
Speaker
And so it's very important when we think about what faculty say to understand that there's different rules depending on whether they're simply like every other person expressing themselves on a variety of topics or whether they are acting as professional scholars.
00:43:42
Speaker
And if you start with that premises, it really helps figure out and orient, I think, both administrators and the general public to when saying something that might be considered outrageous,
00:43:55
Speaker
is not a problem and should be protected because everyone has a right to say certain outrageous things.
00:44:00
Speaker
And when saying something really calls into question their ability to be a competent professional in their fields.
00:44:06
Speaker
I think Howard puts it very well.
00:44:08
Speaker
I want to get back to where we started this conversation.
00:44:12
Speaker
When we were working on this book, we realized that one of the gaps in free speech on campus of public 2017 is it didn't focus on academic freedom.
00:44:21
Speaker
There's a great deal of emphasis on student speech, what campus could do.
00:44:26
Speaker
But so many things that happened from 2017, wrote this book, of faculty members who had faced discipline, even firing for their speech.
00:44:35
Speaker
And it required us to think through the relationship between academic freedom and freedom of speech.
00:44:42
Speaker
And I increasingly have come to realize there's a great misunderstanding about this.
00:44:46
Speaker
Academic freedom is about the ability of an instructor in the choices made in teaching a course, in scholarship, in disseminating ideas to the public within, as Howard says, the standards of the profession.
00:45:03
Speaker
Freedom of speech, of course, extends far beyond that ability of people to express themselves, even if it has nothing to do with what they're teaching in their class or their scholarship or dissemination ideas.
00:45:15
Speaker
And so I think of it as, in a then diagram sense, overlapping circles.
00:45:20
Speaker
There are some things that are protected by free speech, but not academic freedom.
00:45:26
Speaker
Howard's example of somebody who says the moon is made of green cheese.
00:45:30
Speaker
My example would be, imagine that a professor, say of computer science, goes to a rally over the weekend having nothing to do with that, but it's a rally that is very offensive to people.
Faculty Free Speech in Non-Academic Settings
00:45:44
Speaker
Academic freedom wouldn't be involved there.
00:45:46
Speaker
This wasn't about his teaching, his scholarship, his dissemination of his scholarly ideas.
00:45:51
Speaker
But free speech, at least at a public university, would prevent that person from being disciplined.
00:45:57
Speaker
On the other hand, there are things that are protected by academic freedom that we wouldn't think of as protected by free speech.
00:46:05
Speaker
At private universities, the First Amendment doesn't apply, but private universities are still committed to academic freedom.
00:46:12
Speaker
And there are many things that are protected by both free speech and academic freedom.
00:46:18
Speaker
And I hope that one of the things that the book contributes is greater clarity with regard to academic freedom and free speech and the relationship between the two.
Confusion on Academic Freedom & Free Speech
00:46:27
Speaker
And Michelle, two other points about this.
00:46:30
Speaker
So one point is one of the differences, therefore, when it comes to extramural speech, which is what you talked about, is that when faculty members engage in extramural speech, mostly they're exercising their free speech rights.
00:46:42
Speaker
But every once in a while, rarely, they could be saying something that calls into question their competence as an expert in their field of study.
00:46:50
Speaker
And then there should be a mechanism by which, through a normal process of peer review, that could be taken into account.
00:46:55
Speaker
But that should be a rare thing.
00:46:57
Speaker
That doesn't apply to students, though, right?
00:46:59
Speaker
Students who say knuckleheaded things, you know, in social media, they're not obligated by a sense of professional competence, right?
00:47:07
Speaker
So one of the things we emphasize in the book is that every once in a while, faculty members might raise issues with respect to their professional competence when they say something externally, but not when they say something internally.
00:47:20
Speaker
On the other hand, the other thing that we think is a big source of confusion is that many faculty members think they have free speech, for example, in the workplace environment when they teach classes.
00:47:30
Speaker
They think of their classroom as their ability to just express themselves.
00:47:34
Speaker
That is a very important misunderstanding that we hope to correct in the book.
00:47:39
Speaker
In the classroom setting, they are obligated to act as ethical and competent professionals.
00:47:44
Speaker
And that classroom is not their private play thing.
00:47:47
Speaker
The way they're expressing themselves maybe at an unrelated protest can be a place where they can say whatever they want.
00:47:54
Speaker
And academic freedom does impose certain obligations on faculty members when they're actually supposed to be doing their job.
00:48:00
Speaker
Thank you.
00:48:01
Speaker
First, I just want to add in that the green cheese example, I have used it everywhere.
00:48:06
Speaker
And there's something about that example, probably because it's so silly that people all of a sudden, like the light bulb goes on and they're like, oh, I get it.
00:48:14
Speaker
Of course you couldn't teach that.
00:48:16
Speaker
But on a more serious note, one of the things I think there's so much misunderstanding both about intramural and extramural speech is
00:48:22
Speaker
And I think one of the things that's contributing to the confusion is what we're seeing happening.
00:48:27
Speaker
And let's take, for example, one of the examples that you weren't able to touch on in the book, which was what happened following the assassination of Charlie Kirk.
00:48:34
Speaker
Right.
00:48:34
Speaker
We saw people posting a lot of things that were very positive and very negative about Kirk and about Turning Point and a lot of the people that posted.
00:48:44
Speaker
negative things having nothing to do with their area of academic expertise found themselves on the other side of sanctions, which seemed wrong, but I think does contribute to the confusion about what is allowed.
00:48:56
Speaker
And I was wondering if you could sort of speak to that and why we're seeing that happening.
00:49:00
Speaker
Yeah.
00:49:03
Speaker
I'll make a more general point.
00:49:05
Speaker
I think there's often a strong impulse to try to stop and punish the speech that we don't like.
00:49:11
Speaker
And so when people said things that were found offensive after the death of Charlie Kirk, the natural response of some was to try to silence, to punish those who said it.
00:49:23
Speaker
But to go back to the distinction that Howard and I were just articulating, I think that faculty members have
00:49:29
Speaker
So at a public university, a First Amendment right to express their views, whether it's view we like or dislike, one that's palatable or outrageous.
00:49:38
Speaker
And to fire a professor at a university for expressing views on the death of Charlie Kirk, I think raises very grave First Amendment issues, probably not academic freedom, because we're again not talking in the realm of teaching course material, scholarly dissemination of ideas, research and the like.
00:49:57
Speaker
And Michelle, we think that while we didn't get a chance to talk about that specific example, we did include examples of faculty members who express themselves in social media in ways that were considered kind of outrageous, especially in the wake of the death of somebody.
00:50:12
Speaker
So we have a woman faculty member who, upon the death of Elizabeth, said some extremely harsh negative things.
00:50:21
Speaker
There's a lot of, you know,
00:50:23
Speaker
General sympathy in the culture and people wanted to talk about her tremendous legacy.
00:50:29
Speaker
This one woman faculty member really celebrated her death on grounds that she had facilitated.
00:50:38
Speaker
deathly imperial activities in her home country and the like.
00:50:42
Speaker
And there was a lot of pressure to sanction this faculty member, to fire this faculty member.
00:50:48
Speaker
One of the arguments we make in the book is that that faculty member's position there is fully protected by free speech.
00:50:55
Speaker
The fact that there was outrage about what they said is completely irrelevant.
00:51:00
Speaker
And one of the things we're seeing, even in the Charlie Kirk example, is that we're already seeing a number of faculty members who said some things that certain politicians did not like and demanded that certain action be taken.
00:51:14
Speaker
This is a situation that university leaders, unfortunately, have to face all the time.
00:51:19
Speaker
Those leaders broke under that pressure.
00:51:23
Speaker
And we're already beginning to see litigation and lawsuits and resolutions of those issues to the favor of the people who were caught into that hysteria.
00:51:35
Speaker
We really want to make sure, especially given how
00:51:38
Speaker
explosive social media activity can be in these circumstances.
00:51:42
Speaker
We really wanted in the book to make it very clear that every university leader, when they have thousands, if not tens of thousands of faculty and students, are going to face a situation where some of those people, maybe just one of those people, is going to say something that's going to drive everyone else completely crazy.
00:51:59
Speaker
You have to have your bearings under those circumstances way in advance
00:52:03
Speaker
on when you should take steps against those people and on what grounds and when you just have to say.
00:52:10
Speaker
They have a right to say that.
00:52:12
Speaker
And part of the price you pay for having a commitment, a principled commitment to the First Amendment, which as Irwin and I and Michelle, you understand, it's not the kind of commitment that everybody has, right?
00:52:24
Speaker
If you have a principled commitment to the right of people to express themselves without getting in trouble from the government,
00:52:30
Speaker
then you have a right to say things and enter those circumstances, even if there's tremendous political pressure.
00:52:36
Speaker
University leaders have to make it clear they are going to defend the right of people to express themselves.
00:52:41
Speaker
And so we think that the book lays out the argument that would have helped some university leaders at least make a more informed decision about whether to resist political pressure or not in the wake of the Charlie Kirk tragic and terrible assassination.
00:52:58
Speaker
Absolutely.
00:52:59
Speaker
And I'm going to kind of just move us along because I do want to talk about chapter four in the book, which is government control over campus speech, which is really something that wasn't nearly as prevalent when you wrote your first book at all.
00:53:15
Speaker
And in chapter four, you describe two very different practices of public higher education, right?
00:53:20
Speaker
The first is what universities were like in the 19th century, which when we taught our class, Chancellor, you really...
00:53:26
Speaker
educated me about, which was that the ideas that were acceptable to teach or debate, this is what you write in your book, at colleges and universities, have been controlled by politicians, boards, and administrators.
00:53:37
Speaker
If religious leaders or politicians didn't want Darwin to be taught, then faculty members acquiesce to this command or risked being fired.
00:53:44
Speaker
If the Antebellum South considered abolitionism threatening to the public order, that idea could not be fairly discussed, close quote.
00:53:52
Speaker
The model the universities adopted at the beginning of the 20th century included academic freedom and tenure and embraced the dramatic model of intellectual freedom because it allowed for the best creation of new knowledge and improved educational results for college students.
00:54:07
Speaker
So your book discusses how we are currently at a crossroads with many legislators and advocacy groups interested.
00:54:13
Speaker
in returning to the 19th century model of political control of faculty.
00:54:17
Speaker
And you argue, and I would agree, that this is an existential threat to American higher education, which is, at least until recently, the envy of the world.
Political Influence on Academic Freedom
00:54:26
Speaker
So maybe, Dean, do you want to talk about this existential moment and what universities can be doing to persuade politicians and voters what is at stake?
00:54:38
Speaker
I think it is an existential moment.
00:54:40
Speaker
If you were to ask me what's been the greatest threat to speech on campuses and academic freedom, it's what some state legislatures, some governors, and what President Trump has done.
00:54:52
Speaker
We focus in the book on the anti-critical race theory laws.
00:54:56
Speaker
We talk about the Stop Woke Act.
00:54:59
Speaker
And so when you think of the kind of things that Governor Ron DeSantis has done, or that are now happening with the University of Texas system,
00:55:06
Speaker
It's based on such a different model of higher education than the one that the United States for a century has followed.
00:55:15
Speaker
When I think of President Trump cutting off federal grants simply because he thought that they were pursuing diversity in research, this is at odds with what a university is supposed to be about.
00:55:29
Speaker
And so my answer to your question is that I think it's so important
00:55:33
Speaker
that we educate people on what universities are supposed to be about, that why universities have to be places where all ideas and views can be expressed, why the Ron DeSantis and Donald Trump view of universities is really important
00:55:49
Speaker
It's antithetical to the advancement of knowledge and it's to the detriment
Higher Education's Communication Failures
00:55:54
Speaker
of all.
00:55:54
Speaker
And I think it's so important that we find a way after we educate people about this to have them get involved and speak out because the future of higher education really is at risk at this moment in time.
00:56:08
Speaker
Well, I was just going to say, do you think people really understand what it is that universities contribute to communities?
00:56:15
Speaker
I'll just answer in one sentence and turn it to Howard.
00:56:18
Speaker
I think that higher education over time has done a poor job of explaining what it's about.
00:56:24
Speaker
And so at this moment, public confidence in all institutions is down, including in higher education.
00:56:32
Speaker
And I think that all of us who have been leaders in higher education deserve some of the blame for this.
00:56:38
Speaker
Now the question is, how do we do a much better job of explaining to people why higher education and this vision of higher education is so important for our society?
00:56:48
Speaker
Yeah, I think that's right.
00:56:49
Speaker
One of the things we tried to do in our earlier book, but underscore, especially in this book, is that the modern American university, as you said, Michelle, maybe up until recently, the envy of the world, was predicated on one very simple principle that expertly trained
00:57:09
Speaker
scholars in fields of advanced knowledge would have the freedom, based on their competency and ethical behavior, to make decisions about how to convey that knowledge and what kind of research would be most important in order to advance knowledge.
00:57:24
Speaker
Free minds, expertly trained, held accountable by their peers for their activity, if allowed to work
00:57:35
Speaker
as they see fit, will work miracles.
00:57:39
Speaker
And the 20th century was a century, a lot of complication, but miracles when it came to the advance of knowledge, precisely because it wasn't politicians telling them what they should study or how they should teach.
00:57:54
Speaker
And it wasn't religious leaders telling them what was true and what was not true.
00:57:58
Speaker
So that is fundamental to the modern American universities.
00:58:02
Speaker
Now, what we've seen, though, is that over the last few years, even before the Trump administration, in one red state legislature after another, there was a tremendous frustration at continuing to allow a free faculty to have discretion on how to teach and what to research.
00:58:24
Speaker
And their belief was that there was a culture of intolerance.
00:58:29
Speaker
on campuses, that there was an unwillingness to take seriously certain points of view that they politically disagreed with.
Cultural Intolerance & Academic Freedom
00:58:39
Speaker
And as a result of that, over the years, there was a growing frustration on the right about whether you could trust a free, well-educated, well-trained faculty
00:58:53
Speaker
to make those decisions in a way that was consistent with what they claimed to be their own values of free inquiry and the luck.
00:59:00
Speaker
And what we saw is the minute that social contract between tenure and academic freedom on the one hand,
00:59:07
Speaker
and deference to faculty decision-making, the minute that starts to become frayed, the whole system starts to fall apart.
00:59:15
Speaker
So when Ron DeSantis in Florida as kind of a first mover before Texas started to take over, when he said, we have to stop woke at universities, the argument that is developing in the litigation about whether Florida can tell university professors what to teach and not teach, the argument that they have is that there is no academic freedom.
00:59:38
Speaker
that they are public employees, that they are public universities professors, that as public employees, they have to say what the government wants them to say.
00:59:46
Speaker
That is a position that you can take.
00:59:50
Speaker
It's not that they say we believe in academic freedom, but it's not covered by academic freedom.
00:59:54
Speaker
They don't believe in academic freedom.
00:59:56
Speaker
And the reason why we're at a crossroads is that
01:00:00
Speaker
In the 19th century, the country had one model.
01:00:03
Speaker
In the 20th century, we have another model.
01:00:05
Speaker
And now we are seeing almost half of every single state legislature revert back to a model of political control of what university professors should be allowed to teach and research.
01:00:20
Speaker
So, for example, most recently at the University of Texas A&M,
01:00:24
Speaker
philosophy professor and an introductory philosophy course wants to teach Plato and has been instructed by their administration based on Texas law that the particular readings in Plato say things about gender identity that the state does not want philosophy professors or any professor to teach.
01:00:48
Speaker
Now, is that imaginable that that could be a position in the United States?
01:00:53
Speaker
It's certainly imaginable.
01:00:54
Speaker
That is the position in way too many states.
01:00:57
Speaker
And one of the things we discuss in this book are the consequences for the United States.
01:01:03
Speaker
If some states insist
01:01:05
Speaker
that the curriculum and research agendas of well-trained faculty will be directed by majorities in the state legislature rather than by the judgment of those faculty members.
Split in American Higher Education Systems
01:01:20
Speaker
That could create in the United States, in this crossroads analogy, two very different systems of higher ed, one which reflects the 20th century sensibilities which have transformed the world and were the envy of the world, and another which reverts back to the 19th.
01:01:35
Speaker
century.
01:01:35
Speaker
You know, we hope that that doesn't continue to develop along those lines, but it is certainly a realistic possibility that it could.
01:01:44
Speaker
One way that we could try to pull things back is if everyone, including faculty,
01:01:50
Speaker
do take seriously the original bargain that was made when tenure and academic freedom were first acknowledged, which is that they should act as competent professionals.
01:02:01
Speaker
They should be willing to express and listen to lots of different viewpoints.
01:02:06
Speaker
We wouldn't have the UC National Center on Free Speech and Civic Engagement, and Erwin and I would not have written these books.
01:02:12
Speaker
We didn't think that there is something to the argument that at too many universities, there is not sufficient willingness to embrace all reasonable ideas within a field of study.
01:02:26
Speaker
And until that faith, that confidence, that
01:02:30
Speaker
in higher ed, that we are true to our values is more systematically reestablished, we are going to have these debates and these conflicts and in theory might end up with two very different systems of public universities in the United States.
01:02:46
Speaker
I mean, I certainly hope not.
01:02:48
Speaker
I mean, right now it feels like there are two very different sort of countries depending on where you live right
Community Engagement in Higher Education Defense
01:02:55
Speaker
now.
01:02:55
Speaker
I think this is really a perfect kind of lead up to the last theme.
01:03:00
Speaker
We're running short on time, which is unfortunate.
01:03:02
Speaker
I had a couple more legal equal questions for you, but I'll ask you another time.
01:03:07
Speaker
But really talking about how higher education, as you've just been talking about, has become a political tool, really in some ways being used as sort of a bludgeon.
01:03:16
Speaker
And we normally close all of our Speech Matters episodes by asking our guests to share something that listeners can do towards engaging themselves in the issues we discuss.
01:03:27
Speaker
And in terms of the things we've discussed today, are there, I know, Chancellor, you just mentioned something faculty can do, but are there other things that members of the university and college communities can take to help bend, you know, as Martin Luther King said, not just bend the arc towards justice, but bend the arc towards justice.
01:03:44
Speaker
the 20th century model of university.
01:03:47
Speaker
So if each of you wants to share a couple of things that would be helpful.
01:03:51
Speaker
I think it's important to put this in context.
01:03:54
Speaker
Our society is more deeply divided than it's been at any time since reconstruction.
01:04:00
Speaker
There are so many measures of that.
01:04:03
Speaker
As I alluded to a moment ago, all of the major institutions in our society have the lowest approval rating that they've had in memory.
01:04:12
Speaker
The Supreme Court has its lowest approval rating as long as these have been taken.
01:04:16
Speaker
The last poll that I saw, Congress having an approval rating of 16, and that might be 16 people, not 16%.
01:04:24
Speaker
And it's not surprising that higher education has also suffered in public esteem.
01:04:30
Speaker
But as I said earlier, I think leaders in higher education have made a mistake in not explaining to people why higher education matters.
01:04:40
Speaker
and the model of higher education that is essential for it to thrive.
01:04:45
Speaker
So I think that it's really important that leaders in higher education take steps to educate people,
01:04:53
Speaker
to encourage people to be involved, and to also encourage people to speak out.
01:04:59
Speaker
There needs to be a response to Ron DeSantis.
01:05:02
Speaker
There needs a response to Donald Trump that explains what universities are about and why their approach to universities will ultimately be very harmful for our society.
Public Disconnection from University Values
01:05:13
Speaker
That's right.
01:05:14
Speaker
And the other thing is that there's a reason why there's not one
01:05:19
Speaker
Republican legislature in a red state, legislator in a red state, who's going to lose votes by going after their universities.
01:05:28
Speaker
There is among the public a general sense, as there is with respect to lots of institutions, that universities have lost touch.
01:05:37
Speaker
They don't reflect my values.
01:05:39
Speaker
They don't care about my issues.
01:05:41
Speaker
I feel as though I'm being condescended to, right?
01:05:44
Speaker
What we're learning is that these social compacts
01:05:47
Speaker
are more fragile than we expected.
01:05:49
Speaker
I mean, you would think that given the success of universities in the 20th century, that you could simply rely on everybody sees the success.
01:05:55
Speaker
Everybody's trying to get into these universities.
01:05:57
Speaker
My university had almost had more than 150,000 applications for students trying to get in.
01:06:02
Speaker
So whatever people think that, you know, Berkeley, you know, maybe is doing okay as well.
01:06:08
Speaker
And so, you know, whatever people think, on the one hand, they see the value, but they also do see that in some corners of the campus, there's something that it would be useful for us to acknowledge.
01:06:19
Speaker
And my hope is that if you have some frustrations about universities, that you make the case that let's work on those issues without doing anything that might fundamentally destroy what has made American universities better.
01:06:35
Speaker
so central to the well-being of the world.
01:06:39
Speaker
I really do believe that there's no greater institution in human imagination that has done more to advance human freedom, social progress, enlightenment,
01:06:48
Speaker
And the modern, especially public research university, which at scale brings people in from all sorts of different backgrounds who never in history would have had an opportunity to get higher education and allows them to make tremendous contributions to the world.
01:07:03
Speaker
So if we need to talk about some things that we think could be useful correctives, let's talk about those things without at the same time destroying the fundamental issues.
01:07:12
Speaker
reality about universities that has been so important to the country.
01:07:16
Speaker
And I have some confidence that when you go beyond some of the culture war and you just look at the political system more generally, I don't think the Congress of the United States, for example, wants to destroy America's research.
01:07:29
Speaker
Right.
01:07:30
Speaker
So there is a middle there that if you can get beyond, you know, the daily craziness of an executive order or
01:07:38
Speaker
particular social media post of a faculty member or student, there is, I think, a basic understanding.
01:07:45
Speaker
But we do always have to renegotiate and reaffirm these social contracts.
01:07:51
Speaker
And that imposes, I think,
01:07:53
Speaker
an amount of patience and willingness to dialogue among the general public, but also it does impose a certain responsibility on higher ed to face up to the criticisms and the concerns and to address them in ways that restore confidence in what is, I think, the greatest system of higher education that has ever been devised on the board.
01:08:12
Speaker
Well, we're going to end on that note, and I'm going to thank both of you tremendously.
01:08:17
Speaker
I know we have gone over and still so many questions, but
01:08:21
Speaker
I want to thank you both, not just for joining us, but obviously for all of the support that you've given to me and to the center so that it can grow and develop and have the impact that it's had, I think, both at UC and across the country.
01:08:35
Speaker
And, you know, we're kicking off this new season, this new year, and we're going to hope for better days and that we'll just keep fighting.
01:08:43
Speaker
We'll just keep fighting the good fight.
01:08:45
Speaker
And I want to make sure that all of our listeners who
01:08:48
Speaker
know that the book, again, is Campus Speech and Academic Freedom, a Guide for Difficult Times from Yale University Press.
01:08:55
Speaker
And I believe it will be out on January 27th.
01:08:59
Speaker
So thank you both again.
01:09:01
Speaker
Thank you so much.
01:09:03
Speaker
Michelle, it's always a pleasure.
01:09:05
Speaker
That's a wrap for this episode of Speech Matters.
01:09:09
Speaker
Thanks again to our guests, Dean Chemerinsky and Chancellor Gilman, for joining us for the conversation and for sharing their insights about their upcoming book.
01:09:18
Speaker
The book is Campus Speech and Academic Freedom, a Guide for Difficult Times from Yale University Press, and it will be available on January 27th.
01:09:28
Speaker
We are excited for the coming year of conversations about these interesting, challenging, and nuanced topics.
01:09:36
Speaker
And we look forward to continuing with season five.
01:09:38
Speaker
Talk to you next time.