(Archived document, may contain errors) Defending Academic Freedom By Michael P. McDonald The Center for Individual Rights, the organization which I co-direct, has recently established an Academic Freedom Defense Fund. We provide fire legal counsel to students and professors whose freedom o f speech and inquiry-academic freedom-is threatened by the forces of "polit- ical correctness." For the many ills that plague academia, we have devised a simple remedy: in the words of pub- lic interest eminence grise John Banzhaf, we "sue the bastards." I would like to share with you my thoughts on what litigation can and cannot accomplish in terms of advancing academic freedom. We know litigation can accomplish something. I'm happy to report that over the past months we have won a string of cases: We suc c essfully represented Mr. Timothy Maguire, a third year law student at the George- town University Law Center who had the effrontery to claim, in an article published in the school newspaper, that Georgetown had a dual racial standard in admissions. Deeply embar- rassed over this revelation-Law Dean Judith Areen maintained that race was not a factor in the admissions process-Georgetown instituted disciplinary proceedings against Maguire, trumping up charges that in collecting admissions data for use in his a rticle, Maguire had somehow com- mitted a "breach of confidentiality." We settled the case on terms extremely favorable to Maguire, he graduated and Georgetown was left having to admit, reluctantly, that Maguire was right. We won a lawsuit against various administrators of the City College of New York on behalf of philosophy professor Michael Levin. Over the objections of its own Faculty Senate, and despite the protests of numerous academic organizations, the College had formed a committee to deter- mine w h ether politically incorrect statements Levin had made off campus concerning group disparities in IQ could be defined as "conduct unbecoming a scholar," thus constituting grounds for revocation of his tenure. Federal District Court Judge Kenneth Conboy con c luded that Levin had "convincingly established his case that the [City College] sought to and did punish him... solely because of his expressed ideas," and enjoined College officials from further harassing Levin. The Center and others sued George Mason Un i versity on behalf of the Sigma Chi Fraternity. The fraternity had been severely punished for the "gross insensitivity" it displayed in staging an 64ugly woman" contest to raise money for charity. U.S. District Court Judgedaude Hilton found that GMU had vi o lated the First Amendment when it punished the fraternity because of the contest's expressive content. We have also represented Professor Linda Gottfredson whose employer, the University of Del- aware, dislikes both her and the New York foundation which f unds her research on the
Michael P. McDonald is the president and general counsel of the Center for Individual Rights. He spoke at The Heritage Foundation on November 21, 1991 in the Resource Bank series of lectures featuring leaders of conservative educati on and public policy organizations. Michael S. Grove.. CIR's executive director, assisted in the preparation of these remarks. ISSN 0272-1155. 0 1992 by The Heritage Foundation.implications of individual and group differences in ability. UD believes tha t this research inter- feres with its "overriding mission" of promoting cultural diversity. Hence, the university refused to allow Dr. Gottfredson access to the foundation's money to continue her research. As a prereq- uisite to suing, we went to arbitrat i on on her behalf. The arbitrator ruled in Dr. Gottredson's favor and the ban was voided. In short, we've been able to help a handful of non-conformist individuals out of career-threat- ening melees. H, as much of Supreme Court jurisprudence leads one to b e lieve, justice is helping your friends and hurting your enemies, welve also promoted justice. At the same time, CIR is also protecting the lofty principle of academic freedom. You might say that we're the principled fellows; the partisans are all on the o t her side. This posture is very advantageous as is demonstrated by the standard ACLU refrain that it's not taking any partisan policy positions but merely defending the Bill of Rights (when, say, it opposes the confirmation of a William Rehnquist to the Su p reme Court). We do, of course, stress our principled stance, and not simply for public consumption; we do believe that academia should be a marketplace of ideas and of uninhibited, robust debate. How- ever, foot-stomping insistence on some ostensibly "neu t ral" principle is too facile and convenient, because it ignores substantive considerations such as political context and practical results. The ready invocatio of "principle"is, if fact, politically suspect- What the ACLU does in the name of certain lofty principles is so wildly unpopular that the organization would rather not talk about it. The principles thus become little more than a smokescreen for a partisan agenda. CIR proudly defends academic freedom, but it has no intention of hiding behind that pr i nciple. Since I'm among friends, this may be an especially appropriate place to reflect a bit upon the substantive aspects of protecting academic freedom through litigation. Litigation and Academic FreedouL It's sometimes been suggested to us by the defen d ants in our cases that we're really no better than the ACLU, whose hundreds of lawsuits against high schools and school districts haven't exactly improved public education. The means-litigation and judicial intervention-are not necessarily conducive to th e end of improving academic life. "Academic fivedom" suggests robust debate, but it also suggests civilized, rational discourse and a community of scholars. Litigation, on the other hand, is hand-to-hand combat. It is to "aca- demic freedom" what mud-wresd i ng is to classical ballet, and it's not immediately clear why more exposure of schools and universities to the former would necessarily improve upon the lat- ter. However, this concern is far too theoretical. The appropriate metaphor for what's going on t h ese days in the name of academic fivedom, is not classical ballet but the "Gong Show." To cite but one example, Tenured Radicals, Roger Kimball's immensely readable, witty, and in the end, depressing account of the politicization of our nation's humanitie s departments, discusses a cer- tain Professor E. Ann Kaplan from the State University of New York at Stony Brook. Professor Kaplan is one of the new breed of contemporary humanists who claims to be pursuing "develop- ments in modem thoughf' through her re s earch. According to Kimball, "[Professor Kaplan's] specialty seems to be Hollywood movies ... although recently she has branched out into the prom- ising field of rock videos. More specifically, her recent book, Rocking Around the Clock: Musk Television, P ostmodernism, & Conswner Culture, is an investigation of MTV" in which "Profes- sor Kaplan enumerates the five types of rock video she has discerned- in the course of her painstaking research ... and provides recondite analyses of such landmark works of a rts as 'Smokin' in the Boys' Room,' by the rock band Motley Crue, 'Rebel Yell,' by Billy Idol, and John Cougar Mellencamp's 'Hurts So Good,"' which, Professor Kaplan breathlessly informs her
2readers, "addresses recent interest in sado-masochism on the part of both young men and women.99 The chief merit of Rocking Around the Clock, as Kimball wryly observes, is as a sociological document bearing witness to the depths of our cultural decadence. It reminds me of a put-down George Orwell once made in a re v iew of Salvador Dali's autobiography: "If it were possible for a book to give a physical stink off its pages," Orwell wrote, "this one would-a thought that might please Dali," and, perhaps, inspire Professor Kaplan to branch out in yet another direction. H undreds of tenured hacks like Professor Kaplan are busy clearing away tracts of the forest that is Western Civilization. That said, our concern with invoking judicial authority is clearly not that it might unduly disrupt this delicate environment. Rather, it is that the judicial protection of the principle of academic freedom does very little to improve and enhance the quality of what's being done in the name of academic freedom. PC Dictatorship and Double Standards. A somewhat more serious problem with th e enter- prise of defending academic freedom through litigation is that your victories may come back to haunt you and be used against you. "Academic freedom" is a singularly ill-defined concept. The first, widely accepted definition is the 1915 Declaration of Principles by the then-new American Association of University Profes- sors (AAUP): "[A university] should be an intellectual experiment station, where new ideas may germinate and where their fruit may be allowed to ripen until finally, perchance, it ma y become a part of the accepted intellectual food of the nation or of the world." This sounds not like a defini- tion but like a commercial. You know, "Archer Daniels Ndland-supermarket to the world." To be sure, we all have a rough idea of what "academic f reedom" means: in the individual con- text, the right of professors to test the conventional wisdom through research, no matter how unpopular and no matter where the results lead, in the institutional context, a university's right to set itself off from t h e rest of society, an island of retreat for scholars who wish to live "the life of the mind." But, in the end, marking the outer bounds of academic freedom requires good judg- ment, courage and integrity, and these qualities are in extremely short supply i n academia. Our litigation of the Levin matter is a case in point. Between 1987 and 1990, Mike Levin wrote three non-scholarly pieces, which argued, collectively, that (1) white store owners should not be criticized for taking rational steps to avoid bein g victimized by black criminals and (2) there is a solid body of evidence attesting to the fact that differences in IQ exist among racial groups. Over 22 years, Professor Levin has taught more than 3,000 students, not one of whom has ever complained to uni v ersity authorities about unfair treatment on the basis of race. Neither his speech nor conduct in class, nor his grading patterns have ever reflected in any way his social views and opinions on race. Levin is paid to teach philosophy and that is precisely what he does. Nevertheless, because of the expression of controversial, non-PC views off-campus, the City Col- lege took a number of punitive steps against him. it asked him to withdraw from teaching one course, set up an investigatory committee to review his writings and recommend disciplinary measures, and it created so-called "shadow" sections-sections running parallel to Levin's classes-in order to steer students away from him. Focusing for a moment solely on the "shadow sections," College administrato r s justified this unprecedented action against a tenured faculty member whose on-campus conduct was beyond reproach on the grounds that Professor Levin posed a danger to students and to the College's edu- cational process and therefore needed to be insulat ed from his students. The College created no such "shadow sections" for Dr. Leonard Jeffries Jr., the chairman of the Afro-American Studies
3Department at CCNY. You may have heard about Dr. Jeffries or, as he prefers to be called, "Dr. J.99 For years, Jeffries has been distributing booklets to City College students in class, arguing that the skin pigment melanin gives blacks intellectual superiority over whites. Jeffries also teaches students that people of European descent are greedy, materialistic so - called "ice people," while people of Aftican descent are loving, communal "sun people." Last July, Dr. J embroidered upon these fantasies a bit further. Speaking at a state-sponsored black cultural festival in Albany, Jeffr- ies accused Jews of financing t he slave trade and said that Jews in Hollywood had conspired with Italian mafiosi to denigrate blacks in the movies. More recently, last month, Jeffries was worried that a student who had come to interview him from the Harvard Crimson would write un- flat t eringly about his hostility toward Jews. (Perhaps it was his statements at the beginning of the interview that the Crimson was a "Jew papee'?) In any event, at the end of the interview, Jeffries is alleged to have leaned over to the student interviewer an d sweetly whispered to him: "Now if I see this in print, I'll kill you." The differences between Levin's case and Jeffries's are both numerous and self-evident. The difference between, on the one hand, controversial views that can be tested by the ordinary stan- dards of logic and evidence and, on the other hand, sheer fantasy is just one of them. Unfortunately, Jeffries and his supporters have raised the banner of academic freedom-and car- ried the day. City College officials literally waved a copy of the L evin decision in the face of those who were demanding that some action be taken against Jeffries and asserted, with appall- ing but predictable disingenuousness, that "their hands were tied." And so it came to pass that Jeffries, whose reappointment as de p artment chairman was thought to be at risk, ended up being reconfirmed after all. Such duplicity is common. The very same university administrators who tolerate classroom disruptions, trespass, and physical threats by "oppressed" student groups tum right a round and issue restrictive speech codes in the name of "civility," of which them is indeed far too little. Whether litigation and broader judicial protection of academic fizedom limits or expands the op- portunities to apply double standards is an open q u estion. I have no compelling answers to this concem, only plausible ones. Politics and Academic FreedonL All of the plausible answers begin with the insight that the protection of academic f1reedom is an intensely political affair. The PC cadres insist th a t aca- demic freedom is a "partisan" concept. In some sense, this is true, because the PC people have made it true. As Roger Kimball and others have documented, they are already running depart- ments with many universities, ff not the universities themsel v es. Litigation is uniquely suited to engage this political reality. Litigation is never really "neutml," or "non-partisan." You always take sides and, in so doing, you sharpen the underlying legal and policy conflicts; that's the whole point. When we at t h e Center for Individual Rights defend a par- ficular client, we are not simply defending some abstraction: "academic freedom," but, also and invariably, one of "our guys" against "their guys ... .. Our guys" are scholars-be they libemls, lib- ertarians or conservatives-who, in the words of the National Association of Scholars' charter frvalue reason, democracy, and an open intellectual life." They are committed to defending the univenity's best amditions and are opposed to ideological cant, whether it's co m ing from the right or the left. "Their guys" am most energetic in attacking Westem liberalism and in undermin- ing its tradition of mdonality, respect for individual rights, and a recognition of a common good that transcends racial and sexual identity. It is extremely important to separate "us" from "them" on the question of academic freedom, for a reason that has, again, to do with the political constellation in academia. You can't reform
4academia with conservative professors alone; there are too few of them. This means that you have got to separate the liberals with whom, despite all narrow political disagreements, we have at least several things in common-a belief in human reason for starters-frorn the PC zealots. In other words, you have to split t he Left on campus, and academic freedom is the first issue that does thaL Litigation brings conflicts over academic freedom to a head. Precisely because it is so divisive and forces people to take sides, it may help to build a coalition with the true libe r als and thus, somewhat ironically, contribute to a productive political re-alignment on campus. Social Pressure and Academic Freedom. Finally, dragging "them" into court fulfills another important purpose that is difficult to attain by other means. Instit u tions of higher leaming are very insular. The original purpose of immunizing them against societal pressures and demands was to create breathing room for, well, academic freedom and for unorthodox views. The institu- tional value of academic freedom is pa r ticularly valuable, we believe, in the case of private universities whose choice of educational philosophy, no matter how unorthodox or eccentric, should be immunized by First Amendment academic freedom from state interference. But pre- cisely this isolat i on from social pressures has now allowed colleges and universities to turn into so many reincarnations of the Philadelphia Zoo. Trustees failed to exercise adequate control when William F. Buckley wrote God and Man at Yale four decades ago. They have fail e d to do so since, and they are failing to do so at the present time. Nor is there much pressure on the de- mand side-that is, from parents. University administrators, then, play exclusively to constituencies on campus: the "tenured radicals" and an assort m ent of race and gender zealots. If you want to change these institutions, you have got to drag them into a forum where they have to justify their behavior in front of a different audience. Like, a judge. Time and again, we have found that the gibberish wi t h which administrators justify their ac- tions in front of campus audiences just doesn't cut it in court. Consider Judge Conboy's interrogation in the Levin case of Professor Leonard Roellig, a City College professor who rec- ommended keeping the "shadow sections" in perpetuity: I THE COURT: Did you give any thought to the question of whether or not the creation of shadow sections would create a peer pressure upon those who would not themselves be harmed, but might feel that the expectation of the universi ty, of its officials and indeed the majority of students would be to abandon Dr. Levin and go to the shadow sections? Was any thought given as to that? THE WMESS: The question was raised and considered... THE COURT: But you didn't gather any data? THE WITNESS: No. THE COURT: You didn't make any inquiries of the students in his class or the shadow section? THE WITNESS: No. THE COURT: Do you think that if the shadow section was viewed as a haven for those who were politically correct in their thinking, ir respective of whether they felt they would be harmed or whether objectively they could be harmed, do you think that the creation of shadow sections might in fact do damage on an overall basis to the educational process of the college?
5THE WITNESS: I think the creation of a shadow section ... is a good thing. THE COURT: That is not the question. The question is, what about the possibility of shadow sections encouraging people who did not feel intimidated and who were perfectly comfortable in Professor L evin's class but who in the nature of the climate felt, I better got over into that shadow section, because if I stay here I will be seen as a racist? THE WITNESS: I wouldn't interpret it that way.... We had faith in the students .... THE COURT: But that is just speculative. THE WITNESS: Of course it is.
Of course. Similarly, in the Sigma Chi case, George Mason University administrators insisted that the school's "compelling interest in desegregating the student body" justified the suppres- sion of any speech. This blather was good enough for internal consumption on the GMU campus; it wasn't good enough for Judge Hilton. We harbor no illusions that all of the educational ills stemming from the excesses of tenured radicals can be cured through litigation . Litigation is hardly very subtle and it does little to per- suade ideologues of the virtues of five speech and reasoned debate. But the threat of litigation, like the threat of an execution, does wonders to concentrate the mind. It forces university admi n - istrators and the PC party-liners to justify their actions in courL It brings campus incidents to the attention of the media, and hence the broader public. In short, lawsuits are one very useful tool in the fight against political correctness. However, c hange through litigation comes slowly and academia will remain what it is well into the foreseeable future. That being the case, it seems entirely appropriate to end these cursory remarks on litigating for academic freedom with the observation of a group that, if it's in Profes- sor Kaplan's book, undoubtedly ranks right up there with Aristotle: "You can't always get what you want/But if you try some time/You just might find/You get what you need."6