Full Text of Donald Downs’ Letter to ‘The Chronicle of Higher Education’ about FIRE
May 18, 2007
Jon Gould’s critique of the Foundation for Individual Rights in Education, “Returning Fire,” requires response. I agree with one thrust of the essay: that the status of free speech and academic freedom on campus in 2007 needs to be reassessed and evaluated on the basis of empirical evidence and inquiry. Things might not be as bad as they were in the 1990’s and early 2000’s for several reasons (one of which could well be FIRE’s entry into the playing field, by the way). Indeed, I recently posted an essay on the web page of the National Association of Scholars calling for further empirical investigation of this very question.
But Gould’s critique is troubling in several respects. First, he implies that institutions of higher learning were bastions of free speech throughout the 1990s. My own experience and that of many others, coupled with countless published reports, suggest otherwise. Even if such studies are anecdotal, they suggest or point to an extensive problem that should not be lightly dismissed. We can argue over the extent, but that is different from claiming no problem has existed. Second, Gould does not address how harassment codes themselves have been used to silence or threaten free speech in practice, regardless of how constitutional such policies might be on paper. A great deal of mischief can be done by such application, which can easily take place beneath the radar screen. The devil often lies in the application, not on the written page.
Third, Gould unfairly blames FIRE for not addressing cases involving private school suppression of speech, deferring to private schools’ rights to determine their own educational agendas. Gould ignores the fact that it is appropriate for FIRE to get involved in these cases only when such institutions violate their own charters or agreements with students, for such institutions have a First Amendment right (based on freedom of association) to promote their own visions or nomos. Free speech principles apply to such schools only when they willfully make them part of their institutional missions. Furthermore, FIRE can act only when clients bring them cases. (And FIRE has been involved in cases that they have kept out of the public limelight because of the wishes of their client.) Whether FIRE has avoided cases that fit these criteria is an empirical question to which only FIRE can respond.
If free speech is more secure in higher education today than in the past, FIRE is very likely one important reason why. Whereas many more traditional academic freedom organizations acted with too much caution in the 1990s for whatever reason, possibly because the politics of censorship differed from the past, FIRE acted with the conviction that is necessary to preserve freedom in the face of pressure. Only the ACLU has come close.
Donald A. DownsUniversity of Wisconsin, Madison