Gould’s Counter-Counterpoint

Dragging this seemingly endless debate one step further, Jon B. Gould was allowed to respond in the pages of The Chronicle of Higher Education to letters critical of his hit piece on FIRE. Despite so many criticisms, arguments, and facts to the contrary, he repeats the same arguments. He claims that “FIRE is inconsistent in challenging private institutions’ policies, a pattern that is explained more by FIRE’s political agenda than by a defensible legal philosophy.” This claim has been well-addressed by FIRE multiple times and by former FIRE president David French, and Gould’s strategy of darkly hinting at FIRE’s “political agenda” is simply tiresome.

Gould argues that “FIRE consistently fails to offer ideas about how to balance the right of free expression with the right to freedom from discrimination, whereas institutions of higher education must be concerned about both.” This is just dishonest. Given that Gould has clearly read our 2006 speech codes report, he seems to be willfully ignoring the fact that we consistently explain that the right standard for balancing free expression with discrimination has already been struck by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) and the Office for Civil Rights (OCR) of the U.S. Department of Education. We make this argument so frequently it is impossible to miss, unless one wishes to. If Gould is saying that he would prefer a standard less protective of free speech than the one the Supreme Court and OCR recommend—which is what he appeared to be saying in his previous article—then FIRE adamantly disagrees.

But the most remarkable statement in Gould’s response comes in response to Don Downs’ letter: “Unlike the ACLU, which deserves the credit Downs extends, FIRE takes a shrill and combative approach to colleges and universities.” It is, to say the least, galling to be chastised for being “shrill and combative” by a professor who, completely ignoring the tremendous number of students and faculty we have helped over the years, flippantly called for the dissolution of our organization.

And what a peculiar thing to say about a watchdog group! In my experience, demure and respectful pooches make lousy watchdogs. Furthermore, does FIRE have an obligation to be “nice,” when confronted with abuses of student and faculty rights that are often unconstitutional, outrageous, arbitrary, and potentially career-destroying? Looking at some of the cases we’ve had over the years—like the one going on right now at Glendale Community College—should make it clear that anything less than outrage would be a disservice.

With regards to the ACLU, I really doubt that they worry a great deal about being perceived as pleasant when fighting abuses of civil liberties. Besides, the ACLU sues, and FIRE doesn’t. While Gould may somehow find lawsuits less “shrill” and “combative,” I hardly think anyone who has ever been served has said to themselves, “Well, at least this summons is pleasantly worded.”

As for the Chronicle, I was surprised to see that Gould was given the chance to respond to letters after we had published our own counterpoint. I have written several articles for the Chronicle over the years and I have never been offered the chance to respond to critical letters. In fact, when Harvey Silverglate and I published our article on speech codes back in 2003, they made sure there was a counterpoint article in the very same issue (it was by Robert O’Neil, and it turned out we actually did not disagree on that much). By allowing Gould a counter-counterpoint, the Chronicle has kept this fight going long past the bell, especially given the lack of substance to Gould’s response. If Gould would like to seriously consider our arguments and come back with a thoughtful reply that does not rely on distortions and aspersions, I welcome it; otherwise, we can call it a day. Unless, of course, the Chronicle wants to give us a counter-counter-counterpoint, just to be fair?