‘So to Speak’ podcast transcript: What is academic freedom?

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the free speech podcast where every other week for six years now, actually, we’ve taken an uncensored look at the world of free expression through personal stories and candid conversations.

I am your host, as always, Nico Perrino, and today we’re discussing the concept of academic freedom. It’s the general idea, I guess, that academics should have the freedom to seek out the truth wherever it may lead them, and that they should maintain the corollary freedom to share their findings with the general public, their academic peers, and their students.

Now, admittedly, that’s my very personal, very rough, definition of academic freedom. Pithy definitions of the phrase and the concept are hard to find. However, over the years, organizations such as the American Association of University Professors, and FIRE, along with, to a certain extent, the legal system have more thoroughly defined the contours of that freedom and its limits.

However, our guests on today’s show argue that the popular conception of academic freedom has become too widely interpreted and too closely connected with the related – although not the same – freedom of speech. They have a new book due out next Tuesday, April 26th, that lays out their vision for academic freedom and why the leading organizations in America associated with it, including the one I work for, have gotten the concept wrong.

The book is It’s Not Free Speech: Race, Democracy, and the Future of Academic Freedom, and its authors are Penn State Professor Michael Berube, and Portland State Professor Jennifer Ruth. Professors Berube and Ruth, welcome on to the show.

Michael Berube: Thanks so much for having us.

Nico: So, I think to dive right in, we should take a look at the past and the present. So, how do you see academic freedom being interpreted and applied over the years? And Professor Berube, let’s just start with you.

Michael: Sure. With Jennifer’s permission, I was going to take that one anyway, because I have also been doing another deep dive into this for another reason, not another book, but it started in the United States in 1915 with the ... declaration of principles on academic freedom, and that was then superseded in 1940 by what is now the statement of ... statement of principles, and there’s a key difference between the two.

The 1915 statement had a whole bunch of clauses about the dangers of indoctrinating students, especially immature students, and other the course of the next 25 years it was increasingly felt by community administrators that this was infantilizing. If you go back to 1915, a lot of it had to do with evolution. A lot of it had to do with being very cautious about teaching scientific truths to students who were ostensibly just off the farm.

Again, in 1915, you’re talking less than five percent of the American population going to college, so a very, very different environment. Since 1940 – the 1940 statement has been basically the gold standard. You covered two aspects of it in your intro – freedom to research, and freedom to present the results, and freedom in the classroom, within bounds, right?

The classroom presentations have to be relevant to the subject matter. You can’t have metallurgy professors going off about Ukraine, or what have you. Where things get tricky, and where AAUP and Fire often find themselves on the same side, and sometimes at odds, is with extramural speech. The contours of that have really changed over the past 80 years.

It was initially felt that professors who speak in public should do so with a certain amount of dignity. And equanimity, and so forth, and we discuss in the book the infamous case of Leo Koch at the University of Illinois who was fired from his job in the early ‘60s for writing editorials suggesting that students should engage in premarital sex. As we know, if he’d just waited a couple of years, no one would have even batted an eye.

So now, that’s where most of the controversy is at. They happen on Twitter. They happen in social media. They happen in extramural speech. There, academic freedom overlaps with, but is not the same as, the First Amendment, and things get very, very tricky indeed. Really, with each passing year – this is the function of the AAUP’s Committee on Academic Freedom and Tenure to try and adjudicate teaching contours of what constitutes acceptable boundaries of academic freedom in the public sphere.

Nico: Professor Ruth, what do you find wrong about that historical interpretation, which is the raison d’être of the book, of course.

Jennifer Ruth: What do I find wrong about what my co-author just –?

Nico: No, wrong – not about what he just said, but – I guess, in a certain sense, yes. What do you find wrong about this historical interpretation of academic freedom?

Jennifer: I’m not quite sure I understand the way that you frame the question, but can I just add an angle that I think Michael left out that I think is necessary, which may be a way of saying what’s wrong with that version of events?

Nico: Sure.

Jennifer: It’s that there’s been a very well-funded, well organized campaign of rightwing money to create the impression that the university is the same as the general public marketplace of journalism, and communication, and free speech, and so what I mean by that is that, first, you have the creation of a kind of both-sides-ism that happens even as early – probably before this, but with the tobacco industry, and the sense, the pressure on journalists to present both sides of the tobacco issue, say.

This leads to the sense of a certain kind of conventional notion of impartiality that requires you to discuss both sides. That’s become a very dominant narrative that has shaped the discussions around the First Amendment for sure, but has also ended up distorting and warping conceptions of academic freedom.

So, whereas we’re not trying to engage them, there are a number of people – Emily Bazelon – and there are a couple of books coming out on the paradox of democracy, and free speech, and perilous persuasion is one. Lee Bolinger and Jeffrey Stone have one on social media, freedom of speech, and the future of democracy. So, there are lots of conversations around First Amendment and social media, and the fact on our democracy.

We’re not engaging in those. We’re engaging in the question of academic freedom and, whatever we may personally think about whether our First Amendment goes too far or whether we should look to Germany, and all of the different ways in which people think about the First Amendment, we’re saying academic freedom is not one and the same as free speech, and the sort of both-sides-ism logic that has shaped and, to some extent, disfigured the public marketplace of ideas doesn’t apply to the university.

The university with academic freedom – this is vetted speech. This is speech that has to speak to one’s fitness and expertise. This is not a world in which all opinions are equal. I would just add to that that this is also a place where adjudication is handled differently, so we can argue about whether Atlantic Magazine is properly presenting both sides of a story, or whether their roster of journalists represents a good cross section of viewpoints. We can debate all those things.

People can sue for libel, and all kinds of things, and use the court system with journalism and newspapers in the public sphere, but in academia one of the things that the 1915 and the 1940 statements, and the AAUP, has been keen to argue is that there is a tension, and it’s a tension that has to be pretty sophisticatedly navigated between the collective rights of faculty to police one another and the individual rights of an individual faculty member for free expression and academic freedom.

To some extent, the way in which these kinds of issues should be adjudicated should be different in the university and autonomous from legislators, donors, alumni, and courts, and we need to be controlling what’s high value speech that needs to be built upon and furthered and what’s low value speech that is not based on any expertise, facts, evidence, et cetera, and we need to be able to say that instead of being beholden to a both-sides logic.

Nico: Professor Berube?

Michael: In our recently published excerpt in the New Republic one of the things we went after was a statement by the AAUP itself which we think confuses the issue really horribly. That statement says, in part that an institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas. Indeed, by proscribing any ideas the university sets an example that profoundly disserves its academic mission.

Now, at the time in 1994, that was a response to the controversies over speech codes, which is pretty much the first way that critical race theory, on my shelf right behind me for handy reference, made its way into the academy. One of the things we argue is that there’s a whole body of work in critical race theory that never really got dealt with. We sort of shunted it into the question of speech codes.

In some ways that was the work of volumes like Words that Wound, but the important thing there is that it makes no sense that the university violates its mission by proscribing any ideas. We don’t have a department of phrenology, nor should we have one. This kind of free speech absolutism that made its way into the AAUP with that statement that, arguably, doesn’t even work for the First Amendment. It doesn’t even have an exception for shouting “Fire!” in a crowded theater, or for defamation and libel, as Jennifer was just alluding to.

We think the AAUP itself has sometimes gone wrong in this way. That statement also applies very differently to student speech than to professorial speech. As Jennifer’s arguing professorial speech should be regulated. There should be constraints on what professors can plausibly do and say. Otherwise, we would have departments of phrenology and departments of human sacrifice.

Nico: So, do you see academic freedom as an individual right, or do you see it – collective right isn’t the right word, right, because you’re not talking about – it’s more of a departmental right or the right of a discipline, for example?

Michael: Yeah, that’s exactly the tension that Jennifer was alluding to, and it’s never been resolved, especially in the courts. The courts – it’s just a mishmash of decisions on this, and that’s why we turned to Robert Post’s book. Do you want to take it from here, Jennifer, because you’re the one who suggested we do that.

Jennifer: Yeah, so Robert Post has a really good book from, I think, 2012 – Democracy, Academic Freedom, and Expertise: A First American Jurisprudence – a modern – I can’t remember the exact title.

Nico: Yeah. I’ll put it in the show notes.

Jennifer: Okay, thank you. In short, he argues that we need the First Amendment for what he would, or what anyone might call democratic legitimacy. We need to live in a society where we feel like we can criticize our government. We can say things about our supreme leaders, et cetera, and not get thrown in jail. And we need to be able to express and debate views to feel like we’re in a democracy, and not a totalitarian or authoritarian country.

But he says we also need democratic competence – so, for citizens to be able to engage in an informed way. I’m not a climate scientist. I’m not a biologist or an environmental person. I need to be able to understand that certain people who have been vetted through these institutions that we’ve created that buttress and support democracy like higher education, and that these people do know more about a subject and I can trust their peer-reviewed work, and then I can funnel that into my various arguments.

We need to be able to trust in some democratic competence, and universities are the places where democratic competence is provided for a democracy, by way of vetting ideas and making sure that ideas are based on evidence, good reasoning, that they’re peer reviewed, that they’re not – they cannot be simply reduced to mere opinion, and mere opinion and the work of years of work and peer review are not equivalent to one another.

To the extent that a kind of devolving of the notion of academic freedom into free speech, it sort of takes away all of that sense of the competence and, at the same time, if we weren’t holding academic free speech – the professorial speech – to a higher standard than mere opinion, we wouldn’t be able to provide democratic competence to our democracy.

Michael: So, one way of answering this is to go to the very end of your question, Nico, where you suggested maybe relying on the idea of disciplinary expertise, right? The problem with that, of course, and we acknowledge it freely and we’ll do it right now, is that some of building things on sand is that disciplines themselves shift.

It has been pointed out to us more than once that once upon a time the disciplinary consensus was that the Earth is stable and the sun revolves around us and, in fact, you could be executed for saying otherwise. My answer to that is the history of science is fascinating with regard to how those paradigm shifts change, and I think TSQ wrote an entire book about this on how, in fact, we understand that we don’t need to study phlogiston anymore, or that dark energy and dark matter are real things that require exploration. These are fascinating developments of the contours of a discipline.

Then you’ve got new disciplines. We’ve got disciplines stemming from the social movements of the ‘60s. We’ve got disciplines like anthropology and sociology that were created in the late 19th Century, and then you’ve got people like me who don’t have actually have a degree in disability studies because when I got my PhD it didn’t exist. People helped create that field in humanities over the course of the last 30 to 35 years.

So, it’s tricky to defer to disciplinary expertise, but as with so much that we argue in the book we think it’s the worst alternative except for all the others.

Nico: Yeah, because you talk in the book about the Dunning School, for example, as being both wrong and having the dominated the tradition in academia for a long time. It seems, and I may be jumping ahead too far here, you propose sort of academic committees with disciplinary expertise to police the limits and bounds of academic freedom.

But it seems like these committees would potentially capture the dominant ideology, right? It seems more likely a tool to entrench a field’s orthodox viewpoint because minority viewpoints – and we can talk about critical race theory here – are more likely to face scrutiny at the outset, but might be true, or the best sense of truth, in the long term, so how do you avoid that sort of capture by an entrenched discipline’s sitting on these committees?

Jennifer: Can I speak to that one, because it actually dovetails nicely on something that I was thinking at the end of the last question when Michael was talking about how disciplines change and evolve, and the tensions at the edges of a discipline that help produce new knowledge, and he mentioned the new departments that came from social movements in the 1960s.

I was thinking about – because I think a lot about, when I’m working on these kinds of issues, the role of women’s studies departments, black studies departments. I was a women’s studies concentrator at Swarthmore as an undergrad, and these departments that seem to be, by definition, political in some way are hotspots right now for these kinds of conversations, of course.

The women, gender, and sexuality studies kind of departments evolved out of the other disciplines, right? English literature professors were writing about reading Shakespeare from a feminist perspective and thinking about gender in a Midsummer Night’s Dream, or that kind of thing. It evolved out of the disciplines, and they were extremely contested, difficult battles.

One of the new kinds of knowledge that I think has emerged over the last 30 to 50 years since these departments have been established is the fact that our world is not an equal playing field with impartial neutral perspectives – the very point that you’re making, Nico, and that some of the marginal viewpoints might help push things forward, and I will bring it back around to the academic freedom committees and how this relates to that, but the idea that perspectives that haven’t been heard might change the way it’s been understood before.

That concept that we’re all socially situated and that there isn’t an omniscient, objective – that comes out of women’s studies departments, and black studies departments, and it’s critical to the conversations we’re having right now in terms of, for example, when, on the front page of the Inside Higher Ed if it were paper, there’s an article about the Shauwnee State faculty member who sued because he refused, on the grounds of his religion, to call his student by the student’s preferred pronoun.

When we think about the idea that there’s not a neutral, impartial perspective from which to deal with these things, and so the ground is changing under our feet in terms of who is situated in different ways and how, as a group, as academics, and this brings us back to the academic committee, we want to navigate these changes and tensions because – so the academic freedom – you raise a really good point, and it’s a point that a number of people have raised with us, which is – these are predominantly white institutions still. They are precisely the institutions that were the academic apprentice to Jim Crow for decades.

Why in the world do you think that academic freedom committees, that faculty ourselves are going to be better adjudicators of these issues than the courts or a more diverse population at large? I would argue that it is actually precisely because of the establishment of black studies and women’s studies departments and the changes over time, and the fact that it’s by no – if you’re at Hillsdale College and you have an academic freedom committee, I’m not sure where that committee might come down on various things.

It’s a risk, but it’s a risk that we don’t have any choice – we would rather – if we hand authority over ourselves outside of the university, we’ve given up our academic freedom.

[Crosstalk]

Nico: Or internal to the university, right? Often, these, as you talk about in your book, are adjudicated by administrators. We spent about an hour yesterday in one of our meetings because I brought up your book, and we spend an hour pretty much every morning reviewing the cases that come in to us each day, and at the end we have conversations about them.

I brought up your book, and we started talking about this, and the consensus within Fire was that, yeah, that’s a good idea. We have cases like Teresa Buchanan at Louisiana State University where the faculty committee within the senate, which had no actual power but to make a recommendation to the provost and president, ignores the recommendation and fires her anyway. We see this all the time.

Jennifer: Linfield College right now.

Nico: Exactly.

Jennifer: Yeah, I know, Pelzner, yeah. The faculty senate voted no confidence.

Nico: Yeah, and so I think we agree with you guys on the structure of how these should be adjudicated.

Michael: But I think your question was right. To go back to your question, I want to distinguish what we’re proposing, academic freedom committees, from academic committees in general, because you’re entirely right that committees of other faculty can, in fact, enforce the majoritarian view, and have done so for decades, and Joan Wallach Scott’s career is really eloquent testimony to this.

She had to write an essay called Gender: An Important Category of Historical Analysis to put gender on the agenda, and I saw this at the University of Illinois firsthand in 1994, not 1894, where there were some people in the history department who said that they weren’t really sure that a book about the history of abortion was really history. That person won a couple of awards and the book is called When Abortion was a Crime, coming soon to a state near you.

Her name is Leslie Regan, and she had to make the case that this is a legit kind of history. Now, of course, that argument has long since been won. People will say, well, where’s traditional history? Where’s military history? But it took a long time to put that on the table, so I think it’s entirely true that disciplines can enforce, and we borrow the argument about disciplines from Scott.

She said you have to understand that it’s sometimes treason to a discipline that is the greatest fidelity to it. So, the committees that we’re suggesting wouldn’t go into the weeds that deep. We’re looking more at what kinds of things, like the difficult case of Mark Crispin Miller at NYU, who was basically an adherent of every conspiracy of the last 20 years, or James Tracy, who was a Sandy Hook truther and did lose his job.

We’re trying to move the advocacy of white supremacy over to the category of phrenology, and like let’s not go there anymore. It doesn’t have any intellectual validity. We make no argument about whether it’s offensive or not. That’s not where we’re at. We think it’s just intellectually illegitimate.

So, our academic freedom can be operating at a pretty high level of abstraction, and owing to the marginal cases where we decide, well, this doesn’t clear the bar for democratic competence at all. This should not actually be a legitimate academic thing. But, I think that’s entirely – one final word about peer review, though.

I want to go back to 1970, I think it was, Jencks and Riesman’s book The Academic Revolution. They argued that what – and Jonathan Culler in our field picked this up again 20 years later, and so you look at what’s happened in literary studies over the last 20 years, and the explosion of theory, and the explosion of fields. It happened because we had peer review.

As Jencks and Riesman pointed out, we stopped doing review by administrative top-down measures and turned things over to external reviews from other faculty at other universities and, oh my God, a thousand flowers bloomed and a lot of people were not happy with that, but eventually they lost. So, that’s why it’s a complicated question.

Disciplines can be – we’ve used the word “policing” now twice. They can really discipline and punish members, but they’re also incredibly pliable, and if you turn things over to peer review, like I say – I’m glad to hear we’re at least on the same page that way – it is much better than turning it over to mid or top level administrators who sometimes make the wrong intellectual decision, and sometimes make expedient political decisions, and the next thing you know, you’re suspended because you said a Chinese word that sounded like the N-bomb and that’s just nuts.

Jennifer: Administrators are much more vulnerable to external influence.

Nico: Yeah, it’s almost the best of the alternatives, right? Administrators can be subject to all of the – there can be internal politics, score settling – the same way that you can find that within a faculty department. One thing that, because Fire is a public interest law firm, that our attorneys brought up is faculty who sit on these committees, if they have ultimate disciplinary authority, are going to be listed as defendants if one of the people who is punished sues.

So, how do you address that? Does the university indemnify them so that they don’t face personal and financial liability?

Michael: I don’t know whether all of us – I think I’m the oldest person in this thing, but I remember the Palmolive commercials. Nico, you’re already soaking in it. We have a community here at Penn State, the standing joint committee on tenure, and I served on it. Basically, it’s the standing joint committee on revoking tenure – that’s what it really is.

We’ve got a case ongoing that I can’t say anything about and which I think is a travesty. So, it shows that even the best procedures can be abused. I was on a case some years ago, and I can’t say anything about that one either, and the reason is if the person involved decided to sue, they could subpoena anyone I’ve ever talked to. So, I already knew that I was in that kind of jeopardy.

We already have systems, but not every university has the same thing. We already have means of revoking tenure, usually for nonperformance or for grave misconduct. What we’re proposing is something that extends that to people promoting batshit conspiracy theories under the heading of communications theory, or media analysis, but the danger would be the same. The jeopardy for the faculty member on the committee would be exactly the same as it is now.

Nico: I think this is where we’re going to have some disagreement. I think there’s the structure – faculty governance, shared governance is way better than an administrator deciding whether something fits within the concept of academic freedom for that discipline, and they have no idea anything about that discipline. You guys write in the book to be sure, professors should not be fired simply for obnoxious beliefs, but if those beliefs demonstrate unfitness or professional incompetence, then they are grounds not merely for criticism, but dismissal.

One of the motivating concerns that you have already spoken to this is white supremacy and racism. One of the professors who you discuss at length in the book – it’s kind of a through line – is Amy Wax and her comments about Asian immigration.

Michael: Well, those are the most recent comments. The one we went after was the speech to the National Conservatism Conference a couple of years ago arguing for a cultural distance nationalism.

Nico: So, where do you draw the line between what is – is that obnoxious, or is that disqualifying racist speech, because you talk about Asian immigrants and you talk about caps on immigration. I think her argument was that Asian immigrants would vote Democratic, so we shouldn’t have any more immigration in the country.

Within the immigration debate, lots of things get labeled racist and lots of things get labeled white supremacist. We see that all the time. Support for the police is white supremacy. Support for free speech is white supremacy. Guy Benson – there was a petition at Brown to have him disinvited from speaking there because capitalism is white supremacy.

You have these concept creeps, and maybe you don’t think that’s concept creep. Maybe you guys think those aren’t within the scope of legitimate debate, but drawing those lines – and I know Professor Ruth talked about how this is a very sophisticated, probably fact-intensive analysis, but we worry that there is going to be, potentially, overreach, and we’re going to start labeling lots of thing that are racist, white supremacy, disqualifying speech that maybe even half the country agrees with.

Michael: Well, you take –

Jennifer: Can I just say one thing?

Michael: Go ahead, Jen.

Jennifer: Because it speaks to what I was saying in the very beginning of the podcast, which is the incredible campaign to weaponize free speech, and what’s been really interesting – I understand the worry that legitimate discourse is going to be the creep that you’re talking about. It’s going to be ruled out of bounds as racist or whatever.

I understand that worry. I think it’s overblown, and I think it was purposefully overblown, and I think it’s been very enlightening to me to move from, say, six or seven year ago, some of the articles around cancel culture, and then some of the new research that’s done on those same incidents, and seeing how certain things were taken out of context, or exaggerated.

For example, Mike, you mentioned someone who – there was a petition to not let this person speak at Brown. The petition is free speech. Whether the petition prevails or not is a different question, and if it prevails, and things like that prevail repeatedly in ways that a majority of faculty feel, or enough faculty argue is actually inhibiting good discourse, then we have a problem, but I’m not sure we’re there.

Mike Pence – there were articles about how he’s not going to be allowed to speak. Oh my God, everything’s out of control. He’s allowed to speak without any problems. I think there has been a really purposeful exaggeration of incidents on campuses that are taken out of context. If we only talk about it at this moment, it absolutely needs to be said that there is no bigger threat to academic freedom than these bills and laws that are trying to censor teaching around race, gender, justice, and critical race theory.

That is a direct hit to academic freedom, not free speech. These are experts who have studied the history of slavery, studied Jim Crow, studied red-lining, and they’re raising questions, and they’re teaching our students about our students about our history, and the idea that they should be censored because they’re making people uncomfortable, that is an incredibly shocking partisan attack on the democratic pursuit of knowledge and our ability to understand our own history.

That is so much bigger than an Oberlin student complaining about the bon minh, and then when you go and you actually research what all the other students said, you find out that it was taken out of context. There has been a pretty serious campaign to weaponize free speech, and that’s what we need to remove academic freedom from because it’s now creeping into our ability to teach our subjects.

Michael: So, back to Amy Wax. I just had a debate with Keith Whittington here at Penn State about that. He was kind enough to drive out. It was the first in-person thing I’ve done since I did an event with you, Nico.

Nico: Yeah.

Michael: And we give Keith Whittington a hard time for his defense of Amy Wax because he wrote on the Academe Blog – I guess it was, now, almost four years ago – the Amy Wax case is not a hard case. I said, look, that’s exactly wrong. It is a hard case. I don’t think there’s an easy case for firing her. I don’t believe it’s a slam-dunk at all, partly because what she’s doing is extramural speech.

She has full First Amendment protection to say anything she wants, including the phrase “shithole countries” which she used – she quoted that from Trump without irony. If she wants to cite Enoch Powell, and Daniel Pipes, and every random spittle-flecked racist over the last 30 years, she has every constitutional right to do that.

It’s really a very high bar to clear to say that that speech is so obnoxious and so intellectually vacuous that it demonstrates unfitness. I am not prepared to say that. She is under investigation now at Penn. It’s up to them.

Jennifer and I promised each other over the course of this book that we would not actually try to adjudicate every case from coast to coast. The temptation was tremendous, right? Where we deal with individual cases where we actually do have to make judgment calls, sometimes we come down with Fire and sometimes we do not, but I think Amy Wax is a tough one because it’s extramural speech.

I think the case against Mark Crispin Miller is a lot clearer, frankly. This affects his teaching and his research, and it is – there’s a line we were asked to take out from The New Republic and we put it right back in because it’s in the book. People thought it was going to be too obscure. I mean, it’s the equivalent of telling your students that no one will tell you about the secret Apollo 18 mission in which two astronauts were killed on the lunar surface by hostile life forms.

We think he’s in that realm – not just like the moon is green cheese, but it actually killed two astronauts. That’s the quality of conspiracy theory he’s spouting at a time when Q Anon has something like 30 million followers.

To go back to the argument about democratic competence, we see over the last 10 years since the first book came out that now we have a nation of people who think they know how to deal with a pandemic because they spent a half hour on the internet with Joe Rogan, okay? We see where that leads, so I think the Wax case is difficult.

I think, also, there’s a possibility of white supremacy accusation creep, as you might put it, but I also want to say that we have a policy where we also agreed, Jennifer and I, that we were not going to make any or take any arguments until we could actually see a slippery slope that people were sliding down within 50 yards, because I think even in the context where terms like “racist” and “socialist” are almost detached from their meanings, I have to hope – we both, Jennifer and I, have to hope that academic freedom committees would take these things a little more seriously.

Nico: On the topic of extramural speech, I don’t know that, and I’m not recalling in the book, that you take a solid position on how that should be governed, for example, but I do have concerns. For example, a politics professor commenting on politics. What if they say something that’s racist, white supremacist, but they’re saying it in the context of a political conversation.

Your line between extramural speech and speech within the discipline gets blurred, and then you’re essentially saying that anyone who’s a political science professor can’t have an opinion on politics as a private citizen lest that potentially fall within this academic freedom concern. I don’t think these committees would go there, but drawing that bright line distinction, especially in some disciplines where public citizens comment on things a lot, like political science, risks.

Michael: Well, that again – we’re already soaking in it. Our position that we map out in Chapter 2, and I hope people who don’t breathe this atmosphere every day will forgive us for walking people through the history of the policy on extramural speech in Chapter 2, because it is, again, the most contentious area of academic freedom.

There have been attempts. Judith Butler, for example, a couple of years ago just said extramural speech shouldn’t be governed by academic freedom at all. It should just be covered by the state, which is a European tradition. We think there are all kinds of dangers with that, and we spell those out in the chapter, but the paradox we have now is precisely the one your question just spoke to.

We have, Jennifer and I, more protection for speaking in public about things we know nothing about, which is why I’m about to tell you that the Super Bowl was, in fact, fixed. Nothing else will explain those calls at the end of the game. If I start speaking in my area of expertise about disability, and start saying, you know, I actually – Buck v. Bell was rightly decided, and three generations of imbeciles are enough and the people with intellectual disabilities are a drain on the rest of us.

Actually, some people like Richard Dawkins do say these things. But if I said it, I would start to think this Berube guy may be unfit for doing anything in disability studies. So, yeah, there’s an inverse relationship. It’s like a Mobius strip of academic freedom and free speech. You enjoy more protection under the Pickering test. You enjoy more protection when you speak as a non-expert than if you speak as an expert.

Now, your question about political science, yeah, that’s why people who deal with political science and sociology – any public face in the field should think very carefully what part of this is directly related to my expertise? I work on voting rights, and what part of it has to do with epidemiology that’s not part of my expertise at all, right? But yeah, that’s exactly why it’s tricky.

Jennifer: I would just add that the larger context for this is a discussion around which speech and the health of our democracy are the stakes, and it seems to me that while no one can keep anything from getting abused, and academic freedom committees could potentially be populated by faculty who do have their own beefs and histories with the person that they’re going after in the same way that an administrator might have compromised reasons to make decisions.

All of these things cannot be controlled, but the reality is that we are in a situation in which – there’s a really good book. I haven’t gotten my hands on all of it. I’ve only read parts of it. It’s by Richard Hausen and called Cheap Speech and how it’s poisoning our democracy. Again, he’s dealing with speech in general, not with academic speech, but this sense that there are people like John Eastman who is claiming and using his background as an academic to make claims around constitutional law that 99.999% of other academic lawyers disagree with and that his so-called creative academic interpretation of the law is simply wrong.

So, we are looking at the point, ideally – these academic freedom committees would be trying to do their part to preserve some legitimacy of democratic competence in our society by taking care of our own house, in a sense.

There’s that wonderful/horrible exchange at the New York Times exposed recently between Eastman and Pence’s lawyer, and Pence’s lawyer is like, John, I respect you academics and your crazy ideas, and most of the time I think that’s a good thing for there to be fringe ideas that are being explored, but when it’s that fringe – when it’s Scott Atlas and 99.999% of his peers are – he’s not an epidemiologist, but when epidemiologists are saying don’t use Stanford to say that masks aren’t helpful – or whatever it was at that time when Trump was president.

When 99.9% of the experts in your field are saying that’s not based on good reasoning, or that’s already been debunked and delegitimized, so please don’t use your academic platform as a way to pursue something that seems like disinformation or misinformation – either one, it doesn’t matter.

Nico: Well, what I’m trying to sort through in my mind is how do you institute these committees without – and this may be circling back to my previous question – without dismissing the oddball who might in the end be right. Like we thought Newton’s theory of physics was entirely right until Einstein introduced relativity, right? It was initially dismissed.

To bring it to a controversial current political topic, and to get back to the concept creep around racism, the idea of the lab leak theory. It’s not a rock solid theory anymore, but Tom Smith at the University of San Diego was brought under investigation for arguing it. Facebook was taking off posts in favor of it, but right now it’s the position of the intelligence agencies that it’s just as, if not close to, as viable a position as the food market theory.

Taking that position, for a time, was called racist. It’s not, I don’t think, anymore, but that’s the sort of thing that’s like if we were to close the door in May, 2020 to that opinion, there was some stuff that we wouldn’t have learned – the investigations by New York Magazines and the New York Times into the theory. I just worry too much about that, and that’s why I was concerned about the Princeton committee investigating racism rather than general academic freedom concerns.

Michael: Well, I think you’re talking about – let’s go to the history of science. I have an amateur interest in this, and I still have some friends who are physicists. So, when I was an undergraduate, I was taught that – this is not going to be on the final, but Paul Dirac, toward the end of his life, had something called the large numbers hypothesis, which suggested that the number of atoms in the universe and the ratio between strong and weak forces has something to do with each other.

The large numbers were 10 to the 40th, 10 to the 40th, and 10 to the 80th. They seemed to have some relationship to each other, so I would suggest that among the implications of this very strange theory would be that the force of gravity changes over time. It weakens over time and that throws off any attempt to measure the age of the universe.

Well, that was 40 years ago, and astrophysics has gotten to the point where no one takes that seriously any longer. It was just a guy toward the end of his career coming up with some really crazy suggestions, but everyone entertained it because back in the ‘20s and ‘30s, Dirac had proposed antimatter and he was laughed out of the room because it sounds like science fiction.

All he was doing was running Einstein’s equations with general relativity and saying, you know, these can be solved either way. You can positively charged electrons and negatively charged protons. And we do. The question is why it’s not symmetrical, and no one’s answered that one yet. So, Dirac picks up a Nobel Prize for that, and guess what, he gets to be on these committees now because he’s a distinguished scientist and not, in fact, a crank.

My own personal take on this if I were on an academic freedom committee is to take that sort of attitude. We will entertain antimatter. We will entertain the large numbers hypothesis. We will entertain the lab leak theory. We’re not going to rule any of that stuff out. It’s TBD, and we’re talking about the last non-experimental science here, astrophysics, and even there the fact that Einstein could put a cosmological constant into the general relativity equations, and it looked like a terrible mistake because it suggested the universe was not expanding, and now most recently it’s come back as a possible explanation for why the universe is not going to collapse back in on itself.

So, the whole question of the cosmological constant is back in after being ruled out for about 90 years. I think we need to be ecumenical about that, but at the same time, I don’t there really should be anything controversial in taking – not just racism. Racism is not what I’m talking about. I’m talking about theories that white people are biologically or culturally superior to other people. I think the door was closed on that one.

I don’t think we’ll find evidence decades from now saying, whoa, white supremacists were right! Who knew? It’s just like that Paul Dirac guy.

Jennifer: Can I add to that?

Nico: Yeah, go ahead.

Jennifer: A lot of what we’re doing, I think, is vulnerable to getting misinterpreted because when what’s not taken into consideration is that we’re very much speaking to higher education the academic context – the pursuit of truth for the common good is a phrase that the AAUP often uses, and given that context it’s not a social media mob. It’s not a student protest.

An academic committee will be a lot slower and more deliberative than would an administrator who’s got somebody breathing down his neck than would a professor who’s got a bunch of students clamoring at her door. An academic freedom committee will also have a dispersed responsibility.

There’s a different sort of procedural context for these that prevents some of the kind of arbitrariness. It won’t prevent all of it, but it will prevent some of the arbitrariness, and some of the arbitrariness and some of the preemptive thinking that would knock out ideas that we actually need.

So, there’s that, and then there’s also the fact that the faculty – what we have to bear in mind is how many faculty – one of the things that makes it hard for me to keep saying that I believe that the idea that we have these snowflakes, or these outraged social justice mobs, and I feel like this has been taken up, and exaggerated, and used for political purposes, is that all of us have a certain amount of what I would call tenured fragility, in the sense that we will put up with almost any idea for fear of alleged slippery – this is the psychology of the faculty member.

Fear of the alleged slippery slope that something I say – for example, I’m extraordinarily critical – I teach Chinese cinema, East Asian and cinephone cinema, and I’m extraordinarily critical of the CCP. I think a lot about Chinese nationalists and international students in my class. The knee-jerk instinct of almost every faculty member is to want to protect at all costs their colleagues’ rights to explore as freely as they want, and to make mistakes.

So, there’s that. There’s the fact that an academic freedom committee made up of faculty are going to be very loathe to dismiss someone without being very thoughtful about it. And then, finally, the other thing that I would say is the reason why race, and the issue that Michael just brought up, the idea that there’s any culturally inferior group that’s less able to navigate society than another group for biological or cultural reasons, the reason why we’re singling that out and that has to get removed is also the academic context.

It also has to do with the sense of democratic legitimacy in the post sense. In a classroom, we have to walk into the classroom as faculty members presuming that everyone has a potentially valid point of view that they can bring to discussion, right? We have to assume that. Any kind of ideology or argument that some people are inherently less rational, inherently less capable – as a woman coming up in the ‘80s, I certainly had the white noise of women being less rational in my head in every philosophy classroom I sat in.

So, any kind of argument that some people are less capable than others in certain kinds of arenas, that has to be left outside, because that fundamentally distorts what can happen in the classroom. So, the academic context is really critical to our argument, and I think it changes the nature of how to think about academic freedom versus free speech.

Nico: How do you think, then, about a David Reich, for example, who got a lot of backlash in the New York Times. He’s a professor of genetics at Harvard. He wrote the op-ed – I think it was in 2018 – on how genetics is changing our understanding of race. He said, “I have deep sympathy for the concern that genetic discoveries could be misused to justify racism, but as a geneticist, I also know that it is simply no longer possible to ignore average genetic differences among race.”

This is a sitting professor right now at Harvard University who wrote the book Who We Are and How We Got Here: Ancient DNA and the New Science of the Human Past, but he takes your point. He says with the help of these tools, we are learning that while race may be a social construct, differences in genetic ancestry that happen to correlate today to many of today’s racial constructs are real, and he’s worried that well-meaning people – and I’m quoting him here – that deny the possibility of substantial biological differences among human populations are digging themselves into an indefensible position, one that will not survive the onslaught of science.

So, what do we do about a David Reich who’s saying no, I know you guys, Professor Berube and Professor Ruth, are saying that this is something that we shouldn’t touch, but he’s arguing it’s something we actually do need to touch because science will get there, and he thinks race is a social construct. He agrees with you almost entirely about the takeaways, but not that we shouldn’t study it, or that we shouldn’t discuss it.

You guys might not be familiar with the op-ed, so I realize I’m putting you on the spot. It’s not in your book.

Michael: I’m Googling it now and I’m not coming up with it. Let me just take a stab at it, though, from a general perspective with regard to intellectual disability because, as you may know, it doesn’t take a lot of genetic research to find out that I have a son with Down Syndrome, and there’s no question that people with Down Syndrome are biochemically, in every cell, different from people without Down Syndrome.

I also remember – I had to laugh. I’m teaching a disability studies course now, and I had to laugh when I told my students apparently we now have the human genome. We totally had it 20 years ago when we had 92% of it, but I’m that old that I remember when we came close to completing the human genome project, both with Francis Collins and with Crick.

A lot of people in disability studies were very antsy about that. They thought this is going to usher in the world of Gattaca. This is going to bring us back to eugenics. There was pointing to Michael Sandel’s The Case Against Perfection being written in 2004 as a caution against genetic engineering. This is forbidden knowledge. We shouldn’t go there. There’s going to be cloning, and it’s going to be dystopia.

Of course, that hasn’t come to pass, and I think there are people – I’ve actually said in the past that some people, especially in the humanities, when they hear the word genome, they reach for their guns and they think finding the genetic basis of anything will inevitably mean the loss of human freedom. I don’t believe that. I know there is a biochemical, genetic basis for Down Syndrome, and the question is how do we treat people with Down Syndrome, so I come out on the same end of this as well.

I’m just not as allergic to genetic explorations of human difference as some other people are. The question is (a) what do we do with it, and (b) for example, when you’ve found sickle cell anemia, what have you found? Have you found blackness. When you find Tay-Sachs what have you found? Have you found Ashkenazi Jews? No, you’ve found genetic traits associated with certain populations.

Those are real, and we should continue to explore them, but we should also still, in the realm of actual interacting and policy, keep believing that all humans are created equal.

Nico: Let’s say, for example, that is it out of bounds. Let’s just take for argument’s sake that it is out of bounds. What do you –?

Jennifer: What would that look like, though?

Nico: Well, that’s my question, right? What do you do with the people who make those arguments. For example, what do you do with a James Watson? He’s got the Nobel Prize as a co-discoverer of DNA, right? People can have crazy ideas even within their field. Maybe five percent of their ideas are just so far afield. What do you do if they’re brought to talk about the other 95 percent?

You guys might dislike – I can see it from the book – Charles Murray in every regard, but his book Coming Apart did kind of talk about the polarization we’re seeing today, and that’s largely what he was brought to campus to speak about in the past five years. Not The Bell Curve which has made him a controversial figure.

It’s this question of are we, in the academic environment, interested in the ideas, or can a person be disqualifying because of something in their – like Henry Ford, for example. He invented industrialized America, for better or worse, but he also was a raging anti-Semite, and so it’s like how do we take the complicated parts of people and still allow the people with the really good ideas to have a place in academia to discuss those while leaving aside, potentially, stuff that these committees or whatnot might find are outside of the discipline?

Michael: To go to Henry Ford for a moment, I’m going to say, well, he wasn’t an academic, but Joy Karega was at Oberlin, and she was a raging anti-Semite, and she lost her job over it. We think that’s legit, and not everyone in academia agrees with us about that.

You’ll note, also, a side discussion where we make no argument against the hiring of Peter Singer or John Yoo – Peter Singer at Princeton and John Yoo at Berkeley. They were very controversial in both cases, but we say, look, Singer’s work on animal rights and poverty is really very valuable and interesting. When it comes to intellectual disability, he is incredibly blinkered and sometimes just downright ignorant.

Yoo I don’t know as well, because I don’t know if he accepted the Torture Memos. We really don’t argue for the firing of people for one obnoxious, illegitimate belief. We believe in taking things in their totality. Again, we turn this over to committees of our peers, especially in areas where we have no expertise, and we can’t say – I can say some things about Singer, and I would not be in favor of firing him. When people in the disability community ask me to write an op-ed opposing his hiring at Princeton, I refuse to do it, because I don’t think the entire body of Singer’s work is disqualified by any means.

Nico: Yeah, and you praise the animal rights work in the book, if I recall correctly.

Michael: Yeah. I’m old enough to remember when that book came out in 1975, and people sympathetic to it hailed it as a masterpiece. A lot of people thought animal rights – how crazy is this going to get? And here we are 35 years later and every third person believes in it.

Jennifer: I would just add two things. One is that David Reich, who I’m not familiar with with studying genetics. On the one hand, that this conversation is happening is not a bad thing if biological differences – if the science goes in a certain direction that could be capitalized upon by certain interests. Given what we’ve seen during the Trump years and also in terms of the attempt to use race in order to rally voters, the fact that we are thinking very carefully and very seriously about these issues is not a bad thing.

The reason why I pressed you on the – and so, however David Reich articulates what he learned, he’s going to be very careful about it and how people interpret it, they’re going to need to be careful about it, and that’s a good thing. The reason I pushed you on what “out of bounds” means is that we’re in this environment right now where it’s so polarized and it’s either-or.

Either you’re cancelled or you’re free, and the reality is that an academic freedom committee has a number of different things it can do. For example, it can decide that a political science professor who has said outrageous things and made outrageous arguments about colonialism doesn’t get to teach African politics, but he’s written excellent books on China, say. He can teach about China.

There are different kinds of maneuvers that academic freedom – it’s not simply you’re fired or you’re not. You can be taken out of required courses. Another example, and I’m forgetting the man’s name who was a University of North Carolina Wilmington.

Nico: Oh, was that Mike Adams?

Jennifer: Yes, Mike Adams.

Nico: In our discussion yesterday, we did take some issue with how you framed that because you say that he had qualifications that weren’t academic qualifications, and the actual court record shows that he had more peer reviewed academic works than most people – not everyone in his department, but most people in his department. He was also –

Jennifer: That is interesting. Okay, so that’s really interesting. I can’t use him as an example as easily as I would have before, but that is exactly the point. If he were putting up – regardless of what the actual reality was, if he were putting up stuff that was not peer reviewed and trying to get that as a basis for promotion, the promotion and tenure committee was in their rights to say no, we’re not going to promote you on the basis of this non-peer-reviewed work.

So, that’s the kind of thing that an academic freedom committee would parse.

Nico: Yeah. We had a lot of fun talking about the Mike Adams case and your take on it yesterday.

Michael: Okay, and also may he rest.

Nico: But the colonialism question is interesting, and I’m glad you brought that up because there is a body count associated with colonialism that raises an ethical question. You talk about professional incompetence and the questioning of the ethics.

I think about colonialism as – someone who’s making the argument that Hong Kong should have remained a British colony rather than get handed over to the Chinese. I don’t think you’re making that argument, but there’s a debate over that. Or Niall Ferguson and his Empire: How Britain Made the Modern World that makes arguments for colonialism.

Anthony Bourdain goes to the Congo and parts unknown, and you hear from the Congolese, and it shocked me, saying we wish the Belgians would come back. They’re still maintaining a scientific outpost that they abandoned decades before.

So, when I think about body count, and I think about how complicated these body counts can be, I think back to the red scare. It’s like, okay, there were at least 10 million killed by the Soviet Union in gulags, famines – up to 50 million, I think, the best scholarship shows today. Would someone who has made an argument in defense of the Soviet Union – is that disqualifying?

I’m sure someone in Ukraine who suffered under the Holodomor famine would say, yeah, absolutely that’s disqualifying. Look what it did to –

Jennifer: If the person minimized the truth of body count, or apologized for it in ways that were incredibly –

Michael: Or justifies it.

Jennifer: Or tried to justify it in a cost-benefit kind of analysis, so, well, look, two generations later they had the railroad so everything is okay. If they were talking about it in a way that was patently objectionable on the grounds of history, yeah, they would be, but if they weren’t – if they were saying the Chinese Communist Party has lifted – I’m speaking today about contemporary mainland China – has lifted millions out of poverty, that’s true. You can say that.

Then you also can talk about the authoritarianism and the disappearing of people as well. We’ve never not been able to do that. It’s in this polarized environment where some people are misrepresenting academics as saying one or the other thing.

Nico: But, they’re also wielding ethics, right? So, at SUNY Fredonia with philosophy professor Stephen Kershnar, he goes on a philosophy podcast and you know philosophy, right? You question ethical assumption and arguments, and he starts questioning the ethics around sexual contact between children and adults. He was playing devil’s advocacy, in a certain sense, to understand why we truly think that’s unethical, but he’s not in the classroom right now. We had to give him a lawyer. He’s still under investigation.

So, this is why I get to the concerns around some of these vaguer terms like ethics and morals, and I think your academic freedom committees, to the extent that you’ve discussed them in this podcast, would account for that because there are all these complicated boundaries that academics understand, but the administrator who put Professor Stephen Kershnar on leave did not understand.

For example, Jonathan Haidt, likes to talk about this philosophical question he poses to his classes. He says let’s say you have a brother and sister and they know that they cannot get pregnant, so why is it ethically wrong for them to engage in sexual activity? The idea being that sexual activity between siblings results in complications for the fetus if they have a child.

The libs of TikTok, for example, they don’t like any of that. They came after us real hard after we called out the Fredonia case.

Michael: Yeah, again we’re going to resort to the idea that the academic freedom committee as being a worse alternative except for all of the others.

Nico: It’s like democracy, right? Isn’t that what Benjamin Franklin said? It’s the best of all other options?

Michael: Except we want it in the sense of democratic competence. Also, I think we’re talking about – we’re thinking of committees formed in people’s areas of expertise, but if you didn’t do that. If you had a university-wide committee, you’d wind up with people on that committee ranging from theorists of the avant-garde in art to physicists, all of whom have some pretty wide tolerance for crazy ideas, and also pretty wide tolerance for thought experiments like brothers and sisters having sex.

It was raised in the case of – I’m forgetting his name – at Fredonia.

Nico: Stephen Kershnar.

Michael: Stephen Kershnar. Even though I would never want to go there myself, isn’t it the case that France doesn’t even have age of consent laws, and that sort of explains the very different attitude toward – the point is, these lines are fungible.

I included in my book about Jamie, the 1996 one, Life as We Know It, that here is Peter Singer who believes that we should have a ceremony a month after birth any infanticide up to that point is legit, and I put him on a continuum with the Catholic church’s proscription against contraception.

There is a wide array of beliefs here ranging from every sperm is sacred, to life begins to conception, to viability, to birth, to a period after birth. There’s a wide range of beliefs on when a fetus is actually a baby, or whether for that matter even a blastocyst can even be considered a human person.

That’s also why I wouldn’t oppose hiring Singer at Princeton. He’s nowhere near a state power. If he were, I might adjust the calculus a little differently. We do that in the book. How likely is it that an obnoxious belief might be operationalized. In the case of John Eastman, it almost was.

Amy Wax and Lawrence Mead are speaking to potential policymakers, and as Paul Campos put it, a law professor from the University of Colorado, if Amy Wax were a Maoist, I would care less than I do right now. So, one of the calculi here has to be how much – what’s the potential for a body count here?

Nico: Yeah.

Michael: Again, I hope that our proposal will at least be taken seriously, not only for the committees but for considering certain forms of belief in white superiority to be vacuous and disqualifying.

Jennifer: Nico, I know we’re running out of time, but there is a whole other –

Nico: Do you guys have – I was going to ask if you have more time. I know you have classes. Can I get 10 more minutes?

Jennifer: Thank you, yeah, absolutely. So, I was just going to raise this question. I can’t speak for Michael. Michael, do you have 10 more minutes? This question which is that the messiness of the situation that we’re in today, the climate we’re in, and the cases that are arising, is that it’s not faculty – it’s not only just administrators who are adjudicating, but it’s also diversity, equity, and inclusion offices.

So, some of these issues are very messy in terms of the border between is it an academic fitness question, is it an erasure of the historical record in terms of body count in a way that ends up distorting or making the argument objectionable, or is it racism and discrimination?

My example of the classroom where everybody, no matter what they look like, where they come from, or how they identify have to be presumed to be capable of offering a potentially important contribution to the conversation, then that can’t be – and if there’s any kind of argument that sort of changes that playing field in advance, it’s ruled out of bounds. Is that discrimination, and would that go to DEI?

Didn’t you have the people who are – the lawyers and the HR people who are hired by the administrators and work for the administrators who are adjudicating those kinds of things? So, we were very specific in talking about fitness, and that’s very clearly in the scholarly domain, right? That in shared governance faculty have priority. The administrators can control budgets, but faculty have priority of curriculum, and approving courses, and who can be hired, and how, et cetera.

But, we have these other offices now, so one of the things that I think needs to happen is that faculty need to get more involved in some of the conversations. They’re getting sort of parceled out, and they’re not always cleanly capable of being parceled out, and so something might be a professional code of conduct if it doesn’t clearly ring discrimination. It might be a fitness question if you’re up for promotion and review.

But, these things are messy, and so one of the things that we argue is that faculty need to start to take some authority over these issues, or at least get involved in these discussions more actively instead of outsourcing them to lawyers and HR people. For example, I think it’s perfectly legitimate for a university to – the faculty senate – so, for example, the “N” word.

Can you use it when you’re quoting – if you’re a literature professor and you’re reading Baldwin, and you just start quoting a passage, can you use it, or is that outrageous? Does it matter if you’re black or white if you use it, et cetera? I think faculty senates can make rules around those things for the university, and then faculty are having these discussions and making this decision, and then people have to follow them, as opposed to, say, a lawyer and a DEI office, or an administrator, or someone else deciding whether or not that person deserved sanction for having used the word.

Nico: A quick note about the committees, too, that we didn’t really cover but that I find some value in is that, and correct me if I’m wrong, it might erase the academic freedom distinctions between tenured and non-tenured faculty, or adjunct faculty, right?

Jennifer: Thank you.

Nico: Presumably they would be analyzed the same way. Now, there are some things that tenured faculty get.

Jennifer: It’s so unfair right now.

Nico: So, we filed 11 or 12 lawsuits in the past year and a half to two years, and most of them have been on behalf of non-tenured faculty.

Jennifer: Because they’re more vulnerable, right.

Nico: We talk about the Klinzman case which was one that we provided him representation. Livingston was tenured – we provided him representation.

Michael: Yeah, ... for raising that point, and thank you, Nico, for doing it. I want to look at this question another way by getting at the question of harm, which I think also is a place where there’s really not much daylight between our position and Fire’s.

You will notice that we spend precisely zero words in the book talking about arguments being harmful because there really is an actually slippery slope. We can see Rebecca Tuvel sliding down it.

Nico: I was going to bring that up. I was looking for it in the book, and I didn’t see it.

Michael: No, because already on record on writing that you don’t try to retract a peer reviewed essay by a social media campaign because it causes putative harm. That way lies madness and chaos.

Also, I take this from – in the acknowledgments of my own – the vice provost for diversity, equity, inclusion. She’s now at Colorado, Sonya Deluca Fernandez, who assiduously avoided all discussion of harm, not only because it led to what she called, derisively, trauma porn, but also because it allowed – my contribution to that was to say, yeah, that’s where – when people suggested that Amy Wax’s op-ed in the Philadelphia Enquirer in 2017 or 2018 caused harm, she came back with, yeah, truth hurts, suck it up.

So, the indication of harm is just a non-starter for us. Arguing that Laura Kipnis’s essay in the Chronicle caused harm to Northwestern students seems to us not worthy of serious consideration. At no point are we talking about arguments that, again, putatively, or even demonstrably cause harm. We’re talking about arguments that have no legitimate intellectual basis whatsoever – quite a different standard.

So, that’s another way of taking it out of the offices of DEI, or Title IX, or human resources, and putting it back in the faculty where –

Jennifer: I would soften that just a little bit, and differentiate a little bit from that position that Michael just stated by saying that I do think there’s room to think about fitness in terms of best pedagogical practices. The idea that you were a minted PhD in 1960, and you’re still teaching exactly the same way even though your student body population has changed dramatically.

I think universities have a right to hold faculty accountable to some degree of professional development around pedagogy, and best practices decree inclusive classrooms. When you’re talking about inclusive classrooms, you are, oftentimes, getting near questions of harm, or respect, or those kinds of things, and so to that extent I’m very open to that line of argument about fitness in terms of pedagogy.

Nico: Can I just say one thing about harm? One of the reasons I like your book so much is because you actually do some case studies and analyze some of the difficult contours of this. You spend a lot of time talking about Ulrich Baer’s theory behind some of this stuff, particularly speech-related to students or invited speakers.

I watched a panel discussion with him at Kenyon College shortly after he wrote his New York Times op-ed about these issues, and about how speakers who deny other speakers humanity shouldn’t be allowed a platform on campus. Stephen Pinker who was there in the audience said, okay, well let’s talk about some issues. Let’s talk about some cases. What is an example of a speaker, for example, who denies someone else’s humanity and shouldn’t be given a platform on a college campus?

His response was I don’t want to give them a platform. I don’t want to even say their names here. But that poses a problem from a falsification standpoint, right? How do you have this sort of conversation we’re having right now?

[Recording]

Male Voice: It has to be a statement where someone says this group, these people, are not – they’re not as human as other people. There’s human superiority.

[Crosstalk]

Male Voice: Who did you have in mind?

Male Voice: I mean, it’s fine.

[Crosstalk]

Female Voice: I mean, just for –

[Crosstalk]

Male Voice: Well, of course we have to posit, because that’s how we would write these rules.

Female Voice: That some topics, such as claims that some human beings are, by definition, inferior to others, or illegal, or unworthy of legal standing, are not open to debate because such people cannot debate them on the same terms.

Male Voice: Okay, so, yeah.

Male Voice: So, just for clarification, who would you have in mind who would be denying the humanity of some students?

Male Voice: You want names of speakers right now?

Male Voice: Yeah.

Male Voice: I don’t think I need to give them the platform here. I actually don’t think they deserve – it’s a bit of a set-up.

Male Voice: You can’t even name names.

Male Voice: No, I can name them – absolutely, I can name them, but I won’t.

Male Voice: But then how are we going to evaluate your claim if we don’t even know who you’re talking about? We just have to take your faith you know who these people are?

Nico: So, that’s why I like that you guys put meat on the bones in discussing this.

Jennifer: We imagined we might get sued. You have to – you can’t be intimidated into silence around these issues for fear of big pockets.

Nico: Yeah, well, come talk to us if you get sued. We’d have some fun with that one. So, two more questions if you’d let me. So, we talked earlier about the Brown petition to have Guy Benson, who is a capitalist, disinvited because capitalism is white supremacy.

You mentioned the UVA student editorial. We didn’t say anything about that because we agreed with you, right? There was no threat of any sort of administrative action. Students can hold what we believe to be illiberal ideas, and we’ll defend the right to say it even if their ideas actuated it would undermine everything that we worked for on a day-to-day basis.

But, you both seem to find hope that the next generation is going to change the interpretation of the First Amendment, or some of these values. I wonder – it’s part and parcel of the question, but I worry if you are as concerned as other people are about too much ideological homogeneity in the academy. You hear – the most cited legal thinker there is – Cass Sunstein, for example. He does studies about how it’s important to have at least one person with a minority point of view in the room. He does it in the context of judges, right?

If you’ve got two judges that are conservative, if they just have one liberal on the court with them, their opinions tend to be more moderate and better engaged with the facts. When you look at the Higher Education Research Institute’s finding that back in 1989, 42% of faculty identified being on the left, 40% were moderate, and another 18% were on the right. Now, that’s 60% of faculty identify either far-left or liberal, compared to just 12% being conservative.

I worry, especially in the concept of composing these committees, that you’re going to – especially if that keeps trending in that direction – that you’re going to get too much homogeneity within the committees. You’re going to get bad decisions. The committees are going to end up with nobody trusting them because they don’t think that these – and when you talk about how you structure a society people need to trust that the outcomes are fair.

Part of helping to prove that the outcomes are fair is to structure the institutions in a way that build in checks and balances for fairness. We talk about the next generation coming up. There are changing attitudes, potentially. It’s more liberal than conservative. You mention, Professor Ruth, the conservatives who are right now passing laws that restrict what can be taught in the classroom. I should say that my colleagues have spent the better part of two years fighting those – successfully in almost every case as far as it reaches into higher ed, except in Florida recently and, to a certain extent, in Oklahoma.

How do you think about ideological homogeneity when you think about these committees, and how do you structure them in a way that doesn’t allow for conservatives to dismiss them as just a bunch of liberals on a college campus getting together and deciding what ideas can be presented and what ideas can’t?

Michael: I think conservatives already do that. I mean, the trust in higher education is pretty much at an all-time low, and if there’s hostility toward conservatives in academia it’s now pretty mutual. That said, and that’s not to dismiss the fact that it’s a problem, in some ways taking things internally and turning things over to the faculty, which the faculty might see as a gain, would be seen by some conservative groups as taking the decisions out of the places where they might have some leverage, such as the administration, or in the legislature, or what have you.

So, that’s a real danger. If we had written Chapter 7, we probably would have taken that on. I just don’t know – Jennifer and I agreed that pretty much everything in the book would be signed Lennon/McCartney, and I say that in a completely non-self-indulgent way, but there are some total nuances. Jennifer has firsthand experience with the changing of the guard generationally. I do not. I don’t know how that’s going to fall.

We do have some people in the book saying critical race theory now is basically in the groundwater. It’s just what our students know.

Nico: You said fluoride. It’s like fluoride in the water, according to some people, right?

Michael: It was actually put there, right? And it was a conspiracy.

Nico: Don’t forget that there were a lot of conspiracy theories around putting fluoride in the water back when Kennedy did it.

Jennifer: Yeah. I’m in Oregon where they successfully kept fluoride out and people’s teeth are terrible.

Michael: But no, I think – not only the ideological homogeneity problem, but also the possibilities of group-think. It’s interesting.

Nico: Yeah, that’s a downstream effect of it, and that’s kind of what I was thinking.

Michael: The group-think can go another way as well, because you can wind up – one of the phrases we got along the way was that, look, an academic freedom committee would never fire anybody. They’d be so interested in self-protection and a sort of guild mentality. That’s what Jennifer was trying to register with her remark that we’re still turning these things over, largely, to white folk, if this got implemented. Again, no magic bullet.

But, I think this is a question, as I think you know well, not just for these committees, but for academe as a whole. Are there sort of declinations of justice and judgment because you’ve got such a tilt in certain fields? I’m also on record on what the liberal arts say. I do wish I had more conservatives in my field. Go to graduate school. It’ll be hard. It was harder for women in the ‘70s and ‘80s, but come on, we do the work.

I don’t like it when there’s too much taken for granted. I think Cass Sunstein’s work on that is pretty much viral.

Nico: Yeah, and I do think to the extent that your proscriptions here get framed along political lines – for example, the first pull-quote on the back of the book. It says, as far as I know, this book comprises the first sustained attempt to examine the ways academic freedom and equity have been set at odds, and to argue that academic freedom must be rethought and redefined along more politically progressive lines.

I know those aren’t your words, but that’s going to raise eyebrows. So, part of my first – when I read that –

Jennifer: The thing that I think of with your question in terms of this sort of – you’re registering as our being hopeful and optimistic about the next generation, but what about concerns about homogeneity or group-think? It’s a great question. I think the way I come at it is not around any particular ideology, but around processes and procedures.

So, for example, institutional review boards or human subjects review – when there was a recent survey, and the fact that the younger generation, junior faculty and graduate students, agreed more often than not that essential review boards are appropriate and do not overreach, and that senior faculty felt like they were bureaucratic hindrances.

That, to me, is a good sign, because it says we’re going to introduce more things into our analysis of whether this project is humane, ethical, all of those things. So, it’s a question of what all are we looking at now and how are we making decisions around it? The fact that the younger generation of faculty are more for those boards and senior faculty are more against them, to me, that suggests that we are moving in the right direction, and we can find a way to reconcile academic freedom and equity – or the next generation can, anyway.

Nico: So, I’ve kept you both far longer than I promised I would keep you. The book is fascinating, as I said. My colleagues and I discussed it. They haven’t read it yet as it hasn’t come out yet, but I recommended they all read it because I think it’s one of the best arguments, or the best challenges, to some of the positions that we at Fire take.

I read this in one day, and I usually loathe to read books that are within my field of expertise because it’s in the water and I spend so much time with it. I’d much rather read –

Michael: Busman’s holiday.

Nico: Yeah. But, this – and it’s because you don’t just engage in the abstract. You engage with the actual cases on the ground. I will say, I think talking to you live, and this is often the case, your hope for these committees is more tempered than I think I came away from in the book, and maybe we can explore that later.

I’m curious to see whether – I encourage our readers to buy the book and read it, and let me know if you come away with the same sort of feeling after listening to this conversation and reading the book. But, it’s a fantastic refutation, I should say, in certain senses of some of the things we stand for, even though we agree it sounds like on certain things.

Jennifer: Yeah, thank you so much.

Michael: Yeah, thank you. Speaking of that, you’re the one who brought the case of Betsy Schoeller to my attention, in Milwaukee. We had to address that as an example where the faculty initially got it wrong and had to be overturned by committee.

Nico: Yeah, and I do want to add this, because I know you weren’t addressing this directly to me, Professor Ruth, but debates around free speech happen. One of the challenges that we have at Fire is that it has become partisan, in part because people only pay attention to them when it’s on their side.

There is this whole debate around cancel culture, and Emma Camp, who was a former intern, wrote an op-ed in the New York Times and said this is just a conservative issue, but then I went and actually looked at our cases from the last two years, and that’s how I know we had 11 of them where we actively represent them and go to court.

Of all 11 of them, it was defending liberal faculty or apolitical speech. There was not a single conservative we’ve gone to court to represent in the last – but nobody talks about Michael Phillips at Collin College who was fired – it was on a contractual basis and that’s part of the reason why I like these faculty committees – for advocating that Confederate monuments get taken down. Or Laura Bennett, who criticized Mike Pence’s demon mouth in his debate with Kamala Harris. Or Klinzman with I am Antifa.

We are, and we take criticism because we are fairly absolutists in our position, but I bristle at the idea that we take a partisan approach. We get things wrong sometimes, but we are a very diverse staff. Our cases, if anyone would just look at them, are diverse.

Jennifer: Wait a minute. I don’t think I said anything. I am critical of Fire in a lot respects, and I am very critical of the way in which some academics are giving a veneer of respectability to partisan positions that are just self-interested and are pursuing either profit or votes, but Michael and I have talked quite a bit about how we’re grateful to Fire in many respects.

Specifically, I’m thinking about Linfield University and the letter you wrote just recently on behalf of Reshmi Dutt-Ballerstadt who is now under investigation on the Pollack-Pelzner thing. You guys can move faster and more aggressively in a lot of ways than academics, or even an academic organization like the AAUP, and we need that.

What I object to is the sense that it defaults to individual rights, because it then creates an obstacle. For example, you like the fact that the book names names, and you have to have the courage to name names, even with the fear that deep pockets of Koch money will come after you in a libel suit or a civil case. You have to be able to do that.

What I fear is that when you’re championing individual rights at the expense of a sort of peer review, academic, collective decisions, you could impede change that actually is important and necessary, and is the natural trajectory of a university that is not being interfered with by the outside.

Nico: Yeah. If I had more time, I would love to have talked to you guys about the Calvin report at the University of Chicago, because your thesis does seem to be slightly at odds with the idea that the university is the host of critics. We aren’t critics as an institution – an institution isn’t critical – but I don’t.

Did you guys have anything else you wanted to add before we sign off here?

Michael: No, just to rephrase Jennifer’s response. Our differences with Fire have to do with, again, distinctions between academic freedom and freedom of speech and importation of the expectations of the latter into the former, but on individual cases. I think we cited a bunch of them, including the James Livingston case.

Not only are we on the right side, but I think we’re on the same side, which happens to be the right side. We appreciate that nonpartisan status and that’s why we’re not talking as critics of Fire. We try to take things – it’s a curious thing, again, because of the overlap between academic freedom and extramural speech where we can be at odds in theory but in the same place in practice.

Nico: Yeah. I’m glad we got a chance to address that. I was waiting for a larger take-down of Fire in the book, but you only spent about a page on us. You reference us elsewhere.

But, the book, again, is It’s Not Free Speech: Race, Democracy, and the Future of Academic Freedom, and my guests today were Professors Michael Berube and Jennifer Ruth. I appreciate you both coming on the show, and the book, again, is coming out on Tuesday, April 26th, and it will be available, hopefully, wherever fine books are sold.

This podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by my colleague, Erin Reese. You can learn more about So to Speak by following us on Twitter at Twitter.com/free speech talk, or liking us on Facebook at Facebook.com/so to speak podcast.

If you have feedback for this show, please send it to So to Speak at Thefire.org. We love to hear feedback. We also love reviews. If you enjoyed this episode, please consider leaving us a review wherever you get your podcasts. They do help us attract new listeners to the show.

Until next time, I thank you all again for listening.