The Future of Academic Freedom – The New Yorker

On January 2nd, after months of turmoil around Harvards response to Hamass attack on Israel, and weeks of turmoil around accusations of plagiarism, Claudine Gay resigned as the universitys president. Any hope that this might relieve the outsized attention on Harvard proved to be illusory. The week after Gay stepped down, two congressional committees demanded documents and explanations from Harvard, on topics ranging from antisemitism, free speech, discrimination, and discipline, to admissions, donations, budgets, and legal settlements. Some at Harvard might say this is a crisis sparked by external forces: the government, donors, and the public. But it developed long before Gay became president and wont end with her fall. Over time, Harvard, like many other universities, has allowed the core academic mission of research, intellectual inquiry, and teaching to be subordinated to other values that, though important, should never have been allowed to work against it.

Sometime in the twenty-tens, it became common for students to speak of feeling unsafe when they heard things that offended them. Ive been a law professor at Harvard since 2006. The first piece I wrote for The New Yorker, in 2014, was about students suggestions (then shocking to me) that rape law should not be taught in the criminal-law course, because debates involving arguments for defendants, in addition to the prosecution, caused distress. At the very least, some students said, nobody should be asked in class to argue a side with which they disagree. Since then, students have asked me to excuse them from discussing or being examined on guns, gang violence, domestic violence, the death penalty, L.G.B.T.Q. issues, police brutality, kidnapping, suicide, and abortion. I have declined, because I believe the most important skill I teach is the ability to have rigorous exchanges on difficult topics, but professors across the country have agreed to similar requests.

Over the years, I learned that students had repeatedly attempted to file complaints about my classes, saying that my requiring students to articulate, or to hear classmates make, arguments they might abhorfor example, Justice Antonin Scalia saying there is no constitutional right to same-sex intimacywas unacceptable. The administration at my law school would not allow such complaints to move forward to investigations because of its firm view that academic freedom protects reasonable pedagogical choices. But colleagues at other schools within Harvard and elsewhere feared that their administrators were using concepts of discrimination or harassment to cover classroom discussions that make someone uncomfortable. These colleagues become more and more unwilling to facilitate conversations on controversial topics, believing that university administrators might not distinguish between challenging discussions and discrimination or harassment. Even an investigation that ended with no finding of wrongdoing could eat up a year of ones professional life and cost thousands of dollars in legal bills. (A spokesperson for Harvard University declined to comment for this story.)

The seeping of D.E.I. programs into many aspects of university life in the past decade would seem a ready-made explanation for how we got to such a point. Danielle Allen, a political philosopher and my Harvard colleague, co-chaired the universitys Presidential Task Force on Inclusion and Belonging, which produced a report, in 2018, that aimed to counter the idea that principles of D.E.I. and of academic freedom are in opposition, and put forward a vision in which both are necessary to the pursuit of truth. Like Allen, I consider the diversity of thought that derives from the inclusion of people of different experiences, backgrounds, and identities to be vital to an intellectual community and to democracy. But, as she observed last month in the Washington Post, across the country, DEI bureaucracies have been responsible for numerous assaults on common sense. Allen continued, Somehow the racial reckoning of 2020 lost sight of that core goal of a culture of mutual respect with human dignity at the center. A shaming culture was embraced instead.

Last year, students at Harvards public-health school discovered that Tyler VanderWeele, an epidemiology professor and a Catholic, had signed on to an amicus brief in the Supreme Court in 2015, arguing that the Constitution does not contain a federal right to same-sex marriage and that the issue should be decided by the statesa view similar to that of President Barack Obama until 2012. After some students called for VanderWeeles firing or removal from teaching a required course, administrative leaders at the school e-mailed parts of the community explaining that it seeks to nurture a culture of inclusion, equity, and belonging, that everyone has a right to express their views, even though free expression can cause deep hurt, undermine the culture of belonging, and make other members of the community feel less free and less safe. In light of the harm and betrayal students reported because of VanderWeeles views, the school hosted more than a dozen restorative circle dialogue sessions, for people to process, share, and collectively move forward from the current place of pain. (A spokesperson for the School of Public Health pointed out that students exercised free-speech rights when they demanded VanderWeeles firing and said that the administration never considered disciplinary action against him.)

In 2021, Carole Hooven, a longtime Harvard lecturer on human evolutionary biology who wrote a well-reviewed book about testosterone, stated in a Fox News interview, The facts are that there are in fact two sexes... male and female, and those sexes are designated by the kind of gametes we produce. She added that understanding the facts about biology doesnt prevent us from treating people with respect, and that we can respect their gender identities and use their preferred pronouns. The director of her departments Diversity and Inclusion task force, a graduate student, denounced Hoovens remarks, in a tweet, as transphobic and harmful. A cascade of shunning and condemnation ensued, including a petition, authored by graduate students, which implied that Hooven was a threat to student safety. Graduate students also refused to serve as teaching assistants for her previously popular course on hormones, making it difficult for her to keep teaching it. Hooven found it untenable to remain in her job, and she retired from the department.

Students across the political spectrum, but largely liberals, have told me that they felt it would be foolish to volunteer their opinions in class discussions, or even that they routinely lied about their views when asked. These self-censorious habits became even more conscious with the rise of the #MeToo and Black Lives Matter movements, such that a large range of political remarksquestioning abortion rights, calling a fetus an unborn child, doubting the fairness of affirmative action, praising color-blindness, or asking who should compete in womens sportscould be perceived as being on a continuum of bigotry. In this climate, it became increasingly difficult to elicit robust discussions because students were so scared of one another.

In 2021, feeling that the environment for open inquiry was dire, I helped form the Academic Freedom Alliance, a national organization that supports faculty who are threatened with penalties for their exercise of academic freedom. It defends the freedom of thought and expression in research, writing, teaching, and extramural speech, and provides funds for the legal defense of faculty who face official reprisals. The people whose rights weve defended have usually expressed views that I happen to find objectionable and even offensive. For example, the University of Pennsylvania law professor Amy Wax wrote that the United States is better off with fewer Asians and, on a podcast, suggested that the spirit of liberty may not beat in their breast. I wished she hadnt said that, but I held my nose and defended her right to not to be fired or otherwise punished, which many at Penn demanded.

A year ago, I became a co-president of a new group, the Council on Academic Freedom, founded to promote free inquiry, intellectual diversity, and civil discourse at Harvard. That summer, Gay took office as Harvards president, and the groups leaders soon met with her to press the case that academic freedom desperately needed her attention. In her inaugural speech, in September, Gay acknowledged Harvards long history of exclusion and the weight and honor of being a first, as its first Black president. I was very relieved when she also pointedly said that the goal of intellectual inquiry is knowledge, not comfort. She stated, We serve that purpose best when we commit to open inquiry and freedom of expression as foundational values of our academic community. Our individual and collective capacity for discovery depends on our willingness to debate ideas; to expose and reconsider assumptions; to marshal facts and evidence; to talk and to listen with care and humility, and with the goal of deeper understanding and as seekers of truth. At that time, Gays emphasis on free speech was at odds with the prevailing tone on campus, but she was known as a supporter of D.E.I., which dampened the risk of her words being seen as reactionary or insensitive.

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The Future of Academic Freedom - The New Yorker