Academic Freedom and Departmental Speech

Last fall the organizers of my university’s community book project asked me to give a lecture. The invitation surely came because I’m a scholar of antidiscrimination law, and this year’s community book is (somewhat unsurprisingly) Ibram X. Kendi’s How to Be an Antiracist. But I’m also a First Amendment scholar and had just finished chairing the University of California’s systemwide faculty academic freedom committee, so the lecture I ended up giving was called “Is the Campus Community Book Project Constitutional?” (My hosts stayed amazingly supportive even after they learned my talk might call their own legality into question.)

That title might seem like a joke were it not for the fact that political statements by the university—and especially statements made by units within the university—are at the center of one of the biggest academic freedom debates happening right now at the University of California. New policies have been proposed, working groups formed, and general counsel offices consulted; even the regents have begun weighing in. Some see departmental and university-wide speech as an exercise of academic freedom, others view such speech as a threat to academic freedom. Institutional and institutional-unit speech is everywhere, but answers to questions about who speaks for the unit and what the unit is allowed to speak about are surprisingly hard to find. The thoughts that follow, adapted from my lecture, don’t answer these questions so much as offer considerations that might be relevant to departments and institutions trying to answer them for themselves.

Institutional Neutrality

How could a university violate the constitution by assigning a book to read, or even suggesting a book people might want to read together voluntarily? Here’s one possibility, lifted from the website of my own campus’s community book project. Announcing the selection of How to Be an Antiracist, the project’s director writes that “with Kendi’s book, we will work beyond spaces of neutrality and complicity, and strive for action to reframe our policies and practices and our racial consciousness.” Further down the page, the university’s vice chancellor for diversity, equity, and inclusion adds that bringing Kendi to campus “affirms our commitment to advancing, operationalizing, and institutionalizing antiracism.”

This call to move “beyond spaces of neutrality” will no doubt trigger those who see universities as one of our society’s most paradigmatic and necessary spaces of neutrality: the “home and sponsor” of political, social, and moral debates and commitments, not itself a proper holder of such commitments. According to this widely shared view, “institutionalizing antiracism” or any other political commitment means abandoning the institutional neutrality that is said to make academic freedom possible. The most famous expression of this view comes from the University of Chicago’s 1967 Kalven Committee report: a university, it says, “cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. . . . If it takes collective action, . . . it does so at the price of censuring any minority who do not agree with the view adopted.”

I have never been convinced that an institution censures dissenting minorities simply by taking a position they oppose. I’ve disagreed strongly with any number of institutions of which I’ve been a part—from the church in which I grew up to the learned society of which I’m now a trustee—without ever feeling, much less being, censured by them. As every American knows, collective action can be taken in our name even while we loudly dissent.

But put that objection aside for a moment. The general thrust of the Kalven Committee report is that the university must remain neutral precisely so that its constituents are free to take positions. So, when the organizers of my campus’s book project say that “we will work beyond spaces of neutrality” and talk of “our commitment to . . . institutionalizing antiracism,” much turns on just who is we and what is ours. The Chicago view sees academic freedom as dependent on this distinction, for on that view, my and my colleagues’ commitments to antiracism are expressions of academic freedom while the university’s commitments are threats to it. If the choice of a book and the rhetoric surrounding it are attributed to the university, the university would be taking a political stand that might chill the free expression of some of its constituents.

Those who reject the Chicago view, however, might still care whether the campus book project or some similar office is speaking for the university. After all, those of us who want the university to make statements need to decide carefully how and when those statements get made. The example above from my university’s vice chancellor is fairly straightforward: surely she is deputized to speak for UC Davis, at least on issues surrounding diversity, equity, and inclusion. When she does so, she isn’t protected either by the university’s academic freedom policy or by the First Amendment, since she is a nonacademic government employee speaking in the course of her employment. If those above her dislike what the vice chancellor is saying on behalf of the university, she can be replaced. Her authority and the lines of accountability both are clear.

What happens, though, if the campus book project’s website is expressing that office’s view rather than that of the university? And more generally, what happens when academic units within the university make, or sign, statements on matters of public concern, whether on racial justice or foreign affairs, union disputes or modes of instruction during the pandemic? When schools and departments, or their leaders or faculties, speak out on behalf of their unit, we have to ask not just whether the position itself is permissible or advisable; we also have to ask who exactly is taking that position, and whether, and if so how, they are authorized to do so.

Who Speaks for Departments?

These questions have been pressed more loudly since May 2021, when almost every gender studies department in the country, including several within the University of California system, endorsed a public statement of “solidarity with the people of Palestine.” Nine other departments and programs on my campus, along with more than fifty individual faculty members, crafted their own solidarity statement, describing how our students have been affected by the conflict and calling for change in the Biden administration’s funding for Israel.

Others on the faculty responded, protesting to campus counsel that the solidarity statements were “blatant political advocacy, and a misuse of statefunded University of California resources.” The critics pointed to a California law that prohibits use of UC’s name in support of any “political, religious, sociological, or economic movement, activity, or program.” They worried that faculty and students who disagreed with the department’s positions would be afraid to express their views. They asked how the Israeli-Palestinian conflict fell within the expertise of certain of the departments that signed the statement. And they called on the university to develop policies to regulate these kinds of departmental statements and endorsements in the future.

But what should such a policy say? (I am on the working group formed at Davis to answer that question, but I am speaking only for myself here.) Some argue that academic departments should get out of the business of weighing in on world events entirely. But a ban on departmental statements would be an enormous change to current practice. Scroll through the departmental websites at your university; if it is anything like mine, you will find statement after statement prominently addressing racial justice, the killing of George Floyd, violence against Asian Americans, or the anniversary of 9/11. One department recently endorsed a student walkout protesting the lack of hybrid course offerings during the pandemic. My dean, like many others, has posted statements on critical race theory, the military’s refusal to hire transgender troops, and the January 6 Capitol riot, in addition to message after message about racial justice and police violence. Some of these are framed as statements from the dean, while others explicitly voiced positions of the UC Davis School of Law.

This, in fact, is one of the most basic distinctions among departmental statements. Sometimes they are voiced by the department itself: “UC Davis School of Law strongly opposes [the] decision” to discriminate against transgender soldiers; “the UC Davis Department of Philosophy condemns the anti-Asian racism and violence that have afflicted our state and country in recent months”; “the Department of Human Ecology strongly and unequivocally states: Black Lives Matter.” Other times deans or department chairs write in their own name, speaking either for themselves or on behalf of the unit they lead. Still other messages come from “the faculty” or even “the faculty, students, and staff” of a particular department. In some hybrid cases, the precise speaker is less clear: when a statement says that “the faculty of department X condemn” something but then includes signatures of individuals at the bottom of the statement, it is not obvious whether the statement comes from the individuals or the faculty. (Does it matter if a majority of a department’s faculty sign individually?) The chair of my university’s political science department recently signed a statement personally, but his statement expressed “the support of the Political Science faculty, staff, and graduate students for our Black students, staff, and faculty colleagues” and affirmed their (apparently) collective opposition to systemic racism.

Each of these paths has its own advantages and disadvantages. State law and university policies about the use of the university’s name come into play only in the case of a statement signed by a department. In such cases, we might ask, What’s the difference between a statement signed by the department itself and one signed by all of its members? In the first case, the department’s (and perhaps the university’s) name or prestige is being leveraged; that’s why laws against, say, campaigning for a political candidate or ballot measure become relevant. Another difference is that there is one speaker, not a group. This isn’t unique to statements on websites. When a unit of the university invites a speaker for its commencement or an endowed lecture, the unit is saying something there, too; it is bestowing an institutional honor. And this leads to the biggest difference. Even at public universities, institutional speech like this does not have to be viewpoint-neutral. When my law school invited John Lewis for our commencement, the school didn’t have to bring in a white supremacist the following year to provide balance. The challenge comes in determining who gets to decide for the unit what messages to express. And the worry is that some will ascribe departmental expression to the people who make up the department, regardless of whether they agree with it or were even part of the decision about what to say.

By contrast, statements from chairs or deans, speaking on behalf of their unit, have the advantage of accountability. The academic freedom policies at the University of California explicitly carve out the administrative activities of deans and chairs, as opposed to their scholarly activities as members of the faculty. (Admittedly, lines here can blur.) When chairs or deans speak for their unit in a way that is at odds with the university’s values, they can be replaced. Official statements from deans and chairs have another, related advantage too: there is seldom ambiguity about whether a statement by the unit’s leader implies the agreement of the unit’s members, thereby avoiding the chief problem with statements signed by the department or school itself. Seeing the unit’s name on a petition, by contrast, readers may wonder how the decision to sign was reached. Did the whole faculty have to consent? Just a majority? Often no one knows.

One response to this problem—recently proposed by UC’s academic freedom committee—is to require departmental statements to say whose views they represent. But transparency comes at a cost. Requiring unit-wide votes on every departmental statement could make worse the chilling effects that critics of such statements decry. Will untenured professors feel free to vote their conscience? Letting the dean or chair speak for the unit has the virtue of allowing individual faculty members to keep unpopular dissenting opinions to themselves.

A similar worry attends statements by individually named members of a department or school. Legally, these are the least problematic kinds of statements, since faculty members clearly have academic freedom and general First Amendment protections when making political statements in their own names. Statements from a group of individual faculty members or, if they are unanimous, a statement signed by “the faculty of department X” are on constitutionally solid ground.

But that doesn’t mean that statements like these are the least likely to chill or coerce expression. Consider a recent example from the Penn State Law School, whose dean wrote to the community urging students, faculty, staff, and alumni to join her in signing a statement “to be on record . . . condemning racist violence, police brutality, and systematic racism against Black men and women.” Calling the dean’s request “a serious violation of academic freedom,” University of Chicago professor Brian Leiter argued that “the Dean of a law school should not be proclaiming the correct interpretation of public events, . . . let alone using her position to solicit support for her interpretation.” I’m unconvinced about the first half of this claim. To treat a dean’s stated opinion on public events as a “serious violation of academic freedom” is to treat faculty members as snowflakes incapable of disagreement, at least with anyone who controls their purse strings. My experience of faculty meetings suggests otherwise. That said, if your dean doesn’t just sign a statement herself but publicly urges you to do so, publicly, too, the pressure to comply is significantly higher. In some cases, then, the statements most strongly protected under the First Amendment—statements signed by individual faculty members—might, in practice, present the biggest threat to freedom of expression.

Individually signed statements pose one other major problem not shared by statements made by units or their leaders. If the unit posts a statement by a group of faculty members on the departmental website or bulletin board or Twitter account, it will almost certainly be required to give similarly prominent treatment to counterstatements by any dissenting faculty members. Unless the unit (or its leader) endorses the original statement as its own, the unit itself hasn’t spoken by putting the statement on its website; instead, it has opened up what lawyers call a “limited public forum” for speech. There, viewpoint discrimination is constitutionally prohibited. So, if the Department of Human Ecology wants to express support on its website for the Black Lives Matter movement, it does not have to post contrary views as well. But if the same message were signed just by individual faculty members, colleagues who disagreed would have to be given the chance to do so on the website as well.

What Can Departments Talk About?

The considerations above all speak to who should be doing the expressing when it comes to departmental statements: individuals within the department, the department’s leader, or the department itself. There are times, especially on matters of university governance, when it is important to hear departments’ positions on a given topic. But otherwise, unless the department has clear procedures for formulating collective statements, statements from the chair or dean on behalf of the department allow for clearer lines of responsibility.

An equally tough set of questions asks not about who should be allowed to speak but what they should be allowed to speak about. Or maybe allowed isn’t the right word here. Outside of legal limits—the ban on electioneering, for example, or the Establishment Clause—universities may not want to dictate what its schools and departments can speak about. Even so, departments should still ask themselves whether making or signing a particular statement is a good idea. The considerations that follow can be read in that spirit.

First, while critics sometimes focus on “political” statements, trying to define what is political in this context is hopeless. Animal research, evolution, critical race theory, gender studies, medical ethics, history, even basic facts about election results have all become deeply politicized while still remaining central to the disciplinary expertise of various departments. Blanket rules putting subjects off limits are unlikely to work.

Instead, departments might ask whether a statement they are considering is predominantly focused internally or on the world beyond. Departmental statements made in the wake of George Floyd’s murder, for instance, were obviously focused in significant part on issues of race and policing in Minnesota and across the country. But many also focused as much or more on how members of their own community were hurting or fearful. Some addressed policing issues on their campus, while others noted the existence of systemic racism within their field. On my campus, the classics department wrote not just to express solidarity with the Black Lives Matter movement but also to acknowledge its own discipline’s “historic and continued complicity with racist narratives.”

One rule of thumb is that departments should always be able to issue statements about plans of their own. If a department is able to act in a particular way, it surely can talk about how it plans to act. So, the more internally focused a statement is, the more secure departments should feel in making it.

Consider a statement the English department at the University of Chicago made in 2020 announcing its support for Black Lives Matter and its decision to prioritize “applicants who work in and with Black studies” for PhD admissions the following year. Critics were outraged at what they saw as a political test for admissions. But Chicago’s president, Robert Zimmer, responded with a more nuanced view, writing that the university’s stance on institutional neutrality applies to departments no less than the university itself but that the English department’s statement could be interpreted as either a political test or just the usual “prerogatives of an academic department to make decisions about the choice of scholarly directions it wants to emphasize.” The latter, Zimmer added, would be “an important manifestation of academic freedom”—not a threat to it.

Zimmer was right. Academic freedom means that disciplinary experts in a given field must have the primary authority to decide what and whom to teach. That authority obviously has its limits, political litmus tests and antidiscrimination law among them. If Chicago’s English department planned to admit only Green Party members, it would be acting beyond its powers. But if it chooses to emphasize a particular set of interests within its field, it is doing exactly what a community of experts should. This year, Chicago’s English department is limiting (not just prioritizing!) admissions to students who work on pre-1900 anglophone writing. That exclusion hasn’t made it onto Fox News.

The point here is that a unit of a university might respond internally to political events in the broader world in any number of ways. It might, as my law school did, beef up counseling services, institute a new lecture series, or reexamine its curriculum or its hiring or admissions priorities. If it does so, the school can surely issue statements in its own name or that of its dean explaining what it is doing and why. Departmental statements of this kind, nonneutral as they may be, are an expression of academic freedom. The unit that makes them has no obligation to provide space for counterstatements by dissenters.

Statements focused primarily on the world outside the department raise harder questions. One is whether the statement’s topic falls within the department’s distinct disciplinary expertise. Importantly, departmental expertise is distinct from the expertise some within the department might have. I have colleagues who are deeply knowledgeable about Middle Eastern politics, but the majority of us have about the same expertise on that subject as any other educated newspaper reader. For this reason, it’s hard for me to imagine the UC Davis School of Law making a statement on Middle Eastern politics, vitally important as that topic might be. Issues surrounding the rule of law, the makeup and operations of our courts, rights guaranteed under the US Constitution, or access to justice—these all seem closer to our distinctive departmental expertise.

Here again, the lines can be blurry. I could easily imagine the school expressing concern about the Senate’s failure to consider a president’s Supreme Court nominee. By contrast, statements about the moral fitness of a particular nominee come closer to (and probably cross) the line of what’s appropriate. The law reaches most every aspect of human life, but that doesn’t mean a law school has expertise—and should issue statements—on everything in life the law touches.

This suggests a second point about expertise: a lot hinges on the level of generality at which it’s described. Any number of departments study power or systems of oppression. Because oppression often targets intersectional identities, it may not be possible to cabin the study of oppression into discrete categories: gender over here, race or national origin over there. Injustice anywhere may truly be a threat to justice everywhere. But does this give certain departments free rein to weigh in on any and all of the world’s injustices? Were that the consequence, I think we might have defined the departments’ distinctive competencies, their reasons for existence, at too high a level of generality.

The final consideration I want to raise is the level of specificity with which a department responds to events in the world. Danger lurks on either side here: banal generalities about how racist violence “reminds all of us that we need to do better” are unlikely to satisfy, much less help. But on the other side, calls for the passage of particular bills or specific changes in public spending are far less likely to fall within the distinctive disciplinary competence of most departments—and far more likely to appear impermissibly partisan.

Again, we lack clear lines. The fact that some dispute the science behind COVID-19 vaccines does not make that an impermissibly partisan topic, at least when statements are issued by departments with the requisite expertise. Will a public statement by the Department of Epidemiology promoting vaccines make antivaxxers feel less welcome there? Sure. The nature of disciplinary expertise is to put some ideas beyond the pale; the question is always how far the pale extends. Some claim that “you can’t be a feminist and a Zionist.” If a gender studies department were to endorse that statement, have they done something different from what the epidemiologists did? To believe in academic freedom is to give disciplinary experts within the field the primary authority for defining its bounds, logically circular as that might be.

Of course, if departments have the academic freedom to make statements because of the disciplinary expertise of their members, at least one limit on those statements becomes clear. A department that found it could speak on most anything would be one that thereby undermined the basis for its having the academic freedom to speak in the first place.

Can a School Be Antiracist?

Where does all this leave us? This article began by discussing my campus’s community book project, which spoke on its website of “our commitment to advancing, operationalizing, and institutionalizing antiracism at UC Davis.” Our went undefined, as it so often does. But let’s say a particular department or school within the university wanted to make that commitment theirs. Many have: just look at the Law Deans Antiracist Clearinghouse Project, a powerful resource, hosted by the Association of American Law Schools, that collects institutional statements and other information on becoming an antiracist law school. The discussion up to now should make it easier to see both why some question whether becoming an antiracist school is an appropriate goal and what answers to that objection might look like.

For the critique, here is Brian Leiter once again: “The idea . . . that law schools should be ‘transformed’ into ‘anti-racist institutions’ (as distinct from being non-racist ones that comply with equal opportunity laws) would portend a massive violation of the academic freedom of all faculty—just as transforming law schools into ‘anti-communist’ or ‘anti-capitalist’ institutions would. Law schools exist to train lawyers and produce knowledge about the law, not to promote extraneous social goals, even meritorious ones.” It is true that, compared with somewhat gauzy claims about advancing diversity, equity, and inclusion, transforming our universities into antiracist organizations is a thickly described political project. As Kendi’s book explains, antiracism entails a cluster of definitions and commitments focused on dismantling policies that maintain racial inequities. Antiracism is not explicitly partisan, but it is an interlocking network of specific beliefs about, for example, ethnicity, biology, culture, and class. So does the specificity of the position being taken on politically contentious issues mean that institutions are wrong—in Leiter’s words, causing “a massive violation of academic freedom”—if they commit to it? It depends.

Institutions might want to consider, for example, whether their express support for antiracist policies is focused more internally than on political debates in the world beyond. In theory, antiracist law schools could be focused in either direction. They are certainly endorsing a conception of racial justice that extends to policy debates far beyond their campus. But they are also surely talking about policies that the school itself has or will put in place—policies that will either exacerbate, maintain, or reduce racial inequalities at the school.

To say, as Leiter does, that antiracist concerns are extraneous to law schools’ reason for being—“to train lawyers and produce knowledge about the law”—seems to me to beg the question. It assumes rather than argues that antiracist policy choices aren’t internal to the training of lawyers and the production of legal knowledge. Adopting antiracist policies would certainly lead to a different set of people getting trained as lawyers. And since no law school does it all, decisions have to be made about what kinds of “knowledge about the law” a school will focus on producing.

Leiter distinguishes nonracist institutions that merely comply with equal opportunity laws from antiracist institutions that actively work to dismantle racial inequalities. Kendi would distinguish these as well. But the central thesis of Kendi’s book is that the category “nonracist” does not exist. Policies, and the people and institutions that promote them, Kendi argues, are either antiracist or racist. Leiter’s position—the supposedly neutral position he claims is necessary to protect academic freedom—is thus every bit as much a rejection of Kendi’s view as Kendi’s is of Leiter’s. Why, then, is it not a political statement—much less a massive violation of academic freedom—for institutions to adopt Leiter’s position, thereby rejecting Kendi’s?

Externally focused department statements are sometimes criticized as extraneous, a source of controversy best avoided. But sometimes, institutions can’t avoid the fight. When it comes to student or faculty recruitment, the choice between color-blind and antiracist practices seems unavoidable; institutions simply must follow one path or the other.

I do understand Leiter’s worry that an institutional commitment to antiracism could end up stifling dissent from within. After all, an institution that adopts and expresses certain values is naturally going to want its faculty and staff to get on board and help advance those values. We might worry what will happen to academic freedom if the school or department rewards only those who toe the company line.

Outside the fraught context of race, though, we have plenty of examples where departments and their members have navigated this sort of dynamic. Take teaching reports: I am required (or strongly encouraged) to meet institutional teaching goals and report my success at doing so. I can do this, successfully and without hypocrisy, even if I’m also speaking out at faculty meetings or the newspaper about how my school focuses too much on teaching at the expense of research. Academic freedom protects faculty members from retaliation when they work to change their institution’s priorities; it doesn’t protect faculty members from having to advance the priorities that are in place. That’s just doing your job.

I see the constitutionality of a public university’s commitment to antiracism in much the same way. Institutions, or their units, should be able to speak so long as those within who disagree can also speak up to say why the institution or unit is wrong. Neutrality hawks think that institutional expression categorically endangers academic freedom. I think that a robust commitment to academic freedom is what makes it permissible for both universities and their units to express positions on issues that matter to them. Here as elsewhere, though, the fact that we can say something does not always mean that we should.

Brian Soucek is professor of law and chancellor’s fellow at the University of California, Davis, School of Law. His email address is [email protected].