Political Interference with Academic Freedom and Free Speech at Public Universities

I am a constitutional lawyer by trade, and I have written on more than one occasion about the intricacies and nuances of freedom of expression. I have also, over a long career, seen the tensions that regularly arise over academic freedom and free speech from a variety of perspectives: as a teacher, speaker, writer, researcher, lawyer, and advocate, to be sure, but also as a dean and a president at public universities. 

My first teaching position was at West Virginia University, an institution I fell in love with immediately. One of my old colleagues from WVU reminded me a few years ago that early in my career, now nearly four decades ago, I gave a lecture taking what some regarded as a controversial position: that we no longer needed tenure in the academy, or at least in state universities, because First Amendment protections had become sufficiently robust that the important work previously done by tenure could be carried out effectively by the courts.

After reminding me of this earlier, foolish, position, my former colleague wryly noted that in the intervening decades I seem to have needed the protections of tenure more than anyone else he knew. On this front, as on many others, I am grateful not to have had my early wishes granted. After battles with coal company donors in West Virginia, a president and board of regents in Colorado, a legislature and board of visitors at the College of William and Mary, and a governor and general assembly in North Carolina, I have had a modest change of heart about the value of academic tenure.

Old-School Censorship

My focus in this article is on governmental suppression of academic freedom—in particular, legislative and political interference with academic inquiry into the efficacy of governmental practices and policies. Such interference may trigger institutional and curricular academic freedom concerns or it may touch on individual liberties of speech and expression. But in either case, external efforts to alter or curtail expression, research, teaching, or publication, or to impose a regime of orthodoxy upon them, threaten the integrity of strong universities and of vibrant constitutional democracies. Such interference thus sins against both our public academic institutions and our appropriately heralded form of government.

The threat of such intrusion is more substantial than I would have thought when I made my ill-advised comments about tenure many years ago. Seven decades after the McCarthy era, government officials are not as embarrassed to engage in old-school censorship as one might expect. Nor is the resistance by university leaders to unacceptable intrusion as robust and uniform as many assume. Public universities, even strong ones, are not necessarily well positioned to resist such violations of their core mission.

Some of the reasons for their vulnerability are structural: public education is tied to legislative prerogative and largesse. But some are self-inflicted, stemming from the incentives university leaders have embraced and the way trustees are selected in many public university systems. Weaknesses are also apparent in the way university leaders are chosen and compensated, which are often at odds with academic norms and other institutional commitments.

This combination of factors poses a potent threat to public higher education’s central roles in learning and in democratic decision-making. Even as our universities open doors of opportunity widely, press amazing horizons of discovery, and complete capital campaigns that astonish, they lack the resolve needed to confront growing challenges.

Unlike most of the free speech and academic freedom issues that roil our campuses and sometimes our legislatures and courthouses, the issues at stake in political interference with academic work on governmental policies are not characterized by wrenching analytical complexity. They are, more frequently, matters of will. When a university is sued for developing and implementing harassment and bullying policies, the dispute usually presents competing constitutional values of equality and expression. When a faculty member participates in an expressive boycott and refuses a student-requested recommendation, speech and equal-protection demands can meet head on. Perhaps these collisions can be avoided. But it’s not always easy work. By contrast, in the cases of political interference that are my focus here, it is rarely difficult to figure out what constitutional accountability recommends. It is just harder, on occasion, to summon the expressive and intellectual courage needed to defend our core academic principles.

Academic Freedom and Chapel Hill

For the past decade, I have taught in the law school at the University of North Carolina at Chapel Hill, a great public flagship with a storied history. Over the years, Chapel Hill has made distinctive and significant contributions to the protection of academic freedom. In 1936, when the University of North Carolina’s board of trustees moved to dismiss Professor E. E. Erickson for dining at a Durham hotel with the NAACP leadership, Frank Porter Graham, UNC’s most famed president, declared, “If Professor Erickson has to go on the charge of eating with another human being, then I’ll have to go first.” Decades later, Chancellor William Aycock defiantly told the legislature, in demanding repeal of its Speaker Ban Law in the early 1960s, “It would be far better to close the doors of the university than to let a cancer eat away at the spirit of inquiry and learning.” But in the last five years, that proud legacy has not stopped UNC from surrendering, essentially without objection, in the face of surprising and indefensible intrusions on academic freedom and free expression. I fear that UNC’s shortcomings may be symptomatic of broader challenges for public higher education.

The recent trouble at UNC began in 2015, when the University of North Carolina’s board of governors, carrying out the demands of its legislative overseers, closed the privately funded Center on Poverty, Work, and Opportunity, which I directed. The center was targeted because it published articles and reports critical of the general assembly’s poverty policies. I’d been threatened personally a half dozen times by legislative leaders, told that if I didn’t stop publishing articles in the Raleigh News & Observer, the center would be closed. State senator Bob Rucho, who played a major role in appointing members of the board and, oddly, sat in the audience as they voted to close the center, keeping a close eye on his charges, told the local newspapers it was necessary to close the center because I was advocating antipoverty measures legislators disliked. The president, chancellor, and provost knew fully of the threats. They had helped to relay them, but they raised no objection.

The same year, my colleague Omid Safi, a much-accomplished religion and politics scholar at UNC, left Chapel Hill to become head of Islamic studies at Duke, explaining that his departure stemmed from censorship by the UNC administration. Safi told reporters: “We started to see a very chilling impact on professors. No one at UNC had ever objected to anything I had written about human rights violations in Iran or Saudi Arabia or Turkey before, but when I started to write about human rights violations [by the North Carolina legislature], I was told in no uncertain terms that campus leaders were fearful the legislature would cut their budget. So I needed to stop.”  

In late 2015, and then again in 2017, after I had continued to publish articles on North Carolina poverty policy, the legislature took up what was referred to, on the floor, as “the Gene Nichol transfer amendment”—cutting $3 million from the law school’s budget. The senate adopted the measure, but it was dropped in conference. During the next session, the senate passed a cut of $4 million—30 percent of the law school’s state appropriation. The cut, this time, was reduced in conference to $500,000 but became a permanent part of the budget.

In September 2017, the board of governors voted to ban UNC’s Center for Civil Rights from becoming involved in litigation. The center—privately funded, like the poverty center—was founded by famed civil rights lawyer Julius Chambers and had, for almost a decade, represented low-income clients in civil rights actions. The leading critic from the board explained he would have felt differently if the center concentrated on Second Amendment and religious freedom cases. Board members also claimed they disagreed with the law faculty’s assessment of the pedagogical value of clinical experiences. The president and chancellor again raised no objection to the intrusion. 

In the meantime, history scholar Jay Smith, who had coauthored a book critical of UNC’s handling of an athletics scandal that shook the campus beginning in 2010, had a popular course on athletics in higher education canceled because of “blowback” from the athletic director and football donors. The history faculty protested, and the faculty grievance committee sided with the department. The chancellor reversed the committee’s ruling for ludicrous reasons. This, admittedly, represented no legislative overreach. But it again demonstrated the tattered nature of academic freedom at UNC under Carol Folt’s chancellorship.

That’s the stick. Then there’s the carrot. In 2016, the general assembly created the North Carolina Policy Collaboratory at UNC Chapel Hill—with an unrequested $5 million appropriation. The senate majority leader, Philip Berger, said that he expected the collaboratory to produce environmental research more congenial to his deregulatory goals than Chapel Hill’s internationally recognized Institute for the Environment—which Berger reported had too many Democrats. The collaboratory would not be under the control of the university’s academic affairs leaders. It would carry UNC’s name but not its rigor. Folt agreed to the program and hired Berger’s top aide to run it. Consider our environmental challenges cured.

Various programs in teaching, service, and research had been modified, ended, or created to diminish disagreement with the wishes of the general assembly. The alterations have been enthusiastically embraced by the board of governors. They have been, with almost complete uniformity, adopted and facilitated by the president, chancellor, and provost. UNC now reserves academic freedom for orations on University Day. The work of the state legislature is to be praised, not challenged. Our flagship public university surrendered quickly, with nary a whimper.

Beyond Chapel Hill

I had seen public institutions bend to legislative dictate before. Shortly before my term as president of the College of William and Mary was ended, the Virginia legislature summoned members of the board of visitors, whose tenures they had to sign off on, to Richmond, to be grilled about decisions I had made seeking to protect students’ First Amendment guarantees. The lawmakers demanded that I change my position or be fired. Within days, the board members complied. Unlike their counterparts in North Carolina, Virginia lawmakers were not trying to shield their own legislative efforts from criticism. But, like their colleagues to the south, they weren’t slowed down by the demands of the First Amendment.

Similar legislative and governmental tampering with academic independence has occurred elsewhere. In Maryland, the CEO of Perdue Farms was sufficiently annoyed by a law clinic action—alleging that Perdue was illegally polluting the Chesapeake Bay—that he convinced lawmakers to attach a rider to the University of Maryland’s appropriation conditioning $750,000 on the submission of a report detailing clinic cases, client names, and various other privileged communications that would interfere with the school’s ability to control its curriculum and meet its professional obligations. The rider, after much contest, was eventually defeated. But its author was confident the university had received the necessary message.

Outside political interference has been more overtly successful in Louisiana. The AAUP censured Louisiana State University, Baton Rouge, for violating the academic freedom of coastal researcher Ivor van Heerden in response to his widely published comments, after Hurricane Katrina, concerning the purportedly shoddy work of the Army Corps of Engineers on the New Orleans levees. LSU administrators apparently fretted that the claims would jeopardize future federal grants. Tulane University, though private, has been repeatedly attacked because of the work of its environmental law clinic. An angry governor threatened Tulane’s tax status and subsidies when the clinic blocked the opening of a new chemical plant in an impoverished area. He also demanded punitive actions by the state board of regents and the state supreme court. The high court responded by adopting the toughest clinical restrictions in the country. Threats were resurrected in 2010 when a state senator moved to block clinics from engaging in various sorts of litigation.

A different kind of problem has arisen when public universities have accepted private donations with inappropriate strings attached. At George Mason University in Virginia, the Koch Foundation and other conservative donors have been afforded remarkable influence over faculty selection and the determination of curriculum at a public university. One faculty member on the university senate explained, “Public universities are desperate for money and if it’s not coming from the state, what’s left is the Koch Brothers and others [who] provide money that goes to things that support their interests.”

Ambitious Republicans in the Arizona legislature created programs at the University of Arizona and Arizona State, colloquially known as “freedom schools,” specifically designed to teach conservative political principles. Both programs have been lavishly funded by direct appropriations—while general budget increases for the universities have been very modest. Legislators have been overt about their desire to alter the way their public universities teach and carry out research, with one Republican state representative describing it as “a big deal to those of us who feel very strongly about a more conservative education.” Similar efforts have been proposed, less successfully, in Texas and North Carolina.

And now, too, a growing array of states, including my own, have enacted versions of a national advocacy group’s Campus Free Speech Law. North Carolina’s is called the Restore/Preserve Campus Free Speech Act. Among its notable features, the statute empowers governing boards to regulate “administrative and institutional neutrality with regard to political or social issues”—not exactly tight and precise free-expression language. Even more alarming, President Donald Trump now seems anxious to jump on board with such efforts, as evidenced by his recent statements and executive action on campus free speech.

I remember being summoned to the office of the speaker of the house in Virginia after I had refused to ban a controversial performance from the William and Mary campus. The speaker explained that he was outraged I had made such an overtly political decision. I told him I thought it was a clear and straightforward constitutional demand, not a political one. He replied that anything that made the speaker of the house mad was, by definition, political. Not all accept, I fear, former Supreme Court justice Robert H. Jackson’s claim that “if there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or matters of opinion.” The fixed star wavers and meanders. On occasion, it disappears from view.

Structural and Self-Inflicted Weaknesses   

If it is at least moderately predictable that lawmakers would try to secure immunity from criticism, what about trustees and boards of governors? They are, first and predominantly, according to the Association of Governing Boards of Universities and Colleges (AGB), charged with the core obligation to “sustain and advance the [university’s] mission, traditions, values, and reputation.” Why their complicity?

My first experiences as a university administrator were in the University of Colorado system, which is one of only four states that elects its board members in statewide and congressional district races. In Colorado, there was unanimous agreement that election was the worst possible way to choose a governing board. The practice of voting on office holders fewer than 2 percent of the population knew anything about led to an odd combination of electoral participation and near complete unaccountability. And since the regents chosen were a subset of junior politicians, they tended to assert their prerogatives in unbecoming ways.

But I’ve learned a little since leaving Boulder. The worst possible way to select governing boards—particularly if you are concerned with legislative interference with academic freedom—is, of course, to have a governing board selected by the legislature itself. North Carolina is one of only two states in the country that chooses board members in this fashion. On UNC’s twenty-eight-member board are five former legislators, five lobbyists dependent on the legislative leadership for their livelihoods, and many more who have close business relationships with legislators; twenty-three of the board members are men, almost all are white, and only one is a Democrat. Legislators now routinely sit in on board meetings. If board members displease important lawmakers, they are replaced. It is not a structure that confers independence.

Even in a more sensible system, politics can’t be completely removed from trusteeship. The role of higher education in American life is too crucial for that. The AGB reports that “the vast majority of public trustees at universities are appointed by the governor and confirmed by the legislature, elected directly by the legislature or the citizens.” Many are chosen for their political connections. My chancellor friends report that smaller, more nonpartisan boards do the job best, with the least dangers. In the Kansas system, for example, the nine board members are appointed by the governor and confirmed by the senate. But no more than five can come from the governor’s party. Partisan politics is more readily checked at the door.

Where universities have more say in the selection process—even if the actual choice is made by public officials—there is a decided, almost desperate affection for wealthy businesspeople, driven by visions of massive charitable donations. Few groups are less likely elevate core values above money than a roomful of wealthy people.  

Presidential compensation may be compounding the problems of interference. The Chronicle of Higher Education reports that a remarkable number of public university presidents make over a million dollars a year. Richard Vedder, director of the Center for College Affordability, has argued that once compensation becomes very high, it can serve to inhibit, rather than foster, effective leadership. Chancellors and presidents, the theory goes, are less inclined to act boldly or operate with required candor and fealty to academic values when it might cost them a seven-figure salary that they will be unlikely to command again if they are dismissed. The impact can be amplified by deferred compensation packages requiring a president to stay in office for years before the biggest paydays emerge. Vedder claims that astronomical compensation accentuates the tendency of university presidents to avoid taking stands and running the risk of annoying critics. There’s an argument, he says, that the “key to being a successful president is to offend the minimum number of people possible, but that may not be the best policy to meet the needs of the future.” I’m not certain that Vedder is right, but I suspect that he is. One aspect of running a university as a business might be that you get a business. You aren’t likely to find members of the million-dollar club standing on the ramparts. And in Chapel Hill—looking at our long string of leaders from 1930 to 2018—it’s easy to argue that the more we’ve paid, the less we’ve gotten.

Public colleges and universities serve more than 70 percent of American higher education students. They constitute our present, our past, and most decidedly our future. They prosper on an astonishing array of fronts. But protections for the core, defining missions of public universities—and of constitutional democracies—can weaken. Matters thought carved in stone can be blasted away. We ignore such challenges at our peril. Public universities cannot thrive without a vibrant, secure, and zealously guarded sanctuary of academic freedom. And democracies cannot meaningfully function without the kind of rigorous, skeptical, probing, unfettered, and unfearing research that takes place at our great public universities.

This article is based on the twenty-eighth Davis, Markert, Nickerson Academic and Intellectual Freedom lecture, delivered at the University of Michigan in November 2018.

Gene Nichol is Boyd Tinsley Distinguished Professor at the University of North Carolina at Chapel Hill.