Reason and the Freedom of Speech

Reprinted from The Constitutionalist

One of the things we in higher education do is write about ourselves and our circumstances. Whether it’s the academic novel (we all have our short list of favorites), the philosophical apology for liberal learning (the Princeton University Press has recently published a number of excellent exemplars), the administrator’s exposition on the future of higher education (usually unreadable and full of the current buzzwords), or the ideological fantasy (disruption, deconstruction, and reconstruction), there seems to be something for everyone. One interesting subgenre, prompted in part by recent talk of “cancel culture,” is the attempt to define or redefine academic freedom, so that we have rational categories to apply to examples that seem to some to be  outrageous examples of totalitarian censorship or thought control, and to others, appropriate responses to words intended to wound.

Michael Berube and Jennifer Ruth—professors of literature and film, respectively, and long-time leaders in the American Association of University Professors —offer their contribution to this last subgenre. I wish I could like It’s Not Free Speech a whole lot more than I actually do. At a high enough level of generality, its commitments are my commitments: academic freedom, a strong faculty role in shared college and university governance, and the integrity of professional academic judgment. Any professor would enthusiastically endorse, for example, this statement: “[I]t is one of the primary functions of a college or university, if not the primary function, to distinguish between high-value and low-value speech” (177). But there is enough in the details of the argument to give me pause, fearing that their version of academic freedom will be invoked to enforce a consensus that is not only “scholarly,” but also ideological, ultimately making our campuses even less hospitable to faculty and students who dissent from the progressive academic mainstream. What, from their point of view, is an improvement on the old view really isn’t. It relies on our affinity for the old arguments, but thoroughly undermines their foundations.

Perhaps it’s best to begin by taking several steps back from the contemporary stories and the debates to which they give rise. In a sense, Berube and Ruth are participating in a longstanding conversation about the relationship between the pursuit of knowledge and the political community that hosts it. Their insistence on the distinction between academic freedom (which ought to govern the university) and freedom of speech (which governs the public square) is grounded in a reflection on the difference between the community of learners or scholars and the community of citizens. This is an old distinction, already developed in classical political thought. It’s presented comically in Aristophanes’ Clouds, with Socrates’ ridiculous thinkery containing studies and arguments that no decent citizen would embrace, and tragically in Plato’s Apology of Socrates, where the philosopher unsuccessfully defends himself against charges of impiety and corrupting the youth. If wise people are rare, and most people are unwise, the former seem ridiculous or threatening (and in either case incomprehensible) to the latter. The philosopher-king, joining wisdom and political power, seems impossible. On this account, life in the cave is the norm, and only a few will release themselves or be released from their bonds to ascend to life in the light of the truth.

The Enlightenment promised to overcome this tension between wisdom and politics by widely disseminating the former to inform the latter. One of its principal instruments is the university, which provides knowledge to inform our common life and educates students and citizens to understand and make use of that knowledge. “Ideally,” then, the university should be a training ground for the political community that hosts it, as it were, a polity in embryo. When I attended James Madison College of Michigan State University in the 1970s, roughly a decade after its founding, there was frequent talk of “the democratic republic,” understood as a description both of the College’s own polity and the larger community it was intended to prepare us to serve. On this understanding, the distance between academic freedom and freedom of speech is vanishingly small. The principles articulated by John Stuart Mill in On Liberty are sufficient to guide us in all our pursuits, on and off campus.

Berube and Ruth present themselves as chastened enlighteners, newly cognizant of “the structural inequalities built into, and yet systematically downplayed or denied altogether by, the intellectual legacy of liberalism” (26). Furthermore, in their view, the marketplace of ideas does ensure the good ultimately or inevitably drives out the bad, or the true ultimately or inevitably wins out over the untrue (185 – 187). Although we might be stuck with a kind of free speech absolutism in the public square, they think, there is no reason to carry this over into the university. While there should certainly be “robust and legitimate intellectual exchange” (187; my emphasis) on campus, we should stress the mechanisms that legitimize that expression. Many of us might have some confidence that the ordinary processes of peer review, embodied in tenure and promotion decisions, as well as in the  publication of scholarship and research, are the appropriate mechanisms to distinguish academic speech (and hence academic freedom) from free speech simply, but Berube and Ruth tell us otherwise. Because they follow scholars like Kimberle Crenshaw—who writes of “the foundational role of white supremacy in our republic” (quoted in the epigram of  It’s Not Free Speech) and insists elsewhere that “every established discipline in the academy has an origin that entails engagement and complicity with white supremacy” (Seeing Race Again, 5)—and Charles Mills– who argues that liberal social contract theory (e.g. John Rawls) “systematically obfuscate[s]” white privilege (28)—they cannot rest content with those time-honored academic procedures. 

Instead, Berube and Ruth endorse the 2020 Princeton faculty letter that called for “a committee composed entirely of faculty that would oversee the investigation and discipline of racist behaviors, incidents, research, and publication on the part of faculty.” To be sure, Berube and Ruth are well-enough versed in the kinds of governance procedures promoted by the AAUP to favor “safeguards against rushes to judgment, malicious or inadvertent decontextualizations of allegedly controversial utterances, and, not least, indiscriminate application of the interpretive principle that the impact of a statement or action should always take precedence over the intent” (56). But, to repeat, ordinary professional peer review and institutional review boards are, in their view, inadequate to guard against “racist…research and publication.” Because these procedures are insufficiently attuned to the “structural inequalities” mentioned above, and because the faculty chosen for membership on the relevant committees may be insufficiently aware of their disciplines’ “complicity with white supremacy,” this new committee has to be composed of faculty “with expertise in the relevant areas” (8). In other words, political science research isn’t simply to be judged by political scientists or an assistant professor’s application for tenure to be judged by tenured departmental colleagues. They must be judged, in addition or instead, by specialists in race, racism, and so on. 

From our authors’ point of view, there are two additional reasons for implementing such a layer of review. The first is one that virtually all faculty members feel in their bones: if the only alternative to faculty review is administrative review, the vast majority of us prefer the former to the latter. Administrators—many of whom have little or no classroom experience—care more about institutional reputation and placating “stakeholders” (of whom faculty are one, and often the least important) than they do about academic integrity. “Good” faculty might be sacrificed to assuage an aggrieved constituency and “bad” faculty might be preserved (or rewarded in a settlement) in order to avoid a public relations nightmare or drawn-out and expensive litigation.

The second reason is that, according to Berube and Ruth, courts are much more likely to defer to faculty expertise than to administrative convenience. Placing the authority of the faculty behind a judgment of racism or white supremacism will, in their view, weaken the litigating position of anyone who challenges such a finding. External forces—that is, judges and juries—would be less likely to obtrude their judgments on the academy, protecting those who have been found by their colleagues not to deserve a place in it.

However much freedom of speech might protect “racist” or “white supremacist” utterances in the public square, academic freedom, thus understood and thus enforced, would not. The academy would become a proverbial “safe space,” open only to “legitimate,” i.e., non-racist (or perhaps, following Ibram X. Kendi, antiracist) discourse.

But lest you think that the distinctiveness of the academy is intended simply to provide a monastic separation from a society, in which the hurly-burly of discourse permits virtually everything including the rankest bigotry and the vilest hate speech, Berube and Ruth offer an account of the role of the university in a democratic society. Following Robert Post, they distinguish between “democratic legitimation” and “democratic competence” (237ff.). The former is the consequence of free speech in the public square, the latter of legitimate, properly vetted speech on campus. We return here to the problem of the relationship between wisdom and consent. Democracies, we’re told, need universities “because the work they perform—discriminating between opinion, on the one hand, and reasoned argument, on the other—inhibits the development of alternate realities rooted in power, special interests, and conspiratorial delusions” (239). Beyond this statement of need, however, Berube and Ruth don’t have much to say. They clearly lack the Enlightenment confidence that, somehow, (academically legitimated) reason will prevail, both because they don’t trust the marketplace of ideas and because they ultimately really don’t believe in reason. Indeed, over and over again, they insist that there’s no such thing as the pursuit of truth (9) or a “colorless and universal voice of reason and authority” (138), that universalism is “specious” (240), and that “we all speak from a particular point of view” (156, approvingly quoting Derrick Bell).

To be sure, I’ve just quoted them as saying that universities exist to discriminate between “opinion” and “reasoned argument.” But given all the other things they say about reason, it’s hard to understand reason as any sort of “impartial” arbiter or standard. Perhaps one could affirm that there’s such a thing as instrumental reason, serving a particular desire or particular identity that itself just “is,” that wants what it wants or affirms what it affirms without recourse to any authority beyond itself. That would make the university, in the contemporary sense, or “wisdom,” in the classic sense, just one interest or party among the many comprising any particular society. Like any other interest, the university would have its partisans, but it’s hard to see why (other than for the mere coincidence of interests) it would have a special place in a democracy. The party of the professors would take its place alongside the party of the bankers and the party of the workers, and so on.

Berube and Ruth seem to think that they solve this problem by invoking the “common good” (240), but, given their premises, this is unconvincing. In their view, a common good isn’t something that exists by nature. It has to be created. Community is contingent, then, founded upon an essentially arbitrary ground, chosen by those who seek to create the community. If we concede this, we seem either to lose the moral valence of an appeal to the common good or to make it impossible to distinguish one “common good” from another. The critical race theorists have one common good, the Catholic integralists another, and the Millian or Rawlsian liberals another, but the three groups have, so to speak, nothing in common. In Rawlsian terms, a modus vivendi might be possible, but this is a far cry from a genuinely common good. We might agree to disagree, for the sake of peace, but such an agreement is at best contingent on the current constellation of forces and interests. If any group gains what it regards as sufficient power, there’s nothing stopping it from asserting itself and its views and imposing them on the others.

In short, Berube and Ruth seem to me to be either naively optimistic or disingenuous. They are either not really chastened about the prospect that academic discourse purified by the processes they recommend will come to influence public discourse extramurally, as students leave campus “properly” educated, or they’re relying on the residue of our Enlightenment respect for knowledge and expertise to serve as the foundation for this purified authority, regardless of what the uneducated or unreformed think. In the latter prospect, legitimacy and competence do not complement one another; rather, competency becomes the foundation of legitimacy. If the unwise cannot be enlightened, they can still be ruled “for their own good.” For Berube and Ruth, the philosopher-king would then not be a paradox, but an aspiration.

Their argument suffers by comparison with that made by Jonathan Rauch in The Constitution of Knowledge. Like Berube and Ruth, Rauch seeks to establish a ground for distinguishing knowledge from the opinions that proliferate in the public square. Like them, he settles upon procedures like peer review and the editorial process in journalism. But where they focus on the academy, insisting upon its special responsibility and engaging in a kind of elitist credentialism—as, as when they deprecate the authors of one book they dislike as “people with a tenuous connection to academia (PhDs without university jobs)” (142), and when they criticize someone else with whom they disagree as not having the appropriate credentials (242), Rauch pluralistically casts a much wider net. For him, there are many institutional sources of knowledge, established by appropriate procedures, of which the university is but one. The journalist or CIA analyst, educated (to be sure) but perhaps not with the letters “Ph.D.” appended to his name, is as likely a source of knowledge as the tenured or tenure-track professor, assuming that his claims have been appropriately vetted. 

Rauch professes to be very concerned with the problem of groupthink, which is why he is so committed to viewpoint diversity and why he points to a multiplicity of knowledge-establishing institutions and procedures. Whether these institutions and procedures have succeeded or will succeed is an open question, but the merit of Rauch’s position is that he insists that there be “no final say” and “no personal authority” (Constitution, 15). He is open to criticism in a way that Berube and Ruth are not. For them, an allegation of racism, adjudicated by credentialed professionals with relevant expertise, amounts to a conversation stopper. Those who hold to one side of the debate are licensed to determine what can be said. Where groupthink is a problem for Rauch, it seems to be a kind of solution for Berube and Ruth.

I cannot imagine that the academy will flourish under these circumstances, nor that its “democratic competence” will be welcome among many of those who provide “democratic legitimation.” Rather than enhancing the influence of what Rauch calls “reality-based communities,” Berube and Ruth’s proposals will likely serve only to exacerbate the problem. Those who are silenced or marginalized by the institutions and processes they recommend are unlikely simply to acquiesce. After all, a hard conversation where some participants get to decide whether others are permitted to speak does not actually produce consensus or agreement. In some ways, it resembles the bad old days of white supremacy, but with a different group dictating the terms of discourse. As I noted above, Berube and Ruth seem to me to have failed to establish that the new terms are more just or reasonable than the old terms. Furthermore, there is evidence of an increasing partisan divide regarding the value of higher education, which ought to give us pause before taking their advice.

In the end, it’s not clear to me that we should prefer Berube and Ruth’s argument to Rauch’s. His old-fashioned commitments to truth and reason admit Berube and Ruth as interlocutors, but don’t permit them to exclude others. These commitments also have the virtue of consistency, not to mention a kind of moral and intellectual force. Berube and Ruth would like to avail themselves of the latter, but can’t bring themselves to embrace Rauch’s foundations. The outcomes of Rauch’s processes might not be perfect, but they are open to revision. For the moment, I can’t find anything decisively better.

We should by all means distinguish between academic freedom and freedom of speech. But we should be very wary of those who wish to establish a basis for that distinction when they doubt the principled commitments to reason and truth that are both freedoms’ foundation.