If the Court decides rightly in Uzuegbunam v. Preczewski, mootness will no longer serve as a shield for the erosion of constitutional rights.
Free Speech for Me
I approached Ralph Wilson and Isaac Kamola’s Free Speech and Koch Money with a certain set of expectations, which were not disappointed. The authors, a long-time anti-Koch activist and a political science professor, have written what they call a “field guide” for those inside and outside the university community “who want to better understand—and push back against—the organizations and institutions that constitute the Koch donor network.” It is a book by and for activists, driven by an agenda against “plutocratic libertarians.” Indeed, unless one is engaged on that side of the conflict, it is hard—not impossible, but hard—to find a compelling reason to read the book. I call it a conflict, and not an argument or debate, because there is no real effort to engage any debate about free speech, higher education, or the purposes of government. Invective and pejorative labels substitute for reasons when characterizing “the other side.” Indeed, the authors explicitly recommend against engaging “the campus free speech narrative” that is the subject of the book. Instead, we should ask the question: cui bono? Their answer is, of course, predictable and predictably reductive.
In a nutshell, Wilson and Kamola contend that in large measure the “campus free speech crisis” is a product of the efforts of the Koch network, which funds the “small handful of . . . campus activists,” the provocative speakers they host, the media network that amplifies the ensuing controversy, the legal organizations that are involved in any subsequent litigation or threats of litigation, the think tanks that develop legislative responses, and the faculty and academic institutes that provide a veneer of academic respectability to the entire enterprise. It is a tempest in a teapot, stirred up by the plutocratic libertarians for their own ends, which largely involve recruiting people to their network to bolster their policy efforts at the state and federal level and to put their political adversaries on the defensive. The resources provided by the Koch network create the illusion both of greater popularity and of the existence of real controversies where there are in fact almost none. The Koch-funded megaphone exaggerates the significance of a small number of incidents.
I note in passing that there would likely not be incidents to amplify, but for the sometimes over-the-top reactions of folks on the campus Left. Had Heather Mac Donald’s appearance at Claremont and Charles Murray’s lecture at Middlebury not been rather spectacularly disrupted, it would be somewhat harder to talk about a campus free speech crisis. Our authors, however, counsel against “mak[ing] a habit of advising students against disruptive demonstrations and tactics.” These tactics are permissible because—apparently—the Koch-funded speech really does not deserve to be heard on college campuses at all (about which more later).
To be sure, Wilson and Kamola might be tempted to dismiss my response by pointing to my own connections with the so-called Koch network. I have received modest grants from the Charles Koch Foundation and from other organizations that it supports. As a consequence, I have occasionally been the object of a certain amount of activist invective. To be sure, I have never been pressured to invite a certain speaker or take a certain point of view as a condition of my grants. But the authors would nonetheless point to a nefarious agenda concealed by mere lip service to the free exchange of ideas.
I said a moment ago that it is hard, but not impossible, to find a compelling reason to read the book, if one is not in the business of “unKoching” one’s campus. It suffices for me that Wilson and Kamola raise the question of how to protect the independence and integrity of the university, even if the answer they provide is not one I find persuasive.
This is an old question, one that in some ways antedates the university itself. Consider, for example, the relationship between Socrates and Athens, as depicted in Plato’s dialogues and Aristophanes’ Clouds. Socrates and those of his companions who seek wisdom operate in an environment where people come to them with all sorts of personal agendas, as does Strepsiades when he seeks admission to the “thinkery.” And, as Socrates tells his interlocutors in the Republic, the talented young men most suited to the philosophic life are constantly tempted by wealth, honor, and power. In a nutshell, sophistry—the instrumentalization of intelligence—is always an alternative to the pursuit of knowledge for its own sake.
Wilson and Kamola would like to present themselves as protectors of the independence and integrity of the university. To that end, they rely in large measure on a number of instruments in the traditional AAUP (American Association of University Professors) toolkit, which is unsurprising, given Kamola’s prominent role as founder of his campus chapter. They write frequently about the institutions and processes of academic governance (faculty senates and the like), about academic freedom (as opposed to freedom of speech simply, a distinction upon which they rightly insist), and about peer review and professional standards. Thus, for example, they approvingly quote the AAUP’s argument that state-level free speech legislation “interferes with the institutional autonomy of colleges and undermines the role of faculty, administration, and governing boards in institutional decision-making and the role of students in the formulation and application of institutional policies affecting student affairs.” In the abstract, I cannot and will not quarrel with any of this.
But in the context of the contemporary university, we need to examine these things a bit more closely. As Jonathan Marks points out in his fine Let’s Be Reasonable, all too often faculty members are averse to conflict, permitting the intense few who want to play campus politics dominate the scene. Where the numbers are as skewed in favor of the Left as they are on most campuses, faculty governance in practice means governance of the Left, by the Left, and (all too often) for the Left. I have been around universities since the mid-1970s and a faculty member since the mid-1980s. I have not known a time when the spectrum of faculty opinion did not skew leftward. But the leftward skew has become even more pronounced recently and, thanks to the influence of postmodernism and critical theory, many of my colleagues across the country are more dubious of and less committed to neutral standards, institutions, and procedures. Those of us outside this leftist mainstream are much less likely than we once were to find a cohort of old-fashioned liberals willing to “defend to the death” our right to speak our minds.
Similarly, what underlies their appeal to “the rigors of academic scrutiny” is evident from statements like the following: “Feminist and queer theorists do not find it necessary within their discipline to continually defend the established finding that gender is socially constructed.” Having established a consensus in some areas of the academy that yields results they find ideologically congenial, they do not wish any longer to entertain challenges. They do not want to “roll back the current state of academic debates, especially on issues relating to race, class, and gender.” I cannot help but quote John Stuart Mill’s On Liberty in reply: “However unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth.” The spirit of the academy defended by Wilson and Kamola is not the spirit of the academy I entered over forty years ago.
To be sure, they might respond that their academy is more democratic and inclusive, and that the intellectual freedom I celebrate and whose loss I fear masks a commitment to certain privileges. They concede that it is difficult to “navigate this complicated tension” between “free inquiry and equal access.” I agree that the more voices that are heard, in a forum that favors reason, argumentation, and evidence, the better. I agree that freedom of speech simply and academic freedom are two different things. Wilson and Kamola do not fully work out the difference, and I cannot do so in a book review, but I will say this much: the greater scope we afford to the former follows in part from our concern regarding the coercive authority that might be used to limit it. We hope that the freedom will be used responsibly and may take certain hortatory and educational measures to cultivate that responsibility in ourselves and our fellow citizens. But we for the most part draw the line at coercing speech or coercing silence. Justice Jackson in West Virginia v. Barnette has it right: “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 other matters of opinion or force citizens to confess by word or act their faith therein.”
On the other hand, academic freedom exists in a different kind of community, one devoted to learning and teaching. Here, knowledge is the foundation of authority, which sets a very high bar and establishes a very profound responsibility. It requires of us a modesty that too few of us practice well. Professors ought to be modest aristocrats. Wilson and Kamola would have us be immodest egalitarians granting majority status to the social movements with which we—well, they—sympathize.
It is also important to note that their argument either ignores or inconsistently deploys an important distinction, that between academic speech, spoken and written by students and faculty for the sake of teaching and learning, and the other kinds of speech that take place on campus. When the College Democrats invite Stacey Abrams to speak on campus, she is not there to advance learning, but rather to rally the troops. When the Reformed University Fellowship invites a hip young Calvinist preacher to campus, he is there to deepen the faith of the students in attendance. When the student programming board hosts a stand-up comic, she is there to entertain the students. None of these activities is central to the mission of the university, and I am prepared to argue that, at least on public university campuses, the more capacious standards of freedom of speech should govern these activities.
I have two explanations for why Wilson and Kamola seem unwilling to make this distinction between non-academic and academic speech on a college campus. The first is that everything that happens within those ivy-covered walls should advance and/or be subordinate to the educational mission. I have some sympathy for that view, but could probably count on the fingers of one hand the number of colleges—none of them public (the principal focus of this book)—that seriously aspire to such a position. To be sure, some speak about educating the whole person, but none actually put the educators, i.e., the faculty, in charge of that. And none seek the kind of control over student life that would make it possible. They are, for the most part, simply trying to minimize the obstacles that hosting large numbers of young adults in one place poses to the educational mission, however it is defined. Stated another way, building and maintaining community on a college campus is much more akin to building and maintaining civic community, where the First Amendment rightly governs our approach. If Wilson and Kamola hold a view closer to the monastic or seminarian alternative, I see no argument for it in the book and regard it as entirely unrealistic when applied to their principal subject.
The other explanation, which I regard as both more plausible, and more frightening is that, for them, all speech is ultimately political. Teaching and learning are a means of promoting social justice: the university is, they say, “a potential source of greater social equality.” Instead of a pluralistic university, with many voices speaking with different intentions and for different purposes, in which learning for its own sake has a place (i.e., in the classroom), we have a university whose parts are oriented toward a single goal, not the glory of God (as in the medieval university), but the achievement of a particular and contestable vision of justice. Academic freedom is then defined by its service of this end.
As someone who was attracted to the academic life understood as the pursuit of wisdom for its own sake, I find Wilson and Kamola’s vision at least as threatening as other efforts to instrumentalize learning. It is just as much a threat to the independence and integrity of the university as that posed by the Koch network that they deprecate. Nay, it is more of a threat: its end is, in a sense, totalizing and those who embrace it seem currently to hold a good bit of the academic high ground.
In the end, I prefer a university with a plurality of sources of support and influence. Like the multihued democracy described by Socrates in Book VIII of The Republic, it is tolerant of a diversity of pursuits and points of view. It offers a space—at the margins, if not in the center—to those who seek learning for its own sake. There is room for libertarians—plutocratic or otherwise—just as there is for people with other ideological orientations, not to mention for those who are simply pursuing a particular credential. It is enough for me that no one captures the whole thing and that, from time to time, some of the different agendas intersect with the love of learning.