Free Expression in the Academy
Jan. 17, 2024
Dear Students, Faculty, and Staff,
As we move through the second week of the semester, I want to welcome everyone back to campus, and wish you all a productive and enriching spring term. I also want to acknowledge the challenging first half of the year we experienced. It has been a painful time for many in our community, especially as we have grieved the loss of life brought on by the Israel-Hamas war and struggled at times to find the best way to have productive conversations on the war and other divisive topics involving multiple points of view.
We, of course, are not the only campus struggling to find the best way to have respectful discourse and to share knowledge and learning from various perspectives. Last semester, we held several panels to begin to address this challenge, along with talking circles, brown-bag lunches, and a day-long teach-in. All of these were valuable and should serve as a foundation for having more conversations in the coming months—conversations, I hope, that will include varied viewpoints, shared in an atmosphere of respect.
To further address the challenges regarding speech that we, and higher education more broadly, are facing, I will be appointing a task force whose charge will be to review the university’s existing “Principles of Free Speech and Free Expression.” A campus-wide committee developed our current principles, which the Board of Trustees approved in September of 2018. Much has transpired since 2018 that relates to freedom of expression, and so it will be helpful to review those principles along with the processes we use to apply those principles to our academic and co-curricular activities. The creation of a task force on free expression has been the subject of a motion passed by the faculty and I have solicited input from the Faculty Senate Council on nominations for task force membership.
The task force's job will not be an easy one, as members will need to consider how best to balance the goals of inviting a full and free exchange of ideas with the need to ensure a safe learning environment for students, faculty, and staff. As we enter into this important process, it is worthwhile to review some basic facts about freedom of speech and academic freedom in the context of higher education.
To begin, it is important to remind ourselves that the purpose of higher education, and of Brandeis’ mission, is first and foremost the pursuit of truth and the creation and sharing of knowledge. Such a mission is hindered when ideas are suppressed directly or through self-censorship due to public and peer pressure or intimidation. The result is the narrowing of expressed viewpoints and lost opportunities to learn from others, including and especially in the classroom—a diminishment of our educational purpose.
Over the past three months, I have heard from too many students who have expressed concern and disappointment with the campus climate on account of the polarized and contentious nature of campus discussions, their fear of stating their opinions, and the vitriol they have been subjected to on social media. Parents, too, have weighed in to make sure that we are aware of the safety concerns of their students. I want to be clear that the administration takes the safety of all students, faculty, and staff in the community very seriously—it is our highest priority, even when it challenges the university’s deep commitment to free expression and support of student activism.
A major cause for disagreement and tension over the setting of limitations on some forms of speech and activism has been a lack of understanding of: (1) to what extent “freedom of speech,” which is protected by the First Amendment, applies to universities and, in particular, to private universities; (2) what “academic freedom” means and how that relates to the classroom; (3) how federal law and guidance intersect with and influence free speech rights; and (4) how a university’s code of conduct factors into the mix and influences university policy.
Freedom of speech (“free speech”), protected by the First Amendment of the Constitution, is the right to speak, write, and share ideas and opinions without facing punishment from the government. Since First Amendment protection is protection “from the government,” there is a different legal standard when it comes to such protection at public (government related) institutions versus private institutions. That is, public colleges and universities must adhere to the First Amendment, while private institutions, such as Brandeis, are legally able to develop individual policies and principles related to speech based on a framework other than the First Amendment. But even at public institutions, free speech is not absolute. They, like private institutions, can restrict speech by applying “time, place, and manner” conditions on speech. Virtually all institutions have ground rules for speech that at a minimum, use this rubric—including the University of Chicago, whose free speech principles are viewed as the academy’s “gold standard.” Claiming that individuals can say whatever they wish, whenever they wish, and wherever they wish because it is protected by the First Amendment is both incorrect and a flawed defense of one’s actions in the name of free expression. And it should be obvious, free speech cannot be selective—unfettered in some situations and restrained in others, depending on one’s ideology.
Academic freedom, as defined by the Association of American University Professors (AAUP), is "the freedom of a teacher or researcher in higher education to investigate and discuss the issues in his or her academic field, and to teach or publish findings without interference from political figures, boards of trustees, donors, or other entities.” The AAUP also states that faculty “should be careful not to introduce into their teaching controversial matters which are unrelated to their subject, or to persistently introduce material which has no relation to the subject.” It is critical to underscore that academic freedom in the classroom has boundaries—it refers to a faculty member’s area of expertise and must be “germane to the subject matter” of one’s course. For example, academic freedom does not extend to a physicist, teaching a course on thermodynamics, who uses class time to encourage students to sign petitions to ban books at local schools.
Freedom of speech and academic freedom, then, both of which are foundational to higher education’s mission and must be protected, are neither unfettered nor unconditional. And both can be further defined by an institution’s “code of conduct” and federal statutes.
Codes of conduct, typically articulated in student handbooks and employee policies, are often related to and guided by federal statutes. The two most significant of these are Title VI and Title IX. Each applies to unprotected speech—speech that constitutes discrimination and harassment and creates a hostile learning environment. Colleges and universities must act if speech or conduct on campus creates a hostile environment, which threatens a secure learning environment for students. Private institutions that receive federal funding, including Brandeis, must comply with these federal anti-discrimination laws or risk losing critical financial support for faculty research and student financial aid.
In 2004, due to the rise in antisemitism in the U.S., Title VI (of the Civil Rights Act of 1964), which protects students based on their race, color, or national origin at federally funded colleges and universities, was extended to protect Jewish students. And more recently, in November of 2023, U.S. Assistant Secretary for Civil Rights Catherine E. Lhamon sent a letter to colleges and universities, reminding them of the expanded requirements associated with Title VI. The assistant secretary wrote “... to remind colleges, universities, and schools that receive federal financial assistance of their legal responsibility under Title VI of the Civil Rights Act of 1964 and its implementing regulations (Title VI) to provide all students a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics...." Assistant Secretary Lhamon added that, "It is your legal obligation under Title VI to address prohibited discrimination against students and others on your campus—including those who are or are perceived to be Jewish, Israeli, Muslim, Arab or Palestinian....”
Much of this might seem arcane, especially if one views “free expression” as having no limits. But we are an educational institution, not the public square, and a most critical task of ours is to ensure a learning environment that promotes, rather than hinders, the pursuit of truth, the creation of knowledge, and our students’ ability to engage freely in their educational pursuits. I am confident that members of our community can express even the most controversial or contrarian views in an effective manner, without provoking, intimidating, or harassing others.
As we follow up on the December teach-in with formal and informal discussions involving difficult issues, I strongly encourage us all to come to those discussions with open minds, a willingness to listen to opposing views—especially from those with expertise in the subject matter—and respect for those with whom we might vehemently disagree.
This university, several times in its history, has taken the road “less traveled by” and set the standard for higher education. One of those was a commitment at its founding to be the place that was welcoming to all who were academically meritorious no matter their race, gender, religion, or politics. And it was not simply a commitment. Graduates of the first few classes who are still alive—including more than thirty-five from the very first graduating class of 107 students (the class of 1952—collectively known as Brandeis’ “pioneers”)—attest to the remarkable environment for learning they encountered here: an environment in which they prospered and for which they remain eternally grateful. They recall not only the freedom to test their own new ideas in class, but also the expectation that they would routinely challenge their classmates and faculty without fear of being ostracized or stereotyped for their ideas. We should follow their lead and seize the opportunity to find that road taken by the pioneers of Brandeis and again set the standard for higher education.
Sincerely,
Ron Liebowitz