Academic Freedom in Peril

For those who don't care if it's just about those who study Palestine, it's never just about Palestine.

Keith Whittington, You Can’t Teach That!: The Battle Over University Classrooms (Wiley 2024).

“American academic freedom is in peril,” warned Kate Starbird and Ryan Calo recently in the journal Science. They speak from hard-earned personal experience based on the backlash to their pathbreaking work studying online disinformation: “Academics researching online misinformation in the US are learning a hard lesson: Academic freedom cannot be taken for granted. They face a concerted effort—including by members of Congress—to undermine or silence their work documenting false and misleading internet content. The claim is that online misinformation researchers are trying to silence conservative voices. The evidence suggests just the opposite.”

Their experience is recounted in an important article in Nature on the challenges faced by a range of political scientists: “Not long after publicizing the work, she and her colleagues became the target of what she calls a “multi-pronged” strategy to discredit it. She has since been a defendant in several high-profile lawsuits, appeared for interviews at congressional hearings and has defended accusations that she colluded with the government to censor free speech in the United States. She has also been deluged with public-information requests, sued for not responding to those requests promptly enough, and bombarded with disingenuous questions from hostile media outlets.”

The same dynamic resulted in the closure of Stanford’s Internet Observatory, as its director Renee DiResta noted, “After the House flipped to Republican control in 2022, the investigations began. The “22 million tweets” claim was entered into the congressional record by witnesses during a March 2023 hearing of a House Judiciary subcommittee. Two Republican members of the subcommittee, Jim Jordan and Dan Bishop, sent letters demanding our correspondence with the executive branch and with technology companies as part of an investigation into our role in a Biden “censorship regime.” Subpoenas soon followed, and the investigations eventually expanded to requesting that our staff submit to closed-door video-recorded testimonies. That included students who worked on the project. It was obvious to us what would happen next: The documents we turned over would be leaked and sentences cherry-picked to fit an existing narrative. This supposed evidence would be fodder for hyperpartisan influencers, and the process would begin again. Indeed, this is precisely what happened, albeit with a wrinkle. Material the subcommittee obtained under subpoena or in closed-door hearings ended up in the hands of a right-wing group that had sued us, which was led by Mr. Jordan’s longtime ideological ally Stephen Miller. We do not know how.”

The Nature article contextualizes the appalling attack on scholars of online disinformation within a broader environment targeting political scientists. It profiles a wide range of academics facing such hostile campaigns, including political scientists working on issues of American politics, India, Kashmir, Hungary and Turkey. But scholars working on Israel and Palestine do not appear a single time in the article, despite it being extremely clear that there is no other area of political science or scholarship currently facing as direct, intense, and comprehensive attack by external advocacy groups, state governments, Congress, and — often — their own college/university administrations. Over 70% of Middle East scholars in our recent survey described the current environment as among the worst in their academic careers— but here they don’t even merit a mention.

Why has the community concerned with academic freedom largely sidestepped the obvious connection between the repression of scholarship on Palestine and these broader challenges to free speech? Since October 7, legitimate concerns about antisemitism and Jewish students, embarrassingly common discomfort with pro-Palestinian slogans or the disruption of campus life, and obvious concerns about offending potential donors or wealthy trustees, have too often led the institutions and individuals who would ordinarily be expected to defend academic freedom and rally to their own when threatened to instead stand back or even to support the repression. (That’s not even getting into the loudly if laughably self-proclaimed free speech warrior crowd, which for the most part either ignores the crackdown on pro-Palestinian voices or actively cheers it on.)

That’s such a short-sighted mistake for anyone who really cares about academic freedom. The campaign of repression unleashed against Starbird and DiResta, is functionally identical to what Middle East scholars have faced on a regular basis. The methods being used to target disinformation scholars and other political scientists were often pioneered in the attacks on scholars writing about Palestine, and it seems certain that it will continue to be a testing ground for new tactics in the broader right wing assault on higher education (Maryam Jamshidi’s extremely important overview of the legislative wing of this assault is not to be missed; nor is the AAUP’s 2022 statement on legislative threats to academic freedom). It could not be more obvious that everything being done to scholars writing about Israel and Palestine today, every new limitation on tenure protections, every new legislative intiative to restrict permissible speech will eventually be used against scholars studying other politically controversial subjects.

Which brings us to this week’s book. While it’s not about the Middle East, attacks on academic freedom, and the difficult choices that are raised when universities face speech that offends or might cause public harm, are at the center of Keith Whittington’s useful, important and well-written primer on the history and jurisprudence of academic freedom. While he doesn’t address the question of Israel, Palestine or Middle East scholars at all, he directly frames the book around the attack on critical race theory, the hot topic while he was writing the book. Whittington observes that conservatives (such as himself) have long complained “about tenured radicals and political correctness on college campuses, but the willingness of politicians to do something about those complaints is a new and extraordinary development.” He correctly observes that “critical race theory is only the target du jour… if legislatures can restrict the teaching of critical race theory in state university classrooms today, they can equally restrict the discussion of any number of ideas.”

Whittington frames his investigation of the new crisis of academic freedom around Florida’s Stop WOKE Act, legislation in Texas, and the manufactured hysteria around critical race theory. He gives an instructive if brief overview of how the campaign against critical race theory took shape, moving from cynical think tankers to opportunistic politicians and fermenting in toxic online social media environments. But this is not a book of sociology or a history of higher education: Whittington’s purpose here is to explore the constitutional and legal issues at play, and to trace the evolution of jurisprudence on permissible restrictions on speech in (primarily) state universities. Private universities, he notes, have considerably greater rights in comparison with state universities; but nobody who watched the capitulation to Congressional showboating on campus Palestine protests by the leadership of Harvard, Columbia or Penn can really have much faith in their independence (or courage).

Whittington quickly and effectively walks readers through the history of academic freedom in the United States; this will be useful for those new to the topic, and even for those deep in the trenches of contemporary battles. He summarizes the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure succinctly and clearly: “Professors should be allowed to teach controversial ideas that are relevant to the subject matter of their courses without the interference of those outside the faculty.” Those principles were put to the test in the McCarthy-era Red Scare — which is, without hyperbole, a direct and close analogue to the current Congressional inquisition against higher education in the name of ‘combatting antisemitism’. Whittington then carefully moves through the history of first amendment jurisprudence, highlighting interventions by Justices Oliver Wendell Holmes and Louis Brandeis: “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought - not free thought for those who agree with us, but freedom of thought that we hate.”

As Whittington moves through the decades, he shows how these freedoms are limited to speech within the context of the classroom and scholarship, on issues relevant to the professor’s expertise, and in line with scholarly consensus — limitations critical to thinking about the current era’s controversies over, say, those attacking COVID restrictions as well as those criticizing Israel’s war on Gaza. It matters, he argues, whether a scholar is speaking as a professor or as a citizen, and whether their speech reflects the best scholarly understanding of the topic. Critically, he posits, “the protections of academic freedom should not depend on whether outsiders understand and agree with how an academic discipline is constructed and pursued” -- a point which needs to be made and amplified when scholars face discipline over, say, publishing within the theoretical framework of settler colonialism.

The focus in all of this was consistently to defend academic freedom in order to enable rigorous intellectual inquiry. In what might be taken from today’s headlines of students secretly recording lectures about Israel and Palestine and posting them to social media (or campuses like UNC secretly record lecturers themselves to review faculty against whom there have been complaints), he quotes Justice William Douglas warning against a system where students become “informers”, a “system which searches for hidden meanings in a teacher’s utterances,” because “where teachers are under constant surveillance… there can be no academic freedom.” Later in the 1960s, anticipating the coming Title IX hearings on whether universities are sufficiently combatting antisemitism, William Brennan observed that “it would be a bold teacher who would not stay as far as possible from utterances and acts which might jeapordize his living by enmeshing him in this intricate machinery.” That’s certainly the hope of those placing the pressure — and would be a disaster for serious scholarship on any issue.

Whittington’s lively and informative book should be very helpful for anyone trying to get up to speed with the jurisprudence and politics surrounding issues of academic freedom. I was familiar with some of it, but certainly not all. I kind of wish I didn’t believe that this Supreme Court will simply ignore all the precedents and adopt an insanely right wing new standard when it’s asked to rule on these cases in the near future. In some ways it is helpful that he does not discuss Israel/Palestine or Middle East scholarship at all. There is no special pleading for one side or the other, no carve-out for allegations of antisemitism or retreat into the “Palestine Exception”. It doesn’t solve the vexing political or intellectual problems raised by the crackdowns on pro-Palestinian protests, scholarship, or speech, but it articulates the legal framework within which those debates should be argued.