Earlier this year, I published a short piece in the
Florida International University Law Review's microsymposium on academic freedom titled "Academic Freedom versus Academic Legitimacy." The piece unfortunately isn't available online (UPDATE:
here it is!), but it's short so I'll just repost it below:
What does it mean when a university department invites a person to speak? It clearly does not mean is that the department endorses the speaker’s views. Persons are regularly invited to speak in a university setting whose views are opposed by many if not most of their audience—often including the very people who invited them. Rather, the invitation indicates that the department believes the speaker is academically legitimate: their contribution is one that, whether right or wrong, usefully advances scholarly discussion. It is probable that most members of a university community believe that both Newt Gingrich and David Duke are “wrong”, but only one’s views are illegitimate.
Academic freedom and academic legitimacy map imperfectly onto one another. Academic freedom is content-neutral: it does not attempt to distinguish between “correct” and “incorrect” views. Academic legitimacy, by contrast, is very concerned with content: it asserts that certain views should not be considered valid entrants into a productive scholarly discussion. But these two concepts are often conflated. A university facing criticism over a controversial speaker will often respond by invoking “academic freedom.” This is a valid response at one level: academic freedom implies that even a David Duke cannot be barred from speaking if invited by an authorized member of the university community. But at another level, it misses the point entirely. The problem is not that Duke was allowed by some higher university authority to speak, the problem is that he was invited in the first place; that a department or research center or student group believed his views were academically legitimate. To structure the question in terms of academic freedom—should he be banned—misstates the good being pursued. The demand is not for formal barriers against such horrible views but to not need such barriers at all.
To see why this distinction matters, consider another obvious truth: David Duke is not invited to speak at colleges. This is not because “academic freedom” is being systematically breached, but rather because the academic community has voluntarily decided that Duke’s views do not make any useful scholarly contribution. And that we’ve made that decision is a very good thing—we would rightly worry about the caliber of an academic community that could not come to a general intersubjective agreement that Duke’s views are illegitimate.
But what happens when this consensus doesn’t exist? Efforts to restrict allegedly malign ideologies are assumed to be a tool of the strong, but often they are a tactic of the weak—people who are not confident that their community will unify in agreement that the ideology is in fact oppressive. That there now is massive intersubjective agreement that overt White supremacist ideology is illegitimate gives people of color nothing more than what Whites long enjoyed effortlessly, and if that consensus were threatened minority students would be rightly concerned.
Many controversies labeled as ones of “academic freedom” are actually about academic legitimacy. Is Pat Robertson properly analogized to David Duke? Is Gilad Atzmon? The Black Panthers? BDS activists? David Horowitz? What about “scientific” creationists or climate change denialists? It is fair game to argue that a well-functioning university community would not view any or all of these persons as academically legitimate, and that position itself is perfectly consistent with believing that agreements regarding academic legitimacy cannot be enforced through explicit bans or sanctions. That is all that “academic freedom” contributes to the discussion: a constraint on remedies. Enlisting it to do more confuses two distinct questions and sidesteps the true nature of many academic controversies.
David Schraub,
Academic Freedom versus Academic Legitimacy, 9 FIU L. Rev. 71 (2013)
Today I read the story of
Steven Salaita, whose offer to teach at the University of Illinois was rescinded after review of "uncivil" tweets about Israel, Jews, and anti-Semitism (Salaita previously taught at Virginia Tech).
Corey Robin is appalled; he labels this "a symptom of the effects of Zionism on academic freedom, how pro-Israel forces have consistently attempted to shut down debate on this issue, how they 'distort all that is right.'" Salaita provides an "unapologetic defense of the rights of Palestinians", while some of his tweets may "jar or shock a tender sensibility", that's part and parcel of writing on social media. The overall theme of the post is that Salaita is a sometimes brash but valuable contributor to scholarly discourse who is being "punished" for being critical of Israel.
And then we read some of the tweets in question. I'll focus on two of the most egregious:
"By eagerly conflating Jewishness and Israel, Zionists are partly responsible when people say antisemitic shit in response to Israeli terror."
"Zionists, transforming 'antisemitism' from something horrible into something honorable since 1948."
Calling anti-Semitism "honorable"? Yeah, I think we're a bit beyond "uncivil" here. The fact that it is couched in a "critique" of a particular sector of Jewish experience and comes with a healthy dose of victim-blaming hardly changes the analysis: if I wrote "Al Sharpton, transforming 'racism' from something horrible into something honorable since 1991," I would not simply be criticizing the National Action Network. One would hope we'd have little trouble understanding the racism latent in such a statement (though admittedly I suspect a significant segment of the American political right would fervently deny there is any such racism in that statement. Needless to say, emulating the right-wing definition of racism as "Klan members, and then only if they are chanting 'White Power' while actually lynching someone" is hardly a ringing endorsement).
But here's the thing -- this observation doesn't change Robin's analysis either. And that's what I find frustrating. This debate seems to be, on the one hand, "Salaita's views are abhorrent and therefore Illinois was right to rescind his offer" versus "Salaita is a valuable contributor to scholarly discourse who is being wrongfully punished for his unpopular views." In other words, both sides are conflating Salaita's academic freedom -- the freedom not to be punished in the academic context due to one's political opinions -- and his academic legitimacy -- whether his statements should be considered in-bounds when we think about what positions are valid in political discussion. The right answer, it seems to me, is that "Salaita has said some horrifying, anti-Semitic stuff, but Illinois made its bed and now it has to lie in it." Academic freedom still protects people who say racist or anti-Semitic trash. I can say
from my time teaching at Illinois, no less, that I was the periodic recipient of blast emails from a tenured faculty member who liked to go on about the Zionist Fascist Neo-Con Straussian Rockefeller Evangelical conspiracy of war and world domination. Tenure is a beautiful thing. The point being, said faculty member had the right to say those things, but one would hope that everyone else recognized him as a lunatic (which they did). It wasn't scary that he wasn't fired, but it would have been very scary if most other faculty members thought he had a point.
Turning back to Salaita's case, if one wanted to there are ways to distinguish it from the "academic freedom" paradigm. The tweets in question are not part of any scholarly discussion, they were mere social media outbursts. For obvious reasons though I have no interest in seeing academics targeted due to their social media postings, so as far as I'm concerned that's out. Another difference is that Salaita was only
not hired at Illnois, he was not fired for his positions. That
would be a valid distinction, I think, had this decision been made at the department level. I addressed this issue previously in the
context of supposed "discrimination" against faculty candidates who oppose LGBT rights:
Being a law professor is an academic, policy-oriented position. The question of LGBT rights is a normative, political question. It goes to the heart of what a professor does. If someone gets that question "wrong", is there any reason why I can't evaluate them more harshly on the merits of their candidacy? How else is one supposed to evaluate it? This gets to the deep tension within academia: academic freedom means letting people take whatever position they like and pursue any line of inquiry they desire; academic merit necessarily requires judging those positions and inquiries as good or bad. I don't mean to discount the possibility that somebody can take a position that I think is wrong while conceding that they argue for it in a powerful and sophisticated fashion. I do mean to say that the deeper ingrained a particular commitment is, the less likely that one will believe the dispute to be one of reasonable disagreement, rather than simply the other side making a profound moral error.
Indeed, I think this gets at a large part of the discomfort over Salaita's hiring -- that functionally in hiring Salaita they're saying (at least in part) that viewing anti-Semitism as an honorable calling is a valid, legitimate position in the constellation of academic debate, just one of many positions that we might have political disagreements about. That judgment
is a concerning one. Whether or not a professor could get hired if she had written that "Hamas has made Islamophobia something honorable" or "Louis Farrakhan has made racism something honorable", I'd certainly
hope that she wouldn't be -- that we would view that position as outside the bounds of good legitimate scholarly debate. That distinguishes the decision to hire from the decision to fire -- it is well-known and agreed that not firing an academic for his or her appalling opinions does not signal any endorsement of the validity of those views. By contrast, making the affirmative step of
hiring an academic inevitably contains some such endorsement. Consequently, one has to wonder how it is that viewing anti-Semitism as "honorable" rather than "horrible" for the past 65 years has come to be a position smart, well-connected academics are willing to endorse.
So on the one hand, if Salaita had written this after already having been hired at Illinois, it would be both protected by academic freedom and abhorrent. If the hiring committee had decided they didn't want to hire him because they didn't think viewing anti-Semitism as "honorable" was up to their standards of merit, they'd be equally justified (and right). Salaita is somewhere in the middle given that he had been offered the job but had not yet formally gotten upper-administration approval; but I'm inclined to agree that this was too late. It is well-known that this approval is
pro forma; like Salaita I too announced my departure from my prior job before getting final approval by the Chancellor (or whoever) for my position having relied upon the offer from the folks at the law school. Nobody views the chancellor's approval of the hiring decision as an endorsement; it is a rubber-stamp. That's why anyone inside the academic community views this as having taken something away from Salaita, which in turn raises academic freedom concerns. And since, to reiterate, racist, sexist, and anti-Semitic views are as protected by academic freedom as any other, this should in no way stop anyone from recognizing the anti-Semitism in Salaita's writings.
Long story short -- academic freedom protects anti-Semitic statements such as the claim that anti-Semitism has become "honorable." Viewing that statement as anything other than an abhorrent view that is nonetheless protected by academic freedom is frightening. That people on both sides of the debate over Salaita's hiring continue to conflate these two concepts blurs both of these important conclusions.
UPDATE: The Illinois AAUP committee on academic freedom
has released a statement supporting Salaita. It's mostly unobjectionable, but it does fall into the trap I outlined above. Salaita's statements were less a "plea to end the violence" so much as to redirect it ("Jeffrey goldberg’s story should have ended at the pointy end of a shiv."; "I wish all the fucking West Bank settlers would go missing" -- said in the aftermath of the kidnapping of three Jewish teenagers in the West Bank who were later found dead). And the end paragraph, which expresses concern "if a university would void a contract of a professor exercising a right of citizenship in protesting actions of another country that much of the global community including the U.N. Secretary General and even the U.S. State Department have found 'disgraceful,'" is another entry in the long history of conflating everything from "anti-Semitism is honorable" to tactical critiques of military operations into an indistinguishable glob known as criticism of Israel.
None of which alters the broader point -- but again, I don't know why it is so hard for people to defend academic freedom without affirmatively arguing that the speech in question is actually great. That's not what academic freedom is about.
