The topic of free speech is one of the most contentious issues in liberal societies.Many people know that free speech is enshrined in the First Amendment but there’s still a lot about it that many still misunderstand so let’s read on.

The widespread protests surrounding issues of systemic racism have been a significant part of this year’s news cycle, even amid the ongoing COVID-19 pandemic. Attention to the issue has caused institutions of higher education to look inward to consider what they are doing to combat systemic racism and dismantle power structures viewed as oppressive.

At Princeton University, however, calls for change from students and faculty have been criticized as being anti-free speech. This debate is erupting across America.

While some want to push concrete steps to combat what they perceive as racism and condemn those who do not, others object.  In most cases everyone involved agrees that racism is evil and should be opposed.

Faculty petition at Princeton University

At colleges across the country, almost all of which are shuttered due to the corona virus, a cycle of condemnation and counter condemnation, charges and countercharges of “racism” has emerged pitting activists against dissenters who assert their First Amendment rights (at public universities) or their rights to free academic expression embodied in campus policies.

These rights are often ignored by college and university administrators, despite express University policy.

Earlier this summer, hundreds of faculty, staff, and grad students at Princeton signed a petition demanding the university “take immediate concrete and material steps to openly and publicly acknowledge the way that anti-black racism, and racism of any stripe, continues to thrive on its campus.”One would be hard pressed to find faculty or students at Princeton that champion “racism.”

So what could be objectionable about the petition? 

The vast majority of Princeton faculty, including its critics, support efforts to increase recruitment of black and other minority undergraduate students, graduate students, and faculty. Several specific demands in the petition ranged from at best objectionable to, worse, illegal.

For example, the petition included demands that faculty of color receive extra pay and sabbatical time versus white faculty “to reward ‘the invisible work’ they do as ‘spokespersons’ for diversity.” 

It is not uncommon for black and other minority faculty to complain that they must do more committee work than other faculty.  This is precisely because committees and student groups reach out to them to diversify membership and the like.  Discontent over a lack of compensation for such extra work is clearly understandable and long-standing academia.

The demands of the Princeton petitioners were different, however.  The Princeton petition urged the university to pay extra solely on the basis of race for “invisible work.”

This would actually be illegal under Title VI of the Civil Rights Act, which forbids treating individuals differently on the basis of race.

Another section of the petition has garnered the most attention in the media and raises important questions over free speech and academic freedom:

“[Princeton must] constitute a committee composed entirely of faculty that would oversee the investigation and discipline of racist behaviors, incidents, research, and publication on the part of the faculty, following a protocol for grievance and appeal to be spelled out in Rules and Procedures of the Faculty. Guidelines on what counts as racist behavior, incidents, research, and publication will be authored by a faculty committee for incorporation into the same set of rules and procedures.”

Essentially, the petition proposes establishing a small group of individuals who would be the sole investigators, judges, and jury over what is or is not considered “racist.” They would also decide how allegedly racist behavior should be punished.  Many call this kind of work by another common name: censorship.

This proposal goes far beyond other academic oversight committees on campus, such as Institutional Review Boards, which review and approve proposed research (for example, social science survey research) that involves live human subjects.

An overarching committee to review “racist” content, or insufficiently “antiracist” content in all research and publications, potentially including past research and publications, would be incompatible with academic freedom. It would clearly interfere with researchers’ ability to explore ideas that challenge the status quo, and the current climate.

The furor that greeted Joshua Katz, a Princeton professor who published an open objection to the petition, probably serves as an example of how such a committee would like to operate, if it only gained the power to do so.  Katz published an article in Quillette sharply critical of the petition, while also agreeing with some of its broader aims and also “support[ing] the right to speak as they [the petitioners] see fit.”

The Petitioner’s Axe Falls on Katz

Conflicts over campus petitions are nothing unusual on college campuses.  They erupted in the wake of the Gulf War, when the predominantly antiwar faculties of American campuses attacked their colleagues who were pro-war.  There are also countless smaller issues arising from purely academic disputes that lead to acrimonious disputes, usually waged to tenure and hiring decisions.

It is new to issue almost instantaneous calls to fire, expel, or otherwise terminate anyone who runs afoul of the will of such petitioners.  And it is even more novel for administrations to carry through with it, all too often without any due process or even respect for their own policies.  On campus, the petitioner now aspires to be the execution.  The petitioner’s axe is wielded in a completely different fashion from past debates.

Outrage at Katz was instantaneous.  Calls issued immediately for Katz’s to be removed from the university and cast into outer darkness, including calls from his department chair, who condemned Katz as “fundamentally incompatible with our mission and values as educators.”  The president of Princeton University quickly announced an “investigation.”

How do you protect yourself when the petitioner’s axe falls?

Katz, a well-established, tenured professor at Princeton, one of America’s most elite universities, was more than capable of fighting back.

He did so through editorials in places like the Wall Street Journal.  Pressure mounted on the university, and President Eisgruber of Princeton backed down and announced there would be no investigation.  Professor Katz’s job remains secure, despite the condemnation of some of his fellow faculty.  They remain free to attack him in open campus debate and try to convince others, if they can.

Many students or faculty have no such resources when they dissent from blanket condemnations of “institutional racism” and mandatory prescriptions of what to do about it.  It is also common for students or faculty to be unwittingly singled out for comments or past expressions, previously considered harmless, but which suddenly ignite the ire of petitioners on the hunt to root out “racism.”

When this happens, faculty and especially students usually have nowhere near the clout or friends in high places that Joshua Katz could muster in his own defense.  That is why it is all the more important to get experienced attorneys involved sooner rather than later.

Free Speech or Academic Freedom?

Whether or not universities officially convene tribunals to root out “micro-aggressions,” “implicit bias,” and “structural racism,” college and university administrators across the country have adopted this mission as their own, with or without university authorization.

For example, a mathematics professor at the University of North Texas was fired for objecting that a flyer about “micro-aggressions” was “garbage” through an anonymous note written on a faculty message board. 

His department chair, Ralf Schmidt, took it upon himself to investigate, identify the professor, and get him fired.  The professor is now suing the university for the infringement of his free speech rights under the Texas and Federal Constitutions.

For more information about the steps you can take to enforce your First Amendment rights on campus, contact Allen Law LLC.