Don’t let Israel-Hamas war stifle academic freedom

By Noah Feldman

The Israel-Hamas war in Gaza has fostered an almost daily deluge of campus controversies.

Here’s a sampling: The Anti-Defamation League and the Brandeis Center called on 200 college presidents to investigate pro-Palestinian student groups. Faculty members and instructors at several public and private colleges have either been placed on leave or fired for comments about the conflict. New York University is facing a lawsuit from students who say the school failed to protect them from antisemitism. And next week, the Presidents of Harvard, MIT and the University of Pennsylvania will be summoned to Capitol Hill to testify about antisemitism on campus.

These remarkable developments bring home the need for a new, clear evaluation of what academic freedom should look like in today’s universities. I can tell you what it doesn’t look like: Firing professors or expelling students for expressing political opinions, however repugnant.

The place to begin a thoughtful, comprehensive analysis of academic freedom is with a clear statement of what any university, private or public, is for: the pursuit of truth. The nature of truth differs in different domains, of course, as does the nature of evidence. Scientific truth, moral truth and political truth are not the precisely same thing. Yet the university’s objective in all cases must be identical. It is to encourage everyone who is part of the university to seek after the best possible answers.

This rationale isn’t the same as promoting a completely free marketplace of ideas. Universities, even public universities bound by the First Amendment, must choose the best ideas when evaluating students or hiring and promoting faculty.

But the university’s purpose of seeking the truth overlaps with broader free speech principles in a crucial way: You cannot chase the truth if some pathways have been blocked. The university must allow faculty, students and staff to explore all possible beliefs, not only ones approved by the institution or the public or the alumni or outside critics. It must allow faculty, students and staff to express those views publicly. And because the university must not block paths of inquiry, it also must not punish any member of the university community for the expression of views, no matter how unpopular or indeed repugnant. In these ways, academic freedom closely resembles free speech.

At the same time, the university may also, through its administrators, express its own beliefs and values, even when they contradict those expressed by members of the university community. It is perfectly appropriate for presidents and deans to condemn beliefs and ideas they consider fundamentally wrong, whether factually or morally or, yes, politically. It is now commonplace for university administrators to issue statements about political issues they deem pressing or relevant to the university community.

The University of Chicago’s influential 1967 Kalven Report took a somewhat different view, suggesting that the university could not “express a collective position without inhibiting [the] full freedom of dissent.” But this perspective assumed that the university’s administrators necessarily spoke on behalf of the entire academic community. That is not the case, as everyone today realizes.

Disagreeing with students, staff or faculty is not the same as punishing them. Members of the university need to be brave enough to speak their own minds — and they can muster that bravery best when they know that, although they might be criticized for their views, they will not be punished.

Of course, to protect academic freedom, the university also must protect the safety and well-being of students, staff and faculty, and ensure that operations proceed without meaningful interruption. If protesters interrupt classes or occupy buildings, administrators must ensure that the interruption is brief. And where appropriate, the university can punish members who interrupt operations or try to interfere with others’ free expression — including through acts of intentional intimidation, such as doxxing.

A further part of protecting academic freedom is fostering a campus on which students are not subjected to a hostile environment based on their identities. As interpreted by the US Department of Education, which is currently investigating claims of bias at Harvard and other universities, Title VI requires any university that receives federal funds to protect students against conduct “sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.” The key word here is conduct.

To be sure, there are forms of harassment that can be accomplished using words. Yet the law can draw a meaningful line between unpopular opinions and harassment by looking at context and making sure that what is punished is a course of conduct, not a line of thought.

A healthy, democratic society needs universities because we need a realm where the broadest range of ideas can be explored. That is why members of a university must enjoy free expression rights that do not ordinarily apply to other organizations — including businesses, which, as I’ve written before, aren’t bound by the First Amendment and don’t follow the principles of academic freedom. Corporations aren’t places dedicated to truth-seeking; universities are.

The upshot is clear. When things in the world are going badly, we need better answers. That means we need more academic freedom, not less.