Abstract:
Recently, many conservative politicians have launched state propaganda campaigns against college and university professors who articulate and defend progressive positions, accusing them of teaching Critical Race Theory (CRT) in an effort to demonize “White” people and make European American students feel ashamed of being “White.” While there is no evidence of such a cabal, many Republican state legislatures have passed prohibitions against teaching Critical Race Theory in K-12 public schools and in public colleges and universities. Like the loyalty laws during the Red Scare, the anti-CRT laws violate academic free speech and freedom of association. Therefore, I argue that college and university professors ought to sue states that pass anti-CRT laws. The case of Pernell et al v. Florida Board of Governors in which college students and professors sued the state successfully gives me reason to think that such an approach will be successful. However, in light of the Supreme Court’s willingness to overturn fifty years of precedent in the case of Dobbs v. Jackson Women’s Health Organization, professors cannot simply rely on the courts to protect academic free speech and freedom of association. For this reason, I conclude that we must become civically engaged, organized, and force Congress to pass bills protecting academic free speech and freedom of association. This will ensure that professors are not punished or fired for what they teach, lecture on, or publish.
1. Introduction
President John F. Kennedy taught us that “the great enemy of truth is very often not the lie--deliberate, contrived and dishonest--but the myth--persistent, persuasive, and unrealistic. Too often we hold fast to the cliches of our forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought” (Kennedy 1962). Of course, Kennedy was not referring to the benign myths we find in fairytales, wherein the knight slays the dragon and the people of the town live happily ever after, but to the dangerous myths that gave rise to the Salem Witch Trials, the Red Scare, and the Lavender Scare. Of course, it can be trying for Americans to learn that such atrocities occurred in the United States, both before and after we established ourselves as a liberal democracy. But, although they are hard, such lessons must be learned. For, they teach us that a strong democracy requires a liberally educated and civically engaged citizenry, and this lesson is well worth the small discomfort that comes from learning it. President John Adams explained why in the “Thoughts on Government,” he wrote: “Laws for the liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that, to a humane and generous mind, no expense for this purpose would be thought extravagant” (Adams 1776, p. 85). He continues: a country founded on a liberal education
introduces knowledge among the people, and inspires them with a conscious dignity becoming freemen; a general emulation takes place, which causes good humor, sociability, good manners, and good morals to be general. That elevation of sentiment inspired by such a government, makes the common people brave and enterprising. That ambition which is inspired by it makes them sober, industrious, and frugal. You will find among them some elegance, perhaps, but more solidity; a little pleasure, but a great deal of business; some politeness, but more civility …when you compare such a country with the regions of domination, whether monarchical or aristocratical, you will fancy yourself in Arcadia or Elysium (Adams 1776, p. 85).
I concur with Kennedy and Adams. Liberal education is essential for elevating the minds of the citizenry and thereby helping them to see the importance of the checks and balances that protect democracy from the tyrannical impulses of demagogues. By liberal education, I mean the habitual practice of truth-seeking and knowledge acquisition, subject to enlightenment skepticism and re-examination guided by the principles of logic and critical thinking. Such an education is valuable in its own right, for example, when one studies philosophy, and when it is pursued for practical purposes, for example, when one studies medicine. Either way, those who internalize a liberal education are less likely to be seduced by the propaganda that motivated the Salem Witch Trials, the Red Scare, and the Lavender Scare, much less persecute others based on unsubstantiated falsehoods. In what follows, I offer historical analyses of state propaganda campaigns against college and university professors who articulated and defended liberal positions during the Red Scare of the 1940s and 50s. I argue that the purposes of the Red Scare propaganda were to stigmatize college and university professors, force them out of American colleges and universities, and prosecute them in courts and congresses. I show that the propaganda campaigns during the Red Scare resulted in serious violations of academic free speech and freedom of association, which, of course, are necessary for providing a liberal education and pursuing individual and societal progress. Fortunately, state and federal courts have reached similar conclusions.
Unfortunately, however, many Republican politicians have not learned the lessons of the past. Some have launched state propaganda campaigns similar to those used during the Red Scare, only this time the myth is that college and university professors are teaching Critical Race Theory in an effort to demonize “White” people and make European American students feel ashamed of being “White.” While there is no evidence of such a cabal, some Republican state legislatures have passed prohibitions against teaching Critical Race Theory in K-12 public schools and in colleges and universities. Like the loyalty laws during the Red Scare, the anti-CRT laws violate academic free speech and freedom of academic association. By academic speech, I simply mean the intellectual discourse that is necessary for educating students in college classrooms, publishing articles in academic journals, and presenting research at academic conferences. By academic association, I mean professional organizations and affinity groups that college and university professors join to enhance and advance their research and careers within colleges and universities. I argue that academic speech and academic association ought to be free from state censorship as long as they do not present a “clear and imminent danger” to others (Holmes 1919, Abrams v US). When academic speech and academic association are allowed without state censorship, they are free. Conversely, when the state restricts academic speech and academic association without first demonstrating that the speech in question has resulted in actual harm or will result in imminent harm, it violates the rights of college professors and students. For this reason, I argue that college and university professors ought to sue states that pass anti-CRT laws. The case of Pernell et al v. Florida Board of Governors in which college students and professors sued the state of Florida successfully gives me reason to think that such an approach will be successful, at least in the short term. However, in light of the Supreme Court’s willingness to overturn fifty years of precedent in the case of Dobbs v. Jackson Women’s Health Organization, professors cannot simply rely on the courts to protect academic free speech and freedom of academic association. For this reason, I conclude that college and university professors must become civically engaged, organized, and pressure Congress to pass bills protecting academic free speech and freedom of academic association. This will ensure that professors are not punished or fired for what they teach, lecture on, or publish.
2. The Red Scare: Red-ucators in American Colleges and Universities
In 1940, Bertrand Russell received an appointment letter offering him a professorship in mathematics at the City College of New York. This was a big deal because Russell was a renowned philosopher and public intellectual with writings on communism, religion, sexual liberation, marriage, and other matters of public interest.
Paradoxically, Russell’s notoriety was also the reason why his appointment letter was rescinded. After all, when word of Russell’s appointment offer spread to New York’s religious conservatives, they fulminated against him in the press, calling his public scholarship a “Hitler-Stalin program of anti-religion” (Schrecker 1986, p. 76). Despite the backlash, Bertrand Russell was confirmed by the New York City Board of Education shortly after receiving his appointment letter; but the controversy was not over, not by a long shot.
After his confirmation, Jean Kay sued New York’s Board of Education on the grounds that Russell’s confirmation was illegal because his teachings were salacious and his character immoral, among other things (Kay v. Bd. of Higher Education 1940, p. 1). In an astonishing opinion, Judge J.E. McGeehan agreed, ruling that “there are certain basic principles upon which this government is founded. If a teacher, who is a person of [bad] moral character [and] is appointed by any authority, the appointment violates these essential prerequisites. One of the prerequisites of a teacher is good moral character” (Kay v. Bd. of Higher Education 1940, p. 3). McGeehan continues: the claim that “Mr. Russell has taught in his books immoral and salacious doctrines is amply sustained by the books concededly to be the writings of Bertrand Russell, which were offered in evidence. It is not necessary to detail here the filth which is contained in the books” (Kay v. Bd. of Higher Education 1940, p. 4). Rather, Judge McGeehan was satisfied by simply highlighting passages in which Russell challenged commonly held views on marriage and sex (Russell 1957, pp. 165–166), and sexual orientation (Russell 1932, p. 119). McGeehan concluded:
the board of higher education of the city of New York in appointing Dr. Russell to the department of philosophy of the City College… to be paid by public funds, is in effect establishing a chair of indecency and in doing so has acted arbitrarily, capriciously and in direct violation of the public health, safety and morals of the people and of the petitioner’s rights herein, and the petitioner is entitled to an order revoking the appointment of the said Bertrand Russell and discharging him from his said position (Kay v. Bd. of Higher Education 1940, p. 7).
Following the Russell controversy, the New York State Legislature charged the Rapp-Coudert Committee with discovering “the extent to which, if any, subversive activities may have been permitted to be carried on in the schools and colleges” in the state of New York (Schrecker 1986, p. 76). Immediately after receiving the charge, the Committee began looking for potential informants in the ranks of the faculty at City College, particularly those who would be willing to accuse their colleagues of participating in a communist plot to overthrow the U.S. government. They found the perfect informant in William Martin Canning, a history instructor and member of the Catholic Church. Since Canning was Catholic and presumably conservative, the Committee believed that he would be helpful to their investigation. Others had much harsher suspicions about Canning, calling him “a willing tool” who would testify against his “colleagues” and coworkers (Feffer 2019, pp. 177–178). The Committee’s supposition about Canning’s usefulness was correct. During his testimony, Canning accused “fifty-four” faculty of being members of the Communist Party (Schrecker 1986, p. 79). Not surprisingly, most of them denied the accusation. This part of their testimony was false, at least for some of them, but one can understand why they lied. After all, just ten days after Canning accused them of being communists, “the Board of Higher Education issued a resolution declaring that it would not retain” faculty who were “members of any Communist, Fascist, or Nazi group” (Schrecker 1986, pp. 79–80). Subsequently, it “suspended all the professors named by Canning… and prepared formal charges… in anticipation of the trials” to come (Schrecker 1986, p. 81).
New York was not the only state in which professors came under scrutiny, particularly after Congress passed the Smith Act. In short, the Smith Act made it illegal to teach, advocate, or to be a member of a group that advocated for the violent overthrowal of the United States government (Smith Act 1940, 54 Stat. 670, 671, title I, §§2-3). Thus, under the auspices of ridding American colleges and universities of communist subversives many states followed New York’s lead. For example, in 1946, the Washington state legislature established the Canwell Committee to smoke out and expel communist professors from the faculty at the University of Washington. During its investigation, the Canwell Committee accused eleven professors of being communists. Some professors denied the accusation while others admitted they were communists but denied that they were part of a plot to attack the U.S. government. Either way, the outcome was the same, those who testified were fired for lying and subterfuge (Schrecker 1986, p. 98).
The three professors who refused to testify, Joseph Butterworth, Herbert Phillips, and Ralph Gundlach, were cited for contempt and threatened with imprisonment. After some legal wrangling, the state prosecutor declined to charge Joseph Butterworth. This did not matter to the university because he was fired immediately after the charges were dropped. Unlike Joseph Butterworth, Herbert Phillips was charged, tried, and acquitted in court. This didn’t matter either. Phillips was fired shortly after he was acquitted. After they were both fired, a university spokesman explained that Butterworth and Phillips had “displayed dishonesty and incompetence because they had consistently followed the… ‘party line,’ that is to say, instructions emanating from Moscow, and they had neglected their duty to the university by spending their time at political meetings” (Schrecker 1986, p. 98). Unlike Butterworth and Phillips, Ralph Gundlach was charged, tried, convicted, and sentenced to thirty days in jail (Schrecker 1986, p. 96). This made it easy for the university administration to fire him.
Similar scenarios played out in many states throughout the country despite the fact that “faculty radicalism… simply did not exist in any organized form after the Second World War” (Schrecker 1986, p. 93). In fact, in Bad Faith: Teachers, Liberalism, and the Origins of McCarthyism, Andrew Feffer points out that “there had been no substantial evidence of incitement or indoctrination” in college and university classrooms (Feffer 2019, p. 47). Ironically, there was great organization and incitement on the other side. As Timothy Cain points out in “Little Red Schoolhouses?” “beginning in 1938, …both the Teachers Alliance of New York City and the American Education Association organized conservative teachers in opposition to their liberal and leftist colleagues” (Cain 2014, p. 127). Like Canning, many conservative educators accused their colleagues of being Communists, testified against them, and called for their books and articles to be banned from school curriculums (Cain 2014, p. 130). These activities are strikingly similar to the actions of groups like Moms for Liberty in the present day.
Recently, some colleges and universities have issued apologies and offered restitution to former faculty who lost their jobs during the Red Scare (Roberts 2017). This is not surprising because much of the “evidence” presented against them was based on remarkably dubious witness testimony. For example, some of the witnesses made wild and unsubstantiated accusations against reputable politicians, college presidents, and Supreme Court justices. For example, Elizabeth Dilling, a staunch anti-communist witness and author of The Red Network: A “Who’s Who” and Handbook of Radicalism for Patriots, testified that Supreme Court Justice Louis Brandeis and Senator William Borah were communists (Schrecker 1986, p. 70). Similarly, J.P. Matthews testified that “Dwight Eisenhower, then President of Columbia University, was secretly harboring Communists” at the university (Schrecker 1986, p. 96). In recent years, evidence has emerged revealing that William Canning was coached by the Chair of the Rapp-Coudert Committee in order to bolster the “myth of classroom indoctrination” (Feffer 2019, p. 189).
Still, unlike some colleges and universities, Congress and state legislatures have not offered any apologies or restitution to those harmed by federal and state un- American activities committees. In fact, Florida State Senator Lauren Book is one of a small number of elected officials who are willing to apologize and give restitution. In March 2021, she introduced SCR 244 in the Florida state legislature to get an acknowledgement of the “injustices perpetrated against the targets of the Florida Legislative Investigation Committee between 1956 and 1965 and to offer a formal and heartfelt apology to those whose lives, well-being, and livelihoods were damaged or destroyed by” the Committee (Book 2021, p. 4). The harms perpetrated by members of the Florida Legislative Investigation Committee included, targeting, intimidating, harassing, surveilling, and smearing the reputations of professors at the University of Florida, Florida A&M University, and the University of South Florida, and forcing more than thirty-five of them to resigned, be fired, and, in some case, face criminal prosecutions (Book 2021, p. 4). Despite this, the Florida state legislature stopped Senator Book’s Bill in the Governmental Oversight and Accountability Committee. How ironic?
3. The Black Scare: Critical Race Theory in American Colleges and Universities
Even worse, the Florida state legislature has passed laws similar to the loyalty laws we saw during the Red Scare of the 1940s and 50s. For example, in April 2021, the Florida state legislature passed HB 233 which requires the state Board of Education and Board of Governors to conduct an annual survey of professors at public colleges and universities in an effort to determine their political views. A year later, in March 2022, the Florida state legislature passed HB 7 which prohibits Florida’s K-12 public school teachers and public college and university professors from teaching anything deemed “Critical Race Theory” because it makes “White” students “feel guilt, anguish, and other forms of psychological distress” (Avila 2022, p. 4). Notice, however, that the philosopher J.S. Mill draws an important distinction between offense and harm. Offense occurs when one is annoyed, embarrassed, disgusted, distressed, or insulted by what another says or does. In On Liberty, Mill writes: “when a person disables himself, by conduct purely self-regarding, from the performance of some [normative] duty incumbent on him to the public, he is guilty of a social offense,” and “no person ought to be punished” by law for social offenses [Mill 1859, p. 1094]. By contrast, harm occurs when one is injured, physically or reputationally, or loses rights or income by what another says or does. For example, we do not allow people to slander others because those who are slandered will suffer reputational damage and lose their jobs, incomes, or freedom as a result. More importantly, notice that feelings of guilt, anguish, embarrassment, disgust, insult, annoyance, distress, etc... are emotional responses to speech that one does not like. However, emotional responses to speech that one does not like do not rise to the level of harm. For, there are no economic or reputational damages, or loss of freedom.
Nevertheless, parents who believe that a professor has violated HB 7 may bring a claim against him (Pernell v Florida Board of Governors 2022, p. 5). More importantly, if an investigation finds that a professor’s instruction or training is inconsistent with the law, the Board of Governors commands state universities to take prompt action to correct the violation by mandating that the employee responsible for the instruction or training modify it to be consistent with the law, issuing disciplinary measures where appropriate and remove, by termination if appropriate, the employee if he fails or refuses to comply (Pernell v Florida Board 2022, p. 5).
Obviously, these bills are designed to suppress academic free speech because many professors will simply avoid teaching anything related to race, diversity, or equity. In fact, this is already happening. For example, in August of 2022, University of Central Florida Assistant Professor Jonathan Cox cancelled two of his sociology courses, Race and Social Media, and Race and Ethnicity. Not surprisingly, Dr. Cox was worried that HB 7“effectively banned him from discussing his ideas in class, and that teaching the courses could cost him his livelihood,” especially since he does not have tenure (Golden 2022a, b). Professor Cox explained “it’s not worth the risk… I’m completely unprotected…. Somebody who’s not even in the class could come after me. Somebody sees the course catalog, complains to a legislator--next thing I know, I’m out of a job” (Golden 2022a, b).
Dr. Cox has good reason to be worried. In 2021, Professor Nicole Hannah-Jones, an African American female professor of Journalism and author of the 1619 Project, was denied tenure by the Board of Trustees at the University of North Carolina (Robertson 2021). The Board’s decision came as a shock to the academic community because Dr. Hannah-Jones is among the most recognized, accomplished, and celebrated professors in the country. For example, in 2017, she received a MacArthur Foundation Fellowship; in 2019, she was awarded the University of North Carolina Distinguished Professor Award; in 2020, she received a Pulitzer Prize for her 1619 Project; and, in 2022, she received the NAACP Image Award. These and other professional accomplishments coupled with the fact that Dr. Hannah-Jones was recommended for tenure and promotion by the Faculty Evaluation Committee at the University of North Carolina demonstrate that the Board’s failure to approve her was motivated by something other than her qualifications (Robertson 2021).
Even worse, Dr. Hannah-Jones is not the only professor who has been denied tenure under suspicious circumstances. For example, in April 2023, “five professors at the New College of Florida were denied tenure--even though they had already received approvals at every other point in the process” of being awarded tenure (Moody 2023). The denial of their tenure is a result of conspicuous political appointments made to the Board of Trustees and Presidency of Florida New College. For example, in January of 2023, Governor Ron DeSantis appointed Chris Rufo, a conservative activist and the architect of the anti-CRT propaganda, to the Board of Florida New College. DeSantis also fired President Patricia Okker and installed Richard Corcoran, a former Republican member of the Florida House of Representatives, as President of the college. DeSantis has boasted that these changes are designed to make Florida New College the “Hillsdale College of the South” (Moody 2023). Additionally, Jeremy Redfern, a spokesman for Governor DeSantis, argued that DeSantis’s policies “protects the open exchange of ideas by prohibiting teachers from forcing discriminatory concepts on students” (Golden 2022a, b). How Orwellian?
Florida politicians are not alone in passing policies to suppress academic free speech. Twenty-eight states have either passed or are in the process of passing similar anti-CRT legislation (Greene 2022). As a result, college and university administrators worried about running afoul of the law have cancelled courses that address race, diversity, and equity. For example, after the Oklahoma state legislature passed HB 1775, the administration at Oklahoma City Community College canceled a course on race and ethnicity that had been taught for six years without controversy (Lati 2021). A spokesman for the College explained the decision by arguing that “HB 1775 essentially revokes any ability to teach critical race theory, including discussions of white privilege, from required courses in Oklahoma,” and therefore, “substantial changes to the [syllabus] for the class” must be made before it can be reintroduced into the curriculum (Lati 2021).
Even college administrators have found themselves in the crosshairs of anti-CRT conservatives. For example, in November 2022, a group of parents, alumni, and students at Grove City Christian College (GCCC) in Pennsylvania signed a petition “raising concerns that critical race theory… was threatening the academic and spiritual foundations that make the school distinctly Christian” (Post 2022). As evidence of the threat of Critical Race Theory to the college, the petitioners cited a fall 2020 chapel presentation by Jemar Tisby, a historian and author who writes on race and religion; a chapel presentation that included a pre-recorded TED talk by Bryan Stevenson, the Equal Justice Initiative founder and criminal justice reform advocate; a Resident Assistant training that included the concepts of white privilege and white guilt; and several books used in an education studies class and in focus groups, including Ibram X. Kendi’s “How to be an Antiracist” and Wheaton professor Esau McCaulley’s “Reading While Black (Post 2022).
After receiving the petition, the President of the college issued a letter reiterating the school’s mission to “equip students to pursue their unique callings through a Christ- centered, academically excellent, and affordable learning and living experience;” denouncing Critical Race Theory as an “improper framework for examining and understanding the real challenges faced in our fallen world;” addressing what he saw as misinformation in the petition; and encouraging all Grove City Christian College members to elevate themselves above the innuendos, hearsay, and rumors found on the internet (McNulty 2021).
This wasn’t enough. A group of faculty members at Grove City sent an anonymous letter to the Board of Trustees accusing the President of “publicly rebuking parents for raising concerns about the education of their sons and daughters” and claiming to have “heard him negatively characterize the parents behind closed doors in faculty meetings” (Anonymous Faculty at GCCC 2021). They called for an investigation into the “President’s handling of the situation” and suggested that professors who teach courses that are not aligned with the religious mission and conservative values of the college seek employment elsewhere (Anonymous Faculty at GCCC 2021). Finally, they closed by defending their anonymity, arguing that, “in the context of… the campus atmosphere… we believe that revealing our identity could result in reprisals from senior administrators, perhaps even non-renewal of our annual faculty contracts” (Anonymous Faculty at GCCC 2021).
In response, the Board of Trustees established a special committee to investigate and offer recommendations for resolving the controversy. Among other things, the special committee recommended that (a) Education 290, the course at the center of the controversy, be replaced with a course that “considers the controversial issue (Critical Race Theory) in light of the College’s vision, mission, and values,” (b) the Office of Multicultural Education and Initiatives, the office that chose the books for co-curricular discussion groups, be reconstituted and renamed, and (c) that the President be empowered to take “action” against any faculty, staff, or administrators who demonstrate misalignment with the college’s mission (Special Committee 2022). While the special committee did not specify what counts as misalignment with the college’s mission or the kinds of remedial actions the President should be empowered to take, it is clear that the special committee’s recommendations were designed to suppress academic free speech, particularly the academic free speech of the professor who taught Education 290.
4. Essential for a Strong Democracy: The Case for Academic Free Speech
Laws prohibiting public college and university professors from teaching Critical Race Theory run afoul of current legal precedents, both on the issue of political pedigree tests for employment, raised by HB 233, and on the questions of academic free speech and who has the right to place limits on academic free speech, raised by HB 7. The attempt to establish political pedigree tests for employment is not a new strategy for suppressing speech. In fact, during the Red Scare of the 1940s and 50s, New York’s Feinberg Law prohibited anyone deemed subversive from being hired in public employment (Twohy 1950, pp. 202–203). Other New York public employment laws required candidates to take loyalty oaths, which included candidates for employment at public colleges and universities. Not surprisingly, this did not sit well with many professors. In fact, several professors at the State University of New York at Buffalo refused to sign documents swearing that they were not members of the Communist Party. They were fired. In response, they sued the New York Board of Regents on the grounds that it violated their First Amendment Right to freedom of academic association. Upon review, in the case of Keyishian v. Board of Regents of University of the State of New York, the Supreme Court determined that loyalty oaths violate the First Amendment right to freedom of academic association, (Keyishian v. Bd. of Regents, 1967).) and therefore, the New York Board of Regents acted illegally when it fired professors at the State University of New York at Buffalo for refusing to sign documents declaring that they were not members of the Communist Party. In short, the Court was worried that New York’s law was so broad and vague that it prohibited professors from joining controversial organizations that aligned with their academic interests and research agendas without illustrating that those organizations had a specific intent to overthrow the government or cause harm to others.
Similarly, attempts to define professors as subversives as a way of suppressing academic free speech are not new either. In fact, in 1951, the New Hampshire State Legislature passed the Subversive Activities Act which empowered the state Attorney General to investigate subversive organizations and persons. Three years later, Professor Paul Sweezy gave a speech at the University of New Hampshire on socialism and communism. The state attorney general summoned Professor Sweezy to an interview to be questioned about his political beliefs and associations. During his interview, Dr. Sweezy refused to answer any questions about his political beliefs or the substance of his speech at the University of New Hampshire. Subsequently, he was charged with contempt and ordered to be held in custody until he answered the Attorney General’s questions.
Professor Sweezy sued the state of New Hampshire on the grounds that the Subversive Activities Act violated his First Amendment right to academic free speech. Upon review, in the case of Sweezy v. New Hampshire, the Supreme Court determined that “there unquestionably was an invasion of petitioner’s liberties in the area of academic freedom” and thereby reversed the contempt order against him (Sweezy v. New Hampshire, (1957), p. 354). Most importantly, the Court found that colleges and universities possess four essential freedoms: to determine (1) who may teach, (2) what may be taught, (3) how it shall be taught, and (4) who may be admitted to study at the college or university (Sweezy v. New Hampshire, (1957), p. 354). It thereby settled the question of who has the right to establish limits on academic free speech.
Finally, in August of 2022, the American Civil Liberties Union filed a lawsuit on behalf of a group of Florida professors and students, challenging HB 7 on the grounds that it violated their First Amendment rights to academic free speech. In this case, the plaintiffs “asked the Court to enjoin enforcement of the challenged provisions, citing the Supreme Court’s long history of shielding academic freedom from government encroachment” and “intolerance towards government attempts to cast a pall of orthodoxy over the classroom” (Pernell et al v. Florida Board of Governors (2022), p. 8). Judge Mark Walker began his ruling by quoting George Orwell’s 1984,
“It was a bright cold day in April, and the clocks were striking thirteen,” and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022--redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves. This is positively dystopian (Pernell et al v. Florida Board of Governors (2022), p. 2).
After taking great pains to weigh the arguments, Judge Walker ruled that “the Plaintiffs have carried their burden as to… the preliminary injunction,” and concluded that “they are entitled to a preliminary injunction” (Pernell et al v. Florida Board of Governors (2022), p. 8). He therefore stopped the provisions of HB 7 that place restrictions on the academic speech of public college and university professors from going into effect. Hence, in light of Keyishian v. Bd. of Regents, Sweezy v. New Hampshire, and Pernell et al v. Florida Board of Governors, I conclude that college and university professors ought to sue states that have passed anti-CRT legislation on the grounds that such legislation violates their First Amendment rights to academic free speech and freedom of academic association.
Beyond jurisprudence, the United States is a liberal democracy. Colleges and universities play a vital role in educating and developing students to become full- fledged members of our free society. Or, to put it in another way, colleges and universities are incubators for reproducing free democratic citizens. Ronald Daniels, Grant Shreve, and Phillip Spector make this case in What Universities Owe Democracy. Quoting John Dewey, they write: “democracy has to be born anew every generation and education is its midwife” (Daniels et al. 2021, p. 89). More importantly, the Supreme Court recognized the essential relation between academic free speech and democracy in Sweezy v. New Hampshire. Chief Justice Warren writes:
The essentiality of freedom in the community of American universities is almost self- evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die (Sweezy v. New Hampshire, (1957), p. 354).
I concur with Chief Justice Warren. For, if we make the mistake of prohibiting free inquiry into and discourse about controversial ideas, like Critical Race Theory, particularly on college and university campuses, students will simply assume that the prohibited ideas are incorrect, and the accepted ideas are correct. Even worse, professors will not be able to challenge the unjustified assumptions of their students because they will be prohibited by the state from inquiring into and discussing controversial ideas. After a few decades have passed, it will not matter whether the prohibited ideas or the accepted ideas are correct. Effectively, American colleges and universities will become theological seminaries, “educational” institutions wherein professors preach doctrine instead of teaching students how to engage in habitual truth-seeking and knowledge acquisition, subject to enlightenment skepticism and re-examination guided by the principles of logic and critical thinking. At best, this will hamper the pursuit of knowledge, but what’s more likely is that it will undermine American colleges and universities altogether.
Before long, American democracy will wither and die. For, the ideas that are accepted as common sense today were once investigated, scrutinized, and debated intensely among the intelligentsia, including the heliocentric model of the universe, the theory of evolution, women suffrage, and interracial marriage. In the early stages, ideas are often controversial and threatening to the status quo. As the investigations and debates lead the intelligentsia toward truth or justice, they began to make the case for those ideas in courts, congresses, and college classrooms. For example, after evolution was accepted largely by the intelligentsia, Clarence Darrow made the case for teaching evolution in public schools in the Scopes Monkey Trial (Tennessee v. Scopes 1925). After evolution was adjudicated in court, and as time passed, what was once controversial ripened into common sense. This is how progress is made in a liberal democracy.
Given that college and university professors make up a great portion of the intelligentsia, and the intelligentsia who are not members of the academy are invited to college and university campuses to engage in discourse with professors, many, if not most, of the investigations and debates into controversial ideas take place on college and university campuses. Thus, one can see why academic free speech is vital for college and university professors. More importantly, however, without academic free speech most, if not all, of the controversial investigations and debates would cease. Ideas in the status quo will become entrenched and blindly recycled generation after generation, producing what John Stuart Mill called “dead dogma,” (Mill 1859, p. 1065). For this reason, I conclude that academic free speech is necessary for a strong liberal democracy.
5. Civic Engagement
In the end, college and university professors cannot simply rely on the courts to protect academic free speech and freedom of academic association. After all, despite the legal victories in court, classes are still being cancelled (Wagner 2023), professors are being denied tenure (Robertson 2021), and professors are being fired (Kim and Payne 2023). Therefore, liberals must avoid making the same mistake they made regarding Roe v. Wade, namely, assuming that because the Supreme Court had consistently ruled in their favor they would always do so. Indeed, Dobbs v. Jackson Women’s Health Organization has taught us otherwise. In fact, the current Supreme Court could rely on a selective reading of the nation’s history and traditions to overturn nearly any precedent. In fact, Justice Thomas expressed interest in re- examining the rights to contraception and marriage equality in his concurring opinion in Dobbs. He wrote: “I agree that nothing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion. For that reason, in future cases, we should reconsider all this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” (Dobbs v. Jackson Women’s Health Organization, 2022). Thus, I see no reason why the Court could not rely on a selective reading of America’s history and traditions to undermine academic free speech and uphold state laws prohibiting the teaching Critical Race Theory. After all, in Bonnell v. Lorenzo, a federal appeals court determined that academic free speech is not always protected by the Constitution, particularly when “a college professor is speaking to a captive audience of students who cannot effectively avoid further bombardment of their sensibilities simply by averting their ears” (Bonnell v. Lorenzo2001, pp. 820–821). This could be the opening the Court needs to undermine academic free speech.
Therefore, professors must become civically engaged. First, professors ought to teach student organizations how to establish online petitions, motivate their friends to sign them, and forward the signed petitions to Congress, demanding that they pass federal legislation establishing academic free speech and freedom of academic association for all college and university professors and students. This would be an excellent civics lesson and good educational project for student groups like the Democracy Project. More importantly, it would ensure that professors are not punished or fired for what they teach, lecture on, or publish. Secondly, colleges and universities must return to teaching civics. The state of our democracy demonstrates that professors can no longer “blithely assume our students have an understanding of democratic citizenship” or knowledge of the importance of voting (Daniels et al. 2021, p. 87). Third, professors must come down from their ivory towers and participate in public discourse. This requires professors to take off their academic robes, exercise patience, understanding that most people are not members of the intelligentsia, and engage with everyday people in everyday language. This will help us overcome anti-intellectualism and reduce the chances of everyday people being manipulated by propaganda, especially if we can gain the trust of our fellow citizens. Finally, more professors must run for public office. After all, few people understand the how vital academic free speech and freedom of academic association are to education and democracy like college professors. This suggestion is not as unusual as it might sound. Stephanie Murphy was a professor at Rollins College before becoming a member of the U.S. House of Representatives; Ben Sasse was the President of Midland Lutheran College before becoming a U.S. Senator; and Dwight Eisenhower was the President of Columbia University before becoming the President of the United States (Sara Jerde 2014 College Professors who served in Congress Chronicle of Higher Education). This suggestion will ensure that some congressional representatives understand and can articulate the importance of academic free speech and freedom of academic association—and other interests of the academy like tenure—to those in power.
6. Conclusion
In this paper, I have demonstrated that conservative state legislatures are passing prohibitions against teaching Critical Race Theory based on the myth that professors are teaching CRT to demonize “White” people. I have argued that such prohibitions violate academic free speech and freedom of academic association. I have demonstrated that Keyishian v. Bd. of Regents, Sweezy v. New Hampshire, and Pernell et al v. Florida Board of Governors provide a blueprint for how professors might respond to these prohibitions, at least in the short term. However, given the Supreme Court’s willingness to overturn fifty years of precedent in Dobbs v. Jackson, I have concluded that professors cannot simply rely on the courts to protect academic free speech and freedom of academic association in the long term. Instead, I have concluded that professors must become civically engaged and pressure Congress to pass legislation protecting academic interests like academic free speech and freedom of academic association.
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