Summary of "So to Speak: The Free Speech Podcast" – Episode 231: "What is Academic Freedom?" with Keith Whittington

Host: Nico Perino
Guest: Keith Whittington, David Boies Professor of Law at Yale Law School and Director of Yale Law School's Center for Academic Freedom and Free Speech
Release Date: December 12, 2024

Introduction

In Episode 231 of "So to Speak: The Free Speech Podcast," host Nico Perino engages in a comprehensive discussion with Keith Whittington about the intricacies of academic freedom. As a renowned legal scholar and advocate for free speech, Whittington delves into the historical context, current challenges, and future implications of academic freedom within university settings.

Yale's New Center for Academic Freedom and Free Speech

[02:00]
Whittington begins by outlining the mission of Yale Law School's newly established Center for Academic Freedom and Free Speech. He emphasizes its initial focus on free speech and academic freedom within university campuses, with potential expansions beyond over time.

Keith Whittington: “Its initial focus, at least, will be on free speech and academic freedom issues in a university and campus context... trying to think about policy solutions and sort of best practices and universities model policies universities can adopt affecting free expression and the like.” [02:03]

The center aims to support scholarship, foster public discussions around these principles, and contribute to informed policymaking by assessing current legislative trends and proposing viable solutions.

Understanding Academic Freedom: Historical and Legal Context

Whittington traces the roots of academic freedom back to the early 20th century, highlighting the role of the American Association of University Professors (AAUP) in advocating for academic standards originally inspired by German higher education principles.

[07:29]
He distinguishes between First Amendment rights, academic freedom, and classroom speech, noting that while the First Amendment restricts government interference, academic freedom often extends to both public and private institutions through professional norms and voluntary policies.

Keith Whittington: “Freely adopted in the early 20th century, the American association of University Professors gets organized in order to advocate on behalf of academic freedom principles...” [07:29]

Differences Between First Amendment, Academic Freedom, and Classroom Speech

Whittington elaborates on the nuanced differences between these three constructs:

1. First Amendment: Protects free speech from government censorship, primarily applicable to public universities.
2. Academic Freedom: Encompasses both scholarship and teaching within the academic environment, often institutionalized through AAUP guidelines.
3. Classroom Speech: Involves faculty teaching methods and content, subject to professional standards of germaneness and competence.

[06:48]
He underscores the importance of contextualizing academic freedom within university settings rather than applying general free speech doctrines indiscriminately.

Keith Whittington: “I think that's one of the real challenges... think specifically about a university context, specifically about a classroom context...” [06:48]

First Amendment Applications in Public vs. Private Universities

Whittington differentiates between public and private institutions regarding First Amendment protections. While public university faculty are directly protected under the First Amendment, private institutions rely more heavily on internal policies and professional norms to safeguard academic freedom.

Keith Whittington: “Now, of course, social media and other kinds of venues occupy similar kinds of space... It's part of the professional activity.” [10:16]

Recent Controversies and Case Studies

Whittington discusses several high-profile cases that illustrate the current tensions surrounding academic freedom:

Amy Wax at University of Pennsylvania

[31:54]
Wax, a law professor, faced suspension for inviting Jared Taylor, a white nationalist, to speak in her mandatory lecture. The university accused her of engaging in unprotected speech, but Whittington argues that this falls within protected academic freedom as the speaker was germane to the course subject.

Keith Whittington: “...the speaker, I think, is no fundamentally different than if she were showing a movie... that's core academic freedom protected activity at heart.” [33:54]

Mara Finkelstein at Muhlenberg College

[44:57]
Finkelstein was terminated after reposting a contentious message on Instagram, amidst ongoing Title VI investigations. Whittington emphasizes the need for evidence of discriminatory conduct rather than penalizing extramural speech based solely on discomfort among students.

Keith Whittington: “Are they treating people differently in the classroom?... If there's not, and instead we have evidence of them saying things that people don't like on social media?... that's a very different question.” [46:04]

Joe Gao at University of Wisconsin

[47:32]
Gao, involved in creating explicit content with his spouse, raises questions about the intersection of personal expression and professional responsibilities. Whittington suggests distinguishing between protected expressive activities and actions that negatively impact job performance.

Keith Whittington: “It's not the traditional kind of expression that we're most concerned about protecting... assuming it's constitutionally protected expressive activity.” [48:13]

Arthur Butts at Northwestern University

[55:46]
Butts, an engineering professor and Holocaust denier, illustrates the challenge of separating professional competence from personal beliefs. Whittington highlights that his extramural Holocaust denial does not impede his engineering duties, thereby remaining protected under academic freedom unless it influences his professional conduct.

Keith Whittington: “If you had a 20th century European history professor who has crazy ideas about 20th century European history... that undermines his expertise and scholarly credentials.” [56:04]

Challenges and Implications for the Future

Whittington warns of the escalating conflicts between legislative interventions and academic freedom, citing Florida's "Stop Woke Act" as a prime example of government overreach into university curricula.

[23:41]
He critiques the premise that universities should be extensions of government speech, arguing that such a stance threatens the foundational principles of academic freedom and intellectual diversity.

Keith Whittington: “...this can lead to complete control over what gets said... a lot of extreme ideas... control it all in that sense.” [24:10]

He also discusses the broader cultural shift required to balance free speech protections with institutional and societal expectations, emphasizing the risk of double standards and the stifling of diverse viewpoints.

[62:32]
Whittington cautions against allowing subjective discomfort to dictate the boundaries of acceptable speech, highlighting the slippery slope where any controversial expression could be grounds for punitive action.

Keith Whittington: “It's critical that we think about... how would we apply it across the wide range of different ideas and views... extraordinary easily weaponized.” [63:07]

Keith Whittington's Conclusions

Whittington advocates for a reassertion of traditional academic freedom principles, emphasizing the importance of distinguishing between personal extramural speech and professional teaching responsibilities. He calls for universities to foster environments where intellectual diversity is protected without succumbing to legislative or administrative pressures that undermine free expression.

Keith Whittington: “We are capable of distinguishing people's private lives from what they're doing professionally... we are going to be the worse for it.” [52:02]

Conclusion

Episode 231 of "So to Speak: The Free Speech Podcast" offers a deep dive into the complexities of academic freedom, highlighting the delicate balance between protecting free expression and maintaining professional standards within educational institutions. Keith Whittington's insights shed light on the historical underpinnings, legal challenges, and contemporary controversies that shape the landscape of academic freedom today. As universities navigate these turbulent waters, the dialogue between free speech advocates and legislative bodies remains crucial in preserving the integrity and independence of academic institutions.

Notable Quotes:

• Keith Whittington (07:29): “Freely adopted in the early 20th century, the American association of University Professors gets organized in order to advocate on behalf of academic freedom principles...”

• Keith Whittington (33:54): “...the speaker, I think, is no fundamentally different than if she were showing a movie... that's core academic freedom protected activity at heart.”

• Keith Whittington (46:04): “Are they treating people differently in the classroom?... If there's not, and instead we have evidence of them saying things that people don't like on social media?... that's a very different question.”

• Keith Whittington (63:07): “It's critical that we think about... how would we apply it across the wide range of different ideas and views... extraordinary easily weaponized.”

This summary captures the essence of the conversation between Nico Perino and Keith Whittington, providing a comprehensive overview of the key points discussed regarding academic freedom and its challenges in today's academic and political climate.