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Two academic freedom experts made their cases for the role and scope of free speech in higher education during 51����’s 2024 Constitution Day Debate: “‘Snowflakes,’ Truth, and the Future of Academic Freedom” Sept. 12.

Keith Whittington of Yale Law School, author of Speak Freely: Why Universities Must Defend Free Speech, believes the central mission of a university should focus on the discovery and dissemination of knowledge by academic scholars. Ulrich Baer of New York University, author of What Snowflakes Get Right: Free Speech, Truth, and Equality on Campus sees a university’s mission as grounded in not only speech, but also in equality. The annual debate celebrating Constitution Day was sponsored by the Forum on Constitutional Government and the Center for Freedom and Western Civilization. 

“Although there were some sharp differences, this year’s event was more Constitution Day discussion than debate,” Debate moderator and Professor of Political Science Stanley Brubaker said after the debate. “With Prof. Whittington, we got the perspective of one at the forefront of protecting academic freedom, mindful that it is a complex, relatively recent, and hard won right, essential to an institution concerned with the pursuit of truth. With Prof. Baer, we got the perspective of a humanist professor, concerned with a foundational principle of equality, and a seasoned administrator, concerned with managing the tensions within a university before they hit the boundaries of law.”

Brubaker asked both speakers at the start of the debate to frame their remarks as they applied the values of higher education to a hypothetical situation of a fictional professor teaching a course covering controversial race and gender theories. The controversial course materials lead to student complaints and eventually demands the faculty member be removed for failing to foster an inclusive environment in the classroom.

Baer acknowledged academic faculty enjoy an incredible amount of latitude and freedom when it comes to designing their courses and choosing class materials, but said they also have a responsibility to keep up with the changing paradigm of their fields. As a former Vice Provost at New York University, Baer said it was challenging to adjudicate these cases because as a university you want to avoid getting to a place “where some group feels the only way we feel there is just treatment is if the other people are punished. You want to get to a place where there is still a possibility of saying ‘We can work with this person, and we have to remind them of what our shared objectives are.’”

Baer advocates a shift from looking at academic freedom exclusively from a speech lens, to one that includes and involves equality. Instead of focusing on the feelings of someone who is  hurt or offended, he said the university should step in when speech interferes with the ability to be in the classroom and to participate the same way as everyone else.

“That speech actually runs into a problem, because universities, public and private, are federally obligated to ensure equal access to educational opportunities,” Baer said.

Whittington outlined his case that the core function of a university is for scholars to push the “outer boundaries of human knowledge, to ask questions we aren’t confident about what the answers are, to hold conventional wisdom and orthodoxy up for criticism, and potentially advance the range of human knowledge through that process.”

There was a time when a university campus wasn’t considered a place to have intellectual controversies, he said, and faculty at American universities realized they needed greater freedom to explore those ideas without having to worry about being fired due to complaints from upset students, donors, or members of the community.

“Part of what university faculty were arguing for in the early 20th century was that campuses were precisely places to have intellectual controversies and it was the job of the university president to protect faculty in those circumstances, not to punish them,” Whittington said.

Those efforts led to the foundation of the current academic freedoms enjoyed by faculty in universities today, he said, including the freedom to teach controversial concepts and materials in the classroom relevant to their studies, the freedom to engage in research and publish that research without interference from the university, and to express their personal opinions in public without fear of reprisal.

Baer and Whittington also addressed how much freedom faculty members and university administrators should have for speech outside of campus, such as writing opinion pieces and posting on social media. Whittington believes the extramural speech protections enjoyed by faculty as scholars is vital, otherwise it creates a “massive back door” for university administrators to punish faculty for controversial public speech. But he doesn’t think the speech protections afforded to faculty should extend to everyone on campus, including senior administrators.

“[Faculty] need academic freedom in order to advance truth claims, vice provosts don’t need academic freedom because they’re not advancing truth claims, they’re advancing institutional policies,” Whittington said.

Baer contends “firing chills speech”, and senior university administrators and presidents should be entitled to those same protections as faculty. When presidents and other senior administrators refrain from speaking publicly about controversial issues in an effort to remain neutral, Baer said it forces people to guess about a university’s mission and values as an institution. 

“If you say they shouldn’t speak you’re opening the door for everybody else to speak on behalf of the university,” he said.

On the issue of neutrality, Whittington drew a distinction between speech made by the university president and the speech of other senior administrators, noting that there are times the president may need to suppress the speech of an administrator participating in extramural speech that is harmful to the university as a whole.

“The difference is that dean is understood to be speaking on behalf of the administration and the university, unlike a professor,” he said.

51���� celebrates Constitution Day each year by bringing to campus seasoned experts in their fields to debate topics facing the nation and encourage informed discourse among students. Since 2005, 51���� has hosted a debate on campus focused on a variety of constitutional issues, including the constitutionality of the administrative state, abortion, affirmative action in college admissions, NSA surveillance, and free speech vs. hate speech. All debate guests were provided with a pocket Constitution and a copy of 51����’s Student Rights and Responsibilities.

Keith E. Whittington is the David Boies Professor of law at Yale Law School. In addition to You Can't Teach That!, he is the author of Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (which won the Thomas M. Cooley Book Prize), Speak Freely: Why Universities Must Defend Free Speech (which won the PROSE Award for best book in education and the Heterodox Academy Award for Exceptional Scholarship), Political Foundations of Judicial Supremacy (which won the C. Herman Pritchett Award for best book in law and courts as well as the J. David Greenstone Award for best book in politics and history), and several other works on constitutional theory and law and politics. 

Whittington has spent most of his career at Princeton University, where he served as the William Nelson Cromwell Professor of politics from 2006 to 2024. He has also held visiting appointments at Georgetown University Law Center, Harvard Law School, and the University of Texas School of Law. He is the founding chair of the Academic Freedom Alliance’s Academic Committee and has served on the Presidential Commission on the Supreme Court of the United States. A graduate of Yale University and the University of Texas at Austin, Whittington has written extensively for a general audience. His work has appeared in The Washington Post, The Wall Street Journal, The New York Times, The Atlantic, Reason, and Lawfare. He blogs at the Volokh Conspiracy and hosts the Academic Freedom podcast.

Ulrich Baer is university professor at New York University, where he teaches literature and photography and serves as director of NYU’s Center for the Humanities. A recipient of Getty, Humboldt, and Guggenheim fellowships, he has twice been honored with NYU’s student-nominated Golden Dozen Teaching Award. His analysis of free speech in the 21st century university in What Snowflakes Get Right deepens his widely debated defense of the university’s obligation to use free speech as a tool to create knowledge by the greatest number of participants first made in 2017 in the New York Times.

As a writer, translator, and scholar, Baer believes passionately in the transformative power of ideas and books and that real conversations play a key role in our evolution as conscious, responsible, and compassionate people — hence, his publications, including single-authored and edited books, his commitment to higher education, and his podcasts. Baer’s published oeuvre includes books on a range of topics, including poetry, photography, free speech, September 11, Holocaust testimonies, as well as a dystopian novel (We Are But a Moment, 2017), and a collection of stories (Beggar’s Chicken: Stories from Shanghai, 2012). Baer was born in Germany, moved to the United States as a teenager, and attended college at Berkeley and Harvard (where he reports concentrating in varsity crew). He received his MPhil and PhD in comparative literature from Yale. He is the father of two children, an avid urban gardener, and an eternal beginner in Shaolin kung fu.