Five “Old White Guys”…

In reviewing these individual accounts of five “old white guys,” it’s important to note that many women have also run afoul of the political-correctness and social justice vigilantes that now roam our campuses.  Laura Kipnis’ who suggested that the administration’s policies on consensual relationships between students and faculty was so overly protective of women, they were insulting (Kipnis, 2015 a & b) exemplifies the themes of the call-out culture.  Similarly, Erika Christakis at Yale University who had the audacity to suggest that students be allowed to select their own Halloween costumes appears to have been persecuted (with her husband, Nicholas) by the administration (MacDonald, 2018).  Allison Stanger, who was seriously injured trying to protect author Charles Murray from a hostile mob at Middlebury College (Whittington, 2018) is another example of someone targeted for their commitment to freedom of speech and due process.  However, the combination of being white, male, and relatively senior makes one an opportune target for those seeking to flip the script, flop dramatically, claim grievous injury and severe emotional distress and impatiently await administrative intervention and rescue. 

Val Rust of the University of California at Los Angeles’ Graduate School of Education and Information Studies was a major contributor to the field of comparative education, authoring more than 100 books and professional journal articles.  His research and publications have focused on educational reform, education’s role in bringing about social change, and international higher education.  He was the co-founder and associate director of UCLA’s Center for International and Development Education (CIDE).  He was nearly 80, when he and his graduate seminar in dissertation preparation became the target of a student protest against a perceived pervasive hostile racial climate.  His particular “micro-aggressions,” presented as emblematic of broader institutional problems, included his insisting that students use the Chicago Manual of Style for documentation, correcting a student’s capitalization of the word “indigenous” in her proposal, and putting his hand on the arm of an angry African American male student while trying to quell a heated philosophical disagreement concerning feminism’s misappropriating Critical Race Theory’s rhetoric on victimization (Flaherty, 2013).   

In November 2013, about 25 students of color, 5 of whom were enrolled in Rust’s class of 10 students, invaded his class, encircled Professor Rust and four of the other students in his course, read a letter of protest, expressed their concerns and views about the program’s hostile environment, and departed about an hour later.  Stephanie Kim (2014), another student of color in the program but not in this course, criticized the protesters for their lack of “an open tolerant spirit” in an opinion published in the Daily Bruin the next month.  Concerning Val Rust specifically, Kim (2014) stated: “As a woman of color, I am deeply saddened that my adviser and mentor for the last five years, Rust, was unjustly demonized as the symbol of white male oppression as a cheap way of arousing public support.”  Some students also rallied to Rust’s defense, while others decried the program’s alleged long-standing perceived hostility toward students of color.

In response to Kim’s editorial in the Daily Bruin (2014), students (and apparently some faculty members) on both sides expressed increasingly polarized opinions and the dialog deteriorated into name-calling.  It seems obvious that what was needed from the administration was a calm and patient intervention providing mediation and compromise.  In contrast, university administrators almost immediately sided with the protesters.  From McDonald’s (2018) perspective:  

“Dean Marcelo Suarez-Orozco sent around a pandering email to faculty and students, announcing that he had become ‘aware of the last of a series of troubling racial incidents at UCLA, most recently associated with [Rust’s class]—thus conferring legitimacy on the preposterous claim that there was anything racially ’troubling’ about Rusts’ management of his class.  Suarez-Orozco went on: ‘Rest assured I take this extremely seriously.  I humbly dedicate myself to listening and to learning from this experience.  As a community, we will work towards just, equitable, and lasting solutions.  Together, we shall heal’ (p.66).”

McDonald goes on to describe the escalation of negative administrative actions and apparent unwarranted persecution of Professor Rust:

“Ever naïve, Rust again reached out to touch his interlocutor.  The student, a large and robust young man, erupted in anger and eventually filed a criminal charge of battery against the seventy-nine-year-old professor.  Rust’s employers presented him with a choice: If he agreed to stay off the education school premises for the remainder of the academic year, they would not pursue disciplinary charges against him.  The administration then sent around a letter to students, alerting them that the school would be less dangerous—for a while, at least—with Rust out of the picture (p. 67)…”

For the next three years, Suarez-Orozco and his administration colleagues would hound Rust, driving him from one makeshift off-campus office space to another and filing baseless charges against him.  Finally, in August 2017, Suarez-Orozco sent out a one-line memo to the ed school faculty that Rust had full status as emeritus professor—the closest thing to an apology that Rust ever received (p. 71).”

Although not mentioned in the reporting or diverse opinions, Wikipedia lists Radical Origins: Early Mormon Converts and Their Colonial Ancestors which it suggests “examined his own Mormon lineage” as Rust’s most recent publication. The history and perception of beliefs concerning the role of race in religious matters among members of the Mormon faith is confusing and contradictory (Reiss, 2018). Perhaps Rust’s unconscious attitudes and behaviors may have been interpreted (or assumed) by some students to be “hostile.”   However, I could not find any direct, in-person conversations which might have addressed misperceptions and issues underlying the conflict.  By siding so quickly with the grievants, the administration abandoned its responsibility to mediate the conflict. There is little evidence of any authentic investigation or good faith effort to objectively examine the charges brought against Professor Rust. Unfortunately, this seems to be emerging as a recurring administrative strategy.

Bret Weinstein

Bret Weinstein was a tenured Biology professor at Evergreen State College (ESC), a public liberal arts college, with slightly more than three thousand students in Olympia, Washington.  The college offers a non-traditional undergraduate curriculum; students design their own inter-disciplinary programs.  Faculty narratives about student performance have replaced traditional grades to document student performance.  A series of racially-charged incidents led Bret Weinstein and his wife, Heather Heying, also an ESC faculty member, to resign from the college in 2017.  The couple later accepted a $500,000 settlement of their suit against the college for failing to protect them from racially-based threats and harassment.  Weinstein’s challenge to the administration’s politically-correct agenda was more direct than Rust’s, however, the outcomes and administrative strategy seems similar.

The college’s “Day of Absence” tradition was intended to increase understanding and awareness of inter-racial issues.  One day each year, faculty, staff and students of color left campus and met elsewhere for racial awareness seminars and discussions.  White members of the campus community remained on campus and participated in similar activities.  The two groups then rejoined for communal conversations.  Reporter, Katie Herzog (2018), picks up the story from there:

“Most media reports about what happened at Evergreen last year go like this: Instead of people of color leaving campus, last year, a campus group requested that white students, faculty, and staff leave on the Day of Absence instead. In most reports, the drama started when a professor objected to this change. In response, outraged students protested that professor’s class, footage of the event went viral, the alt-right flocked to Evergreen, and the college was shut down, all because one professor objected to rejiggering an old Evergreen tradition (Herzog, 2018).”

However, Herzog’s (2018) reporting shows the events were far more complicated than reported by the mainstream media.  Both Bret Weinstein and his wife, Heather Heying, had been among the most popular and beloved faculty members on campus.  They invested deeply in Evergreen’s intense block-study program that assigned sections of students to faculty members for 11 consecutive weeks of intense interdisciplinary exploration and learning.

The “Day of Absence” incident occurred in a much broader context of increasing hostility and discord between and within various campus constituencies (i.e., students, faculty, and administrators).  A highly effective college administration led by a beloved African American college president had been replaced by a new administration led by a president with clear allegiance to a progressive agenda that elevated concerns for equality and inclusion above educational quality or administrative due process.  In response to external events and challenges at both the local and national level (a “wrongful” police action in the local community and the election of Donald Trump, respectively), students of color had increased their demands for a reversal of what they perceived to be ESC’s pattern of institutional racism and discrimination. 

Emotions were high but accounts of specific, objective incidents or respectful engagement were almost entirely absent.  Reviews of collective academic performance outcomes by race showed disparities, but the myriad of confounds associated with such post hoc studies left the path forward unclear.  As tensions heightened, student gangs roamed the campus with bats and cudgels and campus police were given orders by the administration to “stand down.”  Most faculty members and students remained silent in the face of intimidation from these groups and the administration’s willingness to validate the activists’ thuggish methods as well as their understandable goals.  Bret Weinstein’s willingness to share his story with Tucker Carlson of Fox News inflamed an already volatile situation.  A subsequent anonymous threat (eventually traced to a New Jersey resident) to bring a .44 magnum to campus and start executing as many people as possible required a brief, cautionary closure of the college (Herzog, 2018).

After extended legal battles and concern for the safety of their two young children as well as themselves, Weinstein and Heying resigned.  Later, after several attempts to rejoin the college were unsuccessful, they accepted a $500,000 settlement from the college. Other students and faculty also left the college, some with severance agreements but most without.  The chief of police, noting that she was given complete responsibility but no authority, resigned and is now suing the college.  Student enrollment has dropped sharply, (traditionally, ESC accepts more than 95% of those who apply and have the necessary financial resources) and the administration has announced that a 10% cut in the operating budget will be necessary; many academic as well as extracurricular programs will need to end (Herzog, 2018).

Peter Boghossian

Another school in the Pacific Northwest, Portland State University (PSU) is much larger.  With nearly 30,000 students (80% of them undergraduates) offers a wide variety of academic programs in a distinctly urban setting.  PSU Assistant Professor of philosophy Peter Boghossian is a 52-year old philosopher and by all accounts a very effective classroom teacher.  Much of Boghossian’s academic experience was garnered during his time at the University of Phoenix.  He has devoted himself to bringing philosophical thinking skills such as scientific skepticism and the Socratic Method of inquiry to the wider public, including those who have been incarcerated.  According to his Portland State University Faculty Page:

“Peter has a teaching pedigree spanning more than 25 years and 30 thousand students – in prisons, hospitals, public and private schools, seminaries, colleges and universities, Fortune 100 companies, and small businesses. His fundamental objective is to teach people how to think through what often seem to be intractable problems.”

Boghossian is one of three academic investigators involved in what has come to be known as “The Great Grievance Study Hoax.”  This study has also been referred to as “Sokal Squared” after a similar “stunt exposing a humanist journal by Alan Sokal,” a New York University physicist, in 1996 (Ruark, 2017).  He and his two “co-conspirators” spent months preparing the 20 hoax papers they planned to submit to professional journals representing what they labeled collectively and pejoratively as “grievance studies.”  These included journals focusing on gender, race, sexuality, activism, politics and other related fields.  Boghossian and his colleagues suspected that the scholarship of the journals they chose lacked academic rigor and sought to collect evidence to support their suspicions.  However, half way through their protocol, an inquisitive Wall Street Journal editor exposed their scheme (Melchoir, 2018).  The particular faux article that led to the unmasking of their hoax had originally been recognized for excellence by the journal, Gender, Place, and Culture. This entirely fabricated study falsely claimed to be the product of a year-long observational study of canine rape culture in Portland, Oregon dog parks.  Their study bore the impressive title: “Expression of Concern: Human Reactions to Rape Culture and Queer Performativity at Urban Dog Parks in Portland, Oregon.” Another of their studies accepted for publication was “Our Struggle Is My Struggle: Solidarity Feminism as an Intersectional Reply to Neoliberal and Choice Feminism.”  It used passages of Hitler’s Mein Kampf to create a contemporary argument about social justice theory.

Reaction to their scheme varied greatly (The Chronicle of Higher Education, 2018).  The assessments of a variety of academic pundits ranged from phrases like “hilarious meta-textualism” and “morally righteous” to derisive labels such as “mean-spirited mockery.”  Despite the lack of agreement in academic responses to the hoax studies, Portland State University, determined the activity reflected “professional misconduct” and is considering Boghossian’s dismissal as an appropriate consequence.  As the Chronical of Higher Education (Mangan, 2019) reports:

“The decision to move ahead with disciplinary action came after a group of faculty members published a letter in the student newspaper decrying the hoax as ‘lies peddled to journals, masquerading as articles’. These ‘lies’ are designed ‘not to critique, educate, or inspire change in flawed systems’, they wrote, ‘but rather to humiliate entire fields while the authors gin up publicity for themselves without having made any scholarly contributions whatsoever.”

However, as the Chronicle (Mangan 2019) hastens to add, not all educators found Professor Boghossian’s study to be without academic merit and the censure appropriate.  In fact, some with extraordinary intellectual and academic credentials supported the study:

“Steven Pinker, a professor of psychology at Harvard University, was among the high-profile scholars who defended him. ‘Criticism and open debate are the lifeblood of academia; they are what differentiate universities from organs of dogma and propaganda … If scholars feel they have been subject to unfair criticism, they should explain why they think the critic is wrong. It should be beneath them to try to punish and silence him…”

Richard Dawkins, an evolutionary biologist, author, and professor emeritus at the University of Oxford, had this to say: ‘If the members of your committee of inquiry object to the very idea of satire as a form of creative expression, they should come out honestly and say so. But to pretend that this is a matter of publishing false data is… obviously ridiculous.’ (Mangan, 2019)

This tale provides evidence of themes and strategies similar to those employed by the Evergreen State College administration.  The administration yields to the demands of an outraged minority who seek to suppress free speech by punishing someone who undertook an arguably legitimate inquiry.  However, unlike Evergreen, Portland State administrators were willing to intervene directly in the process and punish an individual whose actions other faculty member consider to be reprehensible because they are at odds with their own viewpoint and allegiances.  Thus, the administration has encouraged and empowered a vociferous and volatile campus constituency to retaliate against someone whose academic activity is potentially harmful or hurtful to the professional journals they support.  This certainly sounds like viewpoint discrimination.  Can skin get any thinner than this?

Richard Lebow   

Seventy-six year old, Professor Richard Lebow, Professor Emeritus at Dartmouth College, and a professor of political theory at Kings College, London was best known for his work in political psychology, international relations, and the philosophy of science.  He is now at the center of a maelstrom whirling within the International Studies Association (ISA) because he uttered the words, ‘ladies’ lingerie,’ when a female colleague at a recent conference asked, “What floors?” as she and her colleagues squeezed into an elevator.

Simona Sharoni, a professor of women’s and gender studies at Merrimack College, was offended and filed a formal complaint with the (ISA).  After considering the matter, the ISA concluded that this was, in fact, a case of sexual harassment and is requiring Lebow to apologize; a requirement he has thus far refused.  As is often the case, opinions in the academy were sharply divided. Columnist Ruth Marcus of the Washington Post (cited by Freidsdorf, 2018) seemed to strike a reasonable balance:

“It was a lame, outmoded joke, the sort of thing you say in a crowded elevator to alleviate the discomfort of being jammed among strangers, an artifact of the days of fancy department stores with operators announcing the floor stops… the days of women feeling compelled to stay silent in the face of sexist remarks or conduct are thankfully on the way out… (however) not every stray statement by a 76-year-old man warrants a resort to disciplinary procedures…  For goodness sake, let’s maintain some sense of proportion and civility as we figure out how to pick our way through the minefield of modern gender relations.”  

Wayne Messer

Berea College in the Kentucky foothills of the Appalachians has a unique identity and admirable mission.  Founded in 1855 by John Fee, an ardent abolitionist, it was the first college south of the Mason Dixon Line to educate men and women, both black and white, together.  In addition to its strong commitment to inclusion and diversity, it charges no tuition and admits only students with significant financial need (basically those who are Pell grant eligible).  The college offers about 30 different academic majors and its faculty of 130 is divided into about thirty departments and programs. 

Until recently, 65 year old, Wayne Messer, associate professor of psychology, chaired the Psychology Department.  The program produced about 25 graduates each year with most of them being admitted to graduate programs in the professions and the social sciences.  Many of them went on to earn doctorate degrees.  Students in the program regularly won awards for their research from the Kentucky Academy of Sciences and other undergraduate research competitions; they rated the department at the top of course critiques for the amount learned from their classes.  Graduating seniors rated the psychology program higher than any other large academic program at the college for modeling positive working relationships between men and women and showing the values of diversity and inclusion.  The average graduating senior in the program scored at the 85th percentile on the Major Field Achievement Test in Psychology.  By all these objective measures, the department provided a positive, supportive, and productive higher learning environment.

Nonetheless, a grievance filed by the three junior faculty members led to Professor Messer’s removal from his position as well as his office.  By and large the incidents were not identified as being a problem at the time of occurrence and his alleged inappropriate behavior never persisted after the first sign of discomfort. He was no longer chair and forced to relocate from his corner office on the building’s second floor to a basement abode where the only other residents were the 60 or so snakes in the college’s herpetarium.  He had been charged with discrimination in hiring, promotion, retaliation, and creating a hostile workplace environment.  While the initial investigation found no support for the charges of discrimination or retaliation, three of the dozen incidents cited as evidence of a hostile workplace environment were confirmed by a three-person faculty hearing committee and another five-person committee decided that these incidents did not warrant academic freedom protection.  The president ignored Professor Messer’s appeals based on violations of academic freedom and administrative due process and the demotion and office relocation were effected by the dean.

I served as Professor Messer’s faculty advisor and participated in his defense and appeals.  Based on my own experiences in academia as well as working with other Title VII and Title IX cases throughout my career, the violations with which he was charged seemed to fall well short of the “severe and pervasive” standard set by the Office of Civil Rights.  One incident involved Professor Messer’s effort to engage his faculty colleagues in a conversation concerning the backlash to singer Chrissie Hynde’s revelations on NPR of her role and responsibility for her own provocative actions that had contributed to her rape many years earlier.  Another incident involved an inappropriate but otherwise innocuous joke about a “Jewish American Princess” just prior to a department faculty meeting.  The third incident involved his use of the words “militant lesbianism” during a heated discussion of his frustration with a very disruptive and belligerent student in one of his classes.  These events had occurred over a span of two years, but the other incidents included in the original grievance stretched over a 6-year period.

Objective evidence showed that the charges of his discrimination against women in promotion and hiring were unfounded (his 6 highest rating scores in his alleged discrimination violation had gone to female applicants).  Objective evidence that a grievant had manipulated her own rating scores to the discriminate against male applicants was ignored by the hearing panel.  Similarly, the claim that the department’s atmosphere had become so hostile that grievants had to go to a different floor of the building to make copies and avoid encountering Professor Messer were not supported by contemporaneous electronic copier records.  False assertions during the proceedings that the Faculty Manual prohibited mediation as an appropriate remedy for hostile environment violations were ignored by the administration.  It became apparent during the hearing concerning academic freedom, that the Title IX administrators had many inconsistent and unreasonable beliefs about academic freedom (e.g., that it only applied to classrooms and lecture halls but not hallways and faculty offices or that it was something that was dependent on the discretionary acquiescence of the recipient).

Professor Messer was found to be guilty of being erratic and oblivious; no mention of intention was made, but the discussion of the negative consequences of his behavior was a veritable Kabuki theater of emotional distress and psychic damage.  Several things happened in the months following his exodus from the psychology department faculty area.  He completed a psychological assessment at Eastern Kentucky University that provided a clinical diagnosis of Attention Deficit Hyperactivity Disorder.  Being erratic and oblivious are among the most common characteristics of this disability.  Also, after numerous request and months of promises, the president provided a letter formally exonerating Professor Messer of the charges of discrimination in hiring and promotion and retaliation.  Because his disability was undiagnosed and thus unknown at the time of the grievance, the administration was unwilling to amend its decisions or the punishments it had levied against him.

In each of these cases, “old white guys” came into conflict because the views they expressed did not support the prevailing, politically -correct, campus zeitgeists on their respective campus. Rather than taking the time to conduct a thorough, objective investigation of the charges against these individuals, the institutional administration almost automatically sided with the the grievants. As is characteristic of the “call-out culture” that is emerging on many campuses, public protest and broad claims of injustice have replaced quiet conversation and a careful consideration of alternative perspectives. Issues such as individual rights and institutional promises receive scant consideration. Increasingly, these factors have eroded the quality of higher education and extended the chilling effects foreseen by philosophers and jurists over the last century.   

The nature and neurology of higher learning

We now turn to a consideration of the locus of action in education, the college classroom.  In addition to the contextual effects described already, each teacher brings many distinctive attitudes, opinions and biases to the classroom.  For some, their own educational experiences serve as potent and enduring reminders of the learning process.  However, for many others, the content of what was studied, sometimes long ago and far away, continues to frame their perspectives and understanding of the learning processes.  Several decades ago, I pursued my doctorate in experimental cognitive psychology.  I have had the privilege to profess, to teach, and continue to explore this and related topics ever since.  My study was built upon a human information processing foundation.  Its implications for critical thinking, higher learning and the nature of knowledge guide my pedagogy.  As will become apparent, cognitive psychology is a broad discipline with relevance to a variety of educational issues and many current academic concerns.  As Abraham Maslow once quipped, “When your favorite tool is a hammer, every problem looks like a nail.”   

“At heart, the mission of a university is to produce and disseminate knowledge” (Whittington, 2018, p. 13).  However, many educators support the notion that the purpose of higher education is not the particular answers it provides but in learning the process of inquiry and the evaluation of alternatives (Postman and Weingartner, 1969; Dyson, 1981; Bok, 2013).  Hannah Holborn Gray (2012), University of Chicago president from 1978 till 1993, offers a succinct summary of this perspective: “Education should not be intended to make people comfortable; it is meant to make them think (p. 86).”

Allegiance to the primacy of process has many advantages and many advocates.  In my Introduction to the Behavioral Sciences course, most students learn that there are excellent examples supporting the conflicting sociological perspectives discussed previously.  Complex technologies have empowered contemporary societies to distribute more information more broadly than at any other time in history (Pinker, 2018).  Following from Postman and Weingartner (1969), I ask my students to become fully-fledged, first-rate “crap detectors” and turn arguments and evidence inside out in a search for bias and bluster.  Although technologically advanced media present atrocities vividly every evening, most individuals have a life expectancy and a degree of security that would have been considered extraordinary just 100 years ago (Pinker, 2012).  However, it is undeniable that some segments of the population, often based primarily on demographic characteristics, have benefited less than others and continue to suffer the effects of systemic oppression.  I seek to develop students who will be empathetic and both wise as well as courageous in making the world a better place.    

A primary purpose of higher education is to encourage and empower students to acquire the skills of discernment needed to identify and engage society’s most complex and important issues?  To be able to read with insight and act responsively and effectively.  Enhancing critical thinking, including the inclination and ability to ask good questions, would seem to be an essential goal despite continuing disagreements about what should be considered “correct” answers.  However, getting students to think differently has been an increasingly important but stubbornly elusive aim of education over much of the last century (Bok, 2013).

One of the most difficult things for college students is to relinquish (at least temporarily) claims to absolute and eternal truth and accept the idea that the complexity of the world and their own minds (viz., brains) make all knowledge contingent and contextual.  Developing in students a willingness to let knowledge and truth emerge from engagement with the material and one another facilitated by reflection and empathetic consideration has been a goal of all my courses.  Although, my political and religious inclinations are liberal, I’ve learned that it is best to encourage and engage ideas and perspectives from across a broad spectrum of beliefs.  John Stuart Mill (1859) explained the many benefits of free speech in acquiring greater knowledge of the world and all its phenomena.  From Mill’s utilitarian perspective, beliefs are consequential, and it is these consequences that allow us to evaluate the truth of alternative views and propositions. 

Contemporary philosophers suggest two alternative criteria for assessing the value and validity of knowledge: coherence (Young, 2018) and correspondence (David, 2016).  Basically, ideas are coherent if they complement the propositions we already hold to be true.  In contrast, correspondence is concerned with a proposition’s ability to predict outcomes from experimentation and observation (David, 2016).   From my classroom experience, I’ve learned it is important to persuade students to consider both these criteria.  

My pedagogy has been informed by my training as an experimental cognitive psychologist (Porter, 1991).  Studying under Donald Broadbent convinced me of the value and validity of viewing individuals  as information processing systems.  The 2002 Nobel Prize recipient in economic sciences, Daniel Kahneman’s, recent book, Thinking Fast and Thinking Slow, explains that the characteristics of distinctly different channels of human information processing.  System One, explains “fast thinking” and is automatic and largely unconscious.  It is shared by nearly all mammals (Breuning, 2011).  In contrast, slow thinking involves conscious awareness and, typically, verbal mediation (self-talk).  Broadbent had also recognized this distinction in his contrast between attentionally Selected (slow) and automatic Unselected (fast) modes of information processing many years earlier. 

My doctoral dissertation (Porter, 1991) explored the relationship between these two information processing modes and different kinds of cognitive tasks.  I discovered that the attentionally selected, slow (conscious) mode of processing was necessary to deal with uncertainty (i.e., the occurrence of unexpected or random events) but was very susceptible to interference from other concurrent cognitive tasks.  This Selected mode of processing had difficulty with complex tasks.  In contrast, the fast (automatic) mode of information processing dealt with complexity well and was relatively immune to interference from concurrent cognitive tasks.  However, uncertainty rendered this more automatic and unconscious Unselected system ineffective.  Perhaps the most surprising finding in my research was that subjects could learn to master relatively complex tasks without conscious awareness or explicit understanding of the rules implied by the procedural knowledge they had internalized.  In the classroom, it is important to attend to all the things that were unspoken but were experienced directly as well as what was read and said explicitly .  Our biases and stereotypes are largely Unselected, despite our tendency to explain, justify, or excuse our actions using our Selected mode of processing, after the suspect behavior has occurred.

“Processing” information changes the brain.  Memes are stuffed with information.  Memes are patterns of information; they reduce uncertainty.  Neurologically speaking, memes are stored in the complex connections among neurons.  Current experience always involves what is already known. Memory is the residue of thinking; traces of “processed” memes persist.  Some of the information retained in our brains is accessible to consciousness and can be reported explicitly.  However, there is a great deal of information that is preserved within the system that is not accessible to consciousness.  Nonetheless, the absorption and retention of this “information” is implied by subsequent behavior.  Whether it can be explained or not, the informational residue is anything but random; it is highly organized.  The structures that frame this organization are referred to as schemas (Bartlett, 1932).  Had these complex structures been discovered today, they might have been referred to as memo-plexes.  Verbal materials are organized into explicit narratives, coherent clusters of propositions accessible for conversation and engagement.  Jonathan Gottshall’s (2012) intriguing exploration of the role stories play in our humanity, The Storytelling Animal: How stories make us human, provides many examples and illuminating explanations of the role of our narratives in shaping our collective as well as individual identities.  However, all information stored in the brain (both the verbal and the non-verbal) automatically influences the way we experience and interpret new sensations (Sulin & Dooling, 1974).

Learning does not take place by steady accretion and gradual increases in understanding.  Insight creates perturbations in the steady accumulation of knowledge.  As Piaget (1974) and others have found, cognition is not a gradual and continuous process.  Responsible for translating English Intelligence tests into French, Piaget was intrigued by the recurring patterns in the reasons children provided in their explaining “wrong” responses to questions.  Piaget discovered that cognitive development occurs through a series of predictable (and internally consistent) re-organizations of information which mark distinctive stages of human cognitive development.  He believed children are born with basic mental structures on which all later learning and knowledge are built.  Piaget’s work was focused on changes that occurred during the first dozen years of life, as children periodically restructure their information processing into stages that began with simple sensorimotor explorations of reality and eventually lead to a capacity to think about abstract concepts or ideas (i.e., “formal operations”).

A model of cognitive development in college students was proposed by William Perry (1970).  According to his model, most students arrive at college with clearly defined and distinct categories for selecting, sorting, and storing information into preexisting structures (i.e., dualism).  Effective education disrupts these childhood strategies; areas of black and white fade into shades of gray.  The child’s dichotomous view of the world soon gives way to a recognition that the world is more complicated.  Ambiguity is introduced, and students realize that there are different perspectives (i.e., multiplicity) and alternative values and methods for moving towards resolution as well.  Such crises of confidence (the idea that my way of viewing this problem may not be the best way) thus provides the beginnings of the intellectual humility essential to developing more sophisticated and effective ways of thinking.   The later stages of epistemological development involve a willingness to commit to certain values and principles despite the recognition that these beliefs may later be found to be inadequate or even fundamentally flawed.  King and Kitchener (1994), building on the ideas of both Piaget (1974) and Perry (1970), developed ways of assessing and enhancing the development of reflective judgments throughout the college years.  This pattern of development aligns well with Justice Holmes’ prediction that commitment to process and engagement would supersede commitment to the “fighting faiths” characteristic of late adolescence. In a sense, higher learning requires letting go of the confidence of childhood to gain the competence that comes with humility and the careful consideration of complex problems and many alternative potential solutions.

In Academically adrift: Limited learning on college campuses, Arum & Roksa (2011) provide evidence that many college students show no significant gains in critical thinking, complex reasoning, and writing ability.  Their analysis of an extensive study of 2,300 undergraduates at 24 institutions who completed the College Learning Assessment (CLA), revealed that 45% of these students showed no significant improvements in a wide range of cognitive skills over their first two years of college.  One might ask why children do not automatically and instantly begin developing the sophisticated cognitive skills necessary for critical analysis and thinking when given the opportunity.  Arum & Roska (2011) suggest that learning these skills is simply not a priority for modern, “corporate” institutions of higher education.  However, there may be other, additional reasons. 

For example, Breuning (2011) explains how our brain’s own biochemistry may thwart our cognitive development.  The complicated and technologically-sophisticated world we now inhabit, differs from the world that shaped the evolution of our ancestors over the eons.  Breuning suggests that the complex interactions between endorphins, hormones, and neurotransmitters such as serotonin, oxytocin, and dopamine combine to attach us firmly to the other human beings, especially those we consider to be part of our tribe.  From an evolutionary perspective, those who maintained these bonds were the ones most likely to survive and reproduce.  We have inherited a strong preference to go along with the crowd and espouse the beliefs and values of the most significant others in our lives.  Thus, the kid from Appalachia arrives at Berea College with a head full of caveats and concerns about losing the faith and family that sustained her (or him) throughout life.  Also, once a student finds a new tribe, one with a more satisfying and relevant narrative, s/he may come to adhere to those beliefs just as adamantly as the beliefs associated with their birth family (Breuning, 2018).  Sometimes these cognitive shifts reflect cognitive progression.  However, in others, the apparent change is not an escape from dualistic thinking; it is just a refocusing of allegiance from the home family to a new tribe of “progressive peers and professors. 

It is difficult to measure the processes of accommodation which accompany significant cognitive shifts and transitions.  The use of course critiques may indicate where cognitive development is probably not occurring, but it is difficult to discover any single best solution to solving the puzzle of cognitive development.  These transitions seem to happen at different times and in different ways for different individuals.  Erik Erikson’s (1968) theory of psycho-social development suggests that maturation occurs through a series of “crises” that provide opportunities for insight and increased maturity and stability.  The identity crisis which tends to occur during late adolescence and early adulthood is a time of great inner turmoil.  Many cultures recognize this by providing a moratorium on adult expectations, allowing young adults to explore and examine alternatives before assuming the full responsibilities of adulthood.

Surreal times nationally combined with inherently fraught students, fueled by hormones, searching for meaningful attachments in a world of growing complexity, it is little wonder colleges and universities are places of great tension and continual consternation.  In some ways we should be grateful for evidence that anyone ever learns anything.  However, sometimes when we least expect it, evidence of success and authentic maturity and intellectual development give us hope that all is really not for naught. The following excerpt from former student arrived recently. Although such messages are not frequent events, they are nonetheless very encouraging.

“I also want to thank you. I want to thank you for inspiring my interest in psychology, but more importantly, I want to thank you for inspiring me. It’s only now that I’m beginning to understand what you attempted to teach in class every day. I always thought to myself, ‘What’s going on here? Why is Dave just letting the class go to chaos?’ I also wondered why the classes didn’t feel like psych classes. I was wondering why they didn’t feel like regular college courses. The answer?… Your classes weren’t average classes. They were classes in which students were to be mentally stimulated and excited. They were classes that students wouldn’t appreciate for years to come. They were classes that helped make me the person that I am today.”

Opportunity and privilege often combine to provide academic elders with unique gifts to contribute to colleges and universities.  Many changes have occurred in higher education over the last several decades and many more will undoubtedly occur over the coming years.  Considering what role those referred to as “old, white, guys” might play during this critical period could be to everyone’s benefit.         


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Preamble and disclosure of potential bias

Near the end of my favorite TED Talk, philosopher, Daniel Dennett (2002), explains that science is morally neutral; science has no place for hatred or anger.  Science is inherently and impeccably civil; it is classy.  Science enables us to collect the evidence necessary to learn how the world works.  It is a product of the Enlightenment.  As Pinker (2018) suggests, science was one of four essential Enlightenment themes (i.e., the others being reason, humanism, and progress), all of which rested upon the Enlightenment’s “foundational demand of freedom of thought and speech (p. 7).” This is true of the study of physical and biological phenomena; it is also true of social and psychological events.  Behavioral scientists measure things like perceptions, attitudes, beliefs, and interpersonal influence.  What we’ve discovered about human nature has become a part of judicial wisdom as well as common knowledge.  A century ago, Justice Oliver Wendell Holmes espoused psychological principles when he observed that it was only “natural” for people to want to “sweep away all opposition” to their chosen viewpoint.  However, Holmes concluded: “…when men have realized that time has upset many fighting faiths, they may come to believe… that the ultimate good desired is better reached by (the) free trade of ideas…” (in Abrams v. United States, cited in Bollinger & Stone, 2018, p. 21).  Holmes observation portends the value of looking beyond political partisanship and committing to an inclusive process to address society’s most important questions.  Holmes’ commitment to a free and open marketplace of ideas resonates with Dennett’s advocacy of the inherent civility of science.  It is a foundation of higher learning as well as democracy itself.

In these Blogs, I’ll use evidence and argument to support the importance of free speech and academic freedom.  Some of those who rely upon academic freedom as well as free speech introduce unpopular and even offensive ideas.  These mavericks (or monsters depending on one’s own political viewpoint) have a place in the academy; they are the leavening in our academic loaf.  Nonetheless, there is growing evidence that some factions within the academy have developed an appetite for academic lynchings and the martyrdom of those who speak out against the prevailing orthodoxies of political correctness.  Creating environments that accommodate them in a manner that is fair, just, and reasonable, even if perceived to be a little uncomfortable (or unsafe) by some, is necessary if educational institutions are to continue to serve society as a locus of higher learning where debate and controversy continue to reveal greater truths.  Even the worst ideas and the anachronistic arguments that support them have value: rejecting such falsehoods through evidence and reason, leaves us all stronger, and the things we choose to believe more nuanced as well as more secure.  There is a great deal of evidence to support Nietzsche’s famous observation: Things that don’t kill us, often make us stronger (Lukianoff & Haidt, 2018).

I must confess this is a matter about which I care deeply.  This issue is personal: my experiences with my college and its Title IX program over the last two years have consumed much of my time and attention.  In the interest of ecological validity, I created scenarios extracted from actual events relating to the Title IX process.  These scenarios addressed issues and assertions without identifying individual participants. They brought to light policies and practices I believed to be incompatible with Title IX and administrative due process. Nonetheless, the issues themselves were determined to have caused emotional distress to some of my faculty colleagues.  I endured a painful six-month suspension for conducting the survey.  During this time, I was prohibited from communicating with students, visiting my office, the library, post office, or gym without special permission from the my dean.  I was restricted from using or sharing data from the survey that was to serve as a capstone project for my industrial/organizational psychology course.  I was found guilty of professional misconduct because some felt threatened and “unsafe” and my tenure was ended due to my alleged incompetence and inability to maintain confidentiality.  However, confidentiality is neither defined nor required in cases of alleged discrimination by our Faculty Manual or Title IX.  I could not remain silent in the face of what I perceived to be profound injustice directed against a colleague.  My personal reflections in the wee hours of many mornings, clandestine conversations with students and faculty colleagues, and hours spent scouring the web and plowing through contemporary scientific, political, legal, and philosophical texts have provided insights that may be of interest to others.  I confess to being both a maverick and a rebel, but, as I hope to convince you, my cause is worthy; I am not a monster, and I do not intend to remain a martyr.

For some readers my identity is important.  Learning that I am merely another “old white guy” will lead some to read no further.  So be it.  Others will abandon these blogs when I admit to a life of privilege filled with extraordinary opportunities and accolades.  All my education (a B.Sc., M.Sc. & DPhil at Oxford University) was funded by the Air Force.  I served for 34 years in the military and was promoted to the rank of colonel.  By an act of Congress, I became a permanent professor and head of the Air Force Academy’s Department of Behavioral Science and Leadership.  I have served as a consultant/evaluator for the North Central Association, the Western Association of Schools and Colleges, and the Southern Association of Colleges and Schools.  I was one of the dozen or so assessment consultants who helped establish Western Governors University and served as Provost and Academic Vice President for Berea College from 2001 to 2005.  I have been a tenured professor of psychology and general studies at Berea College since 2001.  For over a decade, I’ve been dedicated to enhancing my students’ learning and becoming the best classroom teacher and research mentor possible.

Before you auto-fill all the remaining spaces in my autobiographical sketch, let me share a little more information.  While an AF Academy cadet (many years ago), I was charged with “Blasphemy” for organizing a group of my classmates into a Cadet Humanist League that met in the Jewish tabernacle on Sunday mornings instead of attending mandatory Protestant or Catholic services.  While serving in the Air Force, I was a rescue helicopter pilot, chief functional check flight pilot, behavioral scientist, equal opportunity and treatment officer, race relations instructor, and the organizational maintenance officer of the first aircraft maintenance unit to have women assigned as aircraft mechanics.  I complained to the Air Force Inspector General that the inclusion of photographs in promotion folders was potentially prejudicial and, thus, inappropriate.  I often made choices and supported causes that went against the advice of my more conservative superiors and colleagues.  Cadets at the Air Force Academy enrolled in my sociology course had face-to-face encounters with lesbians, gays, atheists, and witches.  I led efforts at the Air Force Academy to integrate women and civilians into the all-military, and nearly all-male faculty and assess the effectiveness of cadets’ onerous educational experiences.  As one of few “liberals” at the Academy, I wrote the first concept paper suggesting how gay men and lesbians might be integrated into the Cadet Wing.  I was president of the local Unitarian Universalist Church, served on program committees for the first few national environmental film festivals and was one of the founding directors of Citizen’s Project of Colorado Springs established to counter efforts by the religious right to encroach on the rights and freedoms of others in the local public school system.

I’m a good teacher; students consistently have rated my courses in the top ten percent.  My first-year general studies course entitled, “Questioning Authority; skepticism and science as antidotes for oppression” was especially popular and effective in helping students learn to thrive at a liberal arts college.   In this course, we considered oppression at three levels: institutional, interpersonal, and intrapersonal.  My senior research students earned awards for the quality of their research in state and regional undergraduate conferences regularly (about twenty awards in the last decade).  Our psychology department grew in popularity, attracting increasingly larger proportions of women, students of color, and international students.  Our former students had one of the highest rates of graduate school enrollment at the college (about 75% within 3 years of graduation).  Approaching the end of my educational career, I can honestly say that regardless of the eventual outcome of my current legal battle with the college’s administration, I am grateful for having had the opportunity to serve such wonderful students and contribute to Berea College’s unique mission of educating and inspiring economically disadvantaged students and propelling them toward lives of learning, leadership, and service.

Preparing these Blogs has been a labor of love, an opportunity for me to better understand much of what has transpired.  Expressive writing is not only good for the soul, it is good for the psyche (Pennebaker, 1993; Frattaroli, 2006).  I have long admired Mahatma Gandhi’s counsel that one must become the change one wishes to see in the world.  Despite these not being Gandhi’s actual words (Ranseth, 2015), it is a useful paraphrase and captures Gandhi’s sentiment.  The question is how to organize all the information I want to convey into accessible narratives.  The DIKW pyramid (Wikipedia, 2018) provided a useful framework:  Data in context provide Information; Information in context is Knowledge; and Knowledge in context yields Wisdom.  I plan to segregate and organize my observations and ideas by arranging them in a series of topics and issues nested inside one another, like Russian Babushka dolls.  In dealing with information, context is the key to understanding. 

Starting with the largest components of our social system and keeping the focus on the context provided to successively smaller and more specialized components, I’ll begin with some general observations about contemporary American society and the role of free speech.  Just like the human brain (Eysenck, 2012), human societies are composed of many modules with distinct functions and characteristics.  Two modules that are essential to my perspective are the judiciary and higher education.  We will consider not only their current state but the paths that led them there and the somewhat peculiar present relationship between them.  Historically, the judiciary has granted institutions of higher education broad latitude in determining the internal processes which accomplish their educational goals. In fact, the notion of academic freedom, has been a defining feature of the relationship between the judiciary and educational institutions since the AAUP’s historic Declaration of Principles on Academic Freedom and Academic Tenure (AAUP, 1915) and includes the freedom of institutions from oversight as well as protecting individual scholars.  However, in several recent high-level legal decisions, the court has shown a willingness to intervene in college’s and university’s decision processes when these institutions appear to have ignored, neglected, or abused rather than protected the freedoms and Constitutional rights of faculty members and others (Chemerensky & Gillman, 2017; Whittington, 2018). 

Colleges and universities discover and distribute knowledge (Whittington, 2018).  They also endeavor to provide students with appropriate and effective thinking skills in the process (Bok, 2013).  As Postman and Winegartner (1969) suggested in their classic Teaching as a Subversive Activity, higher education requires students to become first-class crap-detectors. Fortunately, these functions are not mutually exclusive.  Education is complicated.  Hierarchical administrative superstructures are ubiquitous.  It will be necessary to consider the administrative structures and processes that characterize higher education organizations and often constrain higher learning.  If it is to occur at all, higher learning often occurs within academic courses taught in classrooms and laboratories.  Concern with student learning and its assessment has become increasingly important in recent decades (Porter, 2015).  However, there is reason to be concerned that the higher learning being promised publicly is not being achieved through current pedagogies and classroom practices (Arum & Roksa, 2014).  Might the lackluster performances in our classroom reflect something about the organizational and campus contexts and in which courses are taught?  Might the “chilling effects” that are of such concern to legal scholars already be oppressing our faculty members and students?  If learning is not clearly prioritized as an organization’s primary objective, we should not be surprised that evidence of institutional accomplishment in this area is difficult to garner.

A brief review of the psychology (including the neuro-chemistry) of human learning can also provide insights providing reasons freedom of speech is a necessary component of the kind of vibrant and active learning process in college classrooms most likely contribute to student motivation and a commitment to lifelong learning.  Once this general contextual framework has been constructed, it will be used to explore several recent illustrative incidents in our higher education community involving “old white guys” and consider the relationship of these events to the broader questions of free speech and academic freedom in a time of great turmoil and uncertainty.      


The following blog postings reflect my thoughts on topics related to freedom of speech, academic freedom, and higher education.  Eventually, I hope to use these blogs as a resource for preparing other articles and, perhaps, a monograph or book.  Your candid comments and suggestions on any of these topics (or others you believe I should address) would be greatly appreciated.  If you leave contact information, it will not be published, but I will gladly respond to your questions and comments.  I appreciate your continuing support in our battle for academic freedom and free speech. 



Educational Institutions’ Purpose & Processes

The purpose of higher education in society is debatable.  Among sociologists, the views of functionalists and conflict theorists differ.  Functionalists argue that education must teach students about the rules and norms of society.  From their perspective, which rests upon the assumption that society in its current form is basically good, higher education should produce the enlightened citizens with the knowledge, skills, and attitudes necessary for modern democracies to operate.  However, from a conflict, or Marxist, perspective, hierarchical societies are assumed to be the problem, and higher education is viewed as perpetuating and exacerbating social injustice.  Societies, even those claiming to be egalitarian democracies, are inherently hierarchical and, thus, privilege some citizens over others.  Gender, race, ethnicity, ability, present lines of demarcation that distinguish those who benefit from those who benefit less or not at all.  Paulo Friere’s Pedagogy of the Oppressed (1970) asserts the appropriate role of education should be enlightenment and the realization of the ways in which oppression causes suffering.  Postman & Winegartner’s (1969) recommendation that students must learn to be first rate “crap-detectors” is consistent with this view. On the other hand, Pinker (2018) suggests the Enlightenment is more closely aligned with the functionalist perspective, while many taking the conflict perspective adhere to views characteristic of “counter-enlightenment”.

While most faculty members can see value in both these perspectives, those who find themselves strongly committed to either extreme may seek to suppress expressions supporting the opposite perspective.  For both sides, this is a matter of organizational justice.  As Rawls (1971) observed, justice is “the first virtue of social institutions (p. 3).”  Current concepts of justice involve three different kinds of justice: distributive, procedural, and interactional justice (Colquitt, et al., 2001).  Distributive justice deals with who receives the organization’s goods, services, and other benefits.  Most people also believe that the treatment of individuals should be equitable and fair (i.e., “equal justice before the law”).  The rules are the rules, and their application should not be biased by individuals’ demographic characteristics.  This is procedural justice.  Interactional justice is also important.  It includes both interpersonal and informational justice. Treating people respectfully is the essence of interpersonal justice. Informational justice concerns the quality, consistency, and consequences of information provided by the organization about itself (Muchinsky, 2009).  Truth and transparency are the characteristics of institutions perceived to exhibit informational justice. The match between what an organization promises and how it performs is a matter of institutional integrity and this is the essence of interactional justice.  The community’s perception of the administration’s ability to balance concerns for all three types of justice determine the overall sense of organizational justice.  Commitment to an organization perceived as being less than just is likely to be superficial and ephemeral at best.

There are other tensions among these different forms of justice emanating from individuals’ different philosophical and political allegiances.  In his 1965 essay, “Repressive Tolerance,” Herbert Marcuse, a modern Marxist theorist, pointed out that adherence to procedural justice in the form of free speech and tolerance is likely to increase disparities in access to and the accumulation of power.  Thus, he advocated “liberating tolerance” rather than equal justice as the appropriate administrative standard.   “Liberating tolerance” maintains that disadvantaged individuals should be given privileges not afforded to others, especially those already occupying positions of power.  Therefore, restricting the freedoms and benefits of those assumed to be “advantaged” may be necessary.  Among the most important of these markers of demographic privilege are gender (male or “cis”), race (white), sexual orientation (hetero), class (upper), and physical ability (“abled” rather than disabled).  Thus, according to Marcuse, in the interest of achieving distributive justice, it is not only permissible, but necessary, to enhance the procedural rights of the dis-advantaged and limit the procedural rights of the already-advantaged. Members of the campus community often support awarding special opportunities to members of previously disadvantaged groups in the form of special workshops, scholarships, preferential hiring and placement, and sabbatical support (i.e., affirmative actions).  However, as Lukianoff and Haidt (2018) suggest, such disparities in treatment can have unforeseen negative consequences.  When the differential treatment involves denying due process, the withdrawal of support for First Amendment rights, or failure to protect academic freedom, judicial review may be warranted (Bonnell v. Lorenzo, 1999; Rodriguez v. Maricopa County Community College, 2010; McAdams v. Marquette University, 2018).  Thus, the institution must balance its commitment to effectiveness and productivity with its commitments to distributive, procedural, and interactive justice.  Over-emphasizing any one of these forms of justice is likely to create problems and undermine morale.

Steven Pinker (2018) provides an emblematic tale from the Soviet era that illuminates the dangers of elevating the goal of equality too far above substantive objective matters.  It goes something like this: Boris and Igor are two Russian peasants suffering under the new communist regime shortly after the revolution.  They have each been assigned identical plots of land and each has a wife and several children to help them eke out their meager agrarian existence.  The only difference in the two men is that Igor has one old, very scrawny, and decrepit goat.  Early one morning, a fairy queen magically appears.  She offers to grant Boris one wish, anything his heart desires.  Without pausing to consider the possibilities, Boris spontaneously replies, “I vant that Igor’s goat should die!” …And so, it did.

As Whittington (2018) asserts, “Universities could be the seat of diversity and learning, but they could also be perverted into the seat of conformity and indoctrination.  Forces both inside and outside the academy could collude to prioritize politics over scholarship on the university campus to the detriment of both the institution and civil society” (p. 3).  Near the conclusion of her text, Fascism, Madeleine Albright (2018) describes two distinctly different but equally dystopian nightmares, both relating to fascism’s oppression of society.  Here is how she describes her first bad dream:

“From cradle to grave, an increasing number of citizens spend their lives within a conservative echo chamber, where they watch nothing but Fox News, memorize the Breitbart catechism, and learn only what goose stepping right-wingers want them to know… heavily armed civilian militias are organized to protect private property made bold by the promise of presidential pardons should anyone pull a trigger in “self-defense” (p. 231).”

This is the vision that many academics steel themselves against.  We hope that learning to think critically will make students into allies who will help save us from this external threat to everything we hold dear.  Equally ominous, however, at least for those who support free speech and reject all forms of fascism, here is a description of Secretary Albright’s second nightmare:

“Candidates elected by wealthy liberals… conspire to enforce rigid standards of political correctness across all major institutions of society – government, police, media, sports, theater, universities and kindergarten classrooms.  Anyone who violates these vague and unwritten norms, or is accused of having done so, is labeled a bigot and fired.  Right-wing speakers are barred from public gatherings because their exercise of free speech might injure the sensitivities of club-wielding anti-Fascists… an increasing number of citizens spend their entire lives within a Socialist echo chamber, learning only what Fascist liberals want them to know (p. 231).” 

As a military commander, I regularly administered the Oath of Office at promotion and re-enlistment ceremonies.  Each member of the military (as well as all other government employees) swears to “support and defend the Constitution against all enemies, foreign and domestic.”  Higher education must now contend with its own enemies, both “foreign and domestic.”  By and large, the enemies of free speech on the right are external to our academy.  Their ranks may include politicians, donors, and members of distinctly un-American (claiming to be ultra-American) fringe groups.  On the other hand, the enemies of free speech within the academy pose an equally serious threat.  Liberal activists, self-proclaimed social justice warriors, confident of the infallibility of their perspective and the righteousness of their cause, are eager to exclude the voices of those with whom they disagree (viz., liberals, moderates and conservatives alike).  They confess a willingness to shout down or even employ violence to prevent the expression of views and ideas they believe could be harmful to the “well-being” of others.  A survey of 1500 public university students showed that about half of these students believed that it is appropriate to interfere with speech they believed to be potentially harmful or hurtful to others (Villasenior, 2017).  Although some of my faculty colleagues might be disappointed that any of Berea College’s students would endorse such illiberal beliefs, most will be heartened to learn that a recent survey of our students revealed that the endorsement rate was only about half as large as at other public schools and universities.  

Nonetheless, disagreement and conflict about these issues is inherent in contemporary higher education.  Alger and Piper of James Madison University addressed the appropriate role of administrators in mediating and arbitrating such conflicts in the most recent edition of the American Association of University Professor’s Academe magazine: 

“… if evidentiary support is provided, leaders of educational institutions should not censor or punish their faculty for sharing unpopular or even offensive views. History shows us that many views that were unpopular or offensive at one time have come to be viewed as correct. And administrators must not presume that they always have a monopoly on the truth.”

Both the functionalists and the conflict theorists and their intellectual progeny, ensconced on the extreme right and left of the political spectrum, presume to already know how society works and assume that higher education’s role is to persuade students to agree with their viewpoint.  This issue has been of central importance to judicial considerations and intervention into academic issues over the last century.  As Supreme Court Justice Oliver Wendell Holmes wrote in his dissent to Abrams, it is more important to commit to a fair and open learning process infused with free speech than to adhere to any particular “fighting faith” that presumes to have captured ultimate truth.  As Holmes, concluded, all life is an experiment.  Thus, it is essential that colleges and universities provide the necessary accoutrements for students to learn about skepticism, the scientific method, and how to use them to reveal and distribute often fragile, ephemeral, and incomplete truths.

Flippity-Flop; It’s time to stop…

The complexity and intractability of issues related to Title IX and protection from hostile learning environment are made more difficult when one considers the multitude of new memes, words, and phrases that have recently emerged.  On campuses across the country, Title IX cases have involved a bewildering array of complicated incidents and complex applications associated with hostile workplace environments and sexual misconduct.  Some of these are clear cases of criminal conduct and unspeakable trauma.  The horrific tales of Larry Nassar’s sexual assault against young women gymnasts are clearly beyond the pale and indefensible (Adams, 2018).  Rape and sexual assaults are crimes, and when they occur, severe punishment for the perpetrator is appropriate; no amount of support for the victims would seem excessive.  However, physical sexual assault has been conflated with speech alleged to create psychologically hostile environment discrimination.  Procedures that may seem necessary to support victims of physical assault have been extended to suppress bona fide free speech and  academic inquiry based on the testimony of those with their own agendas and personal demons.

Even popular politicians appear to conflate hostile environment harassment with sexual assault and suggest that considerations of administrative due process and academic freedom should be held in abeyance unless and until the innocence of the accused is proven.  For example, in a recent tweet (2:04 pm – Jan 10, 2019), presidential candidate Senator Kirsten Gillibrand demanded that: “When someone reports sexual assault or harassment, as a first step, we must listen and believe them so all allegations can be investigated fairly and properly…”  Conflating hostile environment harassment (especially if it is unintentional) with sexual assault is not helpful.  Similarly, automatically assuming all allegations are authentic is no way to ensure investigations will be fair and proper.  Educators must insist that academic freedom and administrative due process are given equal consideration.   

Compared to sexual assaults, assertions and allegations of hostile environments are usually less urgent and more political in nature; they should be open for debate and collective consideration and reconsideration.  Terms like “rape culture,” “white privilege,” and “micro-aggressions” all warrant an objective review of relevant evidence and collective conversation.  Lumping these ideas together with sexual assault depletes the resources needed to address actual crimes and, simultaneously, stymies the debate needed to refine our understanding of these complex social phenomena and develop effective, inclusive, and appropriate communal and institutional responses.   There are some cases, that are so seemingly innocuous or obviously unintentional that administrative sanctions seem to be inappropriate and disproportionately punitive.  The imposition of such punitive measures can undermine community trust in institutional integrity and diminish support for effective and inclusive learning environments. 

Presenting extreme cases can be misleading.  Bell curves describe distributions of events along many theoretical psycho-social continua.  Most of the actual Title IX-related incidents with which I am familiar fall somewhere between the extremes.  Respondents to an academic survey of attitudes and perceptions related to Title IX and academic freedom judged over twenty such incidents described in scenarios drawn from real-life events.  Many of their average responses were located between 3.0 (Slightly Disagree) and 4.0 (Slightly Agree) on a 6-point Likert scale.  When asked whether the activity described in each scenario constituted a hostile environment, five scenarios were collectively rated in this small zone of high ambiguity.  When respondents were asked whether they agreed that the activity described would be protected by academic freedom, about one third (7) of the scenarios received these equivocal ratings.  In fact, only one clearly outrageous and egregious incident received an average rating more extreme than a moderate, Somewhat Disagree (2.0) or Somewhat Agree (5.0) collective rating.  Nonetheless, a plethora of dichotomous neologisms create the impression that these issues fall into bimodal distributions on singular dimensions of good and evil.  This complicates conversations among faculty members and confounds administrative due process.

If one presumes that an oppressive racist patriarchy controls most of the institutions in American society (as suggested by those adopting a conflict perspective such as Marcuse’s or Friere’s), social justice requires turning the tables.  In urban jargon, there is a need to “flip the script,” and this often involves doing something unexpected or subversive or somewhat disingenuous.   Flipping the script is like organizational judo.  The technique involves transforming the traditional sources of power within the organization into vulnerabilities, avenues of attack.  Thus, the #MeToo movement seems to insinuate that control over outcomes, legitimacy, expertise, and even information may be prima facia evidence of oppression and abuse.  Old white guys are sometimes assumed to be guilty if charged unless and until they can prove their innocence.  Those who are outspoken or express skepticism of the social justice movement’s ardent claims become easy targets for additional allegations of discrimination and retaliation as occurred in Laura Kipnis’ case when her dean expressed support for her right to publish her politically incorrect views about campus political issues (Kipnis, 2018b).

The Office of Civil Rights provision that Title IX offenses may occur either by “intention or effect” breaks with common sense as well as centuries of jurisprudence.  If someone tries to poison another person but fails, s/he has, nonetheless, committed a crime.  Conversely, if someone accidentally and unintentionally ends another’s life, s/he is not culpable.   In contrast, Title IX suggests that violations may be established either by “intention or effect”.   This provision has facilitated discrimination claims to be pursued and respondents to be punished severely based almost entirely on the self-reported, subjective experience of the alleged victims.  Title IX requires institutions to address issues of harassment and end it; Title IX does not necessarily require punishment.  Nonetheless, administrations often are attracted to public punishment as a final and dramatic solution to end perceived harassment without regard to punishment’s negative effects on campus climate or academic freedom.  Unfortunately, punishment is often the top choice of the administrators least capable of inspiring the levels of engagement and commitment necessary for organizational excellence.    

The idea of the sufficiency of subjective reports of emotional distress is quite problematic.  Many factors can distort or bias both perception and memory.  For example, individuals who are anxious may focus narrowly on certain aspects of their environment or their experience that they expect to be threatening while ignoring other important contextual information (Deffenbacher, et al., 2004).  Depression profoundly affects memory (Waters, 2008).  Every time a memory is revisited it becomes vulnerable to alteration or amendment (Eysenck, 2012).  Those inclined toward obsession as well as those with depressive tendencies are likely to repeatedly revisit (and idvertently revise) events that upset them.  In the process, the reported memory may differ considerably from both the actual events and even the grievant’s original experience of the event.  Rumination can transform slights that did not seem to be worth mentioning at the time, into serious threats over the ensuing weeks or months.  There is considerable evidence to suggest that the modern mythology around flashbulb memories being indelibly (and accurately) seared into one’s psyche are largely untrue (Talarico & Rubin, 2003).  Regretted or reconsidered sexual activity is not the same as rape (MacDonald, 2018). 

Anxiety and depression have become increasingly common and have many potential causes.  Post-Traumatic Stress Disorder, Post Chemotherapy Cognitive Impairment, and just above average neuroticism are likely to increase anxiety and depression.  Lukianoff and Haidt (2018) provide an extensive list of potential causes for recent national increases in both anxiety and depression.  Whatever the cause, these conditions are likely to distort perception and recall.  Medication prescribed to treat these conditions can also compromise the validity of experience and memory on which testimony is based.  Witness’s and victims’ own beliefs can interact with mood and emotion to alter perception (Vroling & De Jong, 2009).  Well-intended prohibitions on introducing information about “character” into campus administrative proceedings are sometimes extended to exclude information that might legitimately reduce the credence of subjective testimony.  The cognitive biases to be expected by individual victims and witnesses are amplified when pejorative narratives developed by personal interaction provide a social context for perceiving, experiencing, interpreting, contextualizing, and recalling events (Eysenck, 2012). 

The concept of “micro-aggressions” is an example of how good intentions can transform innocuous events into monumental dangers requiring intensive intervention.  Both McDonald (2018) and Lukianoff and Haidt (2018) provide extensive explanations and arguments regarding this topic. 

“The term ‘microaggression’ refers to a way of thinking about brief and commonplace indignities and slights communicated to people of color (and others).  Small acts of aggression are real, so the term could be useful, but because the definition includes accidental and unintentional offenses, the word ‘aggression’ is misleading.  Using the lens of microaggressions may amplify the pain experienced and the conflict ensues (Lukianoff and Haidt, 2018, p. 51).

MacDonald (2018) takes a less charitable view.  In a chapter entitled “The Microaggression Farce”, she suggests administrators adopting a “microaggression mindset” will have significant negative consequences far into the future.  She describes an administrative response to student claims of battery against 79-year-old professor Val Rust’s microaggression of touching the arm of a robust and agitated African American male college student:

“… the administration, rather than correcting the students’ misapprehension, penitently acceded to it.  Colleges across the country behave no differently.  In the process, they are creating what tort law calls “eggshell plaintiffs” – preternaturally fragile individuals injured by the slightest collision with life.  The consequences will affect us for years to come (p. 63).”

What MacDonald refers to as “eggshell plaintiffs,” others label as “fainting couch feminists” (donditit, 2014) defined as: “A common kind of feminism, that sees women as too weak and sensitive for normal adult interaction.”  Christina Hoff Summers (Saul, 2017) uses the terms victim feminism as well as “fainting couch feminism.”  By whatever label, the potential for injustice and wrongful prosecutions of validating this mindset is clear as Summers states in her recent interview (Saul, 2017):

“…many… campuses have descended into a kind of sexual McCarthyism where due process was suspended, and the presumption of innocence was replaced by ‘guilty because accused…’ The important thing is to establish due process… where both sides are fully informed of the process and allowed to question the legitimacy of the evidence… The Supreme Court set a very high standard for what counts as legally actionable harassment… The behavior has to be… severe and pervasive… But… campus officials are quietly amending the Supreme Court standard, so harassment includes anything that makes another… uncomfortable. Even jokes, satire and offhand remarks can lead to charges… Title IX was never intended as a guide to good manners.”

This brings us to a very sensitive topic.  Believing the victims of sexual assault has been so elevated, it has become an article of faith in the modern progressive movement as evidenced by Kirsten Gillibrand’s recent tweet.  From this perspective, questioning or expressing skepticism toward anyone claiming “victim-hood” is both unthinkable and intolerable.  Heather MacDonald (2018) takes this issue on directly in a chapter entitled “The Campus Rape Myth” in her book The Diversity Delusion (2018). The evidence she provides suggests some of our common knowledge and collective assumptions about rape culture and the rape crises on campuses may not be all they seem to be.  However, even if all the things said and assumed about sexual assaults on campus were to be true, it would still be necessary to distinguish, verbal hostile environment discrimination from physical sexual assault.  The courts and the Constitution have made this distinction clear – emotional distress is not a justification for denying anyone their First Amendment rights or punishing them for exercising them.

However, the rules of the game created by Title IX predispose victims to express their injuries in the most dramatic form possible.  Exaggeration and hyperbole are encouraged, if not required, by the implicit rules established by good intentions but a lack of clarity in the guidance provided by the OCR, and many campus Title IX programs.  Intent is unnecessary to establish a hostile environment; a subjective report of an emotional harm itself is deemed to be sufficient; impact and effects matter most, and the more dramatic they are, the better.  The more charges by as many alleged victims as possible, the more compelling the case.  This is especially true, when there are no negative consequences for making false charges or the administration is unwilling to enforce false claim sanctions for fear of dissuading other victims from coming forward or being accused of not being sympathetic to the progressive agenda. 

Somewhat similar situations have occurred in college athletic events for many years.  Soccer and basketball are two sports that have been especially susceptible to a phenomenon referred to as flopping.   Such actions reside on the dark side of sport.  Exaggerated expressions of pain or injury are used effectively by a player on one team to obtain harsh penalties against an opposing player and secure a strategic advantage. In a recent NPR interview prior to the last World Cup, a seasoned observer provided the following candid observation:

“Well, flopping is the dark art of the beautiful game. And make no mistake about it, it is an art. The best floppers, you look at it in real time, you go, oh, God, he got fouled because he looks like he’s the victim of the cruelest… brutality as he crumbles like he’s been shot… It’s not until you look at it in slow motion afterwards you realize it was literally a stiff breeze that knocked him over… is it just another part of the game? …you could argue that it is another soccer skill. However, it’s gotten to the point where it degrades the game. It’s not fun when this happens all the time, and people are rewarded for cheating. You’re not supposed to be rewarded for cheating (Sterry, 2018).”

In the academic games we play, there may be less at stake as in the World Cup of Soccer or the NCAA Basketball Tournaments; however, flopping poses just as great a danger to the integrity of our “game”.  The only real difference between academia and these other intercollegiate events is that our academic interactions seldom provide video replays of the actual events alleged to have been violations of hostile environment prohibitions.

Flopping, however, is not the only threat to institutional integrity.  Bullying is the use of coercive power to oppress (punish or deny rights to) those with less power.  Bullying necessarily involves intention; “inadvertent bullying” is an oxymoron.  Confusion has been created by the phrase, “whether by intent or effect,” often included in regulations prohibiting hostile environment discrimination.  The injury – whether actual or threatened may be either physical or emotional.  However, it is important to consider whether a reasonable person would interpret the situation as the grievant does.  Also, it is important to consider convergent objective evidence – especially in instances where the injury is alleged to be emotional distress.  This can be tricky since those with certain identities (or beliefs) may have a bias toward interpreting situations as being threatening that other reasonable people would consider relatively innocuous.  Old white guys who complain of a lack of due process or accuse their “victims” of flopping are likely to be labeled as “cry-bullies” and have their concerns dismissed without further consideration.  While it may be possible to establish (by a preponderance of the evidence) that a hostile environment existed, automatic punishment of the respondent may be unfair and ineffective.  Punishing individuals for inadvertent injuries to others is itself a form of bullying.  Increasing reliance on the concept of “micro-aggressions” is likely to continue to exaccerbate these difficulties.

It’s time to stop the flipping and flopping and settle in for some sincere and extended conversations about the underlying issues and the common ground shared among the many constituents involved in higher education.     

Title IX:

Title IX of the Education Amendments Act of 1972 is federal law.  It proclaims:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The AAUP (2016) report, The History, Uses and Abuses of Title IX provides an extensive review of the law, its interpretation, implementation, and consequences.  It was authored by a joint subcommittee composed of members of the Association’s Committee A on Academic Freedom and Tenure and the Committee on Women in the Academic Profession. The report criticizes both the Office of Civil Rights (OCR) of the Department of Education and college and university administrations for their inconsistent and indelicate efforts to implement Title IX rules.  In its “Dear Colleague” letter in 2011, the OCR conflated hostile environments with sexual assaults.  The breadth and lack of clarity in the OCR guidance does not distinguish speech that creates a hostile environment from speech that is protected by academic freedom.  Thus, the AAUP report concludes: 

“While increased attention to eliminating sexual misconduct is certainly warranted, the OCR’s recent interpretations of Title IX and the sometimes overzealous implementation of the law by administrators anxious to preempt government disciplinary action have defined sexual harassment so broadly as to undermine academic freedom and due process… the OCR’s recent interpretations conflate speech and conduct—particularly with regard to defining hostile environments—and give little, if any, attention to rights of free speech, academic freedom, and due process.” (p 73).

In a bevy of recent cases, faculty members appear to have been punished for speech that should have been protected by academic freedom.  A common administrative strategy is to identify and isolate or punish individuals charged with creating hostile environments.  In 1980, the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII of the 1964 Civil Rights Act which prohibited discrimination in employment, defined two distinct types of sexual harassment: 1) quid pro quo and 2) hostile environment discrimination.  Quid pro quo harassment is using one’s organizational power or position to demand sexual favors in exchange for employment benefits.  Clearly, such behavior should be considered in the same bailiwick as other intentional acts of sexual coercion and assault.  In contrast, hostile environment harassment, need not be explicit or even intentional.  Any speech or conduct relating to a person’s sex, race, ethnicity, etc. that creates an environment perceived as being so infused with hostility that it unreasonably interferes with an individual’s full participation in the workplace (or educational activity under Title IX) can be considered harassment.  The fact that such discriminatory conduct could be established by “purpose or effect,” indicates that intent (or even awareness) by the accused is not necessary.  The differences in power between students and faculty members was often assumed to create situations where such oppressive and discriminatory hostility might occur.

“Under Title IX (as under Title VII), hostile environment claims are to be analyzed based on objective factors (whether a “reasonable person” in the complainant’s position would find the conduct offensive) and subjective factors (whether the complainant found the conduct offensive). But under Title IX, determination of the weight of these factors and of the balance between them has become skewed in recent years to overemphasize subjective responses to sexual conduct or speech.” (AAUP, 2016, p. 76)

It is understandable why administrations would do whatever is possible to prevent sexual assaults on college campus.  Increased attention to the problem as well as increased social support through movements such as #MeToo have raised awareness and sensitivity to issues that were ignored in the past.  To many, the increased reporting about the issue has created the impression that our campuses are becoming increasingly dangerous places for young women.  However, as Pinker (2018) points out, society in general and college campuses in particular, have made considerable progress over the last 30 years.

“Violence against women is best measured by victimization surveys, because they circumvent the problem of under-reporting to the police; these instruments show that rates of rape and violence against wives and girlfriends have been sinking for decades and are now at a quarter or less of their peaks… Too many of these crimes still take place, but it is encouraging that heightened concern about violence against women is not futile moralizing but has brought measurable progress…” (p. 220) 

Heather MacDonald’s (2018) The Diversity Delusion; How Race and Gender Pandering Corrupt the University and Undermine Our Culture contains four chapters concerning gender issues on contemporary college campuses.  In the first of these, the Campus Rape Myth, she provides both evidence and argument that the public perception of rising levels of sexual assaults on campuses are more political than empirical.  And yet, what is perceived as being real can become real through its consequences.  The perceived urgency of protecting young women from the purported rising tide of sexual assaults has led to increasing regulation and restriction aimed at enhancing ensuring their safety.  Combining sexual assault with all forms of sexual discrimination in a single category of “sexual misconduct” is misleading.  When the always-believe-the-victim maxim is applied to all allegations of sexual misconduct, administrative due process, academic freedom, and freedom of speech are jeopardized.   

To tip the scales to favor victims of sexual assault on campus, the OCR indicated that the “clear and compelling” standard of evidence that had been the tradition for establishing guilt by campus administrative proceedings should be replaced by the much lower, “preponderance of evidence” standard.  This was extended, almost automatically to cover both types of sexual harassment violations.  The OCR guidance concluded that procedures using a “clear and convincing” evidence standard did not comport with a Title IX regulation (AAUP, 2016, p. 78). Many educators expressed concern about the overreach of the new regulations and the effect they would have on the quality of education.  Harvard Law Professor, Jeannie Suk, expressed her view in the New Yorker (2015):

“We are all fallible—professors, students, and administrators—and disagreement and competing narratives will abound. But equating critique with a hostile environment is neither safe nor helpful for victims. We should be attentive to our history and context, and be open to believing, disbelieving, agreeing, or disagreeing, in individual instances, based on evidence.”

The AAUP Report (2016) takes a similarly strong stand asserting the essential role that academic freedom and freedom of speech play in higher learning:

“The presumption that students need to be protected rather than challenged in a classroom is at once infantilizing and anti-intellectual. It makes comfort a higher priority than intellectual engagement… it singles out politically controversial topics… Indeed, if such topics are associated with triggers, correctly or not, they are likely to be marginalized… by faculty who fear complaints for offending or discomforting some of their students… (p 83)  …The chilling effect such requirements pose constitutes a serious threat to academic freedom in the classroom.” (85)

Laura Kipnis (2015b) had expressed similar views when concluding her defense of her actions in publishing an essay critical of her administration’s new regulations concerning consensual relationships between students and faculty members at a faculty hearing at Northwestern School of Communication: “[F]or the record, . . . this isn’t retaliation. It is intellectual disagreement… [W]hat’s the good of having a freedom you’re afraid to use?”

Many administrations have implemented Title IX procedures independent of policies relating to academic freedom and administrative due process.  When asked about the role of “academic freedom” in discharging her duties as Title IX Coordinator at Berea College, the Program Coordinator’s retort was a simple, “That’s not my job!”  Attitudes such as this are not uncommon and directly imperil a university’s educational mission.  The AAUP Report (2016, p. 92) opines: “There is no necessary contradiction between effectively addressing problems of sexual harassment… and fully protecting academic freedom.”  However, the results of a recent survey of attitudes about academic freedom and hostile environment protection at Berea College suggests otherwise.  When asked explicitly the extent to which they supported freedom of speech and protection from hostile environments, survey respondents scores were significantly positively correlated (r=.21*).  However, their implicit bias index derived from their responses to 20 ecologically valid, situational judgement tasks revealed a different relationship.  Respondents were asked to decide if each of a series of hypothetical situations violated college prohibitions against the creation of hostile environments.  They were then asked whether the activity described would be protected by academic freedom; the correlation was strongly negative (r= -.61**).  Similarly, when hostile environment and academic freedom ratings of each respective scenario were plotted, the correlation between scenarios on these two criteria was -.87**.  This is strong evidence that perceiving a situation as being a “hostile environment”, predisposes one to assume that it would not be protected by academic freedom.  Title IX Training Programs designed to increase awareness of hostile environments seldom mention academic freedom.  Nonetheless, it would not be unreasonable to suspect that those who become more sensitive to hostile environment violations are likely to become less supportive of academic freedom and less likely to see it applying to situations they encounter on campus.  This will enhance the chilling effect Title IX is already having throughout higher education.       

The AAUP Report closes with many recommendations, most of them focused on the OCR and college and university administrations.  As indicated earlier, the AAUP report concludes that inconsistent, contradictory, and patently unreasonable guidance from the federal government is a root cause of the confusion and conflict.  The recommendations for administrations include incorporating AAUP language concerning academic freedom in all Title IX policies; including the faculty in all stages of Title IX policy development, implementation, and enforcement; considering the adoption of restorative justice practices especially for unintentional misconduct; and recognizing an administration’s inherent responsibility to support teaching and research on inequality.  AAUP recommendations for faculty are more succinct: “Faculty members have a duty to engage in governance and to refuse demands to curtail or eliminate content or speech that is critical to achieving educational objectives” (p. 98).

The AAUP joint subcommittee was comprised of seven women and one man.  It was composed mostly of faculty members drawn from the humanities, social sciences, and legal profession.  There were several representatives of what have been pejoratively referred to as “grievance studies” and apparently no representatives from the physical, statistical, or mathematical sciences.  Nonetheless, their conclusions clearly support the need for immediate attention and substantial reform.

Similarly, Greg Lukianoff and Jonathan Haidt (2018) go to great lengths to acknowledge the positive side of federal guidelines relating to Title IX in their recent book, The Coddling of the American Mind; How good intentions and bad ideas are setting up a generation for failure.  However, they too conclude that vague and ill-considered federal guidelines threaten higher learning.  They cite Laura Kipnis (2018a) to express their own conclusion:

“The feminism I identified with as a student stressed independence and resilience.  In the intervening years, the climate of sanctimony about student vulnerability has grown too thick to penetrate, no one dares question it lest you’re labeled antifeminist.”

Legal scholars have also expressed concern about the issues raised by the persecution of Laura Kipnis.  In Free Speech on Campus (2018), Erwin Chemerinsky, dean at UC, Berkeley School of Law, and Howard Gillman, chancellor and professor of law, political science, and history at UC, Irvine voice these concerns:

…there is reason to be deeply concerned about how the… Office of Civil Rights (OCR) is interpreting obligations on campuses, and whether it is forcing campuses to violate free speech guarantees.  A months-long investigation of professor Laura Kipnis should not have been triggered by her publishing an article in a scholarly journal.  The OCR should not have instructed the University of New Mexico to punish unwelcome “verbal conduct” of a sexual nature that did not amount to harassment.  In light of these occurrences, the OCR should immediately clarify that campuses will not be at risk under Title VI or Title IX for failing to restrict or punish protected speech, and it should update its guidelines to ensure that no investigations are initiated… merely by an allegation that someone was upset by the expression of ideas or views” (p. 123).

Perhaps the most acerbic criticism of Title IX can be found in Robert Shibley’s (2016), Twisting Title IX.  Noting that the courts have clearly established broad support for freedom of speech and academic freedom on college campuses, Shibley (2016) concludes that in order to be subject to Title IX sanctions, colleges:

“must be deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school” (p. 123)

Clearly, the Office of Civil Rights’ lack of clarity has created consternation and conflict on college campuses.  However, administrators appear to have exacerbated these problems by selectively interpreting and applying parts of Title IX guidance and precedents to suppress unwelcome speech and quell campus dissent.  The “chilling effect” noted above as a consequence of the threat of punishment and the uncertainty created by the complexity and inconsistencies in Title IX itself is not bereft of benefit to administrators seeking to establish sedate but seemingly “progressive” campus.  Many of our colleagues and students, under the banners of fighting faiths such as third-wave feminism, post-modernism, and black lives matter, cannot be blamed for finding common cause with these administrators.  After all, old white guys’ apparent arrogance often makes them easy targets…

Ethics in Human Subjects Research and the Role of Institutional Review Boards

During my suspension relating to the hostile environment and academic freedom survey I had created with my students, there was a great deal of communication among my colleagues.  Due to the prohibition on me communicating with students or even being present on campus, I only learned of some of the accusations and arguments after they were presented and accepted by many members of the faculty.  One of my colleagues, much to the delight of our dean, compared the mental anguish our survey of attitudes and opinions about hostile environments and academic freedom had caused to “injecting the Tuskegee inmates with the syphilis virus…”  Most faculty members in the social sciences are well aware of the infamous events at Tuskegee.

The “Tuskegee Study of Untreated Syphilis in the Negro Male” represents one of the most egregious breeches of research ethics in American history.  Disclosures relating to these studies prompted an investigation culminating in the Belmont Report which became the foundation for our current standards for research involving human subjects and the requirement for all institutions to establish Institutional Review Boards (IRBs).  These will be discussed shortly.  However, truth often gets distorted when it is recruited in service to one side or the other in a tribal conflict. A few corrections to my colleague’s claim illustrate this point: 1) Syphilis is a bacteria not a virus; 2) The study in Tuskegee used indigent share croppers rather than prison inmates, and 3) the subjects of the experiment were never injected with the syphilis bacteria; they had already contracted the disease prior to the study’s initiation.  Nonetheless, subsequent investigation revealed that withholding treatment from the 400 subjects who had contracted the disease contributed to many premature deaths and resulted in the infection of many others (viz., their wives and children born with congenital syphilis).  Due to broad interest and great importance, the Wikipedia site relating to this subject offers many primary and current resources relating to this shameful ethical lapse and its aftermath.

“The Tuskegee Syphilis Study, cited as “arguably the most infamous biomedical research study in U.S. history,” led to the 1979 Belmont Report and to the establishment of the Office for Human Research Protections (OHRP). It also led to federal laws and regulations requiring Institutional Review Boards for the protection of human subjects in studies involving them. The OHRP manages this responsibility within the US Department of Health and Human Services (HHS)” (Wikipedia, 20019).

The Belmont Report

The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research authored the Belmont Report in response to an investigation by a special commission of the US Department of a Health, Education, and Welfare (HEW).  In 1979, the Commission’s report, Ethical Principles and Guidelines for the Protection of Human Subjects of Research, was published in the Federal Register. This report lists the federal guidelines concerning researcher and institutional responsibilities for protecting subjects in medical and behavioral research.  The Belmont Report presents three ethical principles that provide the foundation for other regulations and reports it published.

The three ethical principles for conducting research involving human subjects are 1) respect for persons, 2) beneficence, and 3) justice.  Respect for persons requires that subjects of research be informed about the study for which they have volunteered and advised in advance of any dangers.  They should acknowledge receiving the information and their decision to volunteer in writing.  Researchers should be truthful and minimize deception to only that which is necessary.  Beneficence requires a balancing of potential costs with potential benefits from the study.  It implies the researchers should make charitable and generous assumptions in designing their research protocols and do all they can to reduce the risk of harm to their subjects.  Justice reflects a commitment to basic fairness.  Those who bear the greatest costs and potential risks should receive the greatest benefits of the research.  For example, participation in activities designed to extract information from prisoners for the benefit of their interrogators would be considered profoundly unethical.  These principles were incorporated into the federal regulations establishing Institutional Review Boards and their activities.  

Institutional Review Boards

The Department of Health, Education and Welfare (HEW) revised and expanded its regulations for the protection of human subjects (45 CFR part 46) in the late 1970s and early 1980s.  The latest completed version of the Combined Federal Regulation, Title 45, Part 46, addressing human subjects research  can be found at: .  Part 46 is approximately 20 pages in length.  Subpart A to which about half of the regulation is devoted provides details of the policy and establishes the basic requirements for the creation and function of IRBs.  The next three subparts give special guidance and extra protections for (B) pregnant women, fetuses, and neonates, (C) prisoners, and (D) children.  The final subpart contains additional information concerning IRB administration.  The regulations themselves have been consolidated into about a dozen logic diagrams that help clarify and emphasize the most important information and the relationships among the many rules.  These can be found at: .   The Collaborative Institutional Training Initiative (CITI) provides training programs for students, investigators, and prospective IRB members.  These programs can be found at: .  For those employed by member institutions, training is without charge to the individual.

It is beyond the scope of this essay to cover the Combined Federal Regulations concerning Human Subjects Research, or the typical local rules and regulations implementing these federal guidelines.  However, it is useful to note some of the exceptions and exemptions which are part of these regulations.  One might presume that the regulations cover everything and that anything any individual does to engage or observe another might be considered “research” and fall under the aegis of the local IRB.  Fortunately, the regulations establish some boundaries around the types of activities for which federal oversight and restriction are required and to which the CFRs apply.  The first question in determining whether an activity qualifies as research asks if the activity is systematic and if it is designed to contribute to generalizable knowledge (45 CFR 46 (102 (d))).  Thus, an occasional casual observation is not “research.”  Similarly, a satisfaction survey sent out by one of the many campus services or something designed to address campus-specific issues would not necessarily be considered human subjects research either.  Another very important question that distinguishes “human subjects research” and, thus, requires IRB review, is whether the activity will include direct engagement with subjects or the collection of information that could be used to individually identify subjects.  Activities which do not involve either of these characteristics are not deemed to be human subjects research (45 CFR 46 (102 (f) (1).(2))).  Many data collection platforms provide the option of collecting data with or without such individual reference.  There may be reasons to collect data that will allow subsequent identification of individuals, but forgoing this information, has certain practical advantages.  There is also an exemption from review for studies of “elected or appointed” public officials (45 CFR 46 (101 (b) (3))).

It is noteworthy that IRBs are granted the authority to approve, modify, or deny research proposals, and must carefully consider the potential benefits as well as any risks to subjects that may be involved in each research proposal.   At its best, an IRB review is a face-to-face collaboration between the prospective researcher and the members of the IRB.  As with most other institutions, the Berea College Faculty Manual provides extensive guidance concerning the content and format researchers must use when applying to the IRB for permission to conduct human subjects research.  The regulations do not provide guidance for IRBs conducting reviews and evaluations of research after the fact.  The primary goal of the CFRs and IRBs is the protection of subjects, not the avoidance of controversy or the suppression of information that the administration might find embarrassing or disturbing.     

Court Cases in the Modern Era

Despite the importance of free speech in higher education, the number of cases involving academic freedom and/or free speech and the institutional desire to ensure equal access to education by prohibiting hostile environments, relatively few cases have been decided by judicial review.  Shibley (2016) suggests there are many reasons for this.  Colleges and universities usually have considerably more power than individual complainants.  If institutions decide to put sufficient resources into their defenses, they often prevail by default, attrition, and simply wearing down the resolve or depleting the resources of complainants.  However, the cases that have been heard by higher courts in recent history provide reason to be optimistic that our courts will recognize faculty members’ rights to free speech.  In the recent past, courts have been willing, in many circumstances, to intervene when it appears that administrative authorities have ignored or abused academic freedom or Constitutional rights.

Sweezy v. New Hampshire, 354 U.S. 234 (1957)

The University of New Hampshire, a land grant college established in 1866, is now comprised of seven colleges at two locations.  Its annual enrollment of 15,000 students includes approximately 2,500 graduate students.  The events that precipitated this case occurred in the mid-1950s, at the height of Wisconsin Senator Joseph McCarthy’s investigations aimed at exposing and expelling communists from American institutions.  The Supreme Court ruled that the Attorney General of New Hampshire had gone too far in questioning the beliefs and associations of a suspected communist on the New Hampshire faculty, Professor Paul Sweezy. The court’s decision clearly affirmed that academic freedom and the 14th Amendment’s due process clause were applicable to state as well as federal officials.  Perhaps the clearest expression of the Court’s perspective is revealed by the words of Justice Felix Frankfurter. He supported the court’s conclusion that the state had violated Professor Sweezy’s First Amendment rights and reiterated the importance of academic freedom for university faculty members:

“Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing… with interpenetrating aspects of holistic perplexities… For society’s good – if understanding be an essential need of society – inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible… This means the exclusion of governmental intervention in the intellectual life of a university. It matters little whether such intervention occurs avowedly or through action that inevitably tends to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor… Suffice it to quote the latest expression on this subject…

‘In a university, knowledge is its own end, not merely a means to an end. A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry…`to follow the argument where it leads.’ This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university. The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself.’…

Freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge… It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail `the four essential freedoms of a university – to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 

While this case has been used by some educational institutions to argue against judicial review of internal processes, a closer reading of Justice Frankfurter’s opinions shows that this institutional protection is predicated on institutions being “true to their nature” and providing an atmosphere that vigorously defends scholars’ freedom of inquiry and speech.  As will be shown in the following cases, judicial intervention into areas which might at first appear to be protected by institutional academic freedom have been justified when the institution suppresses or merely fails to protect the academic freedom or Constitutional rights of its faculty members.  

Bonnell v. Lorenzo  US District Court for the Eastern District of Michigan – 81 F. Supp. 2d 777 (E.D. Mich. 1999) August 27, 1999

As the Sweezy case was being decided, Macomb County Community College just north of Detroit, Michigan was being founded.  Today, this multi-campus institution serves approximately 25,000 students and focuses on both general education courses and technical skills training and education.  Despite his trigger warning concerning his use of offensive and vulgar language, John Bonnell, an English Professor, became the respondent to a student grievance concerning his profane language.  In response, Professor Bonnell released a redacted copy of her complaint (her name had been removed) with an extensive rebuttal claiming his language was educationally-appropriate and Constitutionally-protected speech.  The court was asked to decide whether these materials (the original complaint as well as the professor’s rebuttal) violated confidentiality and constituted “retaliation” against the student or, alternatively, were “protected speech.” The court decided the release of the student’s complete complaint, attached to Professor Bonnell’s essay, An Apology: Yes, Virginia, there is a Sanity Clause, was protected by the First Amendment and did not breach confidentiality or retaliate against the student complainant.  The administration itself had determined that the profane language did not constitute sexual harassment but had, nonetheless, briefly suspended the professor for his use of unnecessarily foul language.  Here is the portion of the appellate court’s decision most relevant to our review:

“The Court recognizes that colleges are a resource for ideas, free thought, experimentation, and critical thinking. The position of a college English professor includes with it First Amendment protections… When a college gags the professor or censors the students, the free expression of ideas and thoughts as supported by the First Amendment is impinged upon. There is no valid justification in support of MCC’s suspension of Bonnell… a professor does have a constitutional right to teach in an environment free from First Amendment violations… based on Supreme Court authority… even minor infringements of First Amendment rights constitute the irreparable harm necessary for injunctive relief… ” Newsom, 888 F.2d at 378 (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (plurality opinion of Brennan, J.)).”

The court went on to opine:

“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all… not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom… `The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ The classroom is peculiarly the `marketplace of ideas’. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, (rather) than through any kind of ‘authoritative selection’.”

Harkening back to Justice Holmes’ “marketplace of ideas”, this appellate court emphasized the integral role of free speech in the distinctive educational mission of colleges and universities.  Once again, the court was willing to intervene when administrative actions threatened the Constitutional rights and academic freedoms of a faculty member; their decision favored Bonnell.

Rodriguez v. Maricopa County Community College (2010)

Similar in size to Macomb Community College, Glendale Community College in Arizona, is part of the expansive Maricopa Community College (MCC) system which includes ten institutions serving approximately 220,000 students.  Professor Walter Kehowski, a math teacher at the college, used the Maricopa County Community College’s e-mail listserv, to send three e-mails expressing his views on immigration, the “superiority of Western Civilization,” and other provocative views which were offensive to many of his colleagues and co-workers in October 2003.  Several colleagues complained to administrators, including the president of the college, and governing board about Professor Kehowski’s hostile and discriminatory tone. The Chancellor publicly stated that while Kehowski’s views were “not aligned with the vision of our district,” the district would not discipline him because doing so “could seriously undermine our ability to promote true academic freedom.” 

Faced with the district’s unwillingness to punish Kehowski, six of his Hispanic coworkers filed a complaint against him with the Equal Employment Opportunity Commission (EEOC) followed by a suit in district court alleging the administrative inaction had created a hostile environment based on race and national origin.   In January 2006, a federal district court dismissed the plaintiffs’ Title VII claims against the administrators but allowed the rest of the grievance to proceed. MCC administrators appealed to the Ninth Circuit, asking the appellate court to overrule the district court’s determination that the administrators’ inaction had created a hostile environment.  The court needed to decide whether administrators were required to punish Kehowski for sending his racist e-mails. Title IX requires employers, who are aware of workplace harassment, to end it.  The central question was whether Kehowski’s e-mails amounted to “workplace harassment.”  In a unanimous opinion (joined by retired Associate Supreme Court Justice Sandra Day O’Connor), the Ninth Circuit decided Kehowski’s e-mails, however disagreeable, constituted protected speech and, thus, did not constitute workplace harassment and, thus, were not unlawful.  Here is how the court explained its decision against the plaintiffs in favor of the administration’s refusal to punish Professor Kehowski for creating a hostile environment:

“Plaintiffs, no doubt, feel demeaned by Kehowski’s speech… (But) their objection to Kehowski’s speech is based on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. ‘There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.’ Saxe, 240 F.3d at 204; see also United States v. Stevens, No. 08-769, slip op. at 7 (U.S. April 20, 2010). Indeed, because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate… The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment.”

Not only did the court decide that Kehowski’s speech was protected by the First Amendment, it asserted that it is crucially important that this type of speech be protected on college campuses.  Chief Judge Kozinski explained the court’s rationale:

“This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. ‘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.’ Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)). We have therefore said that ‘[t]he desire to maintain a sedate academic environment . . . [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.’ Adamian v. Jacobsen, 523 F.2d 929, 934” (9th Cir., 1975).

All three of these judicial decisions to intervene and protect faculty members’ Constitutional rights and academic freedoms dealt with actions involving public universities.  Private universities are in a somewhat different situation; they are not a part of the government, and, thus, some have argued private institutions are immune to the Constitutional protections afforded to other citizens.  However, these institutions are expected to protect academic freedom if they do not explicitly claim exemptions to it prior to faculty employment and student enrollment.  In fact, nearly all private college’s and universities make direct, affirmative claims about their protection of full academic freedom and freedom of speech.  As the Foundation for Individual Rights in Education (FIRE) (Silvergate, et al. 2005) states: “If a university has stated a policy in writing, a court will require the university to adhere to that policy, at least in broad terms (p. 61).”  Thus, Constitutional rights and academic freedoms usually become a matter of contractual obligation at private colleges.  This is the issue addressed by the court in the very recent McAdams case. 

McAdams v. Marquette University (2018).

Marquette University is a private Catholic, Jesuit university in Milwaukee, Wisconsin.  It includes 11 colleges and schools and serves 8,400 students, of which 3,200 are graduate students.  As is often the case, many of the undergraduate courses are taught by graduate students.  Professor of Political Science at Marquette University, John McAdams was known for his fiery conservative blogs and strong opinions about education as well as politics.  In one such blog, he berated a graduate student instructor by name who refused to permit debate about gay marriage in her class, claiming any opposition was inherently hostile and homophobic and would not be permitted. The administration, as well as most faculty members, was outraged by McAdams’ public criticism and sought to censure him for his abusive blog. Claiming he posed a danger to others, the administration suspended McAdams and banned him from campus.  From McAdams’ perspective, this treatment violated his contract with the university concerning academic freedom as well as his right to administrative due process and protections afforded by his tenure status.  Marquette attempted to terminate McAdams.

The university convened a “hearing committee” but failed to ensure McAdams contractual due process rights such as having his case considered by unbiased committee members and the right to access the university’s evidence and witnesses. After a weeklong hearing, the faculty committee issued a convoluted report that created new rules and charged McAdams with having violated them. The committee did not recommend termination but did recommend the administration suspend McAdams without pay.  Not fully satisfied with this recommendation, Marquette President Michael Lovell demanded that McAdams also proffer an admission of wrongdoing or be fired. McAdams refused the president’s demand and was indefinitely suspended without pay (viz., “fired”) shortly thereafter. 

McAdams sued Marquette for breach of contract.  His claim challenged both his summary suspension and his subsequent administrative hearing as violations of administrative due process.  The trial court ruled in favor of Marquette, concluding that it had to defer to the faculty hearing committee and adopt all its findings of fact and conclusions of law, despite McAdams showing that Marquette had withheld key information from the committee. Bypassing the court of appeals, the Wisconsin Supreme Court agreed to consider the case.  By a 4-2 vote, the Supreme Court ruled that Marquette had breached its contract with McAdams by punishing him for behavior that should have been protected by McAdams’ academic freedom. Marquette was ordered to immediately reinstate McAdams with his full rights and privileges as a tenured professor.  Throughout higher education, pundits hailed the decision as a victory for free speech and the protection of conservative professors on progressive campuses.

Gibson Bakery vs Oberlin College (2019)


It is worth noting the many ways this decision extended faculty members’ academic freedoms and revealed a state’ Supreme Court’s willingness to look inside administrative processes in making personnel decisions.  Marquette is a private rather than a public institution, but this did not inhibit judicial review.  McAdams had released the name and contact information concerning the graduate student with whom he disagreed.  It may be important that he was disputing her performance as a fellow faculty member and not as a graduate student which might have involved Family Education Rights and Privacy (FERPA) issues.  The court was particularly critical of the administration’s involvement in the hearing process, expressing concern with its apparently unapologetic bias.  The faculty committee itself was criticized for pre-existing biases of members and willingness to let what appeared to be a pre-determined conclusion guide its analysis of the claims and available evidence.  Although the court’s opinion did not cite “the heckler’s veto”, this principle seems to have influenced the court’s decision.  The court indicated that the university got caught up in the post hoc ergo propter hoc fallacy (p. 76).  This involves mistakenly assuming something that happens after an event was caused by a preceeding event.  The court insisted that the faculty committee must conduct its analyses in the “correct direction”:

“With the benefit of hindsight, the University reverse engineered its conclusions that Dr. McAdams is plainly unfit because of an unknown third-party reaction to the blog post” (McAdams v. Marquette, 2018, p.72).  The court also recognized and enforced faculty members’ tenure status from encroachment by even the college trustees noting that their decisions served to: ‘demote tenure from a substantive right to a matter of mere procedure’” (McAdams v. Marquette, 2018, p. 54).

Wisconsin Supreme Court Justice Rebecca Bradley concurred and added even stronger support for the academic freedom of faculty members (McAdams v. Marquette, 2018, para. 97-137).  She suggested that this case put the basic concept of academic freedom itself on trial.  She then provided many strong arguments as to why academic freedom and freedom of speech are essential to modern higher education.  Justice Bradley asserts that institutions that do not fulfill their obligation to protect academic freedom and freedom of speech lose their claim to their own freedom of action and protection from judicial scrutiny and correction.

Gibson Baker v. Oberlin College (2019)

Oberlin College, established in 1833, became the oldest co-educational college in the United States with its admission of four women in 1837. Two years earlier, the college had opened its doors to African American students. Today it houses nearly 3,000 students and has a reputation for its progressive social and political activism. Nonetheless, trouble started when an underage African American student, attempted to purchase wine at a local grocery, Gibson Bakery. The student subsequently plead guilty to a misdemeanor charge and offered a public statement that the incident was unrelated to his race.

Nonetheless, incensed students took to the streets to protest what they assumed to be blatant racial profiling and discrimination. With what appeared to be support from college administrators, students protested in front of the building, distributed flyers accusing the store of racial discrimination and encouraging potential patrons to take their business elsewhere. The college briefly suspended its longtime business relationship with the bakery. Gibson Bakery nearly went out of business and suffered widespread local condemnation. Consequently, it sued the college. In June of 2019, a jury recommended the college pay $44 million in compensatory and punitive damages (Bamforth, 2019). While the final settlement including the appropriate amount of punitive damages remains unclear, the compensatory damages of $11 million reflect the jury’s belief that the evidence showed that the administration’s support for students defamatory messages caused significant harm. The courts do not, and never have, considered freedom of speech to be absolute. Speech that poses “a clear and present danger” of physical harm to persons or property is not protected as Justice Oliver Wendell Holmes observed in his famous decent to the Supreme Court’s decision in Schenk. Likewise, speech that is untrue and defamatory is excluded from protection. In its eagerness to support students, the administration appears to have failed in its responsibility to ensure due process and establish the validity of the claims being made against the bakery.


Considered together these five cases appear to show an initial reticence on the part of the courts to get involved in academic matters.  However, as issues involving freedom of speech and academic freedom have come to the fore, courts have become increasingly willing to consider the internal administrative process – even when they relate to decidedly academic issues.  The court’s jurisdiction has expanded over the last several decades. Initially restricted to only public universities, the McAdams v. Marquette decision showed the courts willingness to consider private universities s well. In the Gibson v. Oberlin case, not only did the court consider the internal administrative decisions of a private institution, it was willing to consider external harm caused by the over-extension of claims of freedom of speech. The court opinions themselves reflect an in-depth consideration and serious concern with the educational purpose and processes of contemporary colleges and universities.

Bamforth, E. (2019) Oberlin College president claims Gibson’s Bakery case could have a ‘profound chilling’ effect on free speech. (June 28).

The judiciary; A Constitutional Context – Latency (1776-1919) 

In many ways, the American Revolution embodied the ideals of the Enlightenment and reflected the liberal desire to balance rights of individuals with limited government (Rubin, 2018; Pinker 2018).  The original Constitution did not protect individual freedoms; however, shortly after its adoption, the rights of individuals were secured by Congress’ adoption of the first ten amendments (viz., the Bill of Rights).  Of special importance, was freedom of speech.  Many consider this to be the Constitution’s most distinctive and enduring characteristic (Whittington, 2018).  This is the freedom on which many other individual freedoms rest.  Assuring individuals, the right to think freely and express and act upon these thoughts (in so far as they do not physically injure others), is an essential aspect of our democracy.  The inclusion of freedom of speech was controversial; some saw it as destabilizing and dangerous.  Soon after the passage of the Bill of Rights, Congress hastened to pass the Alien and Sedition Acts which severely limited individual’s right to criticize the president and the federal government.  Citizens retained broad latitude to speak out, so long as they did not disparage the democratically-elected government.  President John Adams, a Federalist, used harsh measures to punish and suppress the arguments and criticisms of his adversaries, the supporters of Thomas Jefferson, his vice president.  Property was confiscated; President Adams’ most vocal critics were fined and imprisoned.  However, several years later, with the election of Thomas Jefferson, a Democratic Republican, these acts lapsed, never to be renewed.  All punishments under their auspices were annulled and all fines were reimbursed (French, Lukianoff & Silvergate, 2005).

After overturning these overt assaults on free speech, lower courts often nibbled away at the full potency of free speech for much of the 19th century.  Threatened by the destabilizing effects of abolitionists’ impassioned appeals, Southern slave owners sought to prohibit and punish those who spoke out against slavery (French, et al., 2005).  Claiming “emotional distress”, slave owners sought to suppress the abolitionists’ firey rhetoric.  It is interesting to note that the “emotional distress” being caused by slavery itself was completely ignored in these pleadings.  Nonetheless, these efforts failed, largely due to underlying popular support for the general concept of free speech (Curtis, 2000). Social activists from Frederick Douglas to W.E.B. Du Bois affirmed the centrality and necessity of freedom of speech in America (MacDonald, 2018).   

Perhaps the clearest and strongest philosophical arguments for the necessity of free speech are contained in John Stewart Mill’s monograph, On Liberty, published in 1859.  In this brief, but dense, defense of freedom of speech, Mill argues that freedom of speech is necessary for civilization in general but especially for democratic governance.  Mill argued that civilized societies must acquire and distribute truth continually.  Unless one assumes that a full and complete understanding of the truth has already been attained (something Mill labeled the illusion of infallibility), the debates engendered by a diversity of opinions assured by freedom of speech facilitate the on-going acquisition and refinement of truth.  If a commonly held belief turns out to be completely true, then marshaling the evidence necessary to defend it is, nonetheless, useful and society benefits.  If the commonly held belief turns out to be completely false, then consideration of its alternative is essential, and its suppression might be catastrophic.  In the far more common situation when commonly held beliefs turn out to be partially true, consideration of alternative (minority) views is essential in helping to refine and develop the common understanding and application of the belief.  Mill believed that such protections were even more important in democracies than they had been to monarchies and other autocracies.  Left to their own devices, majorities eagerly (and all too often, easily) oppress minority opinions.  Like Jefferson, Mill (1859) asserted that free speech in higher education was essential to procuring the many blessings and epistemological benefits it might bestow on a democracy.

Initially, freedom of speech was more limited than it is today. “Fighting words” and “emotional distress” often were accepted as reasonable limitations on an individual’s freedom to express beliefs deemed offensive or otherwise harmful or unpatriotic.  The US Congress passed the Federal Espionage Act in 1917 in support of government’s right to restrict speech as the country prepared to enter World War I.  In response, Charles Schenk, general secretary of the American Socialist Party, sent 15,000 letters to draftees urging them to resist the draft.  Schenk claimed his letter was protected by the First Amendment and the Supreme Court accepted its first clear test of the freedom of speech.  Justice Oliver Wendell Holmes, writing in support of a scant 5-4 majority finding for the government and against Schenk, asserted that in times of war, freedom of speech was appropriately limited when words themselves may constitute “a clear and present danger” to others.  Although the court decided in favor of the government in this case, in doing so, it set a very high bar for restricting speech in all other circumstances (Bollinger & Stone, 2018).

In their eclectic anthology, The Free Speech Century, Bollinger and Stone (2018) present a collection of essays documenting the rise and current role of freedom of speech in contemporary American jurisprudence.  In their introductory dialogue, Bollinger claims:

“Through thousands of cases, reams of scholarly commentary, and intense and sometimes heated public debate, there emerged in America, a jurisprudence of freedom of expression that is the most elaborate, the most doctrinally detailed, and the most speech-protective of any nation on Earth, now or throughout history” (p. 1).

Stone identifies three key themes which reflect the way courts now interpret and apply the First Amendment.  These are “the chilling effect,” “the pretext effect”, and “claims of crises”.  Each of these facets deserves a brief explanation.    

The chilling effect reflects a phenomenon familiar to behavioral scientists.  The human urge “to go along to get along” is strong and is a part of our neuro-chemical evolutionary endowment (Breuning, 2011).  It can be explained by the potent effects of the neurotransmitter, oxytocin, which explains our general mammalian need to bond to one another in social groups.  Human beings need each other, and those who express views contrary to common beliefs risk being ostracized and rejected by their group.  However, as Meiklejohn observed, the net effect of the individual fear of rejection “mutilates the thinking process of the community.”  This observation reflects concerns expressed earlier by both Jefferson and Mill: individual dissent is dangerous; without protection, it will disappear, and (if it does) the whole community suffers.  “Recognition of this chilling effect and of the consequential power of government to use intimidation to silence its critics and to dominate and manipulate public debate, was a critical insight in shaping First Amendment jurisprudence (Bollinger & Stone, 2018, p. 5).”

Noting that free speech is often offensive, obnoxious, and uncomfortable, the Court has recognized that officials and administrators often fabricate reasons to justify suppressing it.  This practice is so common, it is the second of Stone’s insights: “the pretext effect.”  Given the breadth and lack of clarity in current guidance from the Department of Education’s Office of Civil Rights, college administrators have little difficulty in finding and interpreting justifications for suppressing speech they find to be offensive, obnoxious, or simply unwelcome.  Issues of “confidentiality” are sometimes imported to create support for punishing faculty members, especially if the offense involves information about a student.  However, information about issues and institutional policies (that do not contain personally identifying information) are inherently “public” in nature and, thus, have generally been deemed to be protected speech by the courts. 

Another common rationalization for suppressing free speech is to claim a crisis is imminent.  Bollinger and Stone (2018) label this third component the “crisis effect”.  French, Lukianoff, & Silvergate (2005) explain the dangers of a common example related to the “crisis effect” as the “hecklers’ veto”:

“If a society were to restrict speech on the basis of how harshly or violently others reacted to it (i.e., create a crisis), there would be an incentive for those who disagree to react violently…  This would confer a veto… to the least tolerant, most dangerous, and most illiberal… which… would result in a downward spiral to mob rule” (p 29).”

University administrators seldom have difficulty in finding groups of individuals, often interconnected through social media networks, willing to express outrage at what they perceive to be politically incorrect speech.  Potential harm to the “well-being” of others can be another pretext for suspending or censuring or dismissing a problematic faculty member.  Thus, “the Court has learned to adopt a strong presumption against the constitutionality of view-point based restrictions (Bollinger and Stone, 2018, p. 6).”

It was not until many years later that the court would revisit the issue of emotional distress that had been used by respectable slave owners in attempts to thwart abolitionists’ speech prior to the Civil War.  Intentionally inflicting emotional distress on another, for no good reason, is cause for a civil claim (i.e., a tort) rather than a criminal offense.  Generally speaking, the injured party must show that the intentional or reckless words of another caused injury and that these actions were “outrageous”. 

“According to the guidelines many states have followed in crafting their tort law, conduct must be ‘beyond all possible bounds of decency’ and ‘utterly intolerable in a civilized community’ to qualify as ‘outrageous’.  It must be ‘so severe that no reasonable man can be expected to endure it.’ ‘Mere insults’ do not qualify (French, et al., 2005).”

The Reverend Jerry Falwell sued Hustler Magazine and its publisher, Larry Flynt, for its multiple merciless lampoons of him claiming severe emotional distress.  Despite seemingly outrageous claims, including the suggestion that Falwell had an incestuous relationship with his mother, in 1988, the Supreme Court decided in favor of Hustler Magazine noting that despite the fact that personal distress was clearly intended, such satire was fully protected speech under the First Amendment (French, et al., 2005).   Thus, even when it is proven, and even when it is great, emotional harm caused by words alone is an insufficient reason to deny another person’s First Amendment rights of free speech.  Perhaps the persecution of the perpetrators of the recent “grievance studies hoax” (to be discussed later) may run afoul of the Constitution on this basis.

My country, ‘tis of thee…

“We raised a banner of bold colors–no pale pastels. We proclaimed a dream of an America that would be a shining city on a hill” – Ronald Reagan, (1984).  Despite such bold claims, America’s promise has never been fulfilled as completely as most of us had hoped and many have claimed despite contrary evidence (Zinn, 1999).  Political scientists classify the United States as a federal republic.  Executives, legislators, and courts share political powers at the federal as well as many subsidiary levels of government.  One of the most extraordinary things about us is the complex systems of checks and balances on processes that enable individuals and groups to seek redress for alleged abuses of power that may occur at all levels.  This balance reflects the Enlightenment’s guiding tenets of reason, science, humanism and progress (Pinker 2018).  Adherence to the law and reliance on a system of checks and balances provide for public order while assiduously recognizing individual human rights.  This balance is reflected in our Constitution and, in particular, the first ten amendments to the Constitution (viz., the Bill of Rights).  Freedom of Speech is among these individual freedoms; it is among the most important and essential of all our rights and freedoms.

Several of society’s institutions have had special roles to play in the application and integration of freedom of speech into American society: the media, the intelligence community, the judiciary, and our public and private higher education system.  We’ll explore the distinct roles of the judiciary as well as colleges and universities in greater detail shortly, but first, it seems appropriate to note the current state of affairs in the overall political system and the context it provides for all of our institutions.  

In her recent bestseller, Fascism; A warning, former Secretary of State Madeleine Albright (2018) struggles to define the meaning of fascism.  Asking her students to share this struggle, elicited several astute observations: “Fascism is not so much a political ideology as a means for seizing and holding power (p. 8),” and “It’s not so much what people have, but what they think they should have – and what they fear (p. 7-8).”  Eschewing popular categorizations based on classifications along a singular left-right political dimension, Albright concludes that fascism may best be defined by what it opposes – foremost among these defining taboos is “freedom of speech”.  She illustrates how an array of 20th and 21st century dictators on both the right and the left have effected oppressive fascist regimes. Albright (2018) also notes that the word “fascism” was the second most searched word on the Marriam-Webster website in 2016.  Not surprisingly, “surreal” was the most-searched word in 2016 due to a spike in inquiries immediately after the 2016 presidential election.

I suspect many citizens, especially readers of this blog, may have experienced the trauma associated with the seemingly innocuous ancient Chinese curse: “May you live in interesting times.” How can institutions be expected to discover and disseminate knowledge when truth itself seems to have become a target of those holding political power (Hayden, 2018)?  Similarly, one cannot overlook the nefarious foreign intrigues and intrusions that continue to subvert our democracy (Nance, 2018).  Making matters worse, many dangerous fringe groups have been emboldened by the mainstream political success of those promoting fascist and authoritarian memes. Even groups once considered benign appear to be adopting increasingly antagonistic and oppressive ideas (Stewart, 2018).  Although many vestiges of the Enlightenment can still be found throughout our society, Steven Pinker (2018) suggests instances of “counter-enlightenment” influences have emerged everywhere:

“Since the 1960s, trust in the institutions of modernity has sunk, and the second decade of the 21st century saw the rise of populist movements that blatantly repudiate the ideals of the Enlightenment.  They are tribalist rather than cosmopolitan, authoritarian rather than democratic, contemptuous of experts rather than respectful of knowledge, and nostalgic for an idyllic past rather than hopeful for a better future” (p.29). 

Despite our historic reliance on governmental checks and balances to guarantee individual rights, there are unprecedented challenges to the protection of individual rights so integral to our democracy.  As Thomas Jefferson asserted at our nation’s founding: “An educated citizenry is a vital requisite for our survival as a free people (Berkes, 2010).”  It is understandable why some, even within academia, might question whether completely free speech is a wise policy in such perilous times.  These times are indeed “fraught”; in fact, “surreal” may be just the word to describe our situation.  However, our country and its institutions have faced serious challenges and instabilities in the past.  Might it be wiser to once again place our wagers on a process and progress that includes academic freedom and freedom of speech rather than advocate any particular “fighting faith” we find to be most politically correct and appealing?