Talking out of School: Academic Freedom and Extramural Speech

It will have escaped no one’s notice that the vast majority of controversies over academic freedom and professorial speech over the past decade have involved extramural speech rather than research or teaching. Doubtless this is because social media now pervade practically every aspect of human interaction, such that we are only belatedly beginning to realize that Facebook and Twitter are exceptionally useful devices for stirring up primal antagonisms and generating instantaneous mass festivals of outrage. Moreover, recent years have seen renewed right-wing initiatives to harass and intimidate controversial left-leaning faculty members, usually with the object of pressuring university administrations to fire them. It is therefore urgently necessary to understand how the principles of academic freedom apply to extramural expression, not least to disentangle academic freedom from First Amendment rights to freedom of expression in the United States.

The relation between academic freedom and extramural speech is not well understood, so I will start by trying to clear up some possible confusion. In May 2018, The Chronicle of Higher Education published an essay by Judith Butler, “The Criminalization of Knowledge: Why the Struggle for Academic Freedom Is the Struggle for Democracy.” It is an eloquent essay—excerpted from her keynote address at the 2018 Scholars at Risk Global Congress in Berlin, an ideal occasion for her argument—and its subtitle is exactly right. But it is also a curious essay, for its passionate defense of academic freedom and freedom of expression runs directly counter to American traditions of academic freedom as enunciated and elaborated by the American Association of University Professors (AAUP). Since Butler was not purporting to speak on behalf of the AAUP, it is not that she misstated anything; she was simply offering her interpretation of the relation between academic freedom and extramural professorial speech (in short: there is no such relation). Her defenses of both are robust and necessary. But her absolute distinction between the two is problematic, as I will try to show.¹

Drawing on the work of Joan Wallach Scott, Butler distinguishes academic freedom from freedom of expression—an entirely necessary move, made more urgent by recent debates about free speech occasioned by the reemergence of the white nationalist right and its campus acolytes. “Academic freedom,” writes Butler,

belongs to faculty members within universities who have been appointed for the purpose of teaching and pursuing knowledge. Political expression is the right of citizens to expound upon political viewpoints as they please. They converge when academics who speak “extramurally” suffer retaliation or punishment within the university or are threatened with the loss of their positions. Thus the rights of academic freedom and extramural political expression require institutional structures and support within the university, and they require an explicit and enduring commitment from universities. Indeed, the task of the university is undermined when either of those freedoms is imperiled.

There is nothing to quibble with here. But later in the essay the rigidity of this distinction becomes more troublesome, as Butler takes Scott’s distinction and runs with it:

Academic freedom and freedom of expression are not the same. The professional activities pertaining to one’s academic position should be protected by academic freedom. The extramural utterances any of us make about the world we inhabit, the institutions in which we work, or any matter of public concern should be protected by rights of free expression.

Thus, Butler derives from Scott’s distinction between academic freedom and freedom of expression the conclusion that the former pertains only to activities within the scope of one’s academic position (and, presumably, to one’s academic expertise, though this is a thorny question to which I will return) whereas the latter is properly protected by the state, as it is by the First Amendment.

This is a reasonable account of academic freedom—one that would be recognizable in many countries, including, notably, the countries to which Butler is implicitly (and sometimes explicitly, as when she names Turkey, Brazil, and Iran) appealing in this address: countries that do not have strong protections for freedom of expression. But her account is at odds with the American elaboration of academic freedom, which since 1940 has included extramural speech as an aspect of academic freedom specifically, quite apart from any First Amendment considerations:

College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution. (“1940 Statement”)

There is some problematic language in there, to be sure, and I will return to that in a moment. But the general point is clear: extramural speech is one of three aspects of academic freedom; the other two pertain to research and to teaching. Like the Holy Spirit of the Christian Trinity, extramural speech is the most mysterious and the most elusive of the three.

One reason it is worth trying to clear up potential confusion about extramural speech is that the AAUP did, and does, lay claim to academic freedom for utterances Butler would leave to protection by the state; another reason is that the AAUP definition of academic freedom has profound implications for what it means when one is or isn’t speaking from a position of credentialed intellectual expertise.

Scott’s distinction between academic freedom and freedom of expression rests on the claim that the former is tied to some form of credentialed scholarly expertise. In this she is aligned with theorists such as Robert Post, who argues that academic freedom and tenure are based on a social contract whereby the legitimation of free scholarly inquiry by specialists in a discipline ultimately serves the common good in an open society. But Scott’s reliance on the idea of disciplinary expertise is complex, for she takes a notably generous approach to scholars who challenge disciplinary norms. In her recently published book, for example, she cites a 1986 Committee A statement that suggests “in many instances a show of disrespect for a discipline is, at the very same time, an expression of dissent from the prevailing doctrines of that discipline.” Too reverent a conception of disciplinary expertise, according to this statement, “may end by barring those most likely to have remade the field” (52). The immediate context for this statement had to do with critical legal studies, but anyone familiar with Scott’s career knows that such a principle would resonate for someone who had to argue forcefully for many years against disciplinary norms in which gender was generally not regarded as a useful category of historical analysis.

The relation between disciplinary expertise and academic freedom is therefore unstable, and matters are rendered still more complex by the fact that the meaning of extramural speech, and the AAUP’s understanding of the relation between extramural speech and disciplinary expertise, has changed considerably over time. To simplify the issue somewhat, over the years the AAUP has tended to deemphasize the notion that a professor should exercise “appropriate restraint” and “show respect for the opinions of others” in his or her public remarks (American Association of University Professors), on the grounds that those norms come dangerously close to upholding a standard of “civility” that the AAUP otherwise rejects as a precondition for academic freedom. Furthermore, as John Wilson argued in the AAUP Journal of Academic Freedom, the 1960 Leo Koch case at the University of Illinois represented a turning point in the AAUP’s understanding of extramural speech, which eventually precipitated the 1964 Committee A statement that “a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve” (American Association of University Professors). That principle, in turn, was challenged by the former AAUP president Cary Nelson in the Steven Salaita case (also involving the University of Illinois), who argued that Salaita’s tweets about Israel’s incursion into Gaza in 2014 did demonstrate his unfitness to serve precisely because they were related to his area of scholarly expertise.

Nelson’s essay on Salaita, published in the same issue of the AAUP Journal of Academic Freedom as Wilson’s essay on Salaita and Koch, opens with this statement from Matthew Finkin and Robert Post’s book For the Common Good: Principles of Academic Freedom:

The most theoretically problematic aspect of academic freedom is extramural expression. This dimension of academic freedom does not concern communications that are connected to faculty expertise, for such expression is encompassed within freedom of research, a principle that includes both the freedom to inquire and the freedom to disseminate the results of inquiry. Nor does extramural expression concern communications made by faculty in their role as officers of institutions of higher education. Freedom of extramural expression refers instead to speech made by faculty in their capacity as citizens, speech that is typically about matters of public concern and that is unrelated to either scholarly expertise or institutional affiliation. (qtd. in Nelson)

Thus, for Nelson, Salaita’s comments, though made on Twitter, did not properly constitute extramural speech and therefore had implications for his scholarly work. Note that this is rather different from the claim that Salaita’s tweets would have a chilling effect on any Jewish students who might enroll in his classes, a claim that was made in response to the argument that Salaita had, to that point, nothing in his teaching record to suggest he would be problematic in the classroom. Rather, Nelson’s argument is that Salaita’s tweets deserved less protection under principles of academic freedom than, say, a series of tweets suggesting that the Apollo moon landings never happened because they concerned a subject about which Salaita had also written and taught as a disciplinary expert.

I edited the issue of the AAUP Journal of Academic Freedom in which Nelson’s and Wilson’s essays appeared, and in my introduction I noted that although this debate about the parameters of extramural speech was legitimate and necessary, there is something disturbing in Nelson’s argument. It is, I acknowledged, “unquestionably a plausible argument.” And yet it has

a nasty corollary, as we have discovered in the wake of Garcetti [v. Ceballos (2006)]. In Pickering v. Board of Education (1968), and again in Connick v. Myers (1983), the US Supreme Court held that if an employee’s public speech were a matter of personal grievance rather than a matter of public concern related to his or her employment, then that speech is protected by the First Amendment. The Pickering-Connick test therefore turns largely on whether an employee is discussing matters about which he or she is well informed, and paradoxically affords employees less protection from retaliation for statements in their area of expertise than for statements about matters unrelated to their work. For this reason, I call the Pickering-Connick test a Crank Protection Plan, insofar as an employee who mouths off about matters in which he has no credibility is granted more of a hearing in the public square than an employee who actually knows what she is talking about. That logic underlies the Court’s finding in Garcetti, and it underlies Nelson’s argument here.

The potential applications of these cases to academic freedom and extramural speech are troubling; they establish an inverse relation between academic freedom and scholarly expertise and redefine certain forms of extramural speech as intramural. In other words: it is arguably more damaging to one’s intellectual and professional legitimacy for a historian to deny the Holocaust than for a professor of electrical engineering to do so (and I am of course referring to Arthur Butz of Northwestern University) because one expects that the disciplinary protocols of history departments would militate far more strenuously against Holocaust denial than the disciplinary protocols of electrical engineering; Holocaust denial would seem to offer prima facie evidence that one is unfit to be a professional historian. By that token, a series of tweets from Salaita about faked moon landings could not possibly be taken as evidence of professional unfitness; it would merely be evidence that Salaita subscribed to a belief associated with a fringe of conspiracy theorists. And yet the form of Salaita’s statements was undeniably extramural precisely because the statements were tweets, and there are chilling consequences to the argument that the more informed a professor’s tweets may be, and the more they involve his or her area of scholarly expertise, the less protection they deserve as a matter of academic freedom.

The relation between scholarly expertise and extramural speech was also at issue in a less celebrated but equally challenging example from the University of Wisconsin, Madison, where in 2017 the assistant professor Damon Sajnani offered a course called The Problem of Whiteness, drawing the ire of Republican state legislators, who demanded his firing. The course should never have been controversial and would not have been if not for the fact that the phrase “the problem of whiteness” is a problem for some very fragile white people. Sajnani’s Web page for the course clearly cites W. E. B. Du Bois’s famous question from The Souls of Black Folk, “How does it feel to be a problem?,” as well as Richard Wright’s remark, “There is no Negro problem in the United States. There’s only a white problem.” The university defended the course, as well it should have, since it draws on a century and more of black critical thought on whiteness and white supremacy; and one could argue, as did one intrepid (white) student writing for the student paper, the Badger Herald, that the backlash against the course demonstrates nicely why the course is necessary (Niehans).

But there was a complicating factor. The Wisconsin state representative Dave Murphy, who led the campaign against Sajnani, cited a pair of Sajnani’s tweets from July 2016, when five Dallas police officers were killed by a sniper. One consisted of a photo of CNN’s coverage of the shootings accompanied by the remark, “Is the uprising finally starting? Is this style of protest gonna go viral?” (Wootson). The other read, “Watching CNN, this is the song I am currently enjoying in my head,” and linked to “Officer Down,” by UNO the Prophet (Savidge). Now, it might be remarked that black critical thought in popular culture has included many such protests against police brutality, from Ice-T’s “Cop Killer” and N.W.A.’s “Fuck tha Police” all the way back to that revolutionary West Indian figure who admitted he shot the sheriff (in self-defense) even though he did not shoot the deputy. And yet there is arguably something discomfiting about the spectacle of a college professor apparently cheering on the murder of police officers, all the more so when the statements he makes have a nontrivial relation to his work as a scholar and teacher. The course, The Problem of Whiteness, is not the problem; the people who tried to make it a problem are the problem. But the tweets are problematic and might deserve a formal reprimand by administration—though certainly not firing or suspension.

In closing, I want to turn to a different kind of murky case, one involving extramural speech that was construed as intramural. Courtney Lawton, a forty-six-year-old graduate student at the University of Nebraska, Lincoln, dominated the state news for much of the 2017–18 academic year after she heckled a nineteen-year-old undergraduate, Kaitlyn Mullen, who was working a table and handing out materials for Turning Point USA, the right-wing group that maintains a “professor watchlist” to harass and intimidate liberal and left-leaning professors. The heckling, which involved name-calling, cursing, and the use of the middle finger, did two things: it made Mullen cry, and it went viral when her cell phone video of the incident was publicized by Turning Point USA, which advises students to do precisely this when they find handy evidence of liberal-left professors behaving badly. As in Wisconsin, Republican state legislators called for Ms. Lawton’s firing, and the university responded by canceling her classes (though not by revoking her stipend). The administration claimed that this action was taken not as retribution for Lawton’s tirade but merely out of concern for her safety. It is hard to square this, however, with the university’s subsequent decision not to assign Lawton any online courses for the year. (For an admirably thorough account of the affair, see Kolowich.)

As with Sajnani’s tweets, a critical aspect of Lawton’s protest was its staggeringly poor judgment. But that is not why I cite it here. Rather, what seems remarkable is that in the firestorm that ensued, everything proceeded—and this was largely, though not entirely, the doing of the three Republican state senators who made the incident their cause célèbre for the remainder of the academic year—as if  Lawton’s behavior was dispositive evidence of how she (and presumably other instructors who share her beliefs) treats conservative students in her classes, or as if Mullen was Lawton’s student in some general sense insofar as Mullen was an undergraduate at the university, even though the incident had nothing to do with in-classroom behavior. Indeed, Lawton declared that she had undertaken her protest in the belief that Mullen was not a student (she was) and Turning Point USA was not a registered student organization (it was not). Perhaps some commentators operated in bad faith, treating Lawton’s exchange with Mullen as if it occurred in a classroom even though they knew otherwise; but for the most part, the drama unfolded the way it did because many people, on campus and off, are unsure about what policies and expectations are relevant to a situation in which a graduate student (or a professor, though Lawton’s status as a graduate student is yet another complicating factor) interacts with a student who is not her student.²

In cases such as Salaita’s, Sajnani’s, and Lawton’s—and I am sure we will see many more of them in the coming years—I don’t think we are seeing a full-blown crisis for academic freedom. Rather, I think the real crisis at hand is our broader national crisis, the crisis precipitated by the ascendancy of a fascist and white nationalist to the highest office in the land and the erosion of the fragile norms of democracy. But I do believe we need to realize that the foundations for academic freedom with regard to extramural speech, and the very definition of extramural speech, are shifting beneath our feet. That they are doing so in the midst of the crisis of liberal democracy is all the more reason for faculty members and graduate students to immerse themselves in the intellectual legacy of debates over the parameters of academic freedom.

The stakes really could not be higher. Conservatives’ support for and trust in American universities has eroded significantly in recent years, though it was never very strong at any point in my lifetime (see Jaschik), and Donald Trump’s ascendancy, enabled by so many members of his party, has brought the nation’s most reactionary impulses to the forefront, working them into the threads of the social fabric so deeply that openly racist and anti-Semitic speech and violence are once again a daily fact of life in these United States. Now is not the time to leave the protection of extramural speech exclusively to the state. Now is the time to insist that the extramural speech of university professors is vitally important to the functioning of a free society, especially when it involves academic expertise in things like climate change, colonialism, race relations, gender and sexuality, ethnocentrism, poverty, medicine, technology, urban planning, ecology . . . and, among many other things, theories of justice. Now is the time to insist that extramural speech is a vital aspect of academic freedom—precisely because the struggle for academic freedom is the struggle for democracy.

Notes

1. I was advised by a colleague not to respond to Butler’s argument because any counterargument I offered would inevitably be read in the light of the debate over Israel and the Boycott, Divestment, Sanctions (BDS) movement. The argument was that since Butler is a leading proponent of BDS in academe and I have made known my opposition to academic boycotts in principle (mine is, essentially, the position of the AAUP—I am fine with other forms of boycott), any disagreement about academic freedom and extramural speech would be understood in terms of our disagreement about BDS. I think this is probably true; I know that I have made statements in the past that had nothing to do with BDS but were interpreted in terms of BDS nonetheless. But the irony here is that my position on academic freedom and extramural speech holds that Butler’s advocacy of BDS—indeed, any scholar’s advocacy of BDS—is covered by the principle of academic freedom.

2. This became especially apparent in one of the more curious developments of the case, in which the Nebraska state senator Steve Erdman insisted that the Foundation for Individual Rights in Education (FIRE) be brought in as an adviser to the conflict. As Kolowich reported: “Adam Steinbaugh, an investigator for the group, was troubled by what he saw in Nebraska, but not for the reason the senators expected. Yes, colleges can make and enforce rules for how faculty members should conduct themselves in the classroom, Steinbaugh later explained. Outside the classroom, they can protest however they want within the law. Things might have been different if Mullen had been a student in Lawton’s class, but the women were just two adult strangers expressing their political views in the public square. . . . ‘Penalizing students or faculty for falling short of this laudable goal,’ wrote Steinbaugh in a report, ‘grants administrators unfettered discretion to censor speech that offends others, or offends administrators, legislators, or distant internet commentators.’ Lawton hadn’t been a perpetrator of sins against free speech, according to FIRE. She had been a victim. Later the organization told the university to reinstate her as an instructor—much to the consternation of the three senators, who responded with an op-ed arguing that the free-speech experts didn’t know what they were talking about.”

Works Cited

American Association of University Professors. “Committee A Statement on Extramural Utterances.” Policy Documents and Reports, 11th ed., Johns Hopkins UP, 2015, p. 31.

Bérubé, Michael. “Editor’s Introduction.” Journal of Academic Freedom, vol. 6, 2015, www.aaup.org/JAF6/editors-introduction#.W-dOQnpKgdV.

Butler, Judith. “The Criminalization of Knowledge: Why the Struggle for Academic Freedom Is the Struggle for Democracy.” The Chronicle of Higher Education, 27 May 2018, www.chronicle.com/article/The-Criminalization-of/243501.

Jaschik, Scott. “Why Republicans Don’t Trust Higher Ed.” Inside Higher Ed, 17 Aug. 2017, www.insidehighered.com/news/2017/08/17/new-data-explain-republican-loss-confidence-higher-education.

Kolowich, Steve. “State of Conflict: How a Tiny Protest at the U. of Nebraska Turned into a Proxy War for the Future of Campus Politics.” The Chronicle of Higher Education, 27 Apr. 2018, www.chronicle.com/interactives/state-of-conflict.

Nelson, Cary. “Steven Salaita’s Scholarly Record and the Problem of His Appointment.” Journal of Academic Freedom, vol. 6, 2015, www.aaup.org/JAF6/steven-salaitas-scholarly-record#.W-dRg3pKgdV.

Niehans, Aly. “Why ‘The Problem of Whiteness’ Is an Essential Class at the University of Wisconsin.” University of Wisconsin Badger Herald, 18 Jan. 2017, badgerherald.com/opinion/2017/01/18/why-the-problem-of-whiteness-is-an-essential-class-at-the-university-of-wisconsin/.

“1940 Statement of Principles on Academic Freedom and Tenure.” American Association of University Professors, www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure. Accessed 20 Dec. 2018.

Post, Robert C. Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State. Yale UP, 2013.

Sajnani, Damon. “The Problem of Whiteness.” University of Wisconsin-Madison African Cultural Studies, african.wisc.edu/content/problem-whiteness. Accessed 20 Dec. 2018.

Savidge, Nico. “Legislators Criticize UW-Madison Professor’s Course on Race, Tweets about Shooting of Officers.” Wisconsin State Journal, 21 Dec. 2016, madison.com/wsj/news/ local/education/university/legislators-criticize-uw-madison-professor-s-course-on-race-tweets/article_b09c432a-6e83-5c96-8cbf-3599503f093c.html.

Scott, Joan Wallach. Knowledge, Power, and Academic Freedom. Columbia UP, 2019.

Wilson, John. “Academic Freedom and Extramural Utterances: The Leo Koch and Steven Salaita Cases at the University of Illinois.” Journal of Academic Freedom, vol. 6, 2015, www.aaup.org/JAF6/academic-freedom-and-extramural-utterances-leo-koch-and-steven-salaita-cases-university#.W-dRQ3pKgdX.

Wootson, Cleve R., Jr. “A Professor Wants to Teach ‘The Problem of Whiteness.’ A Lawmaker Calls the Class ‘Garbage.’” The Washington Post, 28 Dec. 2016, www. washingtonpost.com/news/grade-point/wp/2016/12/28/a-professor-wants-to-teach-the-problems-of-whiteness-a-lawmaker-calls-the-class-garbage/?utm_term=.