A Report on the American Classroom 2024: Is Free Speech Just a Matter of Process?

PEN America’s report on American classrooms paints a dark picture: legislatures are passing gag orders on college administration, faculty, and academic norms. Others, looking at the same picture, see hopeful rays of light: legislatures are correcting the overreach of “diversity, equity, and inclusion” practices.

We see the same difference of perspective in a parallel report published by The Foundation for Individual Rights and Expression (FIRE) Free Speech Rankings. It warned about the lack of absolute free speech at Hillsdale College, a stellar example of academic rigor. Larry Arnn, the President of Hillsdale College, stated that FIRE’s warning was wrongheaded.

It is worth taking a close look at how FIRE and Arnn consider free speech in a liberal college education. Should free speech be absolute, or should it be limited by the virtue of civility? It is painful to see these metrics opposed to one another, but FIRE’s report reveals the embrace of the former with warnings—the same is true, as discussed below, in the PEN America’s report.

Responding to FIRE’s “warning” label, Arnn writes:

The Foundation for Individual Rights and Expression has issued a ‘warning’ about freedom of speech at Hillsdale College. In doing so, it exhibits a fundamental misunderstanding of what a college is. FIRE gives Hillsdale high marks for ‘tolerance for speakers,’ ‘student comfort in expressing ideas,’ ‘administration support for free speech’ and campus ‘openness’ to discussing challenging topics. It notes that Hillsdale has never punished scholars for their speech or disinvited speakers from campus. What, then, is Hillsdale’s sin? It is that our ‘policies clearly and consistently state that it prioritizes other values over a commitment to freedom of speech.’

Laura Beltz, Director of Policy Reform for FIRE, responded, saying:

In ‘There’s More to Education Than Free Speech’ (op-ed, Oct. 20), Hillsdale College President Larry Arnn expresses disagreement with the “warning” rating that my organization, the Foundation for Individual Rights and Expression (FIRE), awarded Hillsdale. FIRE gives colleges a warning rating when their policies consistently state that other values override a commitment to free speech. Private institutions have every right to do that, but we think students should know what they’re signing up for.

FIRE doubled down, adding:

FIRE disagrees with that premise, because we believe unfettered freedom of expression is crucial to a university education … [I]f a private school doesn’t have a clear, written commitment to free speech, and instead consistently states in policy that student speech must align with other particular values, we award that school a Warning rating.

FIRE might claim that it consistently places Hillsdale College among the many other colleges that receive warnings. In effect, FIRE’s perspective is that it is not a matter for FIRE to decide which values have merit and which do not and which may, in effect, be pernicious.

Such reports on “free speech” are narrow windows into a university’s climate. They let us examine how expression functions and does not function. However, free speech metrics can be shortsighted if they are defined only by process and not concomitant values.

The PEN Report: Legislative Efforts to Gag Free Speech

America’s Censored Classrooms 2024: Refining the Art of Censorship by Jeffrey Adam Sachs and Jeremy C. Young (hereafter, Report) is an effort by PEN America to track legislative efforts since 2021, creating an Index of Educational Gag Orders. The report focuses on “direct restrictions on educational speech in the classroom.” (Report, p. 1) Forty-seven “gag orders” and ten additional restrictions were enacted in twenty-three states since 2021. What began as legislation to limit faculty speech evolved into new tactics, chief of which is “camouflage, misdirection:”

The campaign to censor higher ed adopted or continued three key tactics: (1) disguising educational censorship laws by attaching them to other popular goals; (2) expanding their targets to undermine the broader system that sustains academic freedom, such as shared governance, faculty tenure, and accreditation agencies; and (3) bullying universities into adopting restrictions without a law.

I will limit my review to the first tactic, “disguising educational censorship laws by attaching them to other popular goals.” The Report gives it the most attention in discussing Indiana’s SB 202, successful legislation that capped several years of failed efforts to restrict faculty speech directly:

[M]ost educational censorship bills don’t fulminate against critical race theory or the New York Times’ 1619 Project. Instead, they are more likely to attach themselves to a worthy goal, like promoting ‘institutional neutrality’ or ‘viewpoint diversity,’ combating antisemitism, or treating all students equally. But Americans should make no mistake: This is censorship by stealth.

I’ve written about viewpoint neutrality. It often requires an instructor to introduce directly conflicting material so students can wrestle with it. That is, academic freedom requires academic responsibility. As I understand it, “neutrality” is a dynamic process.

The absence of neutrality is noticeable when instructors strongly object to obvious alternatives. I recall a tall tale—which may have been true—about a philosophy teacher who rang a bell on his desk until a student stopped talking about subjects such as existentialism. That was in the 1960s when analytic philosophy was in vogue.

Today, the concern would be the literal or metaphorical ringing of the bell when students want to contest the premises and readings from cultural Marxism, critical race theory, wokeness, or whatever demands the student to learn with critical consciousness rather than with critical thinking. Perhaps that is a bias I share with the legislation that the Report takes issue with.

I admit that instructors who adhere to this perspective of viewpoint neutrality and who require students to engage in intellectual combat in the field of ideas may be canceled by students or fellow instructors who decry objectivity, prefer their narrative to be their truth, and espouse identity as their trump card.

Close readers of this review may object for lack of an example of what ought to be taught when adhering to viewpoint neutrality rather than one steeped in narrative truth. At the K-12 level, I discussed this with respect to “Truth in Children’s Literature: A Response to Dr. Siu’s American Ogres.”

At the university level, Isabel Wilkerson’s book Caste: The Origins of Our Discontents may help focus this discussion. Wilkerson ably describes the dozens of anti-miscegenation laws enacted in the U.S. states. She does not mention Loving v. Virginia (1967), which voided all these laws. The book’s subtitle could defend her approach, namely, the origin of the rigidity of our racial divide—caste. However, leaving that survey with her own subjective experience lends itself to thinking that we are still beset, in the same way, with that form of racial divide, at least, as part of a lingering racial consciousness. By contrast, value neutrality would arguably require mention of Gallup polls that saw only four percent of Americans accepting interracial marriage over sixty years ago, while 87 percent accept such marriages today. Actual interracial marriages have also increased substantially.

Social change does not invalidate her narrative, but it presents a different understanding of society then and now. This exchange of views is indelibly connected to the quest for viewpoint neutrality as a dynamic process in our cultural debates.

The same close reader may think that I am unfair to the authors of the Report. How would the authors respond to my critique of “disguising educational censorship laws by attaching them to other popular goals [such as viewpoint neutrality]?” Or perhaps that we are talking past each other?

To this point, Jeremy C. Young, one of the Report’s authors, and I had a robust Zoom discussion, including this issue. Young admitted that there were institutional problems along these lines, but the report and PEN America took issue with legislative efforts to correct educational practices that set up regimes of woke consciousness. The Report did not take issue with individual faculty or departments possibly needing corrective measures.

The Report (p. 10) cites Florida legislation that prohibits teaching that “distort significant historical

events or include a curriculum or instruction that teaches identity politics, violates [the Stop WOKE Act], or is based on theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities.”

The legislative objective seems praiseworthy—to avoid ideological indoctrination.

The Report, however, concludes that Florida’s law is unconstitutional: “All of the above is flatly unconstitutional.[Fn.] But that has never stopped Florida’s government before. Indeed, HB 1291 also requires faculty to follow the Stop WOKE Act, a law so repugnant to the First Amendment that in 2022 a federal judge declared it ‘Orwellian’ and blocked the state from enforcing it.” [Fn.]

In this respect, the PEN America Report can claim an interim judicial win over Florida’s legislation to restrict university wokeism.

But What About Indiana’s SB 202—the Camouflage Approach?

Our close reader might complain of “whataboutism” as a logical fallacy. That would make sense in a tit-for-tat debate, but when it calls attention to a broader systematic approach, it is simply pointing out that the analysis in presently incomplete. So, what about Indiana’s SB202?

The legislation will require faculty to show the following (Report, p. 12):

1. helped the institution foster a culture of free inquiry, free expression, and intellectual diversity within the institution;
2. introduced students to scholarly works from a variety of political or ideological frameworks that may exist within the curricula established by the [college or university]; or,
3. while performing teaching duties within the scope of the faculty member’s employment, refrained from subjecting students to views and opinions concerning matters not related to the faculty member’s academic discipline or assigned course of instruction.

To me, and apparently the Indiana legislators, these requirements promote “intellectual diversity.” While the Report acknowledges these requirements may appear “salutary” and “innocuous,” but they are camouflage; in fact, SB202 is the “most censorial pieces of legislation that PEN America has come across since our tracking began in 2021.” (Report, p. 12)

The Report hypothesizes that “bad teaching” will incentivize teachers to anticipate student expectations of variety rather than an objective understanding of variety in disciplinary and societal debates. (Report, p. 13) More than this imagined bad teaching, the Report zeroes in on requiring faculty to teach what they are contracted to teach. An example, I suppose, would be astronomy instructors teaching The 1619 Project.

But the report sees a pernicious wider net to this restriction on academic freedom:

Second, SB 202 will stifle faculty speech. By enabling governing boards to enforce a ban on expressing a view or opinion ‘not related to the faculty member’s academic discipline or assigned course of instruction’ —instead of leaving this determination up to faculty themselves, as suggested by the American Association of University Professors—the law hands trustees the power to impose a subjective standard on faculty. How do the trustees determine whether a line has been crossed? However they please. Faculty will need to anticipate their preferences and adjust accordingly, with no recourse to academic freedom protections. SB 202 is a stunning violation of academic freedom and campus free speech.

The Report’s conclusion is somewhat surprising. First, the AAUP has recently changed its 2006 policy against boycotts. In effect, greenlighting the anti-Zionist BDS boycott that several academic organizations want to join. While this shift in AAUP policy has the outward appearance of favoring free speech, it should be understood as permitting political action against another country’s academy, one that has experienced the worst massacre since the Holocaust: “While AAUP doesn’t directly mention Israel, or any country, Rana Jaleel, chair of Committee A, told Inside Higher Ed that the policy change is being made ‘in the context of Israel and Gaza.’”

One could liken AAUP’s former policy against boycotts to SB202’s guardrail to secure intellectual diversity. Both, in this context, set a ground rule to define fairness in the battlefield of ideas─or, to use the less accurate metaphor, the marketplace of ideas.

However, that comparison takes us away from a more important discussion the Report.

Is Academic Free Speech Just About Process?

The woke issue in educational settings can be viewed from numerous perspectives: curriculum, hiring, publication, and even pronouns. Two court opinions, one at a high school and the other at a university, found for professors against students who demanded that they use the students’ desired pronouns. It is less likely that administrators or companion faculty would make the same demands. However, other concerns define the woke problem at universities, such as using mandatory diversity statements to screen faculty hiring and promotion.

The Report notes, “The problem of viewpoint diversity on campus is real, and has existed for some time.” (Report, p. 13. Fn.) During my conversation with Young, I proposed that the report would have been more balanced if this comment about viewpoint diversity had been placed on page one rather than buried on page thirteen. In effect, the Introduction would have read: The problem of viewpoint diversity on campus is real, and has existed for some time. But Americans should make no mistake: This is censorship by stealth.

My hypothetical revision might have hedged the criticism of SB202 and the claimed camouflage tactic to censor academic freedom. The criticism would have been less about the motivation and substance of Stop Woke and focused primarily on the process.

The Report, however, focuses on what Christopher Rufo presumably meant when he was quoted as saying, “The goal of the university is not free inquiry:”

Christopher Rufo, a leader of the educational censorship movement and himself a trustee at Florida’s New College, has famously declared that ‘the goal of the university is not free inquiry.’ Could an Indiana professor who agreed with him on this point convince a trustee that they ‘foster[ed] a culture of free inquiry’ in the classroom, and therefore deserve tenure? Plainly not. (Report, p. 14)

The Report rests its understanding of what a university is and ought to be in terms of “free inquiry.” The phrase seems unambiguous, not open to interpretation, and clearly wrong. But is it? What would Rufo have said about this quote attributed to him? Perhaps we are looking at two different universes of understanding. This is something that all participants should be aware of and engage with rather than truncating the discussion to generate a Report on the American classroom. Rufo says:

This quotation is a misrepresentation, but an instructive one. My full quotation raises the question not of method, but of purpose: “The goal of the university is not free inquiry—free inquiry is a method toward some other goal.” As I explained as part of a symposium on higher-education reform at Stanford University, in the classical tradition, the goal of “liberal education,” derived from the Latin word liber, meant the cultivation of the free citizen and the pursuit of truth, goodness, and beauty. Today, many universities have relinquished these transcendental ends and have replaced them with a new, secularized trinity—”diversity, equity, and inclusion”—or, like Galston, have settled on a defense of procedural values, such as “free inquiry” and “academic freedom,” with no particular end in mind.

This is a grave error. Though free inquiry and academic freedom can serve as powerful methods, being value-neutral, they cannot establish a value hierarchy or provide a firm basis for scholarly standards. In his essay, Galston suggests that Nazi scapegoating and Soviet pseudo-science should be excluded from academic life, but on what standard does this judgment rest? If “academic freedom” is the ultimate criterion, scholars who pursue error are just as entitled to their positions within the university as those who pursue truth. Under a regime in which “free inquiry” is the highest value, nothing can be prohibited—everything must be allowed, including ideas that are anathema to right reason.

Rufo’s response to William Galston should have been included in the Pen America Report. If the Report had not strawman Rufo, it would have been more meaningful about what should be done about a “real” problem that had “existed for a long time.”

Reflection on the American Classroom

My conversation with Jeremy Young about the Report did not resolve the Galston-Rufo debate that underlies the fear of a camouflaged attack on academic free speech. Between ourselves, we had a lively debate that should describe the American classroom. It is likely that this American classroom does exist, but its distribution is uneven. And in some institutions and classrooms, we would encounter the indoctrination of critical consciousness.

The question that remains on the table is what is to be done.

The PEN America Report, along with the FIRE’s Free Speech Rankings, while acknowledging  this real problem in the American classroom, both stop short of measures for self-correction except for ineffective ones.

By contrast, Rufo takes the next step. “The American public has the intuitive sense that higher education has been compromised. The ideologues who have hijacked our public universities have shown no ability to self-correct. Political intervention is not only legitimate but necessary.”

Art by Joe Nalven — Absolute Free Speech