Pennsylvania

By David French—FrontPageMagazine.com–10/28/05

Those who continue to doubt the wisdom of Justice Louis Brandeis’s famous statement “Sunlight is the best disinfectant” should pay close attention to the news from Pennsylvania. A House Select Committee on Student Academic Freedom is conducting an investigation into the state of liberty and genuine intellectual diversity in Pennsylvania’s public universities, and the academic establishment is fighting back.

It has become a common tactic for defenders of the academic status quo to equate scrutiny with “McCarthyism” and criticism with censorship. For example, at Brooklyn College, the local professors’ union went so far as to declare that press stories about academic misconduct (such as punishing students who dissented from a professor’s radical views) were part of an effort to “intimidate” the school’s faculty. The union also asked the school’s chancellor to condemn the New York Sun for its attempts to investigate and report faculty wrongdoing. In other words, a group of public officials (and public university professors are public officials) was calling on another public official to condemn the free press for investigating potential unlawful acts of the local government.

Brooklyn College’s faculty is not alone in confusing criticism for censorship and equating oppression with academic freedom. In the June 8, 2005, issue of Al-Ahram, Joseph Massad, the Columbia University professor at the center of a firestorm of controversy regarding the treatment of pro-Israeli students in Columbia’s Middle East Languages and Culture Department, wrote to decry “the campaign of the last three years . . . to attack U.S. universities as the last bastion where a measure of freedom of thought is still protected.” And what was one of the prime movers in this alleged campaign against academic freedom? Once again, it was the free press – specifically the New York Times, a paper that Massad accused of disseminating “Israeli propaganda” as “objective truth.”

In the distorted world of university censorship, actual violations of the law (such as Brooklyn College’s absurd punishment of dissenting students) represent legitimate exercises of academic freedom, while free speech (such as the New York Sun investigation) is the equivalent of “intimidation” that has a “chilling effect” on academic expression.

It is thus not surprising that the academic establishment has reacted negatively to the decision of the Pennsylvania House of Representatives to establish a Select Committee on Student Academic Freedom to investigate potential abuses in Pennsylvania’s public universities. Scrutiny is anathema to the academic establishment. While academics often applaud meticulous regulation of other governmental bodies (such as the Pentagon) and various private industries, their stance regarding the massive government bureaucracy that is public higher education is: “move along; nothing to see here.” Even Pennsylvania’s brief investigation (with no legislation under consideration) stirs calls of “McCarthyism” and fears of a “chilling effect.”

On September 19, 2005, I testified before the Select Committee and sought to both dispel the fears of a so-called “chilling effect” and to explain the constitutional obligations of public universities to their students – and to the citizens of the state (for a complete transcript of my testimony, click here). First, I made it clear that the critical issue is not whether professors offend students or students offend professors – since no one has a right not to be offended – but whether a true marketplace of ideas exists on campus. The question is not whether an individual professor teaches in a provocative manner but instead whether that professor has the academic freedom to teach his or her subject and whether students have the academic freedom to dissent from that teaching without suffering retaliation. Also, given that a true marketplace of ideas cannot exist without diversity of viewpoints, the Select Committee should investigate to determine whether such diversity exists on Pennsylvania’s public campuses, and if it does not exist (and there is no reason to believe that Pennsylvania’s public universities are any less ideologically uniform that public universities elsewhere), the Select Committee should investigate the reasons why not.

At the hearing, I presented compelling evidence that Pennsylvania public universities have plainly failed to protect student free speech. A review of posted harassment policies reveals that the vast majority of Pennsylvania’s public universities have enacted speech codes that prevent students from speaking freely on matters relating to race, gender, sexual orientation, religion, and class. For example, Indiana University of Pennsylvania prohibits the posting of material that is “insensitive to affirmative action issues.” Is affirmative action so enshrined in Pennsylvania public policy that students are prohibited from being “insensitive” to the very issue? (This of course begs the question as to exactly how one can demonstrate insensitivity to something as impersonal as an “issue”). Millersburg University of Pennsylvania bans the transmission of any “messages and materials deemed offensive by university policy.” Yet the state simply does not have the power to deem some messages “offensive” and then ban their transmission. Penn State’s speech code includes a ban on “acts of intolerance” – a ban all the more remarkable given the recent decision by federal court in Pennsylvania to strike down a speech code at Shippensburg University that contained those same words. So, to university administrators and establishment academic defenders who say there is nothing wrong with higher education in Pennsylvania, there is a decisive response: your own written policies violate the Constitution.

And yet the investigation has barely begun. I also emphasized the importance of intellectual diversity in higher education. Not even the higher education establishment can deny the importance of a broad range of viewpoints to a quality college education. When arguing before the Supreme Court of the United States in favor of affirmative action, the American Association of University Professors stated in its brief: “A diverse educational environment challenges [students] to explore ideas and arguments at a deeper level, to see issues from various sides, to rethink their own premises” (emphasis added). The American Council on Education’s recent Statement on Academic Rights and Responsibilities states, “Colleges and universities should welcome intellectual pluralism and the free exchange of ideas” (emphasis added). In theory at least, there is broad agreement that a university education is enhanced by an exposure to a broad range of ideas.

In practice, ideological uniformity is a national problem, with the vast majority of professors on one side of the political spectrum (in fact, there tends to be more intellectual diversity in your average suburban church than in university humanities departments). The Select Committee should determine whether this national problem also infects Pennsylvania, and it should determine whether this problem is at least in part caused by actual violations of the law. Recent studies have shown, for example, that “observant Christians” are dramatically underrepresented on college faculties; yet religious discrimination in hiring, retention, and promotion is prohibited by law. Moreover, job advertisements and departmental mission statements are often explicitly ideological and send a clear message: conservatives need not apply. While self-selection is certainly one factor to consider when looking for reasons for ideological uniformity, it would be irresponsible not to consider whether Constitutional and statutory law are being violated. Certainly if the racial or gender disparities were so large, the university establishment would not be (and has not been) content with a simple explanation of “self-selection.”

David French gave the following testimony before the Pennsylvania House Select Committee on Student Academic Freedom on Monday, September 19, 2005.

DAVID FRENCH:Mr. Chairman, members of the Committee, thank you very much for this opportunity to address you.

Let me begin with a quote from the Supreme Court of the United States. It is not the quote that begins the report that has been issued. It is a different one. It’s from the case of Sweezy v. New Hampshire.

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straightjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation. Teachers and students must always remain free to inquire, to study, to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.

Those are very powerful words from the Supreme Court. And, in fact, those words were, in part, the inspiration for the founding of FIRE, the Foundation for Individual Rights in Education. Very briefly, what we are is a nonpartisan, secular, civil liberties organization that defends free speech, religious liberty, freedom of conscience and due process on campuses across the country. We are based in Philadelphia. We have offices in the Curtis Center overlooking Independence Hall, which is appropriate for the defense of free speech. Our agenda is very simple. Our agenda is to preserve the marketplace of ideas on campus and, where the marketplace of ideas has been destroyed for whatever reason, to restore the marketplace of ideas on campus. To that end, the investigation of this Committee is central because the Committee obviously plays a central role in defining how higher education is run in this state and has a central role in defining what is and is not academic freedom in this state.

So my goal here is really quite simple. I want to discuss what academic freedom is and, importantly, what it is not, what the constitutional rights of students and professors are and are not; and what are the institutional responsibilities of Pennsylvania public universities. What are the responsibilities that these arms of the state have towards their citizens, The students who attend, the professors who teach. Quite simply, the best place to begin is with the First Amendment. The First Amendment – this comes sometimes as a, unfortunately, as a surprise to administrators – it applies to students and it applies to faculty. There’s a very good short rule of thumb that if speech is constitutionally protected outside of the academy, it’s generally constitutional protected inside of the academy.

There is no zone in the academy – or the academy is not an unfree zone and it’s not an area where those who have responsibility for the academy have a greater latitude to restrict speech. In fact, the Supreme Court has long recognized that our school – our institutions of higher education, as distinct from secondary schools or elementary schools, are supposed to be marketplaces of ideas. They’re supposed to be places where the uncomfortable questions are asked; where traditional notions of truth are challenged; where students can expect to sometimes be offended, sometimes be encouraged by the things that they hear and see on campus. The goal of the university is to be a place where truth can be discovered through inquiry, through debate, through exchange, not just scientific truth, but also historical truth, arguments about political truth – I’m not sure it’s accurate to use the phrase political truth. The goal of the university is to create a place, a marketplace where you can debate and you can discuss, you can disagree, and you can even offend in the goal of exchanging ideas and the goal of advancing human knowledge and the goal of advancing our culture.

Unfortunately, our universities across this country – and, unfortunately, Pennsylvania is no exception – have to a large degree abdicated that responsibility.

For the interest of larger goals, or presumed larger goals, there are now speech codes that govern student conduct on campus. A speech code, if you would like a definition, is any policy or practice that prohibits speech that the First Amendment would otherwise protect. Pennsylvania’s public universities have several speech codes: Prohibitions against speech that one or another group would find subjectively offensive. Speech codes have been struck down in every single court in the United States where they have been challenged, including a federal district court in this state at Shippensburg University where a Shippensburg University speech code was struck down – or the enforcement of it was enjoined in late 2003. Unfortunately, despite this judicial decision, speech codes still exist. Students, professors, and institutions have academic freedom. Students, professors, and institutions have certain rights of expression. I’ll begin with the students.

Students have a right to enjoy the fullest First Amendment rights. They have a right to dissent from the mainstream in politics. They have a right to protest peacefully and lawfully. They have a right to disagree with teachers. They have a right to disagree with administrators. They have a right to publish and publicize their disagreements.

When you talk about the First Amendment rights of students, you are talking about the First Amendment rights of citizens of the United States.

Their rights are extremely broad, extremely broad, limited only by lawful prohibitions and certain very small categories of speech such as fighting words; such as obscenity, as that term has been constitutionally defined; such as certain kinds of speech that rises actually to the level of harassment. But outside of these narrowly defined exceptions, the speech of students is widely protected. Now, to be clear – and I know that this has been an issue in public discussions – students do not have a right – their broad rights do not include a right to be taught what they want to hear. Their broad rights do not include a right not to be offended. Their rights do not include a right to have a teacher tell all sides of the story as they see all sides of the story. But their rights do include the ability to criticize a teacher into dissent even in class so long as dissenting or disagreeing is done in a way that’s not disruptive and doesn’t prevent the ability of the teacher from conducting the class. So students have very broad First Amendment rights.

Teachers do, as well, although, there are some limits that have been defined traditionally and have been defined by the American Association of University Professors.

On page 3 of our report, we quote from an AAUP statement, which I think, stands to this day. It was written in 1940 and stands to this day. It’s still the single best statement of professors’ academic freedom:

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…[T]hey should at all times be accurate, should exercise appropriate restraint, and should show respect for the opinions of others and should make every effort to indicate that they are not speaking for the institution…Teachers are entitled to freedom in the classroom in discussing their subject; but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.

What does this mean? What it means is that a teacher who is teaching, for example, sociology or political science or history has an enormous amount of latitude in determining the curriculum, the readings of the class, the precise topics covered within the subject of the class; they have an enormous amount of freedom in the classroom discussion so long as the classroom discussion remains germane to the topic of the class; and that they in truth should be free from state oversight into those kinds of decisions. Because that is the core academic freedom function of a professor.

What is a professor not free to do? A professor is not free to use a class – let’s say a mathematics class – to advance a particular political agenda. That is something that a university, an institution, can properly restrict without interfering with that professor’s First Amendment rights. Their First Amendment rights do not extend to the ability to use the state-provided platform to advocate for personal political goals if those personal political goals are not the subject are germane to the topic of the class.

This is a source of enormous controversy on campus. But we need to be clear: There is a difference between a teacher teaching something that a student gets upset at, that a student is offended by. A student does not have a right not to be upset or not to be offended in the teacher misappropriating the use of a classroom for a partisan political end. Those are different things.

Now, institutionally, a university has an ability to shape its own message and curriculum to a large degree. In fact, if there’s one kind of academic freedom that the federal courts have been virtually unanimous on finding is that there is institutional academic freedom.

Private universities have an enormous amount of institutional academic freedom. If you want to in this country, you have a constitutional right to set up a religious college where you only allow people to attend that college who agree with the statement of faith of the religion and then can actually exclude teachers and fire teachers who don’t agree with the basis of faith of the college. That’s for a private university.

Secular private universities have an equivalent level of freedom. They can decide to define themselves according to a particular agenda.

Public universities are different. They do have a degree of academic freedom, certainly, to advocate for certain kinds of ideas; but that is strictly limited by the Constitution of the United States. For example, a state university can’t advocate for or against religion. A state university’s academic freedom doesn’t extend to endorsing or condemning any particular religious point of view, whereas a private academic university does extend that far. State universities can put forward things like mission statements. State universities can advocate for particular cultural solutions to societal problems. However, in furtherance of their mission, they cannot, they cannot impose litmus tests on employees, on students. In other words, it is unconstitutional for a state university to condition the receipt of a state benefit, such as employment or a degree from the school, on the abandonment of certain constitutional rights such as free speech or freedom of association.

Now, with that very broad overview – and I’m going to welcome any questions – we get to two fundamental issues that I think are being addressed by the Committee.

One is free speech: Mostly free speech by students, but also free speech from professors. Free speech has two – there’s two primary sources of censorship.

One is censorship by policy. Those are written policies in university handbooks, in student catalogs, in faculty handbooks that actually on their face restrict free speech.

On their face, they say to students, your free speech rights are contingent upon, for example – contingent, for example, to the extent to which another individual is offended or they are contingent upon the subjective feelings of another person.

There are two primary ways that speech codes work. One is by being overbroad. An overbroad speech code is one that actually prohibits more than just the unlawful behavior; it prohibits lawful behavior as well. An example of a overbroad speech code, here’s one from the Indiana University of Pennsylvania, which prohibits behavior of a sexual nature that is directed toward another individual, based on their gender, which is demeaning or diminishing to their character.

The fact of the matter is that no one has a right not to feel demeaned. Because what does it mean to feel demeaned? I may say something to one person and it doesn’t feel demeaning to them. And I may say the exact same thing to another individual and it feels demeaning to them. Have I in the one instance committed a lawful act and in the other instance committed an unlawful act in spite of the fact that I did the same thing both times? This kind of subjective uncertainty is absolutely unconstitutional. It is absolutely and has long been the case that you cannot test, you cannot test free speech based on subjective listener reaction. Now, does that mean that there are some demeaning things that I could say that could constitute harassment? Certainly there are some demeaning things that one could say that could constitute harassment. But that term is overbroad.

Millersville University of Pennsylvania prohibits the transmission of electronic messages and materials deemed offensive by university policy and by local, state, and federal laws. Now, who is deeming what offensive? Does any state official have the right to deem written material or communicated material offensive? No, absolutely not. The state does not have the ability to deem words offensive and, therefore, completely out of bounds.

Further, codes can be not just overbroad, but vague. It’s a constitutional rule that a policy or a code has to be clear enough that a person of average intelligence and understanding can know what’s prohibited and what isn’t.

If you don’t know what’s prohibited, it begins to have a chilling effect on speech as you – to go on the safe side, say less than what you might think so as to not run afoul of the vague rule. For example, a classic example and one from this state that was found to be unconstitutional as vague is a prohibition on acts of intolerance.

Shippensburg University had a speech code which, among other things, prohibited acts of intolerance on campus. The problem was, that’s a term that’s virtually impossible to define. If you ask a hundred people what is an act of intolerance, you may get a hundred different answers. And, in fact, at the oral argument when the judge on the case, when the judge directly asked the attorney representing Shippensburg, What is intolerance, there was no good answer forthcoming because, quite simply, there’s no good answer. Nobody knows really what it is. And so that phrase, “act of intolerance,” has been struck down, but it still lives in some speech codes in this state.

Edinborough University of Pennsylvania prohibits offensive or inappropriate sexual behavior. What is inappropriate sexual behavior? That’s an excellent question. I mean, I have my own moral sense of what would be inappropriate sexual behavior. I’m sure it differs with many people in this room. Everyone has his or her own moral sense regarding what is or is not inappropriate. But what this does is it delegates the decision of what is not inappropriate to state officials; and state officials, using their own subjective terms and their own subjective beliefs, then decide for members of the community.

That’s vague. If you asked a hundred people to list all the examples they can think of, of inappropriate sexual behavior, you would get quite a few different answers.

Further, public universities, in addition to enacting rules that are overbroad and vague, tend to also enact rules that prohibit free exercise of religion on campus. And they do it in a very subtle way, but in a way that dramatically restricts free expression of religious ideas.

It is very typical now for large universities to have expansive non-discrimination rules that they apply to their student organizations. Now, in the abstract, there’s nothing wrong with applying a nondiscrimination rule to a student organization to say that you shouldn’t discriminate on the basis of race or gender, for example. But some of these non-discrimination rules include non-discrimination on the basis of religion and they ask religious organizations to sign on to that. The upshot of that is that religious organizations are no longer able to use religious principles when making their decisions if they expect to be a student organization on a public campus.

Ironically, although on-discrimination on the basis of religion or creed is undoubtedly designed to protect religious individuals, it ends up restricting religious freedom. For example, at Penn State, no organization can obtain or maintain university recognition if it discriminates on the basis of, amongst other things, religious creed. Innumerous groups, from the Muslim Student Association to Campus Crusade for Christ to, you name it, make religious decisions. That’s their reason for being; yet they face the possibility of expulsion from campus just by being religious.

Across the United States, there have been at least 60 instances where this exact kind of policy has been used to restrict religious expression on campus or to evict from campus religious organizations. Currently, such policies are enjoined by federal courts in North Carolina and in the 7th Circuit Court of Appeals; yet Pennsylvania’s public universities have some of these very policies on their books.

Another way that students’ freedom is restricted is not just by policy, but by practice; in other words, someone – there may be no speech code in place, but in spite of the lack of speech code, the university will take action anyway.

Now, this is a category that nationally is quite prevalent. Nationally, it’s quite common for students to be punished for their speech even when they haven’t violated any university rule. But I would suggest for this Committee it would be an interesting line of inquiry to determine whether that is, in fact, happening here; although, Pennsylvania is so laden with speech codes that you can almost always find a policy restricting free speech to punish a student in this state.

But by practice, the problem with determining the extent of that there’s a difficulty with determining the extent of that problem in that it relies on self-reporting.

Students who are censored must

(A) know that they can complain; and

(B), know who they can complain to.

At FIRE, we receive hundreds of complaints per year; but all the information that we’ve received indicates nationally that that’s a drop in the bucket.

We have not received extensive complaints from Pennsylvania. There have been some specific incidents at Pennsylvania public universities, but not in the numbers that we have seen in the other states. Whether that is a function that Pennsylvania public universities are protecting free speech in reality or just that students don’t know to complain, we don’t know the answer to that.

Moving from student free speech to intellectual diversity, there is a powerful and almost self-evident argument that a broad range of ideas on campus is a desirable thing; that, in fact, a university that’s supposed to be a marketplace of ideas can and should have a broad range of ideas on campus to foster debate, to test hypotheses, to test theories, to challenge historical assertions.

A broad range of viewpoints is a good thing. It’s a non-controversial statement. The

American Association of University Professors, in fact, made that clear in its own arguments to the Supreme Court of the United States when arguing to preserve race-based Affirmative Action policies in the University of Michigan, declaring in its own brief that universities should provide a broad range of ideas and a broad range of viewpoints, that that is part of the function of the university, and the university is enhanced by that. So it’s really not controversial to say that there should be a broader range of ideas in the university. What is controversial is the answer to this question: Does a broad range of ideas exist?

There are national studies that would tend to indicate that universities are rather ideologically monolithic. There are a variety of studies indicating that those who self-identify on the left side of the political spectrum outnumber those who self-identify on the right side of the political spectrum by a substantial margin; in some cases, 9-to-1, 10-to-1, 30-to-1 in some departments, according to recent studies.

Now, the question is, Does that matter from a standpoint of intellectual diversity? And, more importantly for this Committee’s purposes, if such disparities are real, are they real because of misconduct? Are they real because of actually unconstitutional activities?

Bear in mind that earlier I said that you may not condition the receipt of a state benefit on the surrender of some basic First Amendment rights. There’s a case called Perry v. Sinderman that involved an at-will, untenured professor at a university who was terminated; and he, allegedly, has been terminated as a result of his free speech rights. The university said, Well, he was an at-will employee. We can terminate him for any reason or no reason at all. In response, the Supreme Court said very clearly that you cannot condition the receipt of a state benefit on the abandonment of basic free speech or free association rights.

There exists a very real and very lively question now based on multiple recent studies: Is that happening in university hiring, firing, promotion, and retention? The answer is hotly disputed and I would say not firmly established at this point. So from the standpoint of intellectual diversity, it’s critical to the state’s responsibility with regards to intellectual diversity is I think important to define.

One is, in this case, the State of Pennsylvania has an institutional academic freedom itself running its school system. And the State of Pennsylvania, if it believes that intellectual diversity is a good thing in the university and helps to foster the marketplace of ideas, would certainly have an interest in making sure that intellectual diversity exists and discovering the reasons why it may not. However, what the State of Pennsylvania should not and cannot do is to go to individual professors in individual departments around the state and say to – just take a name – pick a name out of the hat – Professor Jones or Professor Smith, what we want you to do is to teach your class in a different way so as to be more diverse. That violates that individual professor’s academic freedom and should not be done. But what a state can do is say, in an economics department, Do we have a broad range of ideas present here? And if we do not, should we be seeking a broad range of ideas?

If we do not have a broad range of ideas present, is it because of any actual unconstitutional or illegal activity; for example, prohibitions on discrimination on the basis of sex or race or religion? State universities violate those prohibitions on occasion. Is that happening here? Or are there de facto ideological litmus tests being applied to candidates for a particular job? Are they being forced to adhere to a particular ideology?

So what I would suggest as the true constitutional obligation of a university going forward is to, No. 1 – this is very basic – protect the constitutional rights of your students. Make sure they have a right to free speech, the same right they’d have to free speech if they stepped off the university campus;

Number 2, in addressing any perceived constitutional violations against the students, do not violate the constitutional rights of professors, who do have a right to challenge students, who do have a right to even offend students on occasion;

Number 3, in the quest for intellectual diversity on campus, since I would presume that intellectual diversity, differing viewpoints on campus, is a good thing and the quest for intellectual diversity on campus, do not violate the academic freedom rights of any individual.

And look hard at the reasons for the disparity. Is self-selection at play? Are there actual unconstitutional actions being taken? Take a close look at not just what exists, but why it exists.

With that, I’ll open the floor to any and all questions.

REPRESENTATIVE GRUCELA: Thank you, Mr. Chairman. I appreciate you giving me the opportunity to go first due to the other commitment. I sort of have two questions. One, what’s the relationship to the Patriot Act in the Federal Patriot Act? Is there any relationship? Given the current climate, shall we say, in the United States vs. free speech, does the Patriot Act apply in any way to any of these things?

MR. FRENCH:It is my belief that the Patriot Act, in practice, should not have any bearing on the academic freedom dispute. Now, saying that, I will tell you that there have been circumstances where professors who have made what many would deem to be very inflammatory remarks about the war on terror, there have been individuals who have tried to creatively think of ways to apply various national security statutes to restrict that speech. But I have never seen any actual application of Patriot Act provisions or any other national security-based provision to restrict an individual person’s speech that would otherwise be constitutionally protected. Because, bear in mind, the First Amendment would trump even the Patriot Act. If there was any sort of speech that was constitutionally protected but somehow prohibited by a provision in the Patriot Act or by implication from the Patriot Act, the First Amendment would be supreme.

REPRESENTATIVE GRUCELA: And, secondly – and I’m going to bring up a couple sensitive areas here and they are by no means meant to be facetious in any way, shape, or form, because they truly exist – I’m curious about that statement that says Penn State cannot, or can, prevent any organization that you listed a whole bunch of things and emphasized religious creed.

So my question is, If I belong to a religious group that believes in torturing animals, if I belonged to a religious group that believes as part of an initiation or part of my tribal, whatever, believes in smoking marijuana or the use of any illegal drugs, or if I belong to a religious group that believes in polygamy or same sex marriage, you’re telling me that Penn State can’t stop me from starting a group like that on their campus?

MR. FRENCH:A lot of the specific examples you mentioned such as torturing animals or polygamy or same-sex marriage are acts that are prohibited by statute and by constitutional statute. So the answer is, somebody could start a club that advocated, based on religious beliefs, the torturing of animals, but the actual torturing of animals would be prohibited by statute, and lawfully prohibited by statute. Someone could start a religious club that advocated for polygamy and stated as part of its beliefs that polygamy was acceptable, but to actually engage in polygamy is prohibited by constitutional statute.

So it’s not an anything-goes scenario. The argument is that an organization that’s formed around a certain belief, whether that belief is political or religious or cultural, has a right to advocate for that belief and to have members and leaders who share that belief. You know, the Democratic Party has every right to exclude individuals who advocate for every plank in their public and party platform or to exclude self-identified Republicans and vice-versa. So what this provision does is say to religious organizations, you cannot use your religious beliefs when you’re determining who your members and your leaders are, even though you are a religious organization. It’s nonsensical. It would be like prohibiting political ideology discrimination on the part of political parties. It strikes to the core of what they are and what they do.

Now, there’s one thing I want to be very, very, very clear about. There’s a difference between status and belief. For example, there’s nothing about a person’s status as a white person that says they couldn’t agree with every single part of the NAACP’s platform. But if they were a White Supremacist, then the NAACP could certainly exclude them. There’s nothing about, say for example, a person’s gender that says they couldn’t enjoy the game of chess. But if they hated chess, the chess club could rightfully exclude them. What these provisions do is they basically say to religious organizations, on those core principals that matter the most to you, you may not utilize them in determining leadership and membership and stay on this campus.

REPRESENTATIVE GRUCELA: Could Penn State or any other state institutions prohibit the Ku Klux Klan?

MR. FRENCH:Almost certainly they could not prohibit any particular organization on the basis of its perceived ideology. They could prohibit an organization that was engaged in otherwise unlawful activity. So if the Ku Klux Klan was engaged in terrorism or violating existing state and federal laws, certainly it could exclude them; but they could not exclude the Klan on the basis that it has a point of view that is horrific.

REPRESENTATIVE GRUCELA: One last thing: this is probably not in existence, at least I hope not, but what if the religion advocated the overthrow of the government? As long as we didn’t do it inside the group?

MR. FRENCH:Actually, that’s pretty well-established constitutionally. It used to be, in fact, that you couldn’t even get a driver’s license in some states without swearing an oath of allegiance to the United States government. All these loyalty oaths have been struck down. They’re gone. So you cannot say to a student organization, “You must swear off any advocacy of violent overthrow of the U.S. government as a condition for being on campus.” Although, I haven’t seen that situation come up. There’s some case law dating from the Vietnam War relevant to that. But in recent years, I have not seen circumstances like that student chapter of the Klan or student chapter of the group that was seeking the violent overthrow of the government.

REPRESENTATIVE GRUCELA: Thank you very much. Thank you, Mr. Chairman.

CHAIRPERSON STEVENSON: Thank you. Representative Herman.

REPRESENTATIVE HERMAN: Thank you very much. I have just two questions, Mr. French. If either a faculty member of a university or student felt that their constitutional rights were abridged or offended or academic freedom suppressed, what should they do?

MR. FRENCH:Unfortunately, most universities do not explain to students either what their rights are or what they can do in the event that they’re violated. So a student has to come at that knowledge through outside sources. And the vast majority of students, quite frankly, you know, don’t get that knowledge. So I think institutionally what a university should do is do a better job of informing students their constitutional rights and providing them for an avenue, a formal avenue of complaint in the event that they perceive that their constitutional rights are violated, short of running to a lawyer and filing a lawsuit.

With respect to the students, at the present time, FIRE has an enormous education effort. We tried to reach the students and explain to them what their rights are. But what they should do if their rights are violated, one thing is – to put in a plug for FIRE – is contact FIRE.

Another thing is, if they feel like their rights are being violated by a professor or by a member of the administration, they should closely look their school’s own policies, because hidden within some of these policies will be sometimes some procedures that can give them protection. So they should take a look at their own student handbook, take a look at the catalog.

But, unfortunately right now, students are in a vast sea of ignorance regarding their rights and often have a tendency when someone tells them that they can’t do something, to believe it, to believe that, if you read this policy, that prohibits acts of intolerance to think, well, I better not commit an act of intolerance because that’s unlawful; instead of going back and thinking, Hum, is that unconstitutional? I don’t even know what that is. So what should they do I think is contact appropriate officials as outlined in the student handbook or catalog; but, unfortunately, that’s not often an avenue available to them.

REPRESENTATIVE FLEAGLE: You had mentioned that (in) Pennsylvania, the numbers were not as great as in other states for contacts for FIRE?

MR. FRENCH:Correct.

REPRESENTATIVE FLEAGLE: And I know you backed it up by saying that that’s not really indicative of the fact that there may not be abuses of academic freedom. When they say the states are the laboratories of democracy, have you seen any state universities or public universities in a particular state who seem to have their act together? I know you probably only see the downside of the question, but surely you’ve seen some examples of a good policy?

MR. FRENCH:I have seen examples of good policies. As far as any individual university that stands out as better than the others or any individual university system that stands out as better than the others, none are coming to mind. You’re right; we receive complaints. I do know of universities that have been very responsive once we have made the complaints known to the universities. But as far as a specific policy that stands out nationally, there is – there is not a university policy that I’m aware of that I would say is better than all the others and worth emulating.

In fact, I would say that the AAUP’s 1940 statement on academic freedom, which has been around for a long time, is still one of the best, if not the best, articulations of academic freedom, particularly from the professor’s level. And universities have adopted this 1940’s statement as a rule; however, they also adopt speech codes often. So they contradict some of their own policies.

You mentioned the states as a laboratory of democracy. One of the things that we have found is universities are often like small European countries: They tend to be very bureaucratic. Often the right hand doesn’t know what the left hand is doing. Policy documents can be extremely confusing and labyrinthine. So at Pennsylvania schools there are some very good academic freedom statements, but you go to a policy book and you’ll find a speech code.

At FIRE we have – to give you an understanding of the extent of the problem – we have rated the speech policies of approximately 350 leading universities in the United States. Seventy percent have at least one policy that is constitutionally problematic. The ones that do not have constitutionally problematic policies tend to have a statement like the AAUP statement and then nothing else. They tend not to have an affirmative free speech statement, so much as they just don’t have prohibitions.

REPRESENTATIVE FLEAGLE: The complaints that you get from other states vs.

Pennsylvania, do they tend to be a homogeneous type or does one state have more of a problem?

MR. FRENCH: It’s the same type of complaint we get all over. When there’s one case publicized in one state, what tends to happen is that there are several other complaints that will come because of the publicity and the awareness.

I would say the most common type of complaint is the misunderstanding of what discrimination and harassment is. Universities have been for a very long time telling their students that discrimination or harassment is an act that offends you or that makes you upset on the basis of race, gender, sexual orientation. So many of our cases involve individuals who are upset on the basis of one of these factors and believe that, because they’re upset, someone needs to be punished. And they get a lot of comfort in that from of their policies.

One of our efforts is to try to educate people as to what harassment actually is. It’s not actually a state of just being upset.

In fact, in our materials that we distributed, there is federal law that says that for something to be harassment in a student-on-student circumstance, the pattern of behavior must be so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to the educational opportunity or benefit. So, in other words, it has to be so bad the person can’t get an education, not that it’s so bad that I feel really mad about it. And, in fact, in July of 2003, the Department of Education’s Office for Civil Rights issued a letter, a “dear colleague” letter, and said that some colleges and universities have interpreted OCR’s prohibition of harassment as encompassing all offensive speech regarding sex, disability, race, or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction – these are the antidiscrimination statutes – must include something beyond the mere expression of views, words, symbols, or thoughts that some person finds offensive.

To give you two concrete examples – again, these are not Pennsylvania – but very recent examples: In a public community college in Florida, an individual was prohibited from handing out fliers protesting the treatment of animals in slaughter houses because the administrator was offended by the content of those fliers. Because the administrator was offended, it obviously violated policy banning offensive speech and, therefore, could be suppressed. Other examples would include conservative protests of Affirmative Action, usually done through something called an Affirmative Action bake sale, where they sell baked goods at different prices based on race or gender of the purchaser.

In many schools, those protests have been suppressed, prevented or punished, because they made people angry. Not because the speech wasn’t protected, but because they made people angry. So if there’s one category that trumps all others, it’s a misunderstanding regarding what is or is not harassment and the misinterpretation of anything that offends me, that makes me upset, is harassing.

REPRESENTATIVE PALLONE:In the materials that you provided, you cited a number of examples of what you’re claiming to be constitutionally protected or unconstitutional, overbroad, vague, whatever. Have these policies been litigated?

MR. FRENCH:These specific policies have not. If they had been litigated, they most likely wouldn’t be on the books anymore. There have been multiple policies with either exact same language or strikingly similar language that had been struck down nationwide.

Speech codes have been struck down at Shippensburg here in Pennsylvania, at the

University of Wisconsin, at the University of Michigan, at Stanford University, Northern

Kentucky University, Texas Tech University – the list could go on. And they have language that is either identical to this or tracks very closely to this.

REPRESENTATIVE PALLONE: Only the one Pennsylvania school had the speech code struck, right?

MR. FRENCH:To my knowledge, there’s only been one speech code lawsuit filed in Pennsylvania, and that was the Shippensburg, yes.

REPRESENTATIVE PALLONE: And there have been no others, to the best of your knowledge?

MR. FRENCH: Tothe best of my knowledge, there have been no others.

REPRESENTATIVE PALLONE: And this only involves the public universities, correct?

MR. FRENCH:Public universities, right.

REPRESENTATIVE PALLONE: And does that include the, for lack of any other term, semi-public universities? There are a number of universities in Pennsylvania that have that –

MR. FRENCH:We evaluated the public universities in Pennsylvania that have been held by courts to be state actors. So that would include Temple and Pitt. Penn State, as well – any school that where a court has held that, for example, section 1938 applies, which allows an individual to sue for a civil rights violation committed under color of state law, we have evaluated. The private universities, although we’ve evaluated some of them, we have not presented that to the Committee, because my understanding is the Committee is not looking at the private universities.

REPRESENTATIVE PALLONE: When you’re contacted by a student, presumably who feels offended or whatever, what’s your process? Do you instruct them to go back to the university and follow the procedure?

MR. FRENCH:What we do is, when a student contacts us claiming that their rights are violated, we first ask for a complete account of the events, including any and all supporting evidence such as emails, documents, etc. We then also simultaneously research the school’s own policies: Was this done under a speech code? Is there an academic freedom policy that applies? At that point, what we will do is we will advise the student to pursue any and all remedies they have in the school, whether it’s a complaint process or a grievance procedure in the school.

But at the same time, if we’re satisfied that a violation did, in fact, occur by use of documentary evidence – we do not take “he said/she said” cases; if the evidence is only one person’s word against another, we don’t take that case – once the evidence is documented, we will write the university and give the university an opportunity to respond with its side of the story. We tell the university, these are the facts as we understand them. Please correct any errors in our account. And, on occasion, universities will correct us and bring additional facts to our attention. More frequently, we’ve got the facts correct.

And at that point the question is, will the university protect the student’s rights or not? And, if not, then we will publicize the abuse and, on occasion, refer the issue to a network of pro bono legal attorneys.

REPRESENTATIVE PALLONE: And how long has your organization been in existence?

MR. FRENCH:The organization began in October of 1999.

REPRESENTATIVE PALLONE: And where do you derive your funding from?

MR. FRENCH:In 2004, we had about 55 percent of our funding from almost 4,000 individual donors and 45 percent of our funding from multiple private foundations.

REPRESENTATIVE PALLONE: Do the complainants have to provide any kind of funding or fee-for-service to you?

MR. FRENCH:No. No. Anything we do for any professor or student or administrator, who under particular circumstances, there’s never any request for payment. It’s all pro bono.

REPRESENTATIVE CURRY: How many times have you gone to court? I mean, sometimes you resolve these outside of court?

MR. FRENCH:In the vast majority of circumstances, the case is resolved outside of court. However, we refer to litigation, on average, I would say five to six times per year.

Now, we do have a project called our “Speech Codes Litigation Project,” in which we are systematically challenging speech codes in jurisdictions across the country. Thus far we’ve challenged speech codes at California, Texas, Pennsylvania, New York. There will be another challenge coming any day now in the southeast. So we have only one affirmative litigation project, and that is the Speech Codes Project where we refer – we seek pro bono attorneys to challenge speech codes across the country so that there’s a uniform level of precedent across the country.

REPRESENTATIVE CURRY: So you’ve been in court about 25 times?

MR. FRENCH:FIRE does not litigate. FIRE has not been in court. People who are pro bono attorneys for other law firms or other organizations have been in court about 25 times on cases we’ve referred them. But before I came to FIRE as FIRE’s president, I was an attorney who would sometimes litigate cases that FIRE referred to me. But I do not, nor do the other attorneys on the FIRE staff, actually litigate cases.

REPRESENTATIVE CURRY: Do you have a list of the studies you referred to on intellectual diversity lacking on college campuses?

MR. FRENCH:I do not have a written list. There have been recent studies by Rothman and Lichter and printed in Forum Magazine, Daniel Klein from UC Santa Clara – these are two of the most –

REPRESENTATIVE CURRY: Can you provide these to the Committee –

MR. FRENCH:I can certainly provide them.

REPRESENTATIVE CURRY: Are there any institutions that you know of that do not explain to students how they can proceed if they feel their rights are abused?

MR. FRENCH:I know that institutions have typically been good about explaining to students how they can proceed if they feel they’ve been abused in certain contexts, certainly if they feel like they’ve been harassed. So universities have been very good about telling students, you have a right not to be harassed. What they have not done a good job of explaining is:

(A), what harassment is; or

(B) what you can do if you feel like your actual First Amendment rights are being violated, such as your right to free speech or right to free association.

So with part of the spectrum of student rights there has been massive and comprehensive educational efforts undertaken.

With regards to the First Amendment and to free speech and to free association, which goes to the heart of the very purpose of the university itself, the amount of effort undertaken to educate students on their full spectrum of free speech rights is absolutely minimal to nonexistent. In fact, I don’t know of any program in the State of Pennsylvania – now, there may be some that we have not found or discovered – where students are, for example, oriented into understanding what their free speech rights are, what their free association rights are.

REPRESENTATIVE CURRY: So you have not found in any of the handbooks that are given out to students – you have to understand, students may very well not read it. They very well may get the instruction and it goes like this (indicating) because they’re not confronted with that at their first exam or first –

MR. FRENCH:Right.

REPRESENTATIVE CURRY: – and then they’re afloat and go for help.

MR. FRENCH:There are are on occasion some rather vague assurances of academic freedom and free speech. But the contrast between the level of information and the detail of that information regarding preventing harassment or reporting on incidents that are allegedly harassment, compared to the free speech side, it’s truly a massive disparity.

But that is not to say that there isn’t some language in a few of the student handbooks that say, you know, or perhaps we welcome the diversity of ideas, we welcome free speech, we welcome debate. In fact, that’s a common statement the universities will make; but they’re often then contradicted by the speech code. So if a student is going by university policy, the natural implication is, well, there’s free speech except for these acts of intolerance, which is to say there’s not truly free speech.

REPRESENTATIVE CURRY: But in the orientation sessions for the freshmen or students coming in, they generally are exposed to what the university policy is?

MR. FRENCH:I would not say that they’re generally exposed to university policies on free speech and free association. I would say they probably get quite a few laudatory comments regarding diversity and differences; but concretely about free speech, concretely about free association, free exercise of religion, no.

Now, the reason why I mentioned distinctly diversity as opposed to free speech, although diversity would, I would think, include a variety of different ideas, is that often diversity is used as a justification for limiting free speech or limiting free speech on the basis of protecting diversity. So I think the Committee’s resources could be – one good use, to be incredibly presumptuous, would be to discover what exactly are the Pennsylvania public universities teaching the students about the First Amendment?

We have limited resources. We can get what we can get from the Internet and other publicly available documents. But as far as actually going to the university and experiencing a freshman orientation, experiencing what it’s like to be introduced to life at Penn State, unfortunately, I don’t get to do that.

REPRESENTATIVE CURRY: Do you find that most of the free speech issues come up in connection with a grade and sometimes a lower grade than expected?

MR. FRENCH:I would say that’s infrequent.

REPRESENTATIVE CURRY: Infrequent?

MR. FRENCH:Infrequent, from our perspective. We do not frequently receive grade-based complaints, in part because we’re very clear about this threshold and standard of proof that we seek. Grade-based disputes can be very subjective. It’s not uncommon for students and professors to believe they’re far more brilliant than they actually are.

And to attribute lower grades to something else, whether it’s personal animosity, whether it’s ideology – the only time that FIRE gets involved in a grade dispute is if the evidence is unmistakable that the grade is based on ideology; in other words, something to the virtual equivalent of, Great paper, but since you’re a liberal, F. But you just don’t see that. Grading, again, is very subjective. And we try to avoid those disputes unless there’s incontrovertible evidence.

REPRESENTATIVE CURRY: Every student that was interviewed in the press in connection with this made reference to a lower grade because of the issue, and there’s no exception for that.

MR. FRENCH:There is a widespread student perception that they’re not graded objectively. And there is undoubtedly a widespread student perception that they receive lower grades based on ideology, or being out of step with the ideology of the professor. I do not deny that is a widespread student perception; but very few students take the step of contacting us on that basis, perhaps because our mission is much more clearly in the civil liberties area whereas the grading disputes, as I said, the evidence is often very difficult.

If you look at our” Submit a Case” form on our we site, you’ll see that we ask for a lot of information. And I think that can sometimes turn away people who’s – the sum total of the information is I got a B and I really deserved an A. So I do not deny that there is, in fact, a widespread perception that grades are based on ideology, at least in part. The ironclad evidence to back up that perception, FIRE does not have.

REPRESENTATIVE ARMSTRONG: Mr. French, shouldn’t students be responsible for themselves if those rights are supposedly violated in the class? Isn’t it up to them to know their rights and to stick up for themselves? As a citizen outside of a university, I don’t rely on my township citizen handbook to know what I should do. I mean, are we coddling them by having to go back and educate them on their basic rights?

MR. FRENCH:Well, I think the education regarding your basic rights is what a civil society should be doing, period. A democracy that thrives on free speech, free association, and open debate should be educating its elementary school students, the secondary students, and, yes, its college students, on what these rights are. They’re central to a function of a civil society. So I think the university should be educating students regarding their rights as part of its educational mission and function.

Now, do you go beyond the basic educational mission and function to provide, for lack of a better term, a super education on rights? Well, I would say in a circumstance where student rights are systematically deprived and where speech codes exist on a systematic basis there may be a need for additional education of students regarding their rights to challenge these unconstitutional policies. Ideally, the universities would simply eliminate their unconstitutional policies and you wouldn’t face quite the challenge.

But, students should be educated on their First Amendment rights. I mean, these are the basic foundations of our civil society.

REPRESENTATIVE ARMSTRONG: Should it be part of orientation?

MR. FRENCH:I’m not going to make any curriculum suggestions regarding what precise form the individual university’s education should take. I think, though, it’s safe to say that students who graduate from high school, who graduate from college barely conscious of the First Amendment are not getting the education they need. How a university goes about providing the education that is needed, including one that encompasses this basic culture-defining right is up to them; but I think it should happen.

REPRESENTATIVE ARMSTRONG: My second question is, you mentioned balance in some of our faculty makeup. If faculty representation in a certain department is two-to-one or ten-to-one, I mean, so what? Is that necessarily a problem? Or why does it necessarily say there’s some kind of lack of diversity or free speech?

MR. FRENCH:It’s a potential problem constitutionally and legally if that imbalance was accomplished through illegal means; in other words, if there was actual discrimination employed to create the imbalance, that’s a problem from a constitutional or legal standpoint.

From the academic standpoint, the utility and the value of a wide range of ideas has long been taken for granted, that the wide range of ideas is supposedly part of the goal of the university so that you can learn economics from people who vehemently disagree with each other; you can learn English from people who have widely different readings of various classics, both new and old; that the value of the marketplace of ideas and differing viewpoints has heretofore not been terribly controversial. But it’s actually something that is valued. The AAUP itself has said to the Supreme Court of the United States that this is valued, that this is something that should exist.

So the question isn’t, I think, really is intellectual diversity a good thing. I think all sides of the debate would say that intellectual diversity is a good thing. But as with so many things, the devil is in the details.

Many people would say that these have been crude measurements undertaken so far and that there really is intellectual diversity beyond that, that could be measured by some of these surveys. Others would say this ideological uniformity doesn’t imply anything regarding what’s happening in the classroom because teachers can teach however they want to teach, regardless of what their ideology is. And others would say, however you want to phrase this, this is the natural state of things, that people on one side of the political spectrum tend to like the academy more than people on the other side of the political spectrum and that’s just the way it is, so you’re addressing something that’s not a problem; this is the marketplace in action. This is people choosing their professions and that’s how it’s shaken out.

However, I would submit that in the event of dramatically demonstrated differences between the composition of the academy and the composition of the wider culture, it leads to a question: Is it possible that this exists because of unconstitutional or illegal actions? It’s a reasonable question and a question worth knowing the answer to.

REPRESENTATIVE ARMSTRONG: But how would we as a Committee try to answer that question?

MR. FRENCH:I don’t know if there are any studies done in Pennsylvania specific to Pennsylvania. It might be worth knowing what is the intellectual diversity of our Pennsylvania public institutions. Once you know the answer to that question – and at that point we don’t really know, there’s no particular reason to believe it’s terribly different from the rest of country; but, again, these are institutions who do their own hiring. They don’t take hiring orders from the state university system in New York or California or anywhere else.

So these are independent institutions. I think it might be worth determining is there an issue. And then, if there is an issue, there are quite a few ideas about what to do about it. I don’t have the time to go into all of them, but there are quite a few different ideas, some of which I think are constitutionally sound, some of them not, to deal with the issue.

REPRESENTATIVE ARMSTRONG: Okay. And finally, do you have any advice for this Committee in general as to how to proceed?

MR. FRENCH:Well, you’re asking me to be presumptuous with the Committee. But since you asked –

REPRESENTATIVE ARMSTRONG: If this were your committee.

MR. FRENCH:If this were my committee, I think it is critically important that any state investigation investigate potentially unconstitutional or unlawful acts as opposed to an investigation into lawful acts that are done in a way that is not politically popular. The question here is not whether any individual professor is a radical or not in their classroom. The question isn’t whether any individual professor is teaching English or history or geography or whatever subjects in a way that irritates students or makes some students angry.

It strikes me that the question here in an academic freedom investigation, Are the public institutions in the State of Pennsylvania, which are supported by the taxpayers and responsible to the citizens discharging their constitutional responsibilities? And is there evidence that they are not?

Well, I can tell you from the speech code example, they are not in that respect. In the some of the other areas, I do not have those answers. I don’t have that information. So investigations can be quite chilling if what you’re investigating is a lawful activity.

I know there have been cries of McCarthyism regarding this investigation. I’ve read them in the paper and even answered questions about them on the radio. And the thing that I’ve told anyone who’s asked is that an investigation into potentially unlawful behavior is what legislative committees do all the time. Investigations into lawful behavior that is being done, behavior – lawful speech done in a way that is politically unpopular or unpalatable, now, that’s chilling.

If I could summarize it basically, it would be to keep the focus on the constitutional and statutory responsibilities of the public institutions of higher education in this state.

REPRESENTATIVE SURRA: Mr. French, I really enjoyed your testimony. And just so you know, I am vehemently opposed to the formation of this select committee; and your testimony pretty much verifies what my concerns were. This is a colossal waste of time, of staff, members.

As I heard your testimony, it basically sounded, what FIRE does is two things: Make sure free speech rights are protected and dealing a little bit with intellectual diversity. And throughout your statement, you’ve mentioned a couple of times that the State should not dictate what is appropriate as free expression. And I think that’s tantamount in our

First Amendment rights, from not only students, but also professors should be free from state oversight; is that correct?

MR. FRENCH:Certainly.

REPRESENTATIVE SURRA: It protects both?

MR. FRENCH:Professors who are behaving in a lawful manner. If professors violate the law, then, of course, they’re not free from oversight and shouldn’t be.

REPRESENTATIVE SURRA: What would be an example of a professor violating a law then? I’m not sure. Today I was speaking with my colleagues, we were having a hearing on something with academic freedom. What is this? If you think we should investigate professors, what are these law breaking professors doing?

MR. FRENCH:I’m not saying we should investigate individual professors. You asked me if professors should be immune from any oversight.

REPRESENTATIVE SURRA: They can’t break the law, okay.

MR. FRENCH:I’m just saying that professors don’t have a free hand to do whatever they want. But I’ve been very clear in saying that my advice is the Committee should not focus on what individual professors are doing in the classroom. I think that that has a potential to be chilling and that that has a potential to cause people to moderate or change their behavior on the thinking that the hammer of the state is to come upon them. Whether that’s a reasonable or unreasonable belief, you know, a legislative committee that focuses on individual professors engaging in lawful activities is quite chilling.

REPRESENTATIVE SURRA: Your organization is national, which are located in Philadelphia?

MR. FRENCH:We work nationally. We don’t have offices all over the country.

REPRESENTATIVE SURRA: But this huge problem that we have to have a standing committee from, your organization nationally deals with five or six cases that actually go to trial and only one ever in Pennsylvania; is that correct?

MR. FRENCH:You have to understand, we do not receive all information regarding issues on campus. What we receive is the unknown percentage of actual reports of violations from across the country, which number in the hundreds every year and that we are very successful at resolving short of litigation. Because often what we’ve found is that universities cannot justify in public the things they do in private. So a university that says, for example, to a religious student group in Florida, you cannot show the passion of the Christ but we are going to permit a university employee to put on a play where she masturbates to pictures of Jesus Christ, that kind of thing doesn’t go to litigation; but it’s so absurd the university can’t justify it.

REPRESENTATIVE SURRA: I would agree.

MR. FRENCH: So we don’t have to litigate that. Whereas there are cases where the university will dig in its heels, and we have to litigate. But I don’t want to say that we get all of the complaints that are out there, or all of the meritorious complaints. We get a lot of them. We get a number that far exceeds the threshold to declare a national crisis in other areas.

For example, if you look at Tolerance.org’s list of alleged racial incidents on campus for a multiyear span – and these are just, for example, allegations – our cases far outnumber these incidents and, yet universities in response to many of these incidents have poured millions upon millions upon millions of dollars into the creation of offices that are designed to prevent such abuses from happening.

I’m not saying there are not abuses. I’m not saying there are not terrible things that have occurred. But to say that there is no problem because we’re only getting a few hundred complaints nationally and are successful enough that we don’t have to litigate all of them – and also, I’ll tell you the truth, it is hard to find a lawyer willing to take a case for a student for free.

And so, unfortunately, there are cases we can’t litigate because we really don’t have talented lawyers willing to engage in multiyear litigation for no money. And so that makes it more difficult.

REPRESENTATIVE SURRA: Sure. As a state representative representing rural districts whose constituents call me for every time they have any bump in the road with state-related school or state university, I can tell you that I have never once in 15 years had somebody call me about their academic freedoms being abused. Interesting is you mentioned intellectual diversity where the majority of college professors are more left leaning than right. I don’t frankly find that as a surprise, because I think people who are right leaning go in the business world and make money. How would you deal with that? Would you suggest some Affirmative Action hiring practice for college professors?

MR. FRENCH:Oh, goodness no.

REPRESENTATIVE SURRA: I didn’t think you would.

MR. FRENCH:Goodness, no. My view is you’re making a ideology-based hiring decision; in other words, we’re hiring someone because they are or they are not liberal or because they are or they are not –

REPRESENTATIVE SURRA: Do you think that occurs?

MR. FRENCH: I do believe that occurs. Explicit ideologically based hiring decisions do occur. When they occur, they are sometimes litigated, though not typically. There are really two issues here.

One, how often are explicitly ideologically based hiring decisions being made? There’s a couple of pieces of evidence that you can look to, to see whether that happens. One is, is there any testimony that – for example, I relate my own experience. I interviewed to teach at Cornell Law School, and I was asked in the interview, I notice you have a Christian background. Do you think you can teach gay students? Which was an unlawful question, to bring up my religion specifically in the context of my fitness for the job. I answered the question and didn’t make a complaint. And I think I actually won the interviewer over in the process. But that was not a lawful question. We receive numerous reports like that. The unfortunate thing is that teachers frequently want to be anonymous when they make reports like that because they’re concerned about their future teaching prospects. The consideration, “If I raise a stink, will I have an opportunity to go apply somewhere else?” is a concern.

The other issue is: Has the job been redefined so much that it essentially excludes other points of view? You will often see in faculty hiring announcements a call for a particular kind of scholar with the use of particular words that are heavily laden with ideological meaning. You will also find that university officials – Roger Bowen, who’s the president AAUP, recently at a forum said, Well, it’s obvious that conservatives – and I’m paraphrasing. – conservatives wouldn’t be interested in these subjects. For example, what is history but the study of inequality over time? What is anthropology but the study of the role of religious and cultural myth and the myth of cultural superiority? Well, that’s not the traditional definition of anthropology or history or, in sociology, says it’s the study of inequality in our society. Those are certainly things that are encompassed within sociology or history or anthropology and should be studied; but to say, that is, the discipline does exclude – and, as I say, you can often see this in job announcements.

REPRESENTATIVE SURRA: You raise a great point. If a gay student was in a classroom and a professor refused to teach him, would not his academic freedoms be violated?

MR. FRENCH:Absolutely. Absolutely. If the teacher refused to teach someone because they’re gay, because they’re black, because they’re white, because they’re conservative, because they’re liberal – for any reason other than the student has given independent legitimate justification such as disrupting class –

REPRESENTATIVE SURRA: I really want to thank you for your testimony, although it really doesn’t make me feel like I want to go out and travel the state to do this; but I will, believe me. I find it interesting that throughout your statement how you talked about they should be free from state oversight, the state should not dictate what’s appropriate, and here we are with a standing committee talking about what’s appropriate.

MR. FRENCH:What I was saying was that the content of your language, what you say, my political positions, my position on gay rights, on abortion, on the war, on economics should be free from oversight.

Unfortunately, what the universities have done is by policy – and I can provide the Committee with the policies and discussion of why each one of them is unconstitutional – by policy, the state universities, which are arms of the state, which are part of the government, have done this. They have said there are classes and categories of speech for which we’re going to have extra scrutiny that is beyond the constitution. You know what that does? That means that every single student that attends that university is having their constitutional rights violated at this moment in a place that is supposed to be a marketplace of ideas. There’s a couple of ways to deal with that: Run around and file a lawsuit every time something like this comes up hoping you can find a lawyer willing to do it for free, hoping you can find a student who’s willing to stick their neck out; Or you can say, Well, wait a minute. There’s other parts of the government that have responsibility for this that should say to a subordinate part, in essence, behave in a constitutional manner. And when it comes to something as vital as the marketplace of ideas, as vital as a free exchange of ideas, I think it’s worth maybe a few days at least.

REPRESENTATIVE SURRA: Interestingly, I agree with you. However, just a few years ago Penn State had some type of a student function dealing with sex and this General Assembly got their britches real tight about it. So I guess it depends on where you’re coming from and whose rights are being violated. Again, I want to thank you. And thank you, Mr. Chairman.

CHAIRPERSON STEVENSON: Thank you. Representative Quigley.

REPRESENTATIVE QUIGLEY: Thank you, Mr. Chairman. Mr. French, based on the criteria that you – a wish list, I guess, that Representative Armstrong asked what you think this Committee should focus on, the constitutionality and are laws being broken now, do you suspect that that activity is taking place in Pennsylvania?

MR. FRENCH:From the speech policy standpoint, absolutely. It’s absolutely happening and it’s widespread. An interesting question is how much are these speech policies being enforced? So the policy existing by itself is a constitutional violation. The frequent enforcement of the policy just magnifies the violation. So from the standpoint of speech protected policies, we already know that the universities are no doing what they should be doing.

With regard to the other arenas, because of the importance of free speech, of intellectual freedom, of the marketplace of ideas, it’s worth finding out if, in fact, the Pennsylvania public universities are meeting their constitutional and statutory obligations. I suggest that the inquiry should be narrowly focused so that there is not the chilling effect that many fear.

But on the point regarding intellectual diversity, if this is a value that the university believes in and the State of Pennsylvania – or the Commonwealth of Pennsylvania is tasked with putting together a first-class state university system, these are questions that are worth asking.

From the FIRE standpoint, what we would ask is that the search go primarily for constitutional and statutory responsibilities, not something, like many have feared, that a professor who’s a radical professor on either side of the spectrum will now not feel as free to teach because, if they share their ideas, then there’s going to be a legislature that’s calling for their heads. That’s not the scenario that I think is optimal.

And I’m familiar with the Penn State sex controversy because what was interesting is, around the same time that the sex controversy was occurring and there was calls for sanctions or action against Penn State for allowing a controversial sex forum, the Penn State administration had denied recognition to a conservative student group on the grounds that their statement in the constitution that rights come from God was considered to be religiously discriminatory.

So what FIRE is did is we approached Penn State and said, Okay, we believe you have a right to put on this sex forum; but you also have a right to have a student group that says that rights come from God. The marketplace of ideas. It’s really quite simple.

Unfortunately – and I want to be very clear on one thing. When I say that these universities have failed in some of their responsibilities, I’m not saying that their administrators who are out there rubbing their hands together because they cannot wait to indoctrinate tomorrow’s youth and they cannot wait to silence all the sin.

Often, censorship comes from the best intentions. For example, the speech code. Often the intention is, Well, we want people who have been historically disadvantaged and left out of community to feel welcome; and so we don’t want people saying things and doing things that are going to make them feel like they’re on the outside looking in.

That’s a virtuous and good motivation. But the fact of the matter is you don’t violate the Constitution to further that interest, to advance that good and virtuous motivation.

And that, in fact, violations of the Constitution often have unintentional consequences.

One of the stories from the University of Wisconsin when they enacted their speech code, which was designed to make Wisconsin a more hospitable place for women and minorities, one of the first complaints was made by someone who complained of being called a redneck.

I know the code wasn’t enacted to protect rednecks. The code was enacted to protect other people. But there’s unintended consequences when you begin to – when you begin to regulate speech on subjective listener offense, it isn’t free anymore. And if there’s one place it should be free, it’s in the academy. So I took your question and —

REPRESENTATIVE QUIGLEY: That’s okay. Based on the way – the criteria that, your wish list for this Committee, how they would conduct themselves, there’s three or four hearings, what would you hope that would come out of – as a result, what would you think that the Legislature should do, if anything?

MR. FRENCH:That’s a very good question. So much of it depends on what is discovered. But with respect to what we know, for example, the speech codes, I don’t see any – we know for a fact that the Pennsylvania – the non-discrimination rules enacted by the Pennsylvania legislature that apply, for example, to the workplace are constitutionally appropriate. What’s the impediment to making sure that the nondiscrimination rules of the State university system mirror, for example, the constitutional nondiscrimination rules that apply to everyone else in the state? That would by itself eliminate virtually every speech code. So, you know, that’s just one thing that I think would be of enormous value, a way to end the violation of the constitutional rights for thousands of Pennsylvania citizens. Regarding the other issues, so much of it depends on what is discovered. Is it, in fact, that job descriptions or job performance evaluations are ideologically tinged in any way? You know, not knowing what exactly will be discovered if anything, it’s hard to project beyond that.

REPRESENTATIVE CURRY: You know, we have something in the speech code on the floor of the House in our debate; so you may want to look at our rules and maybe even make some suggestions. In response to a question on rights violated in the class, you were primarily talking about speech codes though, weren’t you? You weren’t talking about a student not being able to speak in class or…

MR. FRENCH:I believe – if I’m recalling the question – I think in that response I was primarily talking about speech codes.

REPRESENTATIVE CURRY: And your whole approach is about speech codes on campus, not on an instructor/student dialogue in class?

MR. FRENCH:That is not the focus of what we do. Because I think, in fact, that absent evidence that the instructor/student dialogue is being actually restricted in an unconstitutional manner by the instructor – for example, if a professor’s talking about the Israeli-Palestinian issue, to take an example from a recent controversy at Columbia University, and make some assertions regarding what did or did not happen in Jenin, and a pro-Israeli student raises his or her hand to dispute the assertion and the professor says, I will not allow anyone to dispute evidence of Israeli atrocities in my class, that’s an unconstitutional act.

The reports that we get of things like that are a tiny fraction of the reports that we get. Much more of what we get is regarding application of a complaint by a student that another student has offended them, which results in a process at the school that punishes the offending student, the student engaged in the initial offending speech.

That is what we face quite a bit, as well as the religious liberty issue of religious

student organizations being rejected from campus because they discriminate on the basis of religion or creed or ideology.

REPRESENTATIVE CURRY: Although schools I think do have some sense that they need to maintain an atmosphere of civility on campus, and that’s a real challenge sometimes.

MR. FRENCH:It certainly is. And we do not say that a school can’t consistently preach civility. The problem is when the civility advocacy turns into a civility code.

REPRESENTATIVE CURRY: You don’t know of any college or university in the interview process or on the application form asks for a individual’s political registration or –

MR. FRENCH:No.

REPRESENTATIVE CURRY: – who they voted for in the last election?

MR. FRENCH:No.

REPRESENTATIVE CURRY: You answered – you were asked in an interview if you would teach gay students. When I was interviewed, I was asked if I could teach art students. Were my constitutional rights violated?

MR. FRENCH:Depends on the context. If they said –

REPRESENTATIVE CURRY: I got to go back 45 years.

MR. FRENCH:If they said, I see that you’re a white male, can you teach art students, because it would implicate your race, that’s an unfounded assumption based on race, that would implicate your rights. If you were applying for a math position and they said we also would like you to teach art students, can you do that? That’s certainly not – it’s all depends on the context.

REPRESENTATIVE CURRY: All right. Thank you.

CHAIRPERSON STEVENSON: Thank you. Any other questions from the members of the Committee?

(No audible response.)

CHAIRPERSON STEVENSON: Mr. French, I want to thank you. You’ve been very patient with us and, you know, I know you volunteer your services, too. If we need you when our hearings do start, I just – as a housekeeping matter, we’re going to be holding possibly four hearings. One will be in the west, one will be in the east, one will be in the central part of the state, and one somewhere else in the Commonwealth. Representative Curry and I will be getting together next week to start laying out the plans for these hearings. It, I think, will be beneficial for all in attendance to just contact either Representative Curry’s office or my office if you want an update. But, really, the first hearing which I hope to hold out west won’t be probably now till the end of October, beginning of November at the earliest. And if you all remember, through the resolution, we have to have our report done and into the House by the end of November of 2006. So once we start the hearings, hopefully they’ll get rolling, because it will take some time to assimilate the data and put it into report form.

Can you, Mr. French, stick around after the hearing – actually, it’s really not a hearing. It’s an informational meeting. I’m not referring to it correctly. Maybe some of the members of the audience have some questions for you too, and I’d appreciate it if you’ve had stick around.

MR. FRENCH:I’ll stick around and answer questions as long as they exist.

(Proceedings adjourned at 4:40 p.m.)

The Pennsylvania House Considers Academic Freedom

By Stephen H. Balch–National Association of Scholars–11/10/05

In a two-and-a-half-hour session before a select committee of the Pennsylvania House of Representatives today at the University of Pittsburgh, NAS President Stephen H. Balch laid out the case for policies that increase intellectual pluralism, curb political advocacy, and promote traditional academic standards within the Commonwealth’s public university systems. Here is the text of Dr. Balch’s remarks, and here is the executive summary. Both are PDF files.

Citing evidence from several national surveys of professorial opinion, and a study of political giving among Pennsylvania public university faculty, Dr. Balch documented huge ideological asymmetries favoring the liberal-left over the conservative-right.

Dr. Balch then proceeded to demonstrate the existence of an institutional culture at Penn State, Pitt, and Temple, and among the campuses of the state university system, that permits liberal-left advocacy and activism to flourish openly — as evidenced by the very mission statements of university departments and programs. This turns education into indoctrination.

Citing the language used by university programs in social work, education, cultural studies and women’s studies, as well as various other public affairs and student life programs, Dr. Balch showed that they made no bones about their political purposes. The boldness of these declarations, and the fact that they are issued without rebuke from senior university administration, strongly suggests that they are just the tip of an iceberg of widespread and similar, but less visible, practices. Indeed, in one case, that of California State University of Pennsylvania, political advocacy came directly from the president’s office.

Dr. Balch showed how these practices were at variance with the ideals of liberal education embraced by leading American higher education organizations. Quoting from their statements, he demonstrated that the central purpose of higher education is to open minds, present a range of serious viewpoints, and cultivate independence of thought, rather than pursuing advocacy’s goal of conversion. By embracing advocacy on a whole range of controversial political, cultural, and social issues, the state’s public universities are subverting their central educational purpose, and engaging in activities that have no warrant in their prescribed missions.

Dr. Balch then noted the many leading academic associations that had declared intellectual pluralism to be a central principle of American higher education, on a par with academic freedom. These included the American Council on Education, America’s foremost higher education group, and the American Association of University Professors.

Dr. Balch argued that the inappropriate immersion of the state universities in advocacy and activism was in large measure attributable to ideological imbalances within them, leading to a lack of the countervailing opinion that serves to keep institutions intellectually open and honest. Dr. Balch pointed out the striking incongruity of the vigorous, ongoing, efforts made by Pennsylvania’s state universities on behalf of every sort of diversity except the intellectual variety — the kind genuinely crucial to the university’s mission.

Dr. Balch emphasized that academic freedom has from the outset been predicated on corollary obligations. Citing the AAUP’s founding document, its 1915 Declaration of Principles, he noted that these obligations involved a scholar’s work being conducted “in the temper of a scientific inquirer” and his conclusions being gained as “the fruits of competent and patient and sincere inquiry”. This means scholarly activity carried out with rigor, care, and open-mindedness, instead of in a spirit of advocacy and activism.

Dr. Balch observed that the extraordinary immunities from legislative oversight normally granted to universities are based on this quid pro quo — essentially a contractual understanding. Thus while the legislature should avoid involving itself in the administration of the state’s universities, its due diligence very much requires taking care that the corollary obligations of academic freedom are understood and enforced by university authorities. Alluding to the evidence he had already brought forward, Dr. Balch contended that there was every reason to believe that there was currently a deficiency in both understanding and enforcement.

Dr. Balch recommended that the legislature should clearly communicate to the state’s public universities that they must address the problem of intellectual diversity with the same vigor with which they already address what they take to be a lack of ethnic and gender diversity, developing their own creative solutions. The universities must also be put on notice that advocacy and activism are not legitimate parts of their missions, and that returning to a genuine sense of academic purpose and intellectual principle must become major institutional concerns. Finally, the hiring process for administrators and faculty must more significantly involve the consideration of candidates’ commitment to intellectual standards and reasoned discourse.

The legislature, Dr. Balch concluded, must expect a full accounting of progress made toward these goals. If good faith efforts are not forthcoming, the legislature should press for new university leadership that is prepared to undertake them. As a last resort, it might consider a comprehensive overhaul of institutional arrangements so as to better meet the obligations that accompany academic freedom.

The National Association of Scholars is America’s foremost higher education reform group. Located in Princeton, it has forty-six state affiliates and more than four thousand professors, graduate students, administrators, and trustees as members.
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Stephen H. Balch is the president of the National Association of Scholars.