This is a transcript of a guest lecture I gave to a class on the philosophy of law taught by Andrew I. Cohen– who is, surprisingly enough, a whole different person from his colleague and our BHL coblogger Andrew J. Cohen, not just the same person with a Latinization of the initial– at Georgia State University, February 15 2016. It resembles a talk I gave at the University of Tulsa on December 8, 2015. It expands on a brief discussion on academic freedom and the university as a complex association in my book Rationalism, Pluralism, and Freedom.
This is an unedited transcript of spoken remarks; I haven’t fixed the spots in which a sentence got away from me and got a little garbled.
This is much too long for a blog post, of course. Sorry about that. But BHL seems like the right place for this to have a google-able existence.
I want to start off before I really get to what it is that I’m going to talk about, by referring to a passage in Lon Fuller’s Morality of Law which wasn’t in the portion of that book that I think that you read. Fuller examines the question of whether we should think of the rules of association as being relevantly part of the legal system. He takes as an example universities and how it is universities govern themselves, and asks a question: if someone is expelled from a university, are they entitled to something like legal due process? And more generally, should we think of the university’s legal system as part of a legal system broadly understood, which is to say observed. His answer is yes, and I will talk about why that is the case in a little while.
The example of a university rule that he offers is actually parietal rules; (does anyone even know that word means anymore)? Parietal rules were rules they had back in the old days concerning when male students could be in the dormitory rooms of female students and vice-versa, and it was, a very serious matter to make sure such rules were followed. It was a very important example of what would be an expellable offense, and example which I wouldn’t bother with now except for the fact that I am now in Atlanta and I am alumni of Brown University which expelled Ted Turner for violating parietal rules back in 1960 or so. Ted Turner never got his bachelor’s from Brown, it was an offense from which there was no readmission. That all changed very rapidly a few years after. In particular, I want to talk about whether the internal rules in a university that govern speech and debate should be thought of as legal in form.
As of last fall it became a very topical subject on college university campuses across the US with really important and controversial episodes arising around the limits of speech on college campuses. One of the central moments and something that I’m going to refer back to over the course of my talk was a confrontation that was caught on video between an African-American woman student at Yale, and one of the residential housemasters of the residential college were she lived. The residential housemaster had sent an email about the ability to wear offensive costumes on campus. The student was caught on video very aggressively saying to the housemaster who was also a professor: “I don’t want a debate; I want a safe space”. Over the course of my talk, I’m going to build up the case for what it is that she said which became one of the central instances of the discourse of last fall, about the idea that universities had become sites that were unfriendly to freedom of speech and there was something deeply wrong about the ways students were engaging with freedom of speech and with debate on campus. To a substantial degree I want to push back against that drawing in part upon tools from the philosophy of law.
I’m going to start with a strange kind of claim that freedom of speech is not a value of universities. Just as such. When I say universities, I’m not today going to be talking about the distinction that exists in American law between public and private universities. It is the case that American constitutional law treats public universities as being bound by the bill of rights as if they were government agencies and treats private universities with the amount of deference very near to what the Church gets that it is able to make its own rules. I don’t think that division makes complete sense and can’t support the weight that its being asked to bare and moreover it has the consequence if you think internationally or comparatively that outside of the US there aren’t any “real” universities left in the world because the US is the only country left that has a very substantial private university system.
But because I think real universities are really, rightfully, self-governing associations I think that it can’t be the case that the gradual change from public to private universities in the rest of the world has meant that there aren’t really any universities left, and I take that thought back to the US and say probably public universities here also shouldn’t be treated as if they’re just the DMV. They are meaningfully public, but they are also meaningfully self-governing institutions. So when I say that freedom of speech isn’t a value of universities, I’m not making a claim about the details of the first amendment, I’m making a claim about how universities ought to be able to govern themselves.
Under general principles of freedom of speech, under the rules of the first amendment as they govern the rules of the rest of society which I think are generally very good understandings of what the value of the freedom of speech is. Under such rules, you are allowed to lie. It’s a very clearly established norm of the first amendment. While certain kinds of commercial fraud aren’t allowable (you’re not allowed to put up a sign you’re selling sugar and sneak cocaine into it). In general, you’re allowed to lie and your ability to lie is protected by the first amendment.
For example, you are allowed to tell the following particular kind of lie: you’re allowed to publish a book that has your name on the cover that you did not write. You have a contractual arrangement known as ghostwriting where you pay the writer, the writer writes the book, you buy the writer’s services and if you are relatively thoughtful, you include the ghostwriter among the acknowledgements of the book and if you’re not you don’t. But one way or another, one you’ve paid the ghostwriter that’s all there is to be said. You can then put your name on the book, this is how very nearly all books written by American Presidents and Presidential candidates are published. Indeed, sometimes, as with JFK’s ostensible Profiles in Courage a book that the person didn’t write can win a Pulitzer. And the Pulitzer went to John Kennedy rather than Arthur J. Schlesinger who actually wrote the thing.
All of this is perfectly legal. It’s a lie! It’s a lie that Kennedy wrote the book, and there’s nothing objectionable about it from the perspective of the freedom of speech. On a university campus, if you submit written work in one of your classes that you paid someone else to write for you and you put your name on it, you get expelled. On a university campus, if I publish a piece of research that I didn’t write and I paid someone else to write and I put my name on it, I get fired. And appropriately so. That kind of misrepresentation which is fair game as a matter of freedom of speech is not fair game in terms of the structure of community of inquiry and discourse that is part of a college or university. It is one of the very worst offenses in a college or university.
There was a very conspicuous scandal of this in my home discipline of political science last year in which a graduate student got international coverage for a very high profile piece of research which purported to show that certain surveys structured in a particular in which the interviewers of the public opinion surveys told the interviewees that they the interviewers were gay, had a significant impact on whether the interviewees had relatively tolerant or relatively intolerant responses with regard to gay rights. The survey never happened, it was a fraud. This political scientist will never work again, and appropriately so. It’s a violation of the heart of the academic enterprise. None of which is to say that the heart of the academic enterprise doesn’t have some questions about free debate or free inquiry in it. But they are not well captured by the norms that we associate with freedom of speech or freedom of the press out there in the wider society or in the legal system of a constitutional democracy. In this I believe, universities are typical of association and associational life. I will now briefly take a detour into talking about churches and religions.
In a liberal democracy one has freedom of religion. One has freedom of religious speech, one has freedom of religious practice, you have the freedom to leave a church, join a new church, denounce them all, refuse to be part of any church whatsoever. What you don’t have is the freedom to go to your Sunday catholic mass, jump up in the middle, turn over the tray of communion wafers knocking them on the ground, shout “Hail Satan” and draw a pentagram on the pews. You’ll get arrested for that! “Well but it’s my freedom of religion to worship Satan”. That’s a freedom you have in your own basement. What about this?
Instead of doing it in the church, instead of committing trespass and vandalism, what if I just published an article in the newspaper denouncing the Pope as the antichrist and ending my little op-ed or letter to the editor with “Hail Satan”, and describing the communion sacrament as an act of barbaric ritual cannibalism that involves eating a poor man’s body. What if I did all that, and then went back to Church on Sunday? Well in some respects (it would take a little longer than one week), at some point the Catholic Church says to me: “what you are saying is incompatible with you remaining a Catholic in good standing.” At some point if it becomes well known enough that I’m doing this, I will be excommunicated.
“But why? I have freedom of religion; you can’t punish me for my religious beliefs!” That’s a categorical distinction. The state can’t punish you for your religious beliefs, the state can’t censor your op-ed that ends in “Hail Satan”, it can’t take down the pentagram that hangs from your house. The church isn’t the state. And when the church has rules about what it means to be a member of good standing of the church, that is an expression of freedom of religion, not a violation. Freedom of religion includes centrally, the freedom to come together and worship in common, according to norms and principles and rules that we worshipers all agree on together. That is, it includes the freedom to have a church, to have a denomination and that means something, that means there are limits, that there are rules, that there is a doctrine that is associated with belonging to this church.
Now there’s variation among churches about how institutionalised and how clearly written the rules are and I don’t want to spend too much time on things like that. Catholicism is an especially clear case because Catholicism is an overtly legalistic religion with some 1500 years of internal church law and with well developed judicial procedures governing things like excommunication. That makes it by the way very attractive for Fuller’s argument that we should understand the rules governing the internal associations as being part of the same prepositive enterprise that he thinks the activity of law is. The subjecting of human life should be known at predicable points. But that Catholicism is especially clear doesn’t mean that Catholicism is unusual in this. It’s just that in other kinds of churches, denomination or religions, the rules may be more decentralized, they might be more a matter of: “we in this community, we twenty people who form this community together, we have our understandings of where the boundaries are.”
Or it might be a matter of there being some particular teacher, doctrine, or school that you belong to and this exists within both Judaism and Islam. There are important traditions having to do with what teachers you follow and what scholarly interpretations of the religion you subscribe to. They don’t have the same centralized structure as Catholicism does. But insofar as you mean to be a Jew of this kind or Muslim of this kind, you are going to abide by the rules of this kind as are understood by this community. To be in a religion is to be in a community that has norms. As a citizen of a liberal democracy you have the freedom to reject the norms, but in rejecting the norms you leave. You don’t have the freedom of religion to not act like a member and remain a member. You don’t have the freedom of religion to denounce the religion and still demand that you fellow worshipers still treat you as if you’re one of them. That would violate their freedom of religion, which the freedom to engage in a kind of shared community of worship. This is the basic structure of rules governing the internal life of associations.
I now want to make reference to a distinction drawn by the British philosopher Michael Oakeshott in (among other places), a very influential essay on the rule of law as well as his book on human conduct. He distinguishes what he calls enterprise associations from civil associations. Enterprise associations don’t mean businesses, it’s not a narrow definition. Enterprise associations are associations with a purpose. We come together for the sake of some common enterprise. Whether that be bowling in a bowling league, playing baseball in little league, worshiping together, exchanging ideas about gardening, reading books together in a book club, or structuring inquiry into the nature of truth. All of those are enterprises. They are things for which we come together the better to be able to pursue a shared project in common. All of these are distinguished says Oakeshott form the civil association. The civil association has no purposes. And the civil association is a kind of categorical idealization of what a liberal or constitutional government is like. And in talking about how the civil association acts, he argues that the rule of law is characterized not by purposes, but by what he calls adverbial rules.
Adverbial rules describe not what it is people should do, but how they should do it. The easiest case is probably the case of the contract. In a free society, we are not ordered by the government to enter into any particular contract. We don’t have to sell to any particular buyer, buy from any particular seller, we don’t have to make any particular person our business partner, we don’t have to buy any particular person’s house we don’t want to. What does the rule of law say says Oakeshott? The rule of saw says: “if you want to make a contract, here is how you do it.” And the details of the rules vary tremendously, one kind of contract to another and one legal system to another. Do you need two witnesses? Do you need three witnesses? Do you need any witnesses? There are kinds of contracts that are characteristic of a whole lot of our commercial life today where a contract means you just click a button that says “I have read and agreed to the terms” (which nobody actually does). But when you click the button that says “I have read and agreed to the terms” you are entering into a legal contract. You are committing that you agree to the rules of the website. Do those count as contracts or not? There can be different details about all those kinds of things.
The point of the rule of law in civil association according to Oakeshott is not to tell us what to do, it’s to tell us “whatever it is you want to do, here is how you do it”. Beyond the case of contracts and the extension of contracts that comes in associations when if you want to form a club, here is what you do. You fill out a piece of paper and you submit it to the secretary of the office, or you submit a piece of paper to a bank that allows there to be a chequing account that associated with the accounts so that the dues have an account that they can be paid into. None of that tells you what kind of a club to have. And very generally the structure of the law is to enable people to do the things that they wish to do, to follow whatever purposes they have. It is the precondition of that kind of rule of law.
The civil association itself, the government itself, must not have purposes of its own. It’s not trying for example trying to make us all Protestants. What It’s doing is its saying “if you want to have a church here is how you do it. Here is what it means to register your church as a tax exempt organization, here is what it means to get the religious exemptions that allow you to have meetings in a residential area where churches can very often have meetings when other kinds of organizations wouldn’t ordinarily be able to. It’s “here’s how to do it” not “here’s what to do”. This by the way has overlap with things that I think you did read including the discussion of secondary rules in H.L.A Hart’s The Concept of Law. But its long been thought (and I think this too), that Hart’s discussion of these kinds of rules is kind of confusing.
Hart thinks that a legal system is a system of primary and secondary rules. Primary rules tell you what to do, secondary rules tell us who in the system can make new rules and how. And most of that discussion is about things like constituting the legislature. You have a constitution that tells you: you have two houses in the legislature, who gets elected to the legislature, what the rules are governing the passing of a new law. And then he says sort of as an aside “well and a lot of private law like contract law seems sort of like this too”. Why does it seem sort of like this? Well because when you and I make a contract together, we are creating a new legal relationship between us, in creating a new legal relationship we are creating a new law. You give me $100, I promise that tomorrow I will give you my used bike. If I don’t deliver the used bike, then I’m in breach of contract and you can take me to court. I am now in Hart’s terms operating under a new primary rule. I have a duty to give you my bike.
Hart says “we should think of people entering into contracts as mini legislators all over the place”. Oakeshott’s discussion (although his prose is harder to get through), seems to me actually clearer here. We shouldn’t treat the ordinary stuff that private people do when they create new legal circumstances as if they’re really legislators. Let’s see correctly that that’s most of what law does most of the time. We all of us everyday enter into dozens or hundreds of new legal relationships. Every website whose terms you click you agree on, every shop you go into to say nothing of everything that you buy at every shop. In a sense, every person you walk past on the sidewalk and don’t hit in the face; that is, every time you refrain from the tort that could get you sued for hitting someone, those are in Oakeshott’s terms, ways of proceeding. If I want to proceed without committing torts, here is what I have to do.
But even if you omit those negative cases, we all of us all the time are engaging in legal transactions that are person to person. Most of us most days most of the time don’t have direct interaction with the official legal system if things are going well. That doesn’t mean things always go well and sometimes you have many more official interactions with the police and the legal system than we would want. But for anyone making their way through life and society, you have many more legal interactions with other private persons than you do with the official legal system. And that’s what Oakeshott thinks and what Hart makes it hard to see when he treats things like contract law as these sorts of strange anomalies.
One more example before I get back to associations, and that is wills. The state doesn’t tell me who I have to leave things to when I die. A will isn’t a contract, the would be recipient doesn’t have to agree. Legal systems have rules telling us “if you want to leave a will, here is what you do”, here is the standard form. In good low transaction cost legal systems you can sometimes download the form online or buy it at an office supply store and fill in the blanks. It’s better if you register with a lawyer and that makes it less likely that anyone can challenge it later on, but one way or another, declaring who your heirs are, declaring who will take care of your kids if you leave kids behind when you die, declaring who gets you property; those are all legal transactions that you’re entering into with people who may not know it yet. You can name people as heirs who have no idea. And what the law does isn’t tell you who, it just tells you how. Now back to the case of enterprise associations.
In Oakeshott’s terms the creation of associations is governed by the rule of law. The rule of law tells us, if you want to create a new university, if you want to create a new club, here are the forms, here are the rules. Whatever purpose you want to embark on together, here is how you do it. But then the associations once formed are in Oakeshott’s terms enterprise associations not civil associations. They have purposes. And in having purposes, they have substantive rules, they tell you what to do not only how to do it. Once you form a church the church tells you what you have to believe in order to remain a member in good standing. Part of the question for how we understand freedom of speech and freedom of debate on campus comes to whether we think that universities are enterprise associations or civil associations.
Once again I want to step back from whether that means public or private, governmental or non-governmental. Does the university have purposes like a church, or is the university open ended and purposeless like the government? And I want to suggest that it’s genuinely an enterprise association, though it is a complex association, that has rule of law elements in it. That is, it has moments of purposelessness but the moments of purposelessness are all structured toward the end that is the overall purpose of the institution. And here one last analogy with religious organizations. What I just said, about universities in their complex associations; that is true of the Catholic Church too. (Other religious denominations too but I’m going to focus on the Catholic Church because it’s nice and legally explicit). The church law says: If you want to create a new monastery, monastic order, or religious hospital; if you members of the church want to do something together to create a new association within the church. You are free to do so for any purpose that is broadly compatible with the church’s overall purposes and here is how you do it. Here are the forms to fill out.
The proliferation of the institutions within Catholicism, the orders of priests (like the Jesuits), orders of monks, universities, hospitals, all that stuff; that’s all inside the Catholic church. The pope doesn’t create them. The Church doesn’t order people to create them, it creates the legal structure according to which people can create them for themselves. Only insofar as they advance an overall sense of Catholic mission. You cannot create the monastic order devoted to the worship of Satan. But you can create monastic orders that have one set of rules or another: “we” take vows of silence, “we” take vows of extreme poverty, “we” take vows of shaving our heads, we wear special clothes, we don’t wear special clothes. We establish hospitals that doctor to the sick, we establish hospitals that only doctor to the poor among the sick. All of those things are things that people are free to create within Catholicism.
Catholicism is the prototypical complex association. When the university form emerged in Medieval Europe, it took on many of the same legal and structural features that the Catholic church had, and has been ever since that time a complex association. Part of what this meant for the universities in its earliest day was the organization into what were then called faculties. The faculties of theology, philosophy, medicine, and law. Some universities today would still call them faculties, some call them colleges, some call them schools, but the organization of the universities into different internal institutions devoted for teaching about and research into different areas of knowledge. That’s something the university enabled people to do from within. At a much later stage of the university’s development you then further fracture the faculties into departments and you make it possible for new departments to be created, new interdisciplinary programs to be created, new methods of inquiry, new lines of teaching.
The university doesn’t just as such say “here is what every class is going to be about”. The university says to professors to this day, if you want to offer a new class, here is the form you fill out. And the university doesn’t tell us what to research, it doesn’t tell students what to write their theses on; it says, if you want to do those things, here is how. That looks suspiciously like the rule of law, it looks suspiciously like purposelessness. But the university as a whole is an enterprise association not a civil association. It creates those things in limited domains for a well defined overall purpose which is the teaching and acquisition of knowledge. They don’t say: “here within the university if you want to create a new fast food chain here is how you do it”, they don’t say “if you want to establish a new church here is how you do it”. You might be able to create a student club devoted to those things but as far as the university is concerned, those are student clubs and you have a whole ecosystem of student clubs for the sake of enhancing the overall educational experience of student while they are at the school. But professors for the most part aren’t free to do things like create new fast food chains or churches on campus using university resources. But we are free to create new classes, and it’s complicated but we are free to create new departments.
Why? What is the purpose? The purpose of the university is organized, structured, teaching, and research. It’s organized into specified domains of knowledge. It treats students and professors as being jointly involved in that, and indeed the first universities in Medieval Europe were sometimes corporations or associations of students that hired professors, and sometimes corporations or associations of professors who sold teaching to students, and sometimes a hybrid. Who the founding members or shareholders of the university were varied from one university to another, but it was students of professors or both; creating a shared institution for the transmission of knowledge through teaching (research came later). The norms that eventually developed about how that proceeds, go under a specialized label that has meaning only really within an academic context, and that specialized label is “academic freedom”. It’s not the freedom of speech, it’s not the freedom to lie, to commit research fraud, to submit plagiarized work. It’s more than that though.
It’s not the freedom of a professor to stand in front of a class and say “have you heard the word of God as I best understand it? Let me preach to you for an hour”. Or “you all really need to vote for Bernie Sanders, his is the one true way for politics.” Those are considered to be violations of the nature of the university’s purpose. A professor does lecture; a professor does convey (in sometimes a very one-way direction). But the scope that a professor has to set the terms of the classroom are constrained by the subject matter of the organized class, and of the organized institution into which the class is situated which is characteristically a department which has an identity as a discipline. At the first approximation, the meaning of academic freedom is the freedom of both professors and students (researchers and those pursing knowledge), to be judged only according to what they do in the classroom or as researchers and only according to the standards of the discipline. What does that exclude?
One thing that it excludes is for us to evaluate students, or for the university to evaluate us at all for our political or religious opinions expressed off campus, outside the classroom, outside the academic world. This was part of the purpose of codifying academic freedom as a norm over the course of the late 18th and early 19th century (though there were precedents for it in the Medieval universities). When professors or students express controversial political views off campus and along comes what was characteristically some rich republican trustee who says “you need to fire that professor or expel that student because they said something left-wing in the newspaper.” The university points to this norm “that’s not how we do things”. If the philosophy student fails to be a good philosophy student on the terms of what it means to be a philosophy student: written work submitted in class, discussion in class, the inquiry into philosophy; then we can fail a student and it’s fine. If a chemistry researcher fails to be a good chemistry researcher: if they defraud in their research or they fail to do any research or fail to publish any research then they get fired. But we can’t, we don’t, we won’t, do so for extraneous opinions that aren’t to do with disciplinary business.
Now, who is it who judges what counts as being a good philosophy or good chemist? At first approximation this is “the discipline” which on a university campus means the department. We don’t expect the biology department to come tell the philosophers what good philosophy research looks like. They’re awfully bad at that kind of thing. At any research university that’s big enough and complicated enough there are big committees where the scientists, the social scientists, and the humanities professors all get together and we recount over and over again just how bad the scientists are. They just look at us over and over again and say: “but you’re making it up! Where is the experiment?” The good news is “you don’t have to understand how we do what we do, because we are self governing. We decide how we do what we do.”
The “we” here is an intellectual community. It is not every professor fends for themselves and every student fends for themselves. And so, while academic freedom robustly protects what happens in a classroom, it does not protect the freedom of the astronomy professor to one day decide that he is an astrologer and start teaching how it is you read your fate in the constellations. The community of astronomers has long since said: “that’s nonsense, that’s not the enterprise; and if you do that, you’re failing to be a good astronomer.” Could there be something like astrology taught in the faculty of religion? There could be. The astronomers don’t get to run the whole show, they get to run astronomy. The evolutionary biologists get to run evolutionary biology, and if the evolutionary biology professor stands up there and is suddenly a young earth creationist and says “God created all the species exactly as they are 6000 years ago” then the biologists get to say “you aren’t doing we what do” and will say: “we’re not going to hire you, we’re not going to keep you on, and we will fire you eventually if you insist on running your classes that way.”
Those aren’t violations of freedom of speech or freedom of religion. Those are the self governing associational freedoms of these communities of inquiry. Why have that? Well because inquiry requires taking some steps for granted and building on it. The ability to have a high level debate in chemistry requires you have all kinds of basic and intermediate level stuff that everyone agrees on. “We’ve done this work, this has been proven, now we’re at the next step”. That doesn’t mean that in the university community those basic things are immune to challenge. A lot of what happens in interdisciplinary programs on university campuses is that people from different disciplinary frameworks will encounter one another’s basic assumptions and challenge them in (sometimes) interesting and productive ways.
It’s only “sometimes” interesting and productive. People need to be open to understanding why other disciplines are the things that they are. They need to not just sit there and say: “where is your experiment?” They need to be willing to learn how the other discipline does things and why. But in a well structured program there can then be learning from going back to basics. But that can’t be the normal enterprise though, that can’t be what we do every day either as students and teachers or as researchers. We have to be able to make progress on the assumption that we are going to take certain things for granted.
Academic freedom is the core meaning, the core institutional life, of freedom of debate and freedom of inquiry in the university setting. And one thing that’s notable about academic freedom as I’ve just labeled it is that it creates safe spaces. The people who are doing the work on an ongoing basis be they students, teachers, or researchers, don’t have to spend all day every day answering the challenge: “where are your experiments?”. That get’s boring and is unproductive. If I as a political scientist want to do some research if I want to make some intellectual progress, I have to not be constantly harangued by the biologists or the chemists saying: “It’s not a real science you know”. By the third time, there is nothing new to learn, it’s going to get in the way of our ability to do what we are doing. The same by the way is true of the metaphysicist in a philosophy department who says to the physicist: “Well you know that your assumptions about the nature of reality are really up for contestation.” It’s really hard to argue with and the physicist replies: “Get out of my way, I’m trying to get some work done!”
What is that? That’s a way of separating out universities into partially separate communities in which different lines of inquiry, different kinds of work can be done among people who share certain assumptions in common. That does not mean that any of those communities are internally spaces without debate. Every good classroom, every good department, every good discipline, is a space where debate happens. We get together and argue about the new high level stuff that we are trying to understand. We ask each other hard philosophy questions, hard political science questions, hard chemistry questions, but they’re hard as understood within the context of that intellectual community. Those safe space moments are most of our day, but they aren’t all of it.
There is value in having moments of interdisciplinary challenge and good universities do try and create settings in which that kind of thing can happen. And sometimes, whole disciplines can be really shaken up from the outside. Those interdisciplinary moments of contact can bring really important assumptions to light, they can show that there should be better arguments about them such as when neurology and philosophy come into certain kinds of arguments about the structure of the human mind and what it is for humans to think, or when economics began to really appreciate the study of law over the past two generations by calling into question assumptions made by legal scholars about where law came from and how law works. The interdisciplinary questions can shake the assumptions in ways that are intellectually productive. But that still can’t be, no matter how valuable it is, the normal business most of the time. The normal business most of the time has to be “we, doing this kind of work, according to these norms, and we evaluate each other according to these norms.” The philosophy professor evaluates the philosophy student as to whether the paper is a good philosophy paper. The philosophy department evaluates the philosophy job candidate as to whether they would be a good philosophy professor. And the philosophy department evaluates the current philosophers as to whether they are still doing that and acting as good philosophers. The moments of challenge have to be the exception; the safe spaces are the rule.
Why do we need safe spaces? We need safe spaces for a few different reasons. One of them is intellectual. Inquiry is hard. Research, teaching, and learning, require building blocks. And if you are never allowed to put one set of blocks down, you will never be able to move on to the next level. An intellectual world in which we are always doing nothing but challenging one another’s basic assumptions gets very boring very quickly because no progress is possible. You can never build on what you’ve already learned because you’re never allowed to take for granted that you’ve learned it. That requires communities and times and spaces that distinguish themselves from one another. I do go to committee meetings with scientists on them, and we do sit around talking about for example: “should we tenure this professor, are they acting as a good biologist?” That’s fine. When I leave the committee meeting and I go back to teach my students or write my books, if the biologist followed me back to my office shouting at me “well but you’re not a real science you know”; it’s annoying, it’s boring, and it stops me from getting any work done. In order to make any progress, we need to be able to step back from those moments of challenge and go deeper. That’s one reason we need safe spaces.
Another reason is that that kind of thing is psychologically and emotionally draining. Adults commenting on university students from off-campus will often say “there is a real problem with students not understanding that their ideas should be up for challenge all of the time.” But nobody who lives off of a university campus lives that way. We go home at the end of the day. It’s not just that I walk out of my meeting with the biologist and don’t let the biologist follow me and say “it’s not a real science”. It’s not just that when I go back to the political science department I don’t have my quantitative political science colleagues harassing me and asking “where are the hypotheses?” It’s not just that among my political theory colleagues I don’t let them harass me all day saying “what you’re doing is kind of a strange mix of normative and empirical inquiry, where is the philosophy?” I hear all of those questions at different times in my intellectual life, but at some point I go home. You can’t do that all day every day, not if you take those challenges seriously or not if people get in your face beyond some minimal level. Because I’m a tenured professor I can actually just close my door if someone is getting on my nerves and that serves to give me my own safe space in its own way. But if I’m actually going to be listening and to hear the arguments they make, I need it not to be all day every day.
Now there is something wonderful about life as a student at especially a residential university. Where it’s possible to go though a year or two of “all day every day”. There is a great deal of romanticism of American popular depictions about university life of “the dorm room bull session”. Where you stay up all night talking to your roommate arguing about the meaning of life, (with or without chemical enhancements). And that’s great! Once or twice. By the third night in a row it’s getting old, and if by the third night in a row your roommate doesn’t want to let you go to sleep and says “No no! We are just getting to the good part! Let’s argue some more!” You have to have some ability to say “Enough. No we haven’t found the ultimate answers yet, maybe tomorrow.”
There is a limit to what we can do mentally, psychologically and emotionally. The more seriously we take the challenges, the sharper that limit is. If the things other people said to me were just noise, if I screened them out the way you do in a foreign country where you don’t understand the language, or on public transportation where you might screen out other people’s conversations; you can do a fair amount of that. But if I’m actually listening to every argument everyone is making, I wear out faster and faster. And while at 18 or 19 in the dorm room you have more energy than I do, you wear out too.
The arguments about freedom of speech that arose on American college and university campuses last fall, very many of them invoked the language of safe spaces. This is a language I’ve been using in a very unfamiliar or atypical way to describe classrooms, disciplines, and departments. I’ve been putting it in that context in order to make clear that communities of inquiry and debate depend on the ability of participants to sometimes go back, among the people who relatively agree with one another, and get some work done. Or, to get out of the circumstance of argument and debate entirely and take some time off. Notice that those are separate. There is one kind of space that you need when you tell your roommate “enough, it’s been three nights in a row and I’m exhausted.” That is you saying “I as a person need to recharge”. There is also “we as people doing something together, need to be able to have debates that are just among ourselves, to get some work done”. Both of those, I think are important features of student life that tend to get significantly underappreciated in the arguments as they unfolded last fall.
A great deal of student life in a university as a complex association is self organized. Most universities have some provision for students to form clubs and associations. Now the clubs and associations have the structure of being prepositive enterprise associations: “we get together to do this thing together” whether that thing is ultimate Frisbee, Dungeons and Dragons, reading French literature together, or exploring the religion or culture background we have in common. Students associate. And students associating isn’t the same as students separating completely. Its students engaged in the right kind of business that universities are dedicated to which is that sometimes we have the really high level arguments. Sometimes we argue with each other about the most basic of questions, the most fundamental of assumptions. But sometimes, we just have work to do.
So when students for example form campus political organizations, the student Democrats, Republicans, Libertarians or Socialists; those aren’t associations free from debate. Some of the time, all they do is debate. You get together and you argue about tactics, about which candidate you prefer in the primaries, about mid level principles, about fundamental assumptions. “We Democrats, what do we believe? We Libertarians, what do we believe?” And we argue about it over and over, night after night. What you don’t do in a student political community, is let in the person who is going to rant at you and say “You’re Democrats, don’t you know that Democrats are Socialists and trying to bring down America, and let me shout at you for a while about how unpatriotic you are.” It’s boring, it’s unproductive, and it stops people from getting work done in a way that is structurally very similar to the way in which a university discipline needs to be able to protect its intellectual space from other disciplines.
That doesn’t mean that you don’t want some moment in university life where the members of different political clubs get together and argue. It doesn’t mean you don’t want some sort of publicly organized debates where those kinds of questions will get hashed out. It means the association, the enterprise association of the student Democrats, or so on, are allowed to say “shut up, go away, we have work to do here. This work is our structure of debate, it’s our argument at the next higher level up. We aren’t just engaged in a basic assumption level defence of saying ‘no, being a Democrat isn’t being a traitor.’”
That’s part of what the student associational space offers. The ability to engage in new intellectual inquiry that is self organized among students. It doesn’t have to be about politics, religion, or philosophy. The student Dungeons and Dragons club also doesn’t welcome the person who walks in and says “you know this is all really dumb right? You know it’s all make believe right?” “Yes, we know, get out, you’re wasting our time.” It doesn’t mean there won’t ever be a moment for that person to say that it’s all make believe (as if that’s some interesting thing to say), but that time is not at the club meeting.
But the other part of safe spaces matters in student life too. It’s not just the mode of inquiry and structure of debate among the association together, but also the ability of one person to recharge. That’s something that can be especially fragile on a university campus, precisely because student life can be such a 24-hour exercise; especially at a residential university where you have dorms that throw everyone together. It means you have great conversations that challenge people’s fundamental assumptions, but it also means it can get old and tiring. You need to have the ability to step back.
The controversy at Yale, arose because the master of a residential college sent around an email arguing with the university’s stated policy on offensive Halloween costumes. The students in the residential college said that there was a problem in having that being circulated from the official master’s email address speaking as master of the college, given that that residential college is their dorm. When the student protestor was caught of video saying “I don’t want a debate I want a safe space”, I think it is almost certain that what she was saying was not “I want all of Yale to be an environment in which my feeling are protected.” She was not saying “I don’t want there to be debates at Yale.” She was saying “this place, this residential college, this dorm that you are the faculty member associated with, this needs to be a place where I can go catch my breath.” Under the circumstances of the kinds of debates that characterize multiethnic/multiracial universities in American life, very often it may be the case that there are racially tense and fraught debates that happen over and over and over again. At a large majority white institution like Yale, it can be the case that from the perspective of any given white student saying “well I think everyone should be admitted to university on their own merit and we should abolish affirmative action.” That’s the first time they’ve every had that conversation and they’re really into it. It is never the case at a large majority white institution like Yale that for any given African American student it’s the first time they’ve heard it. And when the African American students say “we want a moment in our day, we want a space on the campus where we can step back”. They aren’t saying “we want to shut down debate on campus.” They’re saying something that is perfectly within everyone’s range of reasonable emotional and psychological needs: “Stop boring me with this argument about whether I belong here or not, I have work to do.”
None of that is to say that there are no live questions about freedom of debate and freedom of inquiry on campuses, and nothing that goes too far. One of the other big controversial moments in those debates last fall arose at a Missouri university when student protestors held a very large sit-in meeting in the centre of campus. They asked that members of the press not enter into the center of campus unless they affirmed that they agreed with the group’s goals and strategies. When a student reporter tried to walk into the center of the event without saying that he was signing up for the group’s fully stated goals, a professor shoved the student reporter and said “I need some muscle over here to help me physically prevent this reporter from getting into the campus.”
It matters that it’s the center of campus, it matters that it’s a great big common outdoor space. You can ‘t under normal circumstances take over common space and make it private. That’s not to say what some people accused the student protestors of which is that there is never a moment for protesters to get together and talk tactics. And the protestors have a legitimate reason for wanting to get together and talk tactics without reporters shoving microphones in their faces, or tape recording any idea that anybody has. When you’re brainstorming, you want to be able to say things among a group of people who are engaged in the same enterprise as you, without having that idea being the thing that your name is going to be given to as a national press story. But, when the space is a common university space, then you are leaning over into something that says: “now we are trying to define the university itself as being immune to challenge and debate.” And professors roughing up student reporters is a bad sign. It’s a clear sign that something had gone too far, and been too extreme.
There are other moments on university campuses to compare. Universities sponsor speakers. Often that means that the student clubs sponsor those speakers using funds that the university helps the student clubs raise from the whole student body. Sometimes university departments bring speakers to campus, and sometimes the university as a whole will. The moments when speakers get protested, those are harder and more complicated moments for thinking about freedom of speech.
Insofar as we think it is good for the educational lives and experiences of students that student associations can self-form and can decide for themselves what speakers that would like to bring to campus. As far as we think that student clubs can contribute to the educational vision of the whole institution, then there is a real problem if those speakers are genuinely prevented from being able to speak. There have been moments like that, but actually not very many. There is a very different kind of case that gets talked about by the off campus critics of universities that arises in every late spring.
Universities like to have outside speakers who will speak at graduation ceremonies. Often the universities give honorary degrees to these people and often the universities give a whole lot of money to these people in addition to the honorary degrees. This isn’t student self organized, this isn’t a moment of debate. Routinely universities ask that when student clubs or university departments bring people to campus that those people have some dedicated question and answer time, and after all there are lots of different student clubs, and lots of different departments, so lots of different speakers say lots of different things. When the university picks one person, who will go speak to the captive audience of everyone who wants to get a degree or at least every one of you who wants to get your diploma; you’re all be sitting in the audience, passively, because there is no big Q&A session that is going to cover all the ten thousand people in attendance, and we are not just letting this person speak. We are honoring them. Honorary degree, that word actually matters. Honorary degrees are the highest honor that universities can pay to people who aren’t themselves part of the university community. What protestors say of some particular honorary degree recipient, some particular speaker, is that that person is dishonorable, that person is not worthy of being honored. And that person has said things or done things in the rest of their life that we students or professors would consider it to be offensive if you were to make us sit there and passively treat them as if they were honorable. Whether that’s because they said something offensive, said something controversial, held public office and did acts in public office that we don’t approve of; any of those are fair game for people to say: “we don’t want this person on that stage.”
Every spring this happens, and every spring the off campus critics of American university life will say “look the students are censors! Look the students are a bunch of left wing dogmatists who don’t ever want to hear a challenging idea! Look universities are no longer sites of free inquiry and free debate!” Well a graduation speech isn’t a moment for free inquiry and debate. If a student organized speaker, the club speakers, the departmental speakers; if those speakers can come, and those lectures can happen, even though they happen with protestors standing outside, but if those lectures aren’t disrupted then the university is acting as a site of debate. And students or professors at a university if they’re trying to take full advantage of the experience, they’ll make sure to sometimes go hear lectures and talks by people whose ideas will challenge them. And they’ll ask questions, and argue, and they’ll organize another speaker to get another viewpoint. The attack on student life in particular as being opposed to free inquiry, and being opposed to freedom of speech, that centers on these moments involving graduation speakers and honorary degrees. That’s a way for off campus people just not to get what it’s like at a university. Universities as a complex association are deeply linked to their enterprise. Universities are not purposeless civil associations, they are devoted to structured, learning, research and inquiry of particular kinds, organized around serious intellectual communities to create questions that channel debate in productive ways, and then have moments of debate across. And for the most part, not perfectly, not every time, but for the most part, universities do a much better job of doing that then they are these days being given credit for.
Correction: It has been pointed out to me that I misspoke about Yale. The master of Silliman College, Nicholas Christakis, who was the person confronted in the video, was not the author of the e-mail being protested. His wife, Erika Christakis, the associate master of Silliman, was. I’m not correcting the text; there are undoubtedly other mistakes that I made in these spoken remarks, and I want to leave the transcript as is. I’ll of course correct it when and if I adapt this into a written piece. I welcome further corrections in comments.