CALIFORNIA SCHOLARS FOR ACADEMIC FREEDOM
September 11, 2014
Nicholas Dirks, Chancellor
University of California – Berkeley
Dear Chancellor Dirks,
California Scholars for Academic Freedom,* a group of 150 academics committed to academic freedom on university campuses, writes in response to your public message to the Berkeley community, titled “Civility and Free Speech” and distributed electronically on September 5. The text is rife with errors, which, coming from a university chancellor, raise serious concerns and prompt this response.
The most glaring error is your apparent lack of understanding of the actual meaning of free speech, as well as its relationship to academic freedom. While you do not mention academic freedom, it is a core issue for your intended audience. Another issue that you do not mention but is likely to have prompted your message is the Israeli-Palestinian conflict. You write: “when issues are inherently divisive, controversial and capable of arousing strong feelings, the commitment to free speech and expression can lead to division and divisiveness that undermine a community’s foundation.” On UC Berkeley and on campuses all over the country, currently no issue compares to the Israeli-Palestinian conflict for the passions and animus that disagreements evoke. But even more importantly, nothing presently compares to the problematic way that some university and college administrators have chosen to deal with this particular conflict, including advocating a censorious approach to “civility.” We read your message as a manifestation of this problem.
In timing and substance, your message echoes events over the last two months at the University of Illinois at Urbana – Champaign following the unilateral decision by Chancellor Phyllis Wise to “un-hire” Associate Professor Steven Salaita. Wise claimed that she made her decision out of concern that Salaita might be an uncivil presence on that campus because of some of his Twitter posts during Israel’s “Operation Protective Edge” in Gaza; he was reacting to the enormous carnage and destruction. As critics of Wise’s announcement immediately and continuously have pointed out, Salaita was tweeting as a private citizen, exercising his First Amendment right to free speech. However, the real motivation for Wise’s decision, as we now know thanks to the FOIA release of email traffic to and from her office, was her desire to accommodate some wealthy donors and alumni who communicated their anger and threatened to withhold support for the school if Salaita were to join the faculty because his public profile includes criticism of Israeli state policies (which opportunists and those unlearned in the issues spuriously try to conflate with anti-Semitism). Wise’s decision was unwise and potentially illegal. Her decision to refuse employment to a tenured professor, who was selected, vetted, and approved through the university’s normal channels, has been condemned by the American Association of University Professors (AAUP), as well as other professional associations and thousands of academics.
In regard to the contents of your message, you claim that civility is a necessary condition for free speech. Specifically, you write: “Simply put, courteousness and respect in words and deeds are basic preconditions to any meaningful exchange of ideas. In this sense, free speech and civility are two sides of a single coin…” That is flatly wrong, and your reasoning is menacing to free speech. While civility and the exercise of free speech may coexist harmoniously, the right to free speech not only permits but is designed to protect uncivil speech. You also make the startlingly ill-informed claim that “the boundaries between protected and unprotected speech, between free speech and political advocacy, between the campus and the classroom, between debate and demagoguery, between freedom and responsibility, have never been fully settled.” Certainly not all kinds of speech are protected under the law (e.g., incitement and harassment), but as another critic of your message has already pointed out, political advocacy is the apotheosis of free speech, and there is no “demagoguery” exception to the First Amendment.
The right to free speech is not the act of speaking or engaging in communicative actions to express ideas publicly, nor is it contingent on the notion that anyone else needs to listen, agree, speak back, or “feel safe.” Rather, the right to free speech is constituted through prohibitions on the infringement of speech, including restrictions framed as “civility” rules. While civility is an ideal—and a good one, free speech is a right. The right to free speech does not dissipate because it is exercised in unideal (uncivil) ways.
There are at least two important ways in which the right to free speech and academic freedom intersect. First, every person in the jurisdiction of the United States has a constitutional right to free speech, including faculty, students, administrators, and staff who compose academic communities. While there remains some disagreement about how much freedom of speech people enjoy in private universities, there is—or should be—no question about free speech rights at public universities because they are understood to be and to operate as extensions of the state. Second, the right to free speech is one of the three pillars of academic freedom, which is a “guild” right of the professoriate. The three pillars of academic freedom are: (1) the freedom to conduct and disseminate scholarly research; (2) the freedom to design courses and teach students in the areas of their expertise; and (3) the right to free speech enshrined in the First Amendment which in this context prohibits the professional penalization of professors for extramural speech. Academic freedom is not absolute; rather, what is acceptable or unacceptable for professors as such is determined by the guild, not by administrators, alumni, or donors. Those determinations are based on standards of scholarly excellence and achievement, which manifest through hiring, publication of scholarship following peer review processes, and career reviews in which an individual’s academic record is judged by other professors in his or her field. Those who administer institutions of higher learning bear a responsibility for the protection of academic freedom, which includes free speech in the ways described here.
In conclusion, we regard the arguments you put forward in your message to be incompatible with your responsibility as the Chancellor of UC Berkeley because they contradict the principles of free speech and academic freedom. We request that you publicly withdraw that message, and send a different one that actually affirms your commitment to free speech and academic freedom.
California Scholars for Academic Freedom
Sondra Hale, Research Professor and Professor Emerita, UCLA; phone: 310-836-5121; email: email@example.com
Lisa Hajjar, Professor of Sociology, UCSB, and Edward Said Chair of American Studies, American University of Beirut; email: firstname.lastname@example.org
David Lloyd, Distinguished Professor of English, UC Riverside
Chancellor Linda P.B. Katehi, UC Davis
Chancellor Howard Gillman, UC Irvine
Chancellor Gene Block, UC Los Angeles
Chancellor Dorothy Leland, UC Merced
Chancellor Kim A. Wilcox, UC Riverside
Chancellor Pradeep K. Khosla, UC San Diego
Chancellor Sam Hawgood, UC San Francisco
Chancellor Henry Yang, UC Santa Barbara
Chancellor George Blumenthal, UC Santa Cruz
Chancellor Timothy White, Cal State University
President Alexander Gonzalez, Cal State Sacramento
President Les Wong, San Francisco State University
President Soraya M. Coley, Cal State Pomona
President William Covino, Cal State Los Angeles
President Charles Reed, Cal State Chico
President Leroy M. Morishita, Cal State East Bay
President Joseph F. Sheley, Cal State Stanislaus
President Eduardo Ochoa, Cal State Monterey Bay
President Joseph I. Castro, Cal State Fresno
Chancellor Mildred Garcia, Cal State Fullerton
Chancellor Tomás D. Morales, Cal State San Bernardino
Chancellor Diane F. Harrison, Cal State Northridge
Chancellor Lisa A. Rossbacher, Cal State Humboldt
Chancellor Eliot Hirshman, San Diego State
Chancellor Karen Haynes, Cal State San Marcos
Chancellor Ruben Armiñana, Sonoma State
* CALIFORNIA SCHOLARS FOR ACADEMIC FREEDOM (cs4af) is a group of scholars who defend academic freedom, the right of shared governance, and the First Amendment rights of faculty and students in the academy and beyond. We recognize that violations of academic freedom anywhere are threats to academic freedom everywhere. California Scholars for Academic Freedom investigates legislative and administrative infringements on freedom of speech and assembly, and it raises the consciousness of politicians, university regents and administrators, faculty, students and the public at large through open letters, press releases, petitions, statements, and articles.