Abstract

Excerpted From: Zamir Ben-Dan, “Hold Your (Un)scholarly Tongue”: Dismantling Sir Racism's 'Academic Freedom’ Shield, 33 Southern California Review of Law & Social Justice 159 (Spring, 2024) (454 Footnotes) (Full Document)

In January 2022, the dean of the University of Pennsylvania Carey Law School initiated a disciplinary process against longtime professor Amy Wax for allegedly violating university guidelines. Dean Theodore Ruger asserted in a letter launching the process that, among other things, Wax had made blatantly racist remarks to individual students, to classes she had taught, and to the public sphere in various forms. Reactions to the letter were mixed. Supporters of Dean Ruger's actions have argued that Wax's conduct was extreme and caused significant harm. Those who came to Wax's defense have contended that punishing Wax for her remarks infringes on her free speech rights and has a chilling effect on academics. The Wax debacle ignited a longstanding debate regarding the contours of academic freedom. Wax herself lamented that the dean's efforts to punish her, if successful, “will eviscerate academic freedom as we know it.”

To a degree, Wax has a point: for much of America's intellectual history, academia has been the home for blatantly racist intellectual thought. The development of academic freedom in America during the early twentieth century coincided with one of the worst periods of race relations in the United States. The Ku Klux Klan, the most infamous white supremacist gang in America, reached its peak in the early 1900s with four million members spanning forty-eight states. Black people faced two to three lynchings per week, the eugenics movement was in full swing, and the nation was deeply segregated. In the intellectual world, it was axiomatic that racial equality was anathema to democracy. Academic scholarship was almost unanimous in its endorsement of white supremacy, coupled with disparagement of Black people and nonwhite immigrants. Nonwhite intellectuals were often disregarded by the white intellectual world, and those who did receive attention often did so through scholarship that reinforced white supremacy and promoted the cultural inferiority of Black and Brown communities. As early articulators understood it, this traditional academic freedom was not only tolerant of blatantly racist ideas, but also equated the espousal of such ideas with the quest for truth, and the ideas produced served as a basis of continuing oppression in the United States.

In contemporary times, societal attitudes toward race have undergone significant changes. Race itself is universally recognized in the scientific community as a social construct that has no inherent influence on the quality of humankind. Most Americans profess to oppose racism and reject overt manifestations of it. The eugenics movement has mostly dried up. Rigid de jure segregation has become a thing of the past. The spectacled lynchings of the early twentieth century are no longer prevalent. Public utterance of plainly racist ideas has largely vanished from most professional spaces, and civilians that engage in overtly racist behavior that becomes public often face backlash and repercussions. Professions across America, including academia, have diversified racially. However, the academic space remains the one place where blatantly racist thoughts can still be published and uttered with impunity. Defenders of this “right” of academics to spew plainly racist intellectual ideas almost uniformly ground their arguments in some mishmash of academic freedom and the First Amendment.

Traditional academic freedom protects plainly racist academic speech, assuming an all-white intellectual community and assuming that racial hierarchy is necessary for democratic existence. If, however, society has drastically changed, then understandings of academic freedom must also evolve as well. More importantly, if America is to reach its purported goal of achieving racial equality for all, then plainly racist intellectual ideas can no longer have a home anywhere in America, especially not within academia. The knowledge generated in academic spaces influences the general public and shapes laws and public policies. Thus, universities have a responsibility to ensure that the ideas they generate have scholarly support and the potential to benefit society at large. Plainly racist intellectual ideas in the twenty-first century have neither of these qualities, thereby rendering traditional academic freedom both severely outdated and a real danger to the academic project.

Academic freedom in the twenty-first century mandates a more contemporary conception: it requires recognition that publicly expressed societal attitudes toward race have changed for the better since the early twentieth century, and that blatantly racist ideas are destructive to society. This contemporary academic freedom is intolerant of plainly racist ideas, as such ideas are unscholarly and untrue and only serve to harm historically marginalized members of society. Contemporary academic freedom accounts for a more racially diverse world and intellectual community and rejects hierarchy on the basis of race. In essence, whereas traditional academic freedom was consistent with America's primitive, early-twentieth-century values of white superiority and exclusivity, contemporary academic freedom aligns with America's currently articulated values of racial equality and inclusivity.

These limits on academic freedom are both warranted and appropriate. Academic freedom, whether traditional or contemporary, has never been content neutral. What academics are allowed to say, as well as the nature of dissenting intellectual positions, have always been subject to regulation by their peers. Professional competence also cabins academic freedom: an intellectual who spouts old, disproven ideas as truth calls into question their competence as an academic. Academic freedom does not protect a science professor who in their professional capacity claims that tobacco is good for human consumption, nor does it shield a geology professor who asserts that the Earth is flat. Ideas that express human superiority and inferiority based on race in the twenty-first century are on the same wavelength as flat-earth science. As such, they do not fall within the ambit of contemporary academic freedom.

This Article contends that academic freedom does not protect blatantly racist academic speech in the twenty-first century. On paper, academic freedom is designed to protect the genuine pursuit of knowledge and the quest for truth: it does not bestow upon intellectuals an unqualified right to proffer palpably false ideas supported by distorted, falsified, or otherwise unscientific sources. Scholars and thinkers must reject the utterance and publication of plainly racist intellectual ideas from their academic colleagues: simply disagreeing with them is not enough. Invoking academic freedom as a justification for the proffering of inarguably inflammable rhetoric not only does the concept of academic freedom a profound injustice, but also helps to preserve racism in America.

This Article emphasizes legal academia, which has been a particularly dangerous hub for plainly racist intellectual thought given the historic role of law in perpetuating and preserving overt racism in America. Up until midway through the twentieth century, the law was used to actualize the overtly racist academic ideas of scholars and thinkers of the day. Court systems erected the judicial architecture necessary to sustain chattel slavery, Native American colonization, the Old Jim Crow, and xenophobic immigration policies. Blatantly racist academic ideas were the basis for racialized oppression then and continue to be now. Law professors that espouse plainly racist intellectual ideas in their professional capacities contribute to promote both the nature and legacy of American law being a tool for racial subjugation. To achieve a more just society, legal academia must do its part to dismantle racial hierarchy, which begins by completely disavowing plainly racist intellectual ideas.

This Article limits its focus by arguing that academic freedom in the twenty-first century does not cover blatantly racist speech from professors either inside or outside the classroom. This Article distinguishes between the First Amendment and academic freedom: while there is some interplay, they are not interchangeable. This Article is not a call for censoring academic speech solely because it may be controversial. It is generally important to foster discussion and debate on significant issues to facilitate societal progress. However, academic freedom is not absolute: it exists for a particular purpose. A scholar that undermines that purpose in their work should not be able to claim its protections. This Article contends that, especially in the context of legal academia, blatantly racist academic speech is unscholarly speech espousing falsehoods, and a scholar who publishes or publicly utters plainly racist statements in their professional capacity undermines the contemporary purpose of academic freedom.

This Article proceeds in three additional parts. Part II discusses the origin of academic freedom in America, illuminating its designated purpose as a protection for the honest pursuit of knowledge and truth. The tortured history of academic freedom, notwithstanding the written articulations of academic freedom in the early-twentieth century, facially provides a good framework in which a central argument can be made. As such, Part II divorces the language of the 1915 Declaration of Principles on Academic Freedom and Academic Tenure (“1915 Principles”) from its historical context and adopts it as a standard by which the applicability of academic freedom can be determined. Part II also differentiates academic freedom from the First Amendment and stresses the importance of keeping the two concepts distinct.

Using the language and framework of the 1915 Principles, Part III argues that plainly racist academic speech does not fall within the ambit of academic freedom in the twenty-first century. Part III first defines “plainly racist academic speech.” It then demonstrates that plainly racist academic ideas are old, untrue, and unscholarly. In showing that such ideas are nonnovel, Part III features a lengthy excavation of the history of plainly racist intellectual ideas over a five-century timeframe.

After establishing that plainly racist academic speech is false and unscholarly, Part IV demonstrates how it is harmful. Part IV discusses both past and present harms of plainly racist academic speech and examines harms to society, individual persons, and universities. Part IV also addresses arguments in favor of affording plainly racist academic speech the safeguards of academic freedom.

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Traditional academic freedom, which assumes an all-white intellectual space and resists the deconstruction of racial hierarchy, is severely outdated and has no place in the twenty-first century. Contemporary academic freedom, which is responsive to a modern society, is truly about the pursuit of knowledge and the quest for truth. To claim that academic freedom permits plainly racist academic speech in the twenty-first century, in either research, teaching, or extramural statements and expressions, advances neither goal. A traditional vision of academic freedom is a sword against progress and a shield against meaningful accountability: it lacks any value worth saving and is self-destructive, harming the academic project altogether. For the sake of society and itself, academia would do well to adhere to the language of the 1915 Principles and deny blatantly racist intellectual thought a haven.

Assistant Professor of Law, Beasley School of Law at Temple University.