On June 19, 2023, the Academic Freedom Alliance (AFA) filed an amicus curiae brief with the 11th Circuit Court of Appeals in the case of Pernell and Novoa v. Lamb, arguing on behalf of the plaintiffs that the court should uphold a lower court’s injunction against Florida’s Stop W.O.K.E act, which the lower court ruled unconstitutional. The brief argues that the Florida legislation imposes an undue burden on professors’ ability to discuss controversial topics such as critical race theory and other ‘divisive’ topics, is not justified by precedent, and is in violation of professors’ First Amendment rights.
The AFA’s brief seeks to defend academic freedom. It argues that by removing certain topics from classroom discussion, the Stop W.O.K.E act will have a chilling effect on robust academic debate, which is essential to the academy’s central mission. As a self-described academic freedom zealot, I have a great deal of sympathy for that concern. Nevertheless, I have concluded that the AFA is wrong on this issue. It is not defending academic freedom: to the contrary, AFA is unwittingly defending its enemies.
There are four questions at issue.
- What are a state’s interests in governing the affairs of a university that is supported by taxpayers?
- What are the appropriate interventions a state may take in defending those interests?
- What is the present state of academic discourse in our universities?
- Does defending the academic discourse status quo constitute a defense of academic freedom?
Every institution of higher education, whether public or private, is dependent upon benefactors who bring expectations to the table. Beginning with the passage of the Morrill Act in 1864, establishing the system of land grant universities, the benefactor has increasingly been taxpayers, who also have legitimate expectations of the institutions they support. Those interests are not negated by the ideal of academic freedom.
That said, the public’s interest lies precisely in a robust defense of academic freedom, which is the only thing that confers social value on universities. This is not to say that universities should be democratic institutions, governed by the whims of the demos. Rather, we rely on trusted intermediaries, usually boards of trustees, to sustain universities’ vital social roles.
Our modern conception of academic freedom relies on a unique fiduciary duty conferred on college boards of trustees. They are not answerable to their faculty, nor to their institutions or college administrations, they are answerable to the public. This is the case whether the college is public or private. In the case of state universities, the public acts through their elected governments. Governors appoint trustees, state legislatures determine appropriations, and so forth. In the end, the aim of all should be to sustain the universities’ unique social value.
The Stop W.O.K.E act recognizes something that the AFA’s amicus brief does not: that academic freedom has essentially ceased to exist in the modern university. Academic discourse is neither unfettered nor robust. To the contrary, a stifling orthodoxy now prevails, and academics who wander outside the boundaries face ostracism, are denied the ability to teach, and face sanctions and dismissal. The concern over the “chilling” of discourse is thus misplaced: it is already frozen solid.
Universities have thus become something other than the institutions the public thinks it’s paying for. Rather than being havens of unfettered inquiry, universities have become taxpayer-supported centers of political activism—often in support of ideological programs that act against the public interest. The driving force behind the universities’ transformation has been an ideology—“woke” ideology, in a word—that regards the universities’ core ideals (and those who adhere to them) as obstacles to a political program.
The politicization of the universities has not been an overnight transformation, but it is now virtually complete. It has been enabled by a systemic failure of the guardrails intended to protect universities from being hijacked for partisan political ends. To restore the academy to its true social value, a political intervention is required, because universities demonstrably will not reform themselves. This is the rationale of the Stop W.O.K.E act, and of similar initiatives underway in states concerned about the health of public universities. Its aim is to restore academic freedom, not suppress it.
J. Scott Turner is Director of the Intrusion of Diversity project at the National Association of Scholars
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