How to defend yourself in a free-speech crisis, whatever your politics.
Robert P. George, Donald A. Downs, and Keith E. Whittington
October 4, 2021
Calls to take disciplinary action against — and even fire — professors for saying controversial things have become disconcertingly common. Students, administrators, and sometimes even faculty colleagues demand that a professor be punished for expressing dissent publicly — and even privately — from certain widely held views on campus. Politicians and political activists have also gotten into the act, sometimes insisting that a professor be fired before the sun goes down.
Apparently it is not enough to criticize or ignore remarks that are considered to be offensive or inflammatory. The sinner must be hauled before a tribunal, made to recant, disciplined, or even removed from the campus.
Many professors have no idea what to do when a mob is howling for their heads. They have never been through such an ordeal before, and are naturally frightened and rattled. Fortunately, many American colleges and universities have policies in place to protect the academic freedom of research scholars and instructional faculty members. Moreover, some professors have the benefit of tenure protections that can hamper administrative attempts to summarily dismiss them, if only to placate the mob.
But those protections are not enough if academics do not know how to make use of them, or if they make mistakes in the heat of the moment that can undermine their legal position. And rules are only as good as the people who apply them.
Faculty members who find themselves on this unfamiliar terrain need a first-aid kit to minimize the damage until they are able to secure legal assistance to help them navigate the perils of a free-speech controversy. In some cases, self-help will be sufficient to weather the storm. In others, professors will need to prepare for a longer fight in order to keep their jobs and their professional standing.
We offer the following advice as members of the newly formed Academic Freedom Alliance, made up of more than 400 faculty members who span the nation and the ideological spectrum. The group exists to provide moral, strategic, and legal assistance to faculty members whose academic freedom and/or job status have been harmed or jeopardized improperly for something they have said or written. We’ll start with a few broad principles, and then some practical tips, for all faculty members — whatever their politics — who run into trouble after expressing their views.
Don’t lose faith in yourself or abandon your convictions. You have every right to think for yourself and speak your mind. Don’t rush to apologize if you have done nothing wrong and so have nothing truly to apologize for. Those who have appointed themselves as the thought and language police know that they can make you feel psychological/emotional pressure to do so, but apologizing will not help, and will almost certainly make things worse. So don’t yield to the temptation in the futile hope that a quick apology will quiet the storm.
In a similar vein, think clearly about the situation and what you said. Apply reason, not impulse and emotion, to the very best of your ability. A clearheaded attitude is essential for proper assessment of the situation and will impress — and give confidence to — potential allies and supporters.
So take a few deep breaths, and don’t react precipitously. Realize that you are not alone, that good advice and help are at hand. Be patient, and realize that you will attain justice if you take appropriate steps.
Don’t respond to public attacks until you’ve sought and received good advice. If you confess to an offense you didn’t commit, or if you concede to a claim or accusation that is factually inaccurate or not truly an offense (but simply an exercise of your right to say what you believe), the admission can and will be used against you. Recovering from such an error is extremely difficult, at best.
Good advice can come from several sources:
- Academic friends you can trust, and colleagues you have faith in.
- Lawyers, local or otherwise, who have experience in dealing with higher-education cases and are willing to take on the institution.
- Academic-freedom groups, such as the new Academic Freedom Alliance, the American Association of University Professors, and the Foundation for Individual Rights in Education.
Be ready to accept a difficult fact: Your institution may abandon you. Unless you are at a rather special college or university, the administration is not necessarily — or even normally — your friend in matters like this. Institutions have their own interests separate from yours — a trend that has intensified in recent years with the burgeoning bureaucratization of higher education. New or expanded offices dedicated to agendas other than academic freedom have proliferated on campuses, including deans of students, bias-response and diversity and inclusion units, alumni-relations and human-resources divisions, public-communications offices, general counsels, and offices of campus life. Such offices have run roughshod over the academic freedom of faculty members on both the left and the right when it conflicts with how they construe their missions.
When campus speech controversy erupts into public view, presidents are more likely to consult with their fund-raising and public-relations officers than with campus lawyers or faculty leaders. When a professor’s speech is seen as running up against institutional interests, deans and provosts are no longer your professional colleagues but often your prosecutor and judge. You need supporters whose only obligation and objective is to protect your rights.
Now for some more-concrete advice:
- The first thing you must do is get clarity about what you are being accused of doing. Campus administrators will often give accused professors only vague charges or overly general presentations of the alleged facts. Sometimes they will not let you know who your accuser is.
- Obviously, that information vacuum makes it difficult to develop a defense and a response. If possible, get access to any formal complaints, including the identity of who is filing them. Figure out the charges and the relevant circumstances behind them. If the institution is unwilling to provide those documents and details, consider refusing to cooperate in any investigation or inquiry. Seek immediate legal help.
- If the institution wants to meet with you, don’t go alone. Immediately consider bringing a friend, a colleague, or (ideally) a lawyer — someone you can trust completely to stand by you, even when things get difficult. A trusted adviser and advocate is especially essential if the discussion gets emotional or confusing, and can also be useful in remembering and assessing afterward what happened during the meeting. What if your institution is unwilling to allow your adviser to attend? That’s a sign that it is not acting in good faith and that you should not participate yourself.
- To survive what could become an extended and emotionally draining fight, you will need a support network willing to stand by you as the pressure mounts. Frankly evaluate your own network, and identify and prepare your allies for a fight. If necessary, look beyond your familiar associates and build new contacts who can help see you through the controversy. Ask those you trust for names of people who would make good and reliable allies. Potential support is out there to be tapped.
- Learn the relevant campus policies under which you have been charged and what rights you have. You will need to determine whether there is a credible case against you. Does it appear that you, in fact, violated campus policies? If you broke a rule, you will want to know whether there are countervailing considerations. Is the rule in conflict with other policies, including protections for faculty speech? If you are at a state college or university, is the rule in violation of constitutional or state or federal statutory protections? Is the proposed punishment proportionate to the alleged offense?
- Educational institutions have specific rules for academic freedom, harassment, discrimination, and the like. They also have public principles on the institutional mission and the signal significance of intellectual freedom and the pursuit of truth. Take advantage of those rules. Refer to them in public (assuming you go public in any respect) and in any private meetings with administrators. The public still believes in these principles and has also grown more suspicious of higher education’s commitment to them. That combination can serve as a tactical weapon.
- Decide what outcome you hope to reach and how you are willing to get there. Some professors hope for nothing more than to quietly resolve the dispute on terms they can live with. Others want a full exoneration and, to get it, are willing to engage in a lengthy and public fight. A lawyer can help figure out the options and the probability of success for each. We personally hope that if you are a victim of a rights violation, you will stand and fight for your rights.
- The sooner you seek legal advice, the better positioned you will be for any eventual resolution. Campus administrators are most often not your allies in these controversies. You need an advocate who has only your interests in mind. Preferably, you will have a lawyer who shares your vision of what you want to accomplish and who understands the higher-education context.
- Taking your case public can be helpful, but is not without downsides. If you would prefer to avoid the spotlight, you will need to consider whether you can keep a controversy out of the public eye. Publicity may be inevitable. While publicity can damage your professional reputation and create a more adversarial relationship with your institution, it can also be a means of responding to misinformation and putting pressure on administrators. Do not assume that publicity is a bad thing. Accusing the institution of betraying its principles and historical mission can be a good tactic if you decide to be more confrontational. Be self-aware in deciding whether to discuss your case in public. A good adviser or lawyer can be invaluable on this aspect of your situation.
When a free-speech controversy erupts, you cannot control the course of events. But you can be clear-eyed about the decisions you make and the trade-offs involved. Mistakes made in the initial stage can have catastrophic consequences. Proceed deliberately, apply first aid, and seek assistance. If you are indeed the victim of an assault on academic freedom, your legal adviser will help you move from a defensive to an offensive posture.
A final point: Remember that in standing up for your own rights to think and speak freely, and to seek the truth and speak the truth as best as you understand it, you are not only protecting yourself; you are also defending the rights of other scholars (and students) and the integrity of the academic vocation. When you prevail in upholding academic freedom for yourself, as you will do when you stand fast and get good advice, your victory redounds to the benefit of the entire academic community — a community in which the freedoms that are the oxygen on which it thrives are very much in jeopardy today.