Campus culture wars are a teachable moment in how freedom of speech and academic freedom differ

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Jacob T. Levy is the chair of the department of political science and Tomlinson Professor of Political Theory at McGill University.

Across the United States and Canada, universities are struggling to navigate the politics of the Oct. 7 Hamas attack on Israel and the subsequent war in Gaza. Here in Montreal, campus politics reached its ugliest point about a month into the conflict, with violence between opposing groups of student protesters at Concordia, and the extraordinary suspension of a University of Montreal lecturer who was involved in the Concordia episode. Since then, things have been quieter here but not everywhere. Six Canadian universities are being sued for allegedly failing to protect Jewish students from a hostile antisemitic environment. Demands to suppress the speech of pro-Palestinian student protesters have reached as high as the U.S. Congress, and have cost two elite university presidents their jobs.

Particularly in the U.S., the complexity of the current moment has been aggravated by the demonization of higher education in the highly polarized culture wars of the past decade. But even without that external political environment, the very acute disagreements about Israel and Palestine highlight how little shared understanding there is between different university constituencies, and between universities and the general public, about how to handle heated debate on campus.

This is partly because the principles governing university life are in some ways strange and counterintuitive, so they’re complicated to defend and tempting to abandon. It’s also partly because educators haven’t put in the work defending them. Many institutions of higher education have let some of the resources and credibility they need in a moment like this slip away, and this crisis should spur them to rebuild those resources and credibility before the next one inevitably arrives.

The highest-profile development in the post-Oct. 7 academic troubles was the Dec. 5 U.S. House of Representatives committee hearing grilling the leaders of Harvard, MIT and the University of Pennsylvania, and the subsequent resignation of two of them, Harvard’s Claudine Gay and Penn’s Elizabeth Magill. While there were idiosyncrasies about both cases – Dr. Magill had been under fire about perceived campus antisemitism before Oct. 7, and in the end Dr. Gay was brought down by allegations of plagiarism – the core problem at those universities was much the same as it has been elsewhere.

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Opinion about the Israeli-Palestinian conflict is, of course, highly polarized to begin with. Undergraduate activists on any issue are often prone to immoderation. And North American universities include a diverse mix of Jewish, Muslim and Arab students (and faculty and staff), including many who are themselves from Israel or the Palestinian Territories, or who have family connections there. And so the Hamas terrorist attacks on Israeli civilians prompted two immediate responses. One was a combination of mourning and fear on the part of Jews, including Israelis and those with family ties to Israel. And one was an activist mobilization in support of Palestinian rights, a mobilization that included some early endorsements of armed resistance to Israel that were ignorant of the actual scale of the attacks, some that weren’t, and some pre-emptive attention to the violent Israeli response that was sure to follow. Jewish members of university communities were outraged and frightened, and appealed to university leaders to denounce the attacks and denounce, if not suppress, the pro-Palestinian protest speech. Different universities answered these appeals differently, but at many, the responses were deemed insufficient by Jewish students and alumni. As the Israeli counterattack unfolded, expanded and persisted, counterappeals were made: If the university took a stand against the Hamas attacks, why would it not also take a stand against the devastation Israel was unleashing on Gaza? These weren’t the only questions that divided campuses, but they were the ones that prompted the congressional hearings on whether the protesters’ speech – tendentiously characterized as advocating the genocide of Jews – was being sufficiently restricted.

There have been a lot of sources of confusion in the debate about all this. One is that universities offer very robust protection for political and protest speech, but as an incidental byproduct, not in the same deliberate way that a liberal democratic society does. A university’s core commitment is to the discovery, transmission and preservation of knowledge – paradigmatically, what is done in research, in teaching, and in publication and library collection. The principle that defends that commitment is not freedom of speech as such, but rather academic freedom.

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Academic freedom has a few moving parts:

First, the freedom to follow arguments and evidence where they lead, according to scholarly methods. The researcher, or for that matter the student writing a paper for a class, is free to reach unpopular conclusions and to overturn established ideas, provided that they can support and defend those conclusions.

Second, the freedom to teach, within the confines of the scholarly mission of the class, and limited by the freedom of students to be secure that they will be assessed fairly. These limits mean that professors need to stick to the subject as that is defined by their scholarly community or discipline; when assigned to teach astronomy, they can’t teach astrology. They also mean that the front of the classroom isn’t a pulpit or a political platform. But within those constraints, professors have substantial freedom to choose their pedagogical approach, their course materials, which ideas to emphasize, which skills to teach and so on.

And finally, freedom from evaluation on non-academic grounds, of which the traditionally most important are political and religious grounds. Members of the academic community are only to be academically evaluated, for purposes ranging from student grades to professors’ tenure, on the grounds of the success of their academic work. They may not lose academic standing (student enrolment, faculty employment and so on) for their views and speech on other questions. In the early 20th-century cases that helped shape this rule, universities came to the understanding that, say, an economist couldn’t be fired for being an atheist, a mathematician for being a socialist; what they had to say on those political and religious questions was irrelevant to their work. The technical phrase here is freedom of extramural speech – outside the walls of the laboratory, the classroom and the library. Protections of extramural speech are very strong, not primarily in order to protect that speech, but in order to protect the academic integrity of what goes on inside the laboratory, classroom and library.

A rule that has traditionally accompanied and strengthened academic freedom is institutional neutrality. If academic freedom is the ability of scholars and scholarly communities or disciplines to work without having an orthodoxy imposed on them, institutional neutrality is the commitment not to declare an orthodoxy in the first place. Just like a professor at the front of a classroom shouldn’t use it as a pulpit to announce their own political and religious views, so too should the university as a whole not adopt substantive political or religious opinions that would chill the freedom of its members to pursue their own ideas and arguments. A great deal of important political inquiry and debate happens at a university, but it’s undertaken by students and professors with differing views pursuing differing arguments, not by the institution as a whole declaring official conclusions.

Universities sometimes need to speak up in favour of their own institutional interests or the general needs of higher education. A few university decisions unavoidably require substantive moral judgments about political figures: whose contributions are worth honouring with an honorary degree, whose career involved so much injustice that their name should be stripped from buildings. But when there’s not that kind of necessary connection to university business, the institution should stay silent and neutral, to guarantee the freedom of students and professors to inquire, criticize and debate.

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These principles generate some surprising and strange outcomes. For example, the odd thing about the centrality of student protests to important moments in university life is that they are so irrelevant to the university’s mission. There is very strong protection for the freedom of protest, not because protest is important to a university the way it is to a democratic society, but because it’s academically irrelevant. It’s wrong to question a student’s (or professor’s) standing in the academic community because of what they say at a protest – or on social media, or in any other non-academic setting. The only appropriate limits are not about the content of what’s said, but about the conduct of the protest action; the university has to protect not only the safety of its other members but also the security of its academic functions. It can’t rule against the language on a sign, but it must intervene to prevent violence between students, or occupations and blockades that would prevent a class from meeting, or an invited speaker from speaking.

This is easier said than done. Universities have very good reason to avoid deploying the force of campus security officers or regular police against students, even when those students threaten core campus activities and thus the rights of other students. Escalation, overreach and the chilling of legitimate protest are all constant dangers; and the whole student body, including the protesters, is part of the academic community. Police helicopters and billy clubs on campus are always a sign of failure. But waiting until a wrongful protest ends peacefully and then taking action against the protesters requires knowing their identities, and it doesn’t take much of a face covering to make that difficult. So universities have often ended up shrugging off such protests, with occasional unpredictable bursts of punitive seriousness. These are genuine problems that don’t lend themselves to straightforward solutions, but many universities have probably erred too far in the direction of the shrug, letting the belief grow that classes may be disrupted or speakers blockaded without consequence.

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The freedom-through-indifference that is the university’s correct stance toward protests doesn’t, however, satisfy the protesters. When you bring together lots of energetic young adults at the life stage when they’re most politically idealistic and least weighed down by competing responsibilities, when you put them in an environment of intellectual ferment, you get activism. Sometimes this has made student activist movements important parts of social and political change or reform. More often the activism is experienced by those who take part in it as morally critical and personally transformative. And when thinking about the issues that inspire their hopes or their anger, they often want more from the university than indifference. They want affirmation: for the institution to announce its commitment to the cause, to devote educational resources to it, to reallocate its endowment or spending in support of it, to suppress the speech of those who oppose it.

It can be hard for institutions to resist, particularly when faculty and administrators are broadly sympathetic to the same cause as the students. So they let institutional neutrality slip, making declarations and symbolic statements affirming that the university is on the side of all good things when it’s not the job of a university to be on a side at all. An increasing habit of this in the past decade – pronouncements on non-university political questions from abortion to police violence to the Russia-Ukraine war – left a disaster waiting to happen.

Happen it did, in the autumn of 2023 when the members of university communities conspicuously did not all sympathize with the same cause. When faced with demands to denounce Hamas, or student activists who endorsed Palestinian armed resistance, or Israel, or Zionist speech on campus, or whatever, universities often fell back on the rule of institutional neutrality. But critics found it hard to take that rule seriously any more because, they said, the institution had shown that it didn’t take it seriously either. By the same token, the rule that the university shouldn’t take any interest in the rhetoric that’s used in a protest or on social media was harder to take seriously in an era of hate-speech rules, restrictions on exclusionary speech, and a discourse around “safety” that treated hostile language as violence. And so many universities found themselves accused of doing too little to criticize Hamas or to denounce and restrict pro-Palestinian speech by critics who noted that denouncing bad things and restricting hateful or unsafe speech seemed to be very much part of the institutional tool kit these days.

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These were problems of universities’ own making. But they coincided with problems that were very much not. What we have seen since Oct. 7 is in part the culmination of almost a decade of attacks on higher education by the ascendant populist-authoritarian wing of conservative politics. Starting in about 2015, conservative politicians, media figures and activists began a sustained campaign against perceived leftward movements at universities, particularly on race, gender and gender identity.

In the U.S., a steady drumbeat of stories in the conservative press about campus identity politics drove a dramatic divergence in public confidence in higher education. In 2015, a majority of Republicans thought higher education had a beneficial effect on American society, by a 17-point margin. Two years later, they thought the reverse, by 22 points. (Democratic views were basically stable in the same period.) Conservative advocacy groups created watchlists of left-wing professors and encouraged students to report on them or secretly record them. Formerly staid campus conservative groups radicalized and began inviting provocateurs such as Milo Yiannopoulos to speak, seeking more and more attention by provoking protests and sometimes cancellations.

At first, these critics of higher education focused on the idea that free speech and academic freedom were coming under threat: Visiting speakers were being silenced and conservative students were censoring themselves in a climate of left-wing intolerance. That emphasis has since faded away, in favour of an open willingness to suppress teaching, research and speech about race and gender that conservatives dislike. The centre of gravity has shifted from individual celebrity provocateurs to conservative governments that really do have the power to cancel.

In 2017, Hungary’s authoritarian conservative government launched an eventually successful campaign to drive the privately funded and Western-oriented Central European University out of the country and to prohibit the discipline of gender studies. Starting in 2021, Republican state politicians across the United States began advocating heavy-handed interference in teaching and research about (especially) race and (to a lesser extent) gender, with many bills banning the teaching of what was inaccurately called critical race theory. The conservative activist Chris Rufo, who recently led the charge to push Harvard’s president out of office on plagiarism charges, was a prime culprit in mischaracterizing teaching and research about systems of racial privilege and disadvantage as “critical race theory,” and making its prohibition a cause célèbre. He found an active ally in Florida’s Republican Governor and then-future presidential candidate Ron DeSantis, who pushed through restrictions on speech, texts, teaching and research about race, gender and sexual orientation that reached from primary school to Florida’s huge system of public universities. When Mr. DeSantis decided to remake Florida’s elite liberal arts-oriented New College as a model of anti-wokeism, abolishing its gender-studies department and filling its student body with recruited athletes for newly established sports teams, he appointed Mr. Rufo as one of the college’s new trustees.

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The moves to restrict higher education in Florida have been especially prominent, but Republican politicians and politically appointed trustees in states including Texas, North Carolina, Virginia and Louisiana, among others, have likewise shifted to direct interference in university curriculums and hiring decisions on political grounds. Up until Oct. 7, the emphasis had been overwhelmingly on gender studies and (again, wrongly called) critical race theory. The conflict in the Middle East shook up the political dynamics and expanded the conflict from public universities in Republican states to all of North American higher education. Elite liberal universities aren’t openly divided about the legitimacy of studying race or gender, but the Arab-Israeli conflict splits apart constituencies everywhere. Genuine intra-campus conflicts of values and misunderstandings of principle created a vulnerability that hostile off-campus actors have been happy to exploit.

The events of the past few months have driven home how little the right-wing critique of universities was ever actually about freedom of speech or academic freedom. The downfall of two university presidents partly for their failure to censor student speech and their refusal to say that more such speech should be punished just makes it undeniable. But Jewish and pro-Israel members of university communities aren’t necessarily guilty of the same hypocrisy. They’ve seen universities themselves shift away from the principles of academic freedom, freedom of non-academic speech, and institutional neutrality, often in the name of protecting vulnerable populations, and, in the wake of the murders of Oct. 7, asked whether Israeli Jews are somehow outside the category of the vulnerable. Many institutions of higher education have gotten in the habit of making pronouncements on political issues that tried to be substantive and anodyne at the same time; of letting some speech restrictions creep in on speech that surely everyone can agree is bad; of regulating the content of particularly vicious political messages but tolerating protests that blockade academic activities. These are generalizations that don’t apply to all colleges and universities, indeed probably not most; but enough to weaken the credibility of the core principles.

The best time to have started to do the right thing was yesterday, but the second-best time is today. University leadership can’t wish away the off-campus attacks, but they can recommit to academic freedom, freedom of extramural speech, and institutional neutrality, starting now. That will mean, for example, a firm defence of the right of pro-Palestinian students to protest non-disruptively; a clear stand against professors using their classrooms as political platforms; a refusal to adjudicate and police the meaning and intent of extramural political slogans or social-media posts; and the discipline to avoid adopting institutional political platforms on foreign, political or social policy. With those rules in place, they can provide the site and space for students and faculty alike to study, explore, discuss and debate, to celebrate, mourn and protest, even the most divisive questions in political life.