By Harvey Silverglate
People ask me when I got my first inkling that something was seriously wrong with the culture of our campuses of higher education. It was in the mid-1980s, and it had nothing to do -- yet -- with the post-modern corruption of the liberal arts, which was then beyond my professional interests and experiences. It had to do with free speech and due process.
I became a lawyer, after all, not an academic when I got my LL.B. in 1967. As a criminal defense and civil liberties lawyer from the start of my legal career, I represented students in trouble with their colleges and universities. It was very soon after my graduation that I had my first big academic case - my law partners and I represented the undergraduates who had taken over University Hall and were unceremoniously dragged out by the baton-wielding municipal and state police. The students were all cited, in the Middlesex County (Massachusetts) Superior Criminal Court, with trespass on the property of The President and Fellows of Harvard College. (Even though they paid tuition for the privilege of being on Harvard property, they had refused an explicit order, delivered over a bullhorn, to vacate that particular administrative building where they had, much like squatters, taken up residence.)
Over a hundred students were charged. The mob was randomly broken up into three groups and scheduled for consecutive jury trials. When the jury acquitted all of the defendants put on trial in the first case (the jurors were apparently unpersuaded that all of the students were in fact building occupiers rather than observers in the wrong place at the wrong time), the district attorney (and Harvard) relented and allowed the others to avoid trial, and a criminal record, via a benign plea agreement.
And then there was another experience. A group of Harvard students yearned to protest the Vietnam War on campus without risking a fight with better armed police officers. They organized themselves to follow around town and campus one particular dean who doubled (as did many academics, then and now) as an advisor to a federal governmental defense agency. Three of the students would be waiting outside the dean's house in Cambridge each morning as he left for work. They would follow him through the public streets chanting, rhythmically, "murderer, murderer, murderer" - a scene akin to "Make Way for Ducklings," only with decidedly less tender feeling between duckling and offspring. And when the dean left his campus office or a classroom, the three students, operating in shifts, would resume the march and the chant.
The students participating in this form of ostensible public shaming of the dean were charged in the Harvard College Administrative Board with harassing the dean by following him "closely" and chanting "murderer." I was allowed, as their legal counsel, to attend the disciplinary hearing, and a faculty member of the law school was allowed in the room as well. The result was a bit of a surprise to skeptics - the students were acquitted because their exercise fell short of true harassment (they did not follow the dean too closely for comfort) and was deemed protected by academic freedom.
Thus my career representing students began with those who had committed a real offense and were charged in a real court of law - for things that they did. And where my clients were charged in a campus tribunal for harassment, they were absolved on grounds of academic freedom because their conduct was deemed closer to free speech than to true harassment. The culture wars that arose during the Vietnam War era would not, I thought, destroy either the traditions of free speech/academic freedom, nor due process.
I was naive and myopic, it turns out. A mere 15 years later I began to notice more and more of my student clients being charged by campus disciplinary tribunals not for their actions, but for their words. The era of the campus speech code, enforced by the campus kangaroo court, had arrived. (And was it a mere coincidence, I asked myself then and now, that repression of speech set in just about the time that my radical clients became tenured? One thinks of Roger Kimball's brilliant disquisition on the subject in his book Tenured Radicals
The rest, as they say, is history. I found myself enmeshed in fighting with university administrations that insisted on punishing students for saying things to, or in front of, other students - things that, in the view of the universities, would make life more difficult, or more unpleasant, for the listeners (or readers, in the case of campus newspapers or humor magazines). Students, it was thought, had a right to feel comfortable during their college years. When the ever-shrinking vanguard of lawyers and others protective of academic freedom pointed out that colleges were inappropriate locales for speech codes, the administrators, advised by the lawyers, changed the names of these pernicious codes to "harassment codes." So no longer did the administrators have to defend themselves for punishing and censoring protected speech; it was unprotected harassment that they punished. George Orwell himself could not have come up with a better example of Newspeak.
The problem, of course, was that the "harassment" at issue consisted largely of speech that was absolutely protected outside of the ivy walls. Satire and parody, especially, became the targets of the administrators' ire, since such speech did, after all, hurt (the feelings of) their intended targets, namely a variety of sacred cow that became a protected species on campus.
Alan Charles Kors and I in our 1998 book, The Shadow University: The Betrayal of Liberty on America's Campuses (available still in paperback from HarperPerennial), attempted to explain the origins, evolution, and uses of these speech codes, as well as of the campus tribunals - star chamber bodies that nearly give the Inquisition respectability by comparison - that enforced the codes, often without the slightest semblance of either procedural fairness or separation of fact from ideology. That is ground that I need not re-plow here. The question at hand is not how this phenomenon came about, nor even the deleterious impact the codes and tribunals have upon academic freedom and student morale. Nor is the question how these prosecutions against students (a toxic melange of Orwellian thought-reform and mis-use of language, and Kafkaesque procedural niceties) can be won.
Indeed, this question has been quite effectively answered by the non-profit foundation co-founded by Professor Kors and me to deal with the individual cases. The Foundation for Individual Rights in Education (FIRE) has found a very effective formula for winning the overwhelming majority of cases and forcing the campus administrators into ignominious retreat. What's the formula? For the most part, it's publicity. Tell the world about the insanities and inanities and betrayals of academic freedom on the campuses - tell the news media, and the alumni, and (especially) the donors - and the administrators will beat a hasty retreat. They simply cannot defend in the light of day, in public, what they do in their private totalitarian fiefdoms. The admonition of Supreme Court justice Louis Brandeis actually works: sunlight is indeed the best disinfectant.
But right now the foremost issue on my mind is not how to win individual cases, but, rather, how to change the campus culture. The administrators and faculty members who back down in the face of publicity do so not because they believe we are right, but because they are afraid that their public, and especially their donors, might agree with us. In their hearts, many campus totalitarians believe that they are fighting the good fight - for truth, justice, and the American way - by restricting free speech and due process in the name of forming a "welcoming" and "comfortable" community. Only when the culture changes - when academic freedom and procedural fairness are honored as essential values of the academic environment rather than simply as escape hatches in the face of outside criticism - will the American university return to a truly honored, rather than ridiculed, position in our society. Only then will the university again be seen as genuine, rather than corrupt. Only then will the provost move into the office next to the president, displacing the general counsel or the development director who currently are more important in the campus pecking order.
So, how are we to accomplish this Herculean task?
For one thing, it is essential that more of the goings-on in higher education reach the general public. Parents who pay these huge tuitions need to understand that their money is largely wasted if their children are educated into obedience and thought-reform rather than in the thinking process that characterizes the liberal arts correctly understood. Those of us who are concerned with this problem need to develop mechanisms for directing our reports to the parental bodies. Parents will then speak with their children and learn what's really going on, and eventually the campus administrators will recognize that an important constituency out there - the folks who guide their children to a particular college and then pay the bills - is skeptical of how their children are being educated.
There is a crucial sub-point to consider: Many students and parents, in their search for the perfect college or graduate or professional school, consult one or another ranking service, such as the famous (or, to some, the infamous) U. S. News & World Report or Princeton Review. Currently, those services take into account a large number of factors including student-faculty ratio, freshman retention rate, fire safety, and alumni giving rate. It would be vital for these rating services to grade academic institutions by, in part, the degree to which they protect academic freedom, and the extent to which students enjoy fair procedures in disciplinary hearings. After all, these factors bear heavily on whether a student who enters these institutions stays long enough to graduate!
A somewhat related suggestion grows out of the ratings assembled and assigned by FIRE. Based on the degree to which an institution restricts speech, FIRE assigns a stop-light color (red, yellow, and green). A university that receives a "Red Light" has at least one policy that restricts a broad range of speech - speech which is normally protected under the First Amendment. A university with a "Green Light" doesn't necessarily embrace all speech, but rather has not taken steps to curtail student expression. (For more on the rankings, visit the FIRE website).
If organizations like USN&WR and Princeton Review establish not only their own "freedom" rankings for schools, but reference outside rankings (such as FIRE's) as well, then opinion on these issues will begin to concern campus administrators. Or perhaps organizations and publications that rank schools according to their respect for liberty and fairness might obtain grants in order to influence student decisions. One such use would be to take out full-page advertisements in appropriate publications during the period when students are getting ready to apply for admission. This would doubtless drive some admissions directors to distraction, but it might also focus administrators', and trustees', attention on these fundamental but often over-looked criteria. After all, administrators are employed through tuition funds, and if students are made aware of conduct they find inimical to a liberal arts education, they may take their business elsewhere.
Further, alumni must hear from those of us who take a less rosy view of campus affairs. These days, the typical college or university publishes several newsletters and magazines that go out to alumni, and the overwhelming number of them are crude (albeit spiffily-printed and laid-out) propaganda organs. Alumni relations these days are controlled less by alumni offices and more by development offices. Public relations has overtaken news reporting when it comes to keeping alumni informed. Alumni need to band together to find ways of learning what's really happening. Perhaps more of them should read the independently-edited student newspaper, if there is one, rather than relying on the school's official alumni rag. Perhaps they should speak with students and with the occasional dissident faculty member. Perhaps organizations concerned with the campus culture should pay more attention to communicating with alumni than with their already-convinced members and supporters.
Students need to organize among themselves to fight for their right to be educated rather than indoctrinated. Students have to recognize that they are entitled to their own views as to what constitutes the moral and ethical life. The examination of these fundamental issues is something to be done in the context of becoming an educated human being, not in those crude, compulsory "freshman orientation" or other "sensitivity-training" sessions. Campus administrators and faculty members, who claim that they have a moral obligation to impose "civility" and "community" upon their students, have to be taught by their students that their obligation is to educate, not indoctrinate. There is a line to be drawn. Those of us concerned with solving this problem need to deal with the students and make common cause with them.
And, by the way, one very useful tool in changing the culture is to insist that language accurately describe what's being done, and transmit true meanings to the listener or reader. Thus, whenever one sees "sensitivity training," it is essential to correct the language and point out that it's really a species of "thought reform." And "freshman orientation" sessions need to be described instead as "mind control" or "behavior modification." After all, one the ways we got into this current mess is that we have allowed the English language to morph so that language tends too often to cover up rather than accurately transmit one's true thoughts and intentions.
One avenue for injecting more formal student input on these crucial issues is for students to work with both administrators and faculty to establish standing student-faculty committees on academic freedom and fair procedures. These committees can be given moral authority, or even actual power, in these areas. The reason why standing committees would be so important, rather than ad hoc committees (organized whenever there is a crisis), is that ad hoc committees come and go with the fleeting nature of a four-year undergraduate tenure. In order to give student opinion some weight, it is essential that these bodies be organized and ready to meet at the very beginning of the school year.
Boards of trustees need to step up to the plate and accept their responsibility for changing the culture. It's about time they undertake the vital obligation of restoring a true academic culture - a culture that values teaching and learning, rather than political indoctrination - to their, and our, campuses. In order to harness the intelligence, energy, good faith and enormous potential influence of boards of directors, such boards have to hear from students and alumni, as well as from advocacy organizations - loudly, clearly, and often. They cannot allow the glowing reports from the office of the President (frequently written by the public relations office) to dictate the agenda for board meetings. The trustees have to keep in touch with students directly (and vice-versa) to find out what's really happening on campus. And when boards fail in this duty, alumni and students need to agitate for real elections in order to replace dead-wood trustees. They cannot be allowed to accept the accolades, honors and prestige that go with being trustees, without performing the sometimes-hard duties. It is time to make the position of university trustee a real job, not just a titular honor.
In fact, it would be enormously helpful if boards of trustees would reserve one place each year for a student member. At some institutions, this might be impossible due to charter restrictions, but even at those institutions, a student representative might be invited each year to attend meetings as a non-voting observer and participant. The problem is that trustees often know nothing about what's going on at the campuses that they theoretically govern, except what the administration wants to pass along and report to the boards, or what the members read in the administration-controlled campus press.
Finally, the effort to change the campus culture must be undertaken on an apolitical, non-partisan level. It cannot be deemed an opportunity for the right to bash the academic left, or for the traditional liberal left to deem conservative critics of campus culture "reactionaries." Those of the traditional, liberal left who see the destruction being wrought by the post-modern left that has such a death-grip on our campuses must reach across the political divide to jointly stride with fair-minded conservatives toward a change of culture. An academic culture that truly reveres the search for truth is neither of the left nor the right. Those who see the vital importance of due process and fair procedure recognize that an accused conservative is aided on Monday, while an accused liberal is aided on Tuesday.
Changing the culture will be significantly advanced if the thoroughly corrupt and rapidly growing legions of campus administrators have their feet held to the fire, so to speak. And, indeed, even the totalitarians are entitled to due process - and so I propose that we give them fair trials and then, hopefully, fire them all. After some 40 years fighting these battles, I'm convinced that a few strategic campaigns to actually fire some of the administrators in appropriately egregious cases, will force the rest of these careerists to finally do their duty.
Harvey A. Silverglate is a Boston-based criminal defense and civil liberties lawyer and writer. He is the co-author (with Alan Charles Kors) of "The Shadow University: The Betrayal of Liberty on America's Campuses" (HarperPerennial paperback, 1999), and is currently writing a book on how the Department of Justice abuses vague criminal statutes in questionable prosecutions.