When Legislatures Become the Ally of Academic Freedom: The First State Intellectual Diversity Statute and Its Effect on Academic Freedom
Patrick M. Garry*
In 2019, South Dakota became the first state to pass an intellectual diversity statute aimed at public universities in the state. Titled “An Act to Promote Intellectual Diversity at Certain Institutions of Higher Education,” the bill had been brewing in the legislature since 2006, but finally became law after certain highly-publicized incidents involving suspected censorship and restrictions on free speech occurred at the University of South Dakota (USD). Although the issue of intellectual imbalance had been simmering for more than a decade, several events occurred to reignite legislative interest in the subject. In 2017, the Foundation for Individual Rights in Education found that the University of South Dakota was violating speech rights through the campus’ restrictive speech codes and USD’s “Guidelines for the Awareness and Prevention of Acts of Cultural Insensitivity and Bullying.” These events, along with others, prompted the introduction of House Bill 1073, which included nine sections addressing free speech matters at state universities. But the Bill was opposed by the Board of Regents, teachers unions, and the Democratic Party, and it failed to pass committee votes in both the house and senate.
Despite these defeats, legislators kept the issue alive and pressed the Board of Regents, which oversees the state’s six public universities, to revise its free speech policies. The state’s largest newspaper added its voice to the controversy with an article on faculty ideological makeup, citing studies showing that higher education faculty often skewed overwhelmingly to the left in their political ideology. A new version of a free speech and intellectual diversity bill was then introduced in January of 2019 as House Bill 1087. The new Bill continued to be opposed by university presidents and the Board of Regents, but it was strongly supported by the Governor, who had stated earlier that “conservative [and] Christian voices” are often censored in higher education. But just as the Bill stalled once again, a free speech incident occurred at the University of South Dakota School of Law that attracted national attention and spurred legislators to support a revised version of the Bill.
In the wake of the USD Law School incident, the Bill passed the legislature and was signed by Governor Noem on March 20, 2019. This final version of HB 1087 contained four substantive sections: Section Two requires a “commitment to the principles of free expression . . . in an environment that is intellectually and ideologically diverse;” Section Three addresses the existence of “speech zones” that limited speech rights on South Dakota campuses and designates campuses as “public forums” where speech rights are more protected; Section Four prohibits ideological discrimination against student organizations; and Section Five requires the Board of Regents to submit annual reports to the Legislature on actions taken by the subject universities to “promote and ensure intellectual diversity and the free exchange of ideas.”
This new intellectual diversity act (hereinafter “IDA”) was inspired by a legislative perception of the need to create ideological balance on campus, as well as a deepening acquaintance with free speech problems and ideological homogeneity on college campuses across the country. Legislative impatience also played a role in passing the IDA, since the Board of Regents and university presidents were reluctant to act. Under the IDA, the South Dakota legislature recommitted the state’s institutions of higher education to the creation of “learning environment that exposes students to and encourages exploration of a variety of ideological and political perspectives.”
Once passed, the law became the nation’s first campus intellectual diversity law. Existing diversity policies on campuses throughout the country focus on racial, ethnic, national origin, and sexual identity factors; but with the IDA, South Dakota has now introduced ideology as a diversity factor. As Governor Noem said about the new law, “[o]ur university campuses should be places where students . . . learn about competing ideas and perspectives.”
The South Dakota law may be the first of its kind, but an array of related legislative proposals have been under consideration in several states. Moreover, President Trump’s executive order on campus free speech policies may set off another round of legislative proposals. According to Stanley Kurtz, because of this executive order, universities “will now have to take loss of federal funding into account when creating speech codes, so-called free speech zones, or bias-reporting systems, or handling visiting speakers.”
Some have argued that the IDA infringes on universities’ First Amendment right of academic freedom. However, a law that requires state institutions to respect free speech and commit to intellectual diversity seems, on its very face, to be one that enhances academic freedom. Nonetheless, in addressing this claim, this Article will examine the nature, purpose, and development of the First Amendment right of academic freedom. But before examining academic freedom, the Article will briefly discuss the state of free speech and intellectual diversity in the nation’s institutions of higher education.
Lately, free speech conflicts have littered the higher education landscape. College campuses have become increasingly averse to speech expressing perspectives not in line with the prevailing ideology of those campuses. Primarily, that unwanted speech involves opinions counter to the leftist ideology within those academies.
Universities have tolerated and even encouraged the shaming of faculty and students who voice unacceptable views; administrators have carved out “safe spaces” where only acceptable opinions can be expressed; some universities, such as Yale, have adopted systems of surveillance and anonymous reporting aimed at punishing speech and behavior that departs from campus orthodoxies. At some universities, these surveillance policies have “started to adopt the tactics of the real police—to fight speech, not to fight crime. For instance, on some campuses, ‘Bias Response Teams’ investigate professors’ online comments and editorial choices of student groups.”
Conservative speakers have faced hostile threats and even physical violence at campuses at which they have spoken. Charles Murray and Heather Mac Donald saw their invited lectures shut down by angry mobs. Brett Weinstein was forced off campus by a leftist group he had previously criticized. Laura Kipnis has faced numerous Title IX charges and complaints for her writings criticizing the “sexual paranoia” on college campuses. Harvard University removed Ronald Sullivan as a faculty dean because Sullivan, a lawyer and law professor, had agreed to join the criminal defense team of Harvey Weinstein. Michael Knowles was physically attacked for giving a lecture titled “Men Are Not Women” at the University of Missouri-Kansas City. Chancellor C. Mauli Agrawal praised the protestors and condemned Knowles as someone whose “professed opinions do not align with our commitment to diversity and inclusion and our goal of providing a welcoming environment to all people.”
Bruce Gilley, a respected scholar at Portland State University, but a frequent critic of academe’s leftward leanings, faced a storm of criticism over his article outlining certain positive aspects of colonialism. The journal in which the article was to be published was petitioned by thousands, demanding that the article be stricken. Fifteen board members of the journal resigned in protest over the article, which was finally withdrawn after the journal’s editor received death threats. Even Gilley’s own diversity office investigated him.
Despite frequently hosting liberal speakers, the University of Minnesota placed significant restrictions on a guest lecture by conservative author Ben Shapiro. University administrators refused to allow Shapiro to speak at the main campus in Minneapolis and limited student attendance to 500 persons. Young America’s Foundation won a $70,000 judgment over the University of California-Berkeley for discriminatory treatment of conservative speakers on campus.
Professor Samuel Abrams of Sarah Lawrence College incurred a barrage of university and professional attacks after publishing an op-ed piece discussing the ideological imbalance of higher education and the need for viewpoint diversity. John McAdams, a Marquette University political science professor, was fired because of his views on gay marriage.
Disrupting and disinviting conservative speakers has become a recurring phenomenon on college campuses. In 2014, the Foundation for Individual Rights in Education documented this trend, with disruptions often preventing the speaker from even speaking.
In Adams v. Trustees of the U. of N.C.-Wilmington, a conservative Christian professor and blogger who was denied a promotion, despite having previously won teaching awards and receiving positive reviews of his scholarship, sued his employer university, alleging that its denial of promotion was in retaliation for his conservative speech. Although unsuccessful at the district court, Adams prevailed on appeal to the Fourth Circuit, which found that his speech rights had been violated.
These are but a small fraction of campus incidents demonstrating the intolerance for and recriminations against opposing viewpoints. In one survey, two-thirds of conservative professors admitted to refraining from sharing their opinions due to a fear of negative repercussions. In a survey of college undergraduates in the United States, half of all students reported feeling intimidated by professors when expressing differing opinions in class. A survey of Yale University undergraduates revealed that seventy percent have experienced political bias in the classroom, and that eighty-eight percent believe their professors on the whole are liberal, while just one percent label their professors as conservative.
Such intolerance toward opposing viewpoints mark, to some critics, a reversion to the campus environment of more than a century ago. Before the development of free speech protections and academic freedom principles, “American higher education was an entirely close-minded arena for indoctrination into accepted opinion, rather than a place where all ideas could be put to the test and where it was acceptable, even desirable to challenge prevailing wisdom.” Although it “took a long time for the idea of academic freedom to gain a foothold,” the spirit of academic freedom now seems to be coming under an intense assault.
There are generally two sources from which threats to free speech within the academe emanate. One source comes from outside the academy, from regulatory laws and legislative investigations. This source was the cause of the constitutional development of a right of academic freedom, as will be discussed in section III.B below. The second source of attacks on free speech comes from inside the academy, from administrators conducting workplace investigations and disciplinary proceedings concerning unpopular speech. Traditionally, the primary focus of faculty members was on the former source. However, as can be seen from the discussion above, the threat to academic freedom seems to arise increasingly from within the university setting.
For more than a century, Justice Holmes’ marketplace of ideas metaphor has broadly defined the scope and nature of the First Amendment speech protections. Such a metaphor envisions a free and robust expression of all opinions, competing for acceptance in a social marketplace of ideas. In this marketplace, the strength of opinions being expressed mirror the degree to which those opinions are held in the broader public. But higher education today does not reflect such a marketplace. Instead, academe appears highly skewed toward one ideological viewpoint.
According to a study published in Inside Higher Ed, only 9.2% of full-time faculty members identify as conservative. Another study published in Econ Journal Watch in September of 2016 found that Democrats outnumber Republicans by 11.5 to 1 on higher education faculties. But in some departments where politics may be more relevant, such as history, Democrats outnumber Republicans by a ratio of 33.5 to 1. When broken down by age, the data show that the imbalance will grow over time. While there is a 10 to 1 ratio of Democrats to Republicans for professors over the age of sixty-five, the ratio increases to 22.7 to 1 for professors under the age of thirty-six. Moreover, the disparity increases the more prestigious the university. While Penn State has a faculty ratio of 6.0 to 1, Columbia and Princeton have ratios of 29.8 to 1 and 29.7 to 1, respectively. And the faculties of Wellesley, Williams, and Swarthmore have ratios at or above 120 to 1. Although ratios differed by age and department, the study found no field in which Republicans outnumbered Democrats, and not one of the colleges had more Republicans than Democrats. More than a third of the fifty-one colleges surveyed (fifty-one of the sixty-six liberal-arts colleges ranked highest by U.S. News in 2017) had no Republicans at all. A later study found that forty percent of colleges had no Republicans on faculty.
In connection with this imbalanced faculty, higher education has witnessed an escalating partisan focus that sees opposing viewpoints as wrongs to be rejected. As academe has become increasingly dominated by a single viewpoint, “institutions of higher learning have been busy since the later 1980s circumscribing and restricting the freedom of speech and due process rights in the name of promoting a variety of causes.” In recent years, speech restrictions have escalated within higher education. Speech codes restrict speech deemed harmful to selected groups of people; universities police and punish speech categorized as “micro-aggressions” and classroom “trigger warnings;” institutions set up “safe spaces” from speech causing offense; outside speakers are either disinvited or disrupted to the point of canceling their speeches. As Donald Downs states:
Given their moral charters to promote open discourse and the pursuit of truth, universities should be the last institutions in American society to surrender to a homogeneity of opinion. Yet that is what has happened too often in the drive for diversity, which is one of the motivating forces behind the speech and harassment policies that have come to play such prominent roles in higher education in America.
According to Allan Bloom, in an observation especially poignant today, “[f]reedom of mind requires not only . . . the absence of legal constraints but the presence of alternative thoughts. The most successful tyranny is not the one that uses force to assure uniformity, but the one that removes the awareness of other possibilities.”
Perhaps a necessary result of the ideological imbalance in faculty make-up and the downgrading of free speech concerns has been the politicization of higher education faculty departments, especially in the humanities and social sciences. Faculty members have been investigated, ostracized, penalized, and defamed for expressing viewpoints that challenge the prevailing political orthodoxies of academe. Such politicization has even intruded into the methodology of the classroom. At Villanova University, for instance, students in their teaching evaluations must address such politicized questions as whether the teacher has demonstrated cultural awareness in her classroom teaching, or whether the teacher has built “an ‘environment free of bias based on individual differences or social identities.’” This requirement poses problems for history or literature professors who intend on teaching the political thought of John C. Calhoun or the novels of Mark Twain.
Not surprisingly, the growing politicization and viewpoint intolerance of the academe has resulted in a decline of public trust and confidence in higher education. A 2010 survey showed that sixty percent of Americans believe that colleges care less about students today. Moreover, this decline in public trust may well have corrosive effects on the future strength and acceptance of notions of academic freedom.
A statute, like the South Dakota law, that attempts to regulate the speech or ideological agendas of public universities could implicate several First Amendment rights. One issue might involve an infringement of student speech rights. Without delving into a detailed discussion of the nature of student speech rights at public universities, the South Dakota law does not appear on its face to have any restrictive effect on such speech. To the contrary, the law seems to provide additional protections for student speech and expressive activities.
Another possible First Amendment issue could involve a public forum analysis. Since public universities are state entities, portions of the campus might qualify as a public forum. Speech restrictions in a public forum receive strict scrutiny from the courts. On the other hand, speech regulation in non-public forums receive more lenient treatment from the courts. Although viewpoint-discriminatory laws still receive strict scrutiny in non-public forums, both subject-matter regulations and content-neutral regulations can survive if they simply pass a reasonableness test. Because of the relative ease with which government can control speech in non-public forums, governmental entities like public universities often try to designate as much of their campus as possible as non-public forums. But the South Dakota law does just the opposite: it mandates that the referenced campus space be treated as public forums, where the maximum speech protections are given. Thus, there is little chance that a court would find any constitutional infirmity with the IDA on a public forum basis.
A third free speech area on which a statute like South Dakota’s IDA might be challenged involves the matter of faculty speech. As public employees, faculty members at state universities have their speech governed by Garcetti v. Ceballos, which outlines the speech rights of public employees and the circumstances under which those employees may be disciplined for their speech. Since Garcetti applies to the speech of public employees, and faculty members at state universities are public employees, it arguably governs the constitutional speech rights of those faculty members concerning their on-job speech. Consequently, Garcetti is often equated with academic freedom. However, as will be discussed in section III.B below, the right of academic freedom, as recognized by the Court, involves considerations other than individual faculty speech.
To the extent that commentators equate faculty speech freedoms with academic freedom, dicta in Garcetti “suggests that First Amendment protections of academic freedom either may not exist or may be less robust than previously thought.” Although a prosecuting attorney was the employee in Garcetti, the Court acknowledged that its ruling could have implications for the speech freedoms of higher education faculty: “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.” But then, while acknowledging these implications, the Court sidestepped the issue: “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
For their off-the-job speech not related to their official duties, faculty members are protected by the First Amendment just as any citizen would be protected. But Garcetti limits the constitutional protection given to public employees for speech related to their official duties. The reasons Garcetti raises questions about the rights of faculty members are two-fold: first, are faculty members to be treated as public employees under the speech rules of Garcetti; and second, is the speech of faculty members concerning all aspects of their teaching, scholarship, and other service activities the kind of official speech related to their employment that does not receive protection under Garcetti? According to one commentator, as a result of Garcetti and its legacy, “the academic speech of public university professors is among the least protected forms of speech.”
Nonetheless, despite all the uncertainty surrounding Garcetti’s implications for academic freedom, it seems clear that it does not pose a problem for the South Dakota IDA. Garcetti comes into play primarily in cases involving disciplinary actions between a faculty member and her employing university. However, nothing in the IDA authorizes or even suggests any disciplinary action against individual faculty members. The IDA does not censor or penalize faculty speech, but rather attempts to protect unpopular or minority viewpoint speech within higher education. Thus, even though the post-Garcetti framework outlining when a faculty member can be punished for speech is complicated, involving several hard-to-determine and yet-to-be-decided factors, the provisions of the IDA seem to render unnecessary any consideration of Garcetti, since on the face of the law there is no restriction or penalties placed on faculty speech. Although the IDA appears not to invade any area of protected individual speech, a remaining question is whether it intrudes on the First Amendment right of academic freedom, as that freedom has been recognized by the Court.
The issue is whether the South Dakota law, by making demands on state universities to protect diversity of speech, infringes on the academic freedom of those institutions. The argument could be made that the legislature is trying to dictate how state universities conduct their academic missions. To address this claim, the nature and purpose of the right of academic freedom must be examined.
The protection of academic freedom began in the U.S. in 1915, when the American Association of University Professors published its Declaration of Principles of Academic Freedom. The Declaration stressed such principles as “unfettered discussion” and “freedom of speech” and freedom from the “prescribed inculcation of a particular opinion upon a controverted question.” The authors of the 1915 Declaration strove to foster such scholarly traits as disinterestedness and impartiality, arguing that the university “should be an ‘intellectual experiment station’ and an ‘inviolable refuge’ against the equally dangerous tyrannies of public opinion and political autocracy.” The authors never wavered in their belief in “the desirability of teachers having ‘minds untrammeled by [partisan] loyalties, unexcited by [partisan] enthusiasms, and unbiased by personal political ambitions.’” The goal of the 1915 Declaration “was to ensure that politics and other influences deemed extrinsic to intellectual work would not be the sole, the primary, or even the major determinants of scholarly expressions.” In addressing situations in which instructors present “controversial matter” in the classroom, the 1915 Declaration required those professors to present all “the divergent opinions of other investigators” and keeping in mind that the professor’s job “is not to provide students with ready-made conclusions.”
In 1940, the AAUP released a Statement of Principles of Academic Freedom and Tenure, which was an extension of the 1915 Declaration and which dedicated institutions of higher education to “the free search for truth and its free exposition.” As a legal concept, academic freedom encompasses the “marketplace of ideas” metaphor that serves as a foundation of First Amendment law and that Justice Holmes articulated as the necessary means for pursuing social truth.
The U.S. Supreme Court recognized academic freedom as one of the rights protected by the First Amendment in Sweezy v. New Hampshire.
According to the Court, “[t]eachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” The Court also stated that “[m]ere unorthodoxy or dissent from the prevailing mores is not to be condemned . . . [because] the absence of such voices would be a symptom of grave illness in our society.”
Ten years later, the Court further entrenched academic freedom within the coverage of the First Amendment. In Keyishian v. Board of Regents, the Court overturned the firing of faculty members who refused to sign a pledge that they had never been Communists. Stating that academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom,” the Court described the university, in First Amendment terms, as a “marketplace of ideas.” As the Court pronounced, the “Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, (rather) than through any kind of authoritative selection.’”
The 1975 Woodward Report on Freedom of Expression at Yale states that “[t]he primary function of a university is to discover and disseminate knowledge,” and that the overriding obligation of the university community is to protect free expression. And nearly two decades after Keyishian, Justice Stevens wrote in Regents of the University of Michigan v. Ewing that academic freedom thrives “on the independent and uninhibited exchange of ideas among teachers and students.”
The judicial recognition and protection of academic freedom took root during the Cold War period, and even more specifically during the McCarthy era. As Philip Lee notes, “[s]tarting in the 1950s, courts started to grapple with defining academic freedom—using the concept to protect universities from the excesses of government authority during the McCarthy period.” According to Lee, “[t]he constitutional foundation for academic freedom arose from a number of cases that originated as challenges to unfettered government intrusion in relation to public universities during the McCarthy era.” In its early stage, academic freedom as recognized by the courts marked a judicial attempt to protect the marketplace of ideas within the university from outside political forces. This judicial endeavor occurred largely because, during the McCarthy period, “inquiry into unpopular subjects and theories was severely chilled and academic freedom suffered.”
Although the Keyishian Court recognized academic freedom as a special concern of the First Amendment, the parameters of that freedom are still debated and far from certain. As First Amendment scholar Rodney Smolla observes:
‘Academic freedom’ may or may not be a freestanding constitutional right. To the extent that it has independent force as a constitutional value, it appears to render that force in several directions, some of which may be in tension. Formal legal doctrine appears to place the center of gravity with institutions, meaning that universities as entities, rather than professors or students, are the more compelling claimants to academic freedom as a constitutional right. But that picture is also not entirely clean.
As Professor Smolla notes, and as other scholars have observed, the “unsettled state of academic freedom, particularly as it ties to the First Amendment, is widely recognized. One of these unsettled aspects relates to the question of whether academic freedom belongs to the individual faculty member or the institution of higher education. The Seventh Circuit asserts that the freedom may belong to either individual or institution, while the First Circuit has located the freedom within institutions.
The weight of caselaw seems to locate the right of academic freedom in the institutions of higher education, rather than in the individual educators themselves. In Urofsky v. Gilmore, the Fourth Circuit stated that to the degree “the Constitution recognizes any right of ‘academic freedom’ above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University, not in individual professors.” Thus, to the Urofsky court, academic freedom is an institutional protection benefitting the university, not individual faculty members. But this assertion as to the focus of academic freedom remains highly debated, particularly among legal scholars. Nonetheless, regardless of the focus and placement of the right of academic freedom, “[t]o the extent that both the Supreme Court and commentators have considered the idea of academic freedom, it has often been through the lens of the First Amendment’s commitment to open and robust debate.”
Instead of viewing academic freedom as a neatly defined right, some have suggested that perhaps academic freedom should be viewed as a form of judicial deference given to academic institutions. Under this view, courts are commanded to give deference to the decisions of academic institutions regarding the academic mission and operation of those institutions. But this is a generalized command for deference, rather than the enforcement of a strictly-defined right.
Paul Horwitz discusses the relationship between courts and academe in terms of judicial deference. He casts the Court’s decision in Grutter v. Bollinger as akin to the high point of deference. In Grutter, the Court deferred to the University of Michigan’s race-based admissions policy, based on the school’s judgments about the need and value of a diverse student body, even though such a race-based system demanded strict scrutiny under the Fourteenth Amendment. As the Court in Grutter stated, it was following a long tradition of judicial deference to complex educational judgments that lie “primarily within the expertise of the university.” But a question, obviously, is what constitutes complex educational judgments that warrant deference. Robert Post writes that the constitutional value of academic freedom demands judicial deference to “professional scholarly standards.”
Courts have deferred to universities in such areas as student activity fees, academic dismissals, and student evaluations and supervision. Grutter, of course, reflected high judicial deference to universities’ admissions policies and practices. The decision gave rise to a “strong principle of institutional autonomy for academic institutions,” according to Horwitz. Justice Kennedy echoed Grutter’s emphasis on deference in Fisher v. University of Texas: “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” But then . . . despite Justice Kennedy’s recognition of the tradition of deference, the Court in Fisher did not defer to the university’s race-conscious admissions program. And this pass at deference, according to Professor Horwitz, reflects a growing judicial distrust of academe.
According to Horwitz, the Court’s decision in Fisher and other cases “suggest a growing judicial mistrust of universities altogether: an increasing unwillingness to defer to them on core questions of academic functioning.” This mistrust may result from many forces, including skyrocketing tuition costs and bribery scandals and bloated bureaucracies, but it may also arise
from the notorious incidents of speech biases at universities. However, no matter what its source, the distrust can only lead to an erosion of deference, since universities will be seen as less deserving of such deference. As Horwitz points out, judicial confidence in university faculty and administrators has decreased, as has the general public confidence.
The recent defamation verdict against Oberlin College showcases the level of mistrust felt toward institutions of higher learning. An Ohio jury awarded a family bakery a $44 million judgment ($11 million in compensatory damages; $33 million in punitive damages) against Oberlin College for defaming them with false statements of racism and racial profiling. The Gibson family, who owned and operated a fifth-generation family store, charged Oberlin College with using its administrators to guide a student protest of the store after store workers accused a black student of shoplifting. Oberlin’s dean of students even handed out a flyer (printed by the college) accusing the Gibsons of having a “long account of racial profiling and discrimination.” In spreading these accusations, the college ignored the findings of the police investigation that found no evidence of racism, as well as the fact that the accused students confessed to committing the crime and admitted that no store employees had racist motivations.
Therefore, even if academic freedom is cast not in terms of hard constitutional rights, but in the softer language of judicial deference to academic institutions, the South Dakota IDA would probably not be struck down because of such deference. First, the strength and intensity of judicial deference are declining, just as judicial distrust of academe is increasing. Second, the subject matter of the IDA is not a subject matter that would command deference. The IDA does not deal with academic policies like admissions standards or curriculum design. It does not deal with university administration, like student fees or course grading. In short, the IDA deals with nothing concerning any special expertise of university officials. Instead, it deals with a matter very much within judicial expertise and authority: the functioning and maintenance of an open marketplace of free speech. As demonstrated above, this marketplace principle is a defining element of higher education and academic freedom. University administrators should not be given deference on the very foundational principles that define the basic qualifications for academic freedom.
Since its very beginnings in the 1915 Declaration, academic freedom has been closely linked and identified with the free and robust debate of opposing opinions. The First Amendment foundations of academic freedom envision the university as a true marketplace of ideas. The right of academic freedom is given to ensure that the university remains free to function as such a marketplace, but the right also presumes that it will be conferred only upon institutions committed to serving such a role.
Robust debate, the freedom to question orthodoxy, and the absence of any penalties for expressing unpopular opinion form the pillars of academic freedom in the university. However, as the South Dakota legislature found within its state public universities, these pillars had decayed or been deconstructed. The IDA seeks to reconstruct those pillars by providing a protective umbrella for speech that an increasingly ideologically monolithic academy tries to eliminate. Indeed, the only restrictive effect of the IDA involves restraining higher education administrators from suffocating a marketplace of ideas and creating an ideologically monolithic university.
As the university has developed and evolved over at least the past thirty years, it has steadily moved away from the marketplace of ideas metaphor that undergirded the foundations of academic freedom. The university has become the restrainer of academic freedom. During the McCarthy era of the 1950s—an era in which the Supreme Court saw it necessary to give constitutional recognition to the right of academic freedom—it was the legislative arm of government that tried to shut down the marketplace of ideas within academe, pushing out those opinions that challenged contemporary political orthodoxy. Today, those within the halls of university administration offices are more likely to endanger academic freedom than those within the hearing rooms of legislative committees. Indeed, in the South Dakota case, it was the legislature that came to the aid of academic freedom by compelling the state’s universities to respect all opinions in the marketplace of ideas and to reject compelled orthodoxy of thought.
Higher education has become so politicized that it may no longer qualify in all its speech activities, under the principles of the 1915 Declaration, as institutions of learning and scholarship. And if not all the speech activities of these institutions qualify as academic, then they cannot claim to possess rights and freedoms that attach only to academic functions of academic institutions.
In discussing the basis of academic identity and authority, the 1915 Declaration distinguished “real” universities, engaged in the pursuit of truth, and other schools “designed for the propagation of specific doctrines” and dedicated to “a propagandist duty.” The Report then places in the latter category “any university which lays restrictions upon the intellectual freedom of its professors.” Thus, according to the foundational report on academic freedom in America, any university that sacrifices the integrity of an open marketplace of ideas to a propagandistic function cannot claim the authority of a true university and hence cannot deserve the protections of academic freedom.
The primacy of the political is “deeply inimical to academic freedom.” When politics become too engrained in an academic institution, it renders the goals of impartiality and objectivity unattainable; those within that institution cannot imagine anything standing outside of the struggle for political power. Stanley Fish makes this argument, asserting that if “academics are functioning not as academics, but as political advocates, then they do not merit academic freedom.” Academics, according to Fish, should receive academic freedom with respect to their teaching, researching and publishing conducted within the standards of their academic disciplines. Too often, academic freedom has been asserted as a shield to defend behaviors unrelated to genuine academic inquiry. As Fish argues, academia serves to produce scholarship conducted and evaluated according to academic norms; in this function, and in this function only, should academics be given a freedom not enjoyed by the general public. They should not be given an additional freedom that is not possessed by the general public to pursue a political agenda.
As Fish further explains, whenever a teacher “tries to promote a political or social agenda . . . he or she has stepped away from the immanent rationality of the [academic] enterprise and performed an action in relation to which there is no academic freedom.” Political indoctrination is not a legitimate academic function and hence is undeserving of special constitutional protection. Fish distinguishes between academic activity and political indoctrination by revealing ways in which the latter abandons academic content. Two such ways are through instructional bias and classroom imbalance, when teachers fail to allow the presentation of contrary views. Instructional bias, which occurs when faculty create a classroom environment “objectively offensive to some students based upon their intellectual point of view,” not only causes political indoctrination but also violate AAUP’s code of professorial conduct.
As discussed above in Part II, strong evidence exists that American higher education institutions are being driven increasingly by a certain political ideology and agenda. Consequently, a higher education institution cannot claim academic freedom protection from an intellectual diversity law such as the IDA, if that law is attempting to transform the institution from a single-minded political advocacy institution to an institution committed to the pursuit of truth through an open and free marketplace of ideas.
As higher education has itself become more single-minded in its ideology, it has also become more aggressive in its incorporation of partisan agendas. It has become more of a political arm of a defined ideology than an impartial forum dedicated to the pursuit of truth. Political activism has infused the mission and functioning of the university. And while universities are certainly free to adopt such a mission, they are not entitled under the 1915 Declaration or the rulings of the U.S. Supreme Court to claim the protections of academic freedom for such a mission.
The IDA marks the first attempt by a state legislature to achieve intellectual diversity in state universities that have grown steadily hostile towards respect for free speech and debate, especially involving ideas that question the prevailing political orientation of academe. In a great irony, it is the legislature that is coming to the rescue of open debate and the university that is trying to stifle that debate. This marks a reversal of the 1950s and 1960s, when the constitutional foundations of a right of academic freedom were established.
Under the IDA, the South Dakota Legislature has committed itself to a more scrutinizing supervisory role over higher education. By requiring annual intellectual diversity reports from the Board of Regents, the Legislature has essentially put state universities on a kind of watch-list or probationary status. After years of steadily rejecting intellectual diversity, universities may have lost credibility regarding their commitment to free speech and academic freedom. They have, in a way, become like the southern states under the Voting Rights Act. Those states were put under judicial supervision to make sure that voting rights were respected in those states. Perhaps, as the South Dakota Legislature has recognized, universities may now have to be put under a kind of formalized public review process regarding their actions concerning free speech and academic freedom.