American Council of Learned Societies
Occasional Paper No. 22

The Limits of Expression
in American Intellectual Life

Creeping Absolutism and Moral Impoverishment:
The Case for Limits on Free Expression

Kathryn Abrams

Art, Transgression, Shock, and the First Amendment
W.B. Carnochan

Truth or Consequences: Putting Limits on Limits
Henry Louis Gates, Jr.

Robert M. O’Neil

Free Expression in the Academy:
Three Hard Cases That Test Easy Assumptions

Robert M. O’Neil
University of Virginia, Charlottesville

I am delighted to be part of this vibrant panel. This morning’s theme recalls the last time I was asked to address an ACLS meeting. It was 1970, when the limits of expression were being severely tested. The immediate concern was to protect learned societies, and their annual meetings, from being politicized to the point of paralysis. Such concerns may sound quaint and remote today, though one hopes the lessons learned back then have endured.

Let me offer this morning a fairly simple thesis with several (I hope apposite) examples. It seems to me our quest for free expression in the academy has of late been distracted by such enticing but elusive issues as speech codes and political correctness. Codes, I would say, are simply misguided, almost certainly ineffectual, and quite possibly counterproductive, even for private universities that may not be directly constrained by the First Amendment. Political correctness I concede to be both serious and odious, but I would suggest it is a phenomenon easily exaggerated in scope and degree.

Because of such diversions and distractions as these, we may have neglected far more substantial issues of free expression and inquiry. Let me cite three — one dealing with research, one with teaching, and a third that affects both. All three are quite real; none has been fully resolved.

The research issue is one on which an outsider would expect to find within the academy a simple answer: May a university ever ban or refuse otherwise valid research because of its content? We all have various policies regulating campus-based research — protecting, for example, human subjects and animal welfare. We require substantial disclosure, in part to control intrusion or bias by corporate grantors. And we impose certain other conditions on sponsored research, up to and including bans on classified projects (which some may find troubling on academic freedom grounds, though I do not). But what we do not do is to ban or reject research on the basis of content.

Now enter the Pioneer Fund, a sponsor of social science research that seems invariably to document race-based differences in intelligence. Two senior faculty at the University of Delaware — established researchers in educational psychology with a conservative bent — seek and obtain Pioneer Fund support for just such studies. The administration faces an acute dilemma, torn between the insistence of the investigators in content neutrality, and equally fervent demands of others that the university not be used to nurture or validate racist ends. The president asks advice from the faculty research policy committee, which urges rejection of the grant — in part because of the sponsor’s intransigence when asked about its research mission and program. The president accepts the committee’s advice and declines the grant.

The would-be grantees then seek arbitration through the collective bargaining agreement. The arbitrator rules in favor of the investigators, citing chiefly the university’s lack of an established policy that might justify such a rejection. (A few universities, Michigan among them, have such policies on the books, though apparently never invoked.)

The arbitration award only defers the ultimate question: Can (or should) a university ever ban or refuse research on content grounds? The Delaware faculty remains sharply divided, and understandably so given the inordinate difficulty of the case.

Let me offer my own view, which may have only the virtue of simplicity. I can imagine no circumstances under which an otherwise valid research grant should be refused for content reasons — and I speak as one who has approved projects that could threaten tobacco in Virginia or brewing in Wisconsin. One could conceive a grant a decade ago from the South African government to improve police weapons technology; while I would have tried everything in my power to dissuade a colleague from taking the money, and would have welcomed a procedural flaw, there seems to me only one way to resolve the substantive issue consistent with academic freedom and the nature of a university. But I may well be in the minority, even here.

My second case comes out of the classroom — actually two cases closely related in time and in nature. One was the strange saga of Professor Jeffrey Levin at City College of New York, the other that of Professor Philip Bishop at the University of Alabama. Bishop had been warned by his dean to stop religious proselytizing in his physical education classes after students complained, while Levin’s philosophy students (who had not complained) were offered alternative sections if they found abhorrent his published views on race and intelligence.

Both professors went to federal court, each claiming abridgement of his academic freedom. Levin prevailed, and Bishop suffered what might be termed a pyrrhic defeat. But the ultimate issue survives: How should a university deal with professorial views that are not only controversial and may reflect on the institution, but may also offend students?

This issue eludes the clarity of response I offered a moment ago on the Pioneer Fund. But there are a few workable principles. Perhaps the clearest is that even outrageous views come within the scope of academic freedom. Thus talk of dismissal (openly hinted at in one of the cases) is irresponsible unless the affront is recurrent and substantial and reflects a departure from professorial mission.

Yet the institution does have a role to play; in fact a university would grievously disserve the cause of academic freedom by pleading paralysis or insisting a critic call the AAUP. Surely if students complain (as Bishop’s but not Levin’s did), and most clearly if the course is required, some alternative must be offered. If I were the dean, I would probably not ask students why they objected; such an inquiry risks invading their academic freedom. But I would be inclined to limit the offer to students who did complain, and would not (as CCNY did) gratuitously extend the option to all course-registered students.

That leaves us with the least tractable question: What should one do with the proselytizing professor? I suggested earlier that dismissal would be conceivable only if there is recurrent and substantial intrusion of extraneous material — though I recognize it may take a smaller amount of religion than of politics (let alone sports or sex) to invoke that test.

Short of dismissal, there are many creative options that tend to be under-used in the academy — admonition, course reassignment, public refutation, and of course most important and probably most effective, collegial pressure.

In the end, the proselytizer may be incorrigible. It is clear the institution has to tolerate eccentricity and deviance of view, in as well as outside the classroom. But academic freedom and tenure permit no one to escape basic accountability to students, most especially in the content and conduct of essential courses. Thus the time may come when such interests demand formal steps to protect students and the integrity of the classroom.