A Time to Choose for the AHA in Philadelphia: Speech Codes and the Academic Bill of Rights


Mr. Beito is an associate professor of history at the University of Alabama and the founding member of HNN blog, Liberty and Power. Mr. Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center. Mr. Luker, an Atlanta historian, was co-editor of the first two volumes of The Papers of Martin Luther King. Johnson and Luker are members of the HNN blog, Cliopatria.

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At the meeting of the AHA Business Meeting on January 7 in Philadelphia, the members will have a rare opportunity to stand up for academic freedom.

They can vote on one of two resolutions. The weakest of the two condemns the so-called Academic and Student Bill of Rights but is completely silent on other threats to academic freedom, most notably speech codes. For this reason, it will be easy for critics to dismiss the resolution as selective and opportunistic.

A better alternative which does not suffer from this fatal flaw is the second resolution (which is proposed in the form of substitute). The substitute not only opposes the Academic and Student Bill of Rights but also the use of campus speech codes to limit academic freedom:

Whereas, Free and open discourse is essential to the success of research and learning on campus; and

Whereas, Faculty and students face threats to academic freedom from multiple sources which include government agencies and campus administrators; and

Whereas, The so-called Academic and Student Bill of Rights and campus speech codes represent the two leading threats to academic freedom today; and

Whereas, Administrators, politicians, and others have used speech codes and the Academic and Student Bill of Rights to improperly restrict faculty choices on curriculum, course content, and personnel decisions; and

Whereas, The so-called Academic and Student Bill of Rights and speech codes violate academic freedom and undermine professional standards by imposing political criteria in areas of educational policy that individual faculty members normally and rightly control; and

Whereas, These measures have restricted free and open discourse for students and faculty alike through such methods as "free speech zones;" therefore be it

Resolved, That the American Historical Association opposes the passage of the Academic and Student Bills of Rights, the use of speech codes to restrict academic freedom, and all similar attempts to limit free and open discourse on campus.

Unfortunately, the sponsor of the original resolution has rejected a friendly amendment to include the language on speech codes.

Speech codes take many forms and vary from one college to the next university. After the 1960s, when American colleges and universities ceased to operate in loco parentis, campus speech codes emerged on one campus after another as a means of securing a "safe space" for some students who were offended by certain kinds of speech. On one campus or another, speech that is discomforting, embarrassing, flirtatious, gender specific, inappropriate, inconsiderate, harassing, intimidating, offensive, ridiculing or threatens a loss of "self-esteem" is banned by speech codes. Too often, they target student critics of academic bureaucracy.

Taken literally, speech codes would ban healthy jeering at a visiting sports team. Wouldn't want to intimidate those Aggies! More importantly, teachers have to be able to urge students to consider perspectives that they had not previously considered, without fear of being accused of being "offensive." Ultimately, speech codes are problematic because they vest final authority in the subjectivity of the offended. Whether it is "intentional or unintentional," for example, Brown University bans all "verbal behavior" that may cause "feelings of impotence, anger, or disenfranchisement." The nation's Founders, who did not mind offending British authorities, would have been ill-educated by such constrictions on free speech.

The problem with speech codes is that speech that should be self-governed by good manners and humility is prescripted by inflexible legal codification. Fortunately, however, Philadelphia's Foundation for Individual Rights in Education has fought and won a series of legal battles that have curtailed the prevalence of speech codes in public higher education. In private colleges and universities, where 1st Amendment rights do not necessarily prevail, the struggle continues on an institution by institution basis.

Just when there is good news to report about the unconstitutionality of speech codes on public campuses, however, new threats to free speech arise from outside the academic community. They come from the Center for the Study of Popular Culture in Los Angeles. The Center and its legal arm, the Individual Rights Foundation, are led by David Horowitz. A militant activist on the left in the 1960s, Horowitz abandoned it 25 years ago to become a militant activist on the right.

Like campus speech codes, Horowitz's Academic and Student Bill of Rights appears well intentioned. Insisting that academic communities must be more responsive to outside criticism, it adopts a form of the American Association of University Professors' 1915 "General Report of the Committee on Academic Freedom and Tenure." It holds that political and religious beliefs should not influence the hiring and tenuring of faculty or the evaluation of students, that curricular and extra-curricular activities should expose students to the variety of perspectives about academic matters and public issues, and that
institutions must not tolerate obstructions to free debate nor, themselves, become vehicles of partisan advocacy. Who could oppose such commitments? They are already features of the professorate's assumed values.

Yet, the American Association of University Professors and the American Civil Liberties Union criticize Horowitz's Academic and Academic Bill of Rights as an effort to "proscribe and prescribe
activities in classrooms and on college campuses." One has only to look at the legislative progress of Horowitz's political campaign to understand why. His Academic Bill of Rights has been introduced in Congress by Representative Jack Kingston (R-GA), but it's had greater promotion in the state legislatures of California, Colorado, Florida, Georgia, Indiana, Maine, Massachusetts, Ohio, Tennessee, and Washington.

Instead of being the even-handed vehicle it claims to be, everywhere it is a function of right-wing attacks on academic communities. In Florida, for example, Representative Dennis Baxley says that the bill he introduced will give students legal standing to sue professors who do not teach "intelligent design" as an acceptable alternate to the theory of evolution. His critics respond that it could give students who are Holocaust deniers or who oppose birth control and modern medicine legal standing to sue their professors.

Beyond the governing authority of Florida's public colleges and universities and in the name of free thought and free speech, it would encode in state law restrictions against those values.

The Founders, who recalled their own exercise of free speech and free thought, when they challenged British governing authority, wrote guarantees protecting them from constricting government action. In academic communities, we need an alliance across ideological divides to support free speech by abolishing "speech codes" and to fight the Academic and Student Bill of Rights in state legislatures and the Congress because it is a Trojan Horse that intends the opposite of what it claims on its face.

The most effective strategy to fight rightwing Trojan Horses, however, is to be equally vigilant against leftwing Trojan Horses. If the members of the AHA pass the first resolution, which is silent on speech codes, they will be handing David Horowitz an unintended victory. He will triumphantly respond that the AHA's stand is hypocritical and selective. The end result will be to undermine the entire effort. If on the other hand, the substitute resolution is approved, it will be Horowitz, not the members of the AHA, who will be rendered speechless in this debate.

For this reason, we strongly urge our colleagues to come to the Business Meeting at the Marriott Grand Ballroom on January 7 at 4:45 p.m. and vote for the substitute resolution. By doing so, they will prove that they value academic freedom for everyone on campus, not just a select few.

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William A Sprinkle, Jr. - 12/30/2005

While the assertions in the first part of your second paragraph may be true enough (except, perhaps, the initial insistence that freedom of expression in a university setting is not absolute--depending on what is meant by "absolute"),it seems to me that there must be someone (or a group of someones) who, in such a case, have the power to decide which arguments are or are not "based in ideological bias......," are or are not "based on dependence on fundamentally flawed premises......," are or are not "based in blind faith......," and have or do not have "foundations that are not assumptional." Further, someone or a group of someones must have the power to set the criteria for each of these standards.

I suspect this is the focus of much of the growing concern over freedom of expression in the academy. Now to be sure, if I were the one appointed to wield that power, I should be perfectly content!

As an aside, I would like to note that the concept of fundamental rights underlying our nation's founding and its resulting society posits freedom of "expression"...not freedom of "thought." It is a certainty that under the most repressive regimes in the history of mankind, a person might personally "think" anything he might wish without fear of retribution. It is the "expression" of his thoughts which might bring down upon his head unsavory consequences. That is precisely why we call this right "freedom of speech."

David T. Beito - 12/27/2005

My reply is


Jason KEuter - 12/27/2005

a verbose defense of suppression of ideas that contradict those the "academic" community has determined have "legitimacy", presumably on the basis of some kind of methodological alchemy scholars understand that that the boobs in state legislatures (who represent the boobs in the public at large, upon whose teat scholars feed) don't. While it is absurd to demand "representation" (this is the right using the rationale the minority left has used to usurp power), it is far worse to trust academics to determine what is legitimate and what is not.

Regarding history, it is especially ironic to hear the proponents of the "new history" pathetically invoke such flagrantly elitist arguments about "scholastic integrity" and specialized methodology to defend the leftist fiefs they've built examining the hitherto unknown lives of the "voiceless". Of course, they make sure the modern incarnations of the voiceless are not the privileged students they are privileged enough to berate for a living in the la-la lands of our nation's campuses. Since the powerless are "absent", these "grassroots exposing" professors feel free to suppress the voices of their students, the students parents and the tax payers (all of whom voice significant opposition to the politicization of the curriculum), as these are the voices of privilige.

Of course it is impossible for the actions of Horowitz and the state legislatures to represent hitherto silenced voices speaking out against the repressive reign of righteous leftists because we all know that these are not "authentic" voices, untainted by the inherent corruption of our "pseudo-democracy". Only the upper middle class professor knows the "true" voice of the people, and only he or she is in a position to let us know when what WE say is authentically us or not. The fact that is is said through DEMOCRATIC POLITICAL INSTITUTIONS means nothing to the professor whose ideology says that those institutions mean nothing, and that "substantive" democracy can only be said to exist when what they want is policy.

Professors envision Horowitz's crusade leading to Rush Limbaugh Chairs of Political -Economy. While that would be a lamentably development, it will come to be not because of some "right-wing" campaign but because the path to it was paved by the morally, ethically and intellectually bankrupt community of pseudo-scholars whose hubris prevents them from reforming the institutions over which they gained control with methods more Maoist than "scholastic".

david horowitz - 12/26/2005

I appreciate KC Johnson's comments and concerns and am grateful for the help he has given the students at Brooklyn College. I headed off the Intelligent Design supporters in my legislative camp in Pennsylvania -- and I can assure you it didn't take a lot of doing. I was unaware of Baxley's position but will speak to him when I get the chance. Ditto Ohio. However, in Ohio we already have passed the problem by getting the universities to embrace the ACE statement. Now we have to get them to enforce it.

The whole issue here is leverage. The legislation gives us leverage to get the administrations -- who are intimiidated by the radicals on their faculties -- to act. To look at the legislation qua legislation is to miss the point. Why is anyone at all talking about the issue of academic freedom? Because of the legislation. Why do we have academic freedom hearings in Pennsylvania? Because of the legislation. What will they accomplish?

We're hoping to put on the table the massive abuses of the classroom that go in all universities I am familiar with. Once the abuses are put on the public radar screen, administrators will take steps to correct them (it's a money issue for them).

So the people willing to stand up and support the ABOR the more quickly we'll get a remedy for these problems. The ABOR is not the remedy. It is the means by which we can get to the remedy which will have to come from the universities themselves.

Robert KC Johnson - 12/26/2005

As David recognizes, I'm know fan of the academic status quo. My concern with ABOR as the movement has played out, however, is less with David's intentions in proposing the measure than in how legislators have interpreted it. We've seen in both Ohio and Fla. conservative legislators championing ABOR as a way to attack the teaching of evolution. Given the current political climate, I don't see any way this can be avoided.

This outcome seems to me highly unfortunate, because the model of science--research-oriented, less likely to be awyed by the most recent ideological or pedagogical fads--is the model we should be encouraging the humanities and social sciences to emulate. Those of us who favor intellectual diversity, therefore, can't afford to alienate scientists, since they should be our strongest allies.

I should note that I supported poassage of an ABOR by the Brooklyn Coll. student government, and continue to support that action. (I'm also a strong supporter of the campus branch of Students for Academic Freedom, which has done extraordinary work under the leadership of Eldad Yaron.) In our instance, the college administration itself had championed the politicization of the curriculum--through a "global studies" approach, through an "Arts of Democracy" initiative that termed democracy as fidelity to a multicultural political agenda, and by implementing the writing of the provost, Roberta Matthews, who once opined, "Teaching is a political act." When college adms are so blatant in their own political intentions, it seems to me perfectly appropriate for students to respond in kind.

david horowitz - 12/26/2005

I have never advocated imposing or interjecting an ideological position into the classroom. My entire campaign is designed to return the classroom to its educational purposes as defined by John Dewey and Arthur Lovejoy and all the articulators of the AAUP academic freedom doctrines as embodied in their statements of 1915, 1940 and 1970. I agree with the positions laid out by Stanley Fish in his book Professional Correctness and in his articles in the Chronicle of Higher Education ("Save the World on Your Own Time") etc. The issue here is between defenders of academic discourse and ideologues. Of course there are those who muddle the argument by refusing to take the time to read our documents and understand what the campaign for academic freedom is about.

That the AHA and the AAUP are ideological organizations, who can doubt? The Academic Bill of Rights was announced two years ago. In all that time, while it has been a centerpriece of discussion not a single academic organization has invited myself or any proponent of academic freedom to discuss or debate the actual document on any panel at any conference or academic setting. It is the AAUP that made this discussion an ideological combat and its the academic left that keeps it that way.

BTW I have never read any academic publication Bradford has written and cannot comment on your views on this. I defended him on the basis of his tenure qualifications (peer reviewed publicans,teaching and service scores, and on the illegal,corrupt and entirely political opposition to his tenure appeal.

chris l pettit - 12/26/2005

One has to be able to be critical of the flaws on both sides of, for instance, a political or legal argment. It is why I used the Israel/Palestine example. Both sides of the ideological, religious, and historical argument have fatal flaws when viewed critically and through a universal lens based in law and human rights (in addition to the right to education as a universal right free of indoctrination, which is at the base of what we are debating here). To teach one side or another, and be allowed to present those arguments as either credible or "viable alternatives" (as, for instance, Klinghoffer and Pipes are allowed to do on this website...I would hope that they would not be allowed to at a university...and yes, I know Pipes is not a prof...it is an example) undermines the right to education without indoctrination. If it can be shown that the ME studies profs at COlumbia are blatantly anti-Israel and justifying Palestinian ideology that is indefensible and violative of basic human rights principles and principles of universal governance, or do not recognize that both ideological positions in the conflict are fatally flawed when speaking of universality, that is a huge problem. However, Said, among others, recognized that there were atrocities and positions of paucity on both sides...and sought to highlight them. To cite the ICJ opinions detailing the violations if international law by the Israelis is not one sided...it is based in impartial, non-ideological, universal human rights legal principles. Any defense of Israeli actions that violate those principles is therefore ideological and unable to be critically defended outside of a narrow ideological position that should not be allowed to be imposed on students at a university level, or presented as a viable alternative interpretation.

What we are really getting to in this whole "academic freedom" discussion is the RIGHT to education...without being propagandized by people such as Horowitz and Kinghoffer, without being presented fundamentally flawed and indefensible positions like ID and Bradford's international law as "viable alternatives." These principles are universally accepted as part of the basic foundations of rights and the ability to be a contributing part of an international community. Without a guarantee that our right to education will be defended and that the education will be disseminated without tolerance of ideological imposition, fatally flawed assumptions, positions of blind faith, etc...many other rights, including the right to vote, be informed, contribute to the governance of a state or the international community, etc...will be undermined, not only for those exposed to the indefensible (outside of a narrow ideology) viewpoints, but also for those affected by those who choose to adopt those indefensible viewpoints, oftentimes because they do not know any better and have not been taught to critically analyze positions and identify their flaws.


chris l pettit - 12/26/2005

In general I agree with everything you put forth in principle, and am with you on the opposition to speech codes and the Academic Bill of Rights. However, we need to get something settled here...something that will most likely greatly discomfort Dr. Beito, if not others. As usual, I will be speaking from the foundation of rights theory and law...which is the foundation you must start from if you want to speak of universalisms and overall governance, and not from the angle of ideological imposition (ARE YOU LISTENING HOROWITZ??), where attacks and intolerance are disguised in the abhorrent manipulation of quality principles.

The freedom of expression, particularly within an ideological setting, is not absolute, nor can it be. THe intelligent design issue is a great example. I have used this example before, but Parsig in "Zen and the Art of Motorcycle Maintenance" (which we all have had to read at one time or another), makes a striking point about the University as opposed to the "University," in that, in a true University and educational setting, arguments are not based in ideological bias (Horowitz's arguments about "liberal bias"), not based on dependence on fundamentally flawed premises (for a controversial example, see libertarian economic theory and denial of ESC rights), not based in blind faith (any religious arguments like intelligent design), but rather are able to be critically defended, analyzed, and have foundations that are not assumptional (they may be theoretical...something very different). The Bradford example at Indiana is a good one and one that I have the authority to comment on, being a professor of law. Bradford, in his arguments, uses ideological legal principles that are dependent upon misinterpretation, manipulation, and blatant disregard for basic principles of law in general and specifically international law and human rights. If he wanted to disagree with these principles within his own individual thought, that is fantastic...that is what freedom of thought is all about. However, those ideas cannot be articulated within a university setting without being ripped asunder and made to look as foolish as they are, as they brainwash and indoctrinate students, most of whom do not yet have the intellectual capacity (due to the paucity of the primary and secondary education in the US) to critically analyze the arguments and their fatal flaws. If those students were being taught international law by Bradford, they would not truly learn anything about international law, just the ideological indoctrination from someone who manipulates law for his own ideological purposes. The argument that "all viewpoints must be heard" in the name of tolerance is absurd. If an argument cannot be critically defended and can be shown to be ideologically corrupt, based on manipulation, fundamentally flawed assumptions, or blind faith, it should not be taught in a university setting. Bradford's positions are unsustainable, as are ID positions, etc. If one wants to study them as part of an history curriculum, or an overview of religious positions, that makes sense, but they cannot be taught as "alternative theories" or as having any sort of validity outside of a narrow ideological spectrum. We cannot have "Free Cuba" advocates teaching international law at schools in FLorida...we cannot have Horowitz interjecting "conservative" doctrine as though it has legitimacy outside of an unsustainable ideology. Education is universal (in legal thought, rights theory, and theories of universal governance and is not simply the imposition of ideology, which is what Horowitz, et al try to accomplish), and what is taught must be sustained through critical analysis and rationality. KC's pro-Zionist, pro-Israel, and anti-Palestinian positions are unacceptable and should not be permitted outside his own individual thought (meaning his house, small groups, etc), except when referenced as an ideological strain of individual (or small group) thought...the same thing goes for, for instance, Mr. Baker's pro-Palestinian, anti-Israeli rants on this website, were they to be disseminated at the university level.

If you want to make the argument that everything should be tolerated, we should be teaching Nazism, fascism, Stalinism, Rwanda genocidaireism (if I can make up a word), etc, as legitimate "alternatives." None of these positions are tenable, all are dependent on ideological assumptions and fatal flaws, and we would not teach them as part of a course as a viable alternative in the name of tolerance. THere are limits to expression...and limits to what should be accepted as credible scholarship and university material. (As a funny side note, we still teach and tend to worship the legal foundations of Nazism, facism, and Stalinism...legal positivism (the foundation and dominating influence of the failure that is the US "legal" system)...without identifying that ideology as without foundation...but that is another discussion entirely)

As Dworkin was brilliant enough to point out, we have "hard cases" and "easy cases." The instances I have cited, for the most part, are "easy cases." ID, KC's pro-Israeli nonsense, Mr. Baker's pro-Palestinian nonsense, Horowitz's introduction of indefensible ideological positions, Bradford's blatant manipulation of international law...all these cannot be allowed to be disseminated at a true university as legitimate alternatives or quality scholarship...they are fatally flawed ideological positions that are allowable in individual settings, but forbidden when we are speaking of universal education, and teaching students to be able to critically defend positions and identify flawed ones. The "hard cases" is where we find some leeway and where societal movements, custom, etc, come into play. FOr instance I gave the example of libertarian economic reasoning...and its parallel in law of decrying ESC rights or labelling them "2nd Generation" rights. While the parallel in law has been discredited and shown to be a political and ideological position for almost 4 decades now (at least), the libertarian economic theory is a bit more difficult. WHile it can be shown (along with libertarian rights theory) to have fatal flaws, it is a fluid enough concept with enough to contribute to economic and rights theoretical analysis to be allowable as not an alternative, but as a tool to be used to view things from a different perspective...AS LONG AS ONE REMEMBERS ITS FATAL FLAWS. THese "hard cases" is where the benefit of the doubt should fall to the ideas being presented until someone has shown them to be fundamentally flawed, manipulative, based in blind faith, etc.

Overall, if you truly want to speak of academic scholarship and the universality of education, one cannot teach positions or topics that morally and ethically violate the universal principles articulate in the Universal Declaration of Human RIghts, the ICCPR, the IESCR, CEDAW, the CRC, and other human rights treaties, including those regarding the environment. Revisionist history, one sided interpretations of history or economics, misinterpretations of Islamic or COnstitutional laws, etc...all these violate the basic principles articulated in addition to being indefensible in the face of quality critical analysis. They should not be taught as quality alternatives within a true university setting...they can be taught as historical ideological examples, but cannot be said to have any universal validity.

Basically...there is a right to academic freedom and freedom of expression...but it is limited to ideas that can be critically defended, are not based on fundamentally flawed principles, ideology, blind faith, or manipulation. Some might argue that this standard might eliminate some scientific arguments...however this misunderstands the argument. Science is based in observation and acknowledges that there is much unknown. However, scientific theories, as discussed re: ID, are based in critical analysis, testing and retesting of theories, and altering them when data refutes their postulates. It is not based in ideology or fundamentally flawed propositions, and when it is, it is not true science. The position articulated allows for societal advancement, a variety of scientific theories and postulates, etc. What it does not allow for is individualised ideological positions, manipulation, and the introduction of ideas or expressions that have no basis in critical thought, universal education, and honest academic scholarship.

I hope we can actually be part of the true university of critical thought and rationality instead of sliding into the "university" inhabited by the Horowitz's, KC's (at times...not all the time KC), Deshowitz's, Yoo's, and Klinghoffer's of the world.


david horowitz - 12/25/2005

The Academic Bill of Rights is viewpoint neutral and non-partisan. Its Republican support is a factor of the extreme and dishonest campaign against it waged first of all by the AAUP but also by all the teacher unions and the Democratic Party. This was not my intention in launching it. I welcome Democratic support wherever it is available. But I have no control over the opponents of the bill.

It should be noted (instead of ignored) that every legislative form that the Bill of Rights has taken has been that of a resolution. No statutory legislation that would make the Bill of Rights law with teeth has been proposed to my knowledge. Moreover, in every case we have offered to withdraw the legislation if universities would put into place even the modest reforms proposed by the American Council on Education. This has happened in Colorado and Ohio and will happen in a third state shortly. The only reason for the legislation is to prod the university administrations into doing the right thing. The legendary AAUP committee on academic freedom is now a far left committee (much further to the left than I am to the right by the way) that has no interest in protecting anything but the status quo and the rights of professors to do anything they want intellectually in the classroom without regard for the guidelines that the AAUP itself has articulated in its three major statements on academic freedom.

The Intelligent Design objection is a red-herring. I have said time and again that Intelligent Design theory is not scientific and has no place in a science classroom. If Dennis Baxley is a proponent of Intelligent Design that is his privilege. But the fact is that the Academic Bill of Rights would provide absolutely no legal basis for suits to include Intelligent Design in the science curriculum in becuase it spectifically makes the "spectrum of significant scholarly opinion" the standard for diversity in the classroom. Intelligent Design is not part of the spectrum of significant scholarly opinion.

I know this presents you with a difficult choice -- or at least one more difficult than what you are offering in this post. Association with David Horowitz is possibly a worse taint in today's academic world than association with William Z. Foster would have been in the McCarthy era. But those of you who really believe in academic freedom and I know K.C. Johnson to be one, should not be pandering to the academic left on this issue.

David Horowitz