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The Academic Bill of Rights: A Debate on the Right
By: David Horowitz and Jesse Walker / Reason Magazine
Thursday, September 18, 2003


David Horowitz and Jesse Walker of Reason Magazine debate the pros and cons of academic diversity.

On September 17, Reason Magazine published an article by Associate Editor Jesse Walker, claiming that David Horowitz's Academic Bill of Rights would exert a "chilling effect" on the academy. Below, we reprint David Horowitz's response to the article, and Jesse's Walker's final comments.

David Horowitz: Which Side Are You On?

Libertarians have a reputation for focusing too much on principle and ignoring real world contexts. Jesse Walker's attack on the Academic Bill of Rights comes close to fitting the stereotype. Walker suggests that my Academic Bill of Rights could have "chilling effects" on academic freedom. The missing context is this: What academic freedom? Two years ago I was invited by conservative students to speak at the University of California Berkeley. The university administration assigned 30 armed guards to keep order at the event. I was picketed by the International Socialist Organization and the Spartacist League and assorted leftwing thugs with menacing taunts and signs calling me a "racist ideologue"—a photo of which wound up in Newsweek. The Daily Cal had previously apologized for allowing an ad written by me to be published in the student newspapers. The reason for this jihad? I had the temerity to suggest that paying reparations for slavery 137 years after the fact might be a bad idea. Not a single administrator or professor at Berkeley rose to my defense or the defense of my right to speak without fear of bodily harm or reckless slander. This is the state of our campuses today. There are 16,000 Marxist professors (at least a professional association of Marxist professors has claimed such membership) but faculty libertarians and conservatives are as rare as unicorns. The airhead Cornel West according to Richard Posner's study is one of the 100 most cited public intellectuals in academic journals, far ahead of Michael McConnell. Ludwig Von Mises and Richard Epstein do not even make the list.

This is the context—or a part of it—into which I have introduced the Academic Bill of Rights, as a step towards altering this situation. Walker might have mentioned that Eugene Volokh, a libertarian and one of the nation's foremost legal experts on First Amendment rights, has found nothing to object to in the Academic Bill of Rights. (To be scrupulously accurate, he objected to one word—"solely"—in the second principle in the original version. Out of respect for his judgment, I removed it.)

As our tiny band of supporters of academic freedom approaches the coming battle with the campus totalitarians it would have been reassuring to have had some acknowledgment of facts like these, before Walker moved on to join our attackers. The fact is, that if libertarians choose not support to this cause, it will be gravely weakened. Therefore one would hope that the withholding of such support would be made on strong intellectual grounds.

Now to the issues. To begin with, Walker draws an invidious comparison between our bill and Hubert Humphrey's affirmative action legislation, which he swore would not lead to racial preferences but did. This analogy is inapt. There is absolutely nothing in the Academic Bill of Rights about affirmative action for conservatives or any other group or set of ideas. The rights the bill delineates are negative rights, limits on what authorities in the university community and outside it may do. The appropriate analogy would have been the American Bill of Rights. Would Walker argue that because so-called liberals have managed to pervert the clear meaning of the 14th Amendment, we should therefore reconsider our support for it and regard it as having "chilling effects" on our freedom?

Second, Walker claims that the Academic Bill of Rights "extends the concept of academic freedom to students," and that this is a problem. This argument came as something of a surprise to me—a libertarian objecting to too many freedoms! In fact, the Academic Bill of Rights does not extend any more rights to students than are implicit in the existing academic freedom tradition—a fact which we draw attention to in the preamble to the document.

Walker the suggests that "contradictions" between professors' rights and students' rights "could be resolved in unfortunate ways." He offers an example of a "biology student lodging an official complaint because her professor gave short shrift to Creationism." Well such a complaint is conceivable, but under the Academic Bill of Rights it would be dismissed. Article 4 of the Bill of Rights (the text is available at www.studentsforacademicfreedom.org) states: "While teachers are and should be free to pursue their own findings and perspectives in presenting their views, they should consider and make their students aware of other viewpoints." The meaning is clear. The professor has a right to teach the course any way he or she wants. If the professor is an evolutionary biologist then that's what he or she should teach. All that the Bill of Rights stipulates is that students should be made aware of other viewpoints. There is no conflict between rights here. The Bill of Rights clearly recognizes that the teacher has the right to teach the course as he or she sees fit.

The only limit to this right is article 5: "Exposing students to the spectrum of significant scholarly viewpoints on the subjects examined in their courses is a major responsibility of faculty. Faculty will not use their courses for the purpose of political, ideological, religious or anti-religious indoctrination." Having audited a course at one of the premier liberal colleges in the country, where a 600-page Marxist textbook on "modern industrial society" was taught as though it were a text in Newtonian physics, I can testify that this is very necessary right to protect academic freedom in the contemporary university.

Walker's next argument is ad hominem. There are articles on the Students for Academic Freedom website (as it happens taken from frontpagemag.com) that reflect attitudes he finds disturbing. One of them is about one-sided Cornell anti-war faculty teach-ins. This raises an interesting issue. In an academic setting is it appropriate for professors to participate in non-academic events like this aimed at converting students whom they teach to a politically partisan viewpoint and on a subject they are mostly not professionally qualified to pontificate on?

While this question is interesting, it is touched on by only one of the principles of the Academic Freedom Bill—as it happens one which reflects the views of Stanley Fish: "Academic institutions and professional societies should maintain a posture of organizational neutrality with respect to the substantive disagreements that divide researchers on questions within, or outside their fields of inquiry." The purpose of this principle is to preserve an academic attitude of uncertainty towards truth as opposed to an omniscient political one.

But the articles on the site to which Walker refers are irrelevant to the Bill of Rights itself. To avoid future confusions, I have had them removed from the site. Complaints about the university are now actually students' complaints and students can veer off the deep end without notice (as we know). So what?

Walker takes his discussion of this matter, which is really a side discussion, into two substantive areas. One is the issue of private institutions (his example is Holy Cross), an area where he hopes I am not recommending a legislative solution. He is right to hope this. The Academic Bill of Rights explicitly says: "These principles only fully apply to public universities and to private universities that present themselves as bound by the canons of academic freedom. Private institutions choosing to restrict academic freedom on the basis of creed have an obligation to be as explicit as is possible about the scope and nature of these restrictions."

Walker draws an analogy between the Bill of Rights and the Fairness Doctrine, which required radio and TV outlets to "balance" the views of their broadcasts, and worries that this is what is intended. He need not worry. The Academic Bill of Rights strictly forbids hiring on the basis of political or religious views, and thus legislated balancing of any kind. I agree with Walker that there's no such thing as a perfectly balanced debate, but I deny that I have set out to create one in a manner heavy-handed or otherwise, and indeed I have drawn up the Academic Bill of Rights in a manner explicitly designed to prevent it.



Jesse Walker: Hallelujah! I'm A Bum

David Horowitz spends a surprising amount of space reiterating that his Academic Bill of Rights will not lead to hiring quotas—surprising, because my article declared that, "if read properly—and if preserved in whatever law actually gets passed—[it] would preclude such policies." In other words, I already agree with him about this. When he gets to the argument that I did make—that his proposal would create new rights for students at the expense of the freedoms of the faculty—he seems to miss the point, commenting that it "does not extend any more rights to students than are implicit in the existing academic freedom tradition—a fact we draw attention to in the preamble to the document."

The preamble does include some quotations that might give that impression, one of which I cited in my article. I did not intend to suggest that there is no tradition of protecting students' rights on campus: The Joint Statement on Rights and Freedoms of Students, originally adopted by the American Association of University Professors in 1964 and revised periodically since then, includes protections against "prejudiced or capricious academic evaluation" and for the rights to "take reasoned exception to the data or views offered in any course of study" and "reserve judgment about matters of opinion"; it covers student speech, student association, and other important legal territories. Such rights are a longstanding element of academic freedom, and to the extent that Horowitz's document restates them it is unobjectionable, if somewhat superfluous. It's the new stuff that worries me.

The classic statement on academic freedom was adopted by the American Association of University Professors and the Association of American Colleges in 1940, and revised in 1970 and 1990. You'll find a kernel of Horowitz's revised definition there: an admonition that instructors "should be careful not to introduce into their teaching controversial matter which has no relation to their subject." A subsequent note explains that "The intent of this statement is not to discourage what is 'controversial.' Controversy is at the heart of the free academic inquiry which the entire statement is designed to foster. The passage serves to underscore the need for teachers to avoid persistently intruding material which has no relation to their subject." In other words, the measure exists to stop an engineering professor from spending his classes campaigning for Wesley Clark, proselytizing for the Bhagwan, or whining about his love life—a legitimate restriction, but not one that gets to the heart of Horowitz's complaints about modern universities. Furthermore, while it is part of a document on academic freedom, the clause does not describe a part of that freedom; it is a limitation on professorial liberty, an example of where it is permissible for the institution to intrude.

What Horowitz either doesn't realize or won't acknowledge is that he would introduce yet more intrusions, pushing far beyond restraints on obvious malpractice. I'm not at all reassured by his comment that the Creationism complaint would go nowhere because the Academic Bill of Rights merely demands "that students should be made aware of other viewpoints." Why require a professor of evolutionary biology to spend time discussing Creationism at all? That's admittedly an extreme example; I picked it because it lays out the trouble with Horowitz's rule so starkly, not because I expect it to be typical. Not every potential case involves fringe beliefs. Class time is limited, after all, and existing interpretations of the data are many. One of the best courses I took as a history student at Michigan examined the growth of the public sector. The prof made a deliberate decision to limit the colloquium's attention to two interpretive models, the pluralist and the Marxist, even though he acknowledged that there were many others that he was not describing, such as public choice. I respected his right to do so, even though I have more sympathy for the public choice approach than for either of the schools we examined; I certainly don't think I should have been able to file a grievance just because he didn't ask us to read some James Buchanan.

All this gets to the central problem with Horowitz's position: his belief that his proposal consists of negative liberties comparable to the American Bill of Rights. A lot of them look more like positive claims that students can advance against the faculty and the university. I'm actually sympathetic to the idea that students should have more power on campus, but not this sort of power; not the right to lodge official complaints against professors for the views they choose to explore in class. Even if we ignore the extraordinary cases— the Creationism example, say, or worse yet, a history professor forced to defend his decision not to engage the claims of Holocaust revisionists—we still have the remarkable notion that instructors could and should be required to defend ordinary editorial decisions to an official body, a la the Fairness Doctrine. If someone is treating a 600-page Marxist textbook as unchallengeable gospel, she may be a lousy teacher and a deluded ideologue, but the proper answer is not to drag her before a tribunal. As the cliché goes, the solution to bad speech is more speech. That is one course in one college in one enormous country. Leaflet the students. Tell them where they might hear other points of view. (Try the economics department.) If the class is required, then that's worthy of protest; the mere fact that it exists is not.

Finally: I'm glad to learn that Horowitz does not consider all the examples described in his site's "case studies" to be violations of academic freedom, and that he plans to clear up potential confusion by removing them from his Web page. I ask him to consider the fact that these are the sorts of events that prompted actual existing students to assert that their academic freedom was under attack, and that they are therefore the sorts of events that would likely prompt a student to lodge a complaint if Horowitz's bill of rights is ever put in place. Rules should be judged not just by the intentions of the people who draft them, but by the ways they can be used, and abused, in practice.


David Horowitz is the editor of Frontpage Magazine and president of the Center for the Study of Popular Culture. Jesse Walker is Associate Editor of Reason Magazine and the author of Rebels on the Air: An Alternative History of Radio in America (NYU Press).