Justice Everywhere

a blog about justice in public affairs

Author: Robert Simpson

Universities and Democratic Legitimacy (Part 2)

In part 1 of this post I outlined an account of the mainstream liberal view about academic freedom, free speech, and their overlapping democratic purposes. According to this account the university should have an academic zone, protected by academic freedom, and aimed at furthering democratic competence, and it should also have a free speech zone, aimed at supporting democratic legitimation.

I think there’s a problem with this picture. Roughly, what goes on in the academic zone is compromised by what goes on in the free speech zone. The intellectual aims that the university is meant to serve, with a view to furthering our democratic competence, can be undermined by the kind of free speech culture that takes root in universities. This undermining is most evident when it comes to the educative arm of the university’s purposes. If every campus-dweller’s free speech is protected similarly to the scholar’s academic freedom, then the typical student’s experience of university – particularly in fields that intersect with social politics: history, law, philosophy, economics, public policy, psychology, social science, education, and modern languages – can become something more like a pseudo-educative pageant, rather than a regimented, epistemically salutary, educational experience. If this sounds overegged, remember that nearly every university today self-consciously markets itself as a place where students can experience not just an education, but a total socialisation experience. And the people who shape that socialisation experience aren’t just scholars with a sense of accountability to the norms and purposes that govern their disciplines. The campus experience is shaped by bottom-line-obsessed managers, enterprising student leaders, activists – of many stripes, good and bad – and opportunistic trolls, cynically cashing in on the whole scene.

This isn’t a knock on free speech. Free speech is integral to the vitality and legitimacy of democracy. That remains true and important. But those who worry that there isn’t enough free speech at universities have it almost back-to-front. Universities are overwhelmed by the discursive free-for-all that characterises campus life. The university should be a place where intellectual discipline reigns above all. Yes, the scholar is meant to be free from top-down ideological constraints. But what she is expected to do, with that freedom, is oversee an intellectually disciplined educative program. To say, as John Dewey once did, that the university should be an experiment station, isn’t to say that it should be a marketplace of ideas. To efface that distinction is to misunderstand the nature of both experiments and markets. And the cost of that misunderstanding is an erosion of the pedagogical culture that underpins (one half of) the university’s very reason for being.

But what about research? Surely the activities of researchers are benefited by their academic departments being nested in campuses that embrace free speech? Maybe. But there are considerations that weigh on both sides of the equation. Granted, in societies where there is coercive, state-backed ideological conformity, academic researchers are fundamentally hobbled. To suggest otherwise would be an insult to those trying to carry out the scholarly vocation under such regimes. And by the same token, in societies where there isn’t coercive ideological conformity, it’s obviously much easier for researchers to ply their trade. But the question is whether academic research is further assisted by housing researchers in institutions that embrace a content-neutral free speech ethos – where the worth of ideas is decided by marketplace mechanisms, instead of disciplinary expertise. Here’s one reason to think it isn’t. In a marketplace of ideas, people don’t buy the true ideas; they buy the ideas they prefer. Markets don’t magically sift truths from falsehoods, any more than they magically ensure the popularity of good-value-for-money products over crappy ones. When they’re functioning properly, markets facilitate an efficient allocation of things in line with people’s preferences. And as James Cox and Alvin Goldman persuasively argue, that’s just as true in a marketplace of ideas as in any other marketplace [1]. (Their analysis has been dismayingly vindicated by the growth of social media-based echo chambers.)

Again, none of this is to deny that scholarly research must be free from ideological constraints. That’s a crucial part of what the specialised principles and institutions of academic freedom are for. But a campus free speech culture doesn’t just unbuckle the ideological constraints. It also unbuckles the intellectual constraints that academic disciplines are meant to impose – and which, for the sake of university’s constitutive purposes, they must impose.

The points I’m driving at, then, are – first – that academic freedom and free speech aren’t identical; they impose different demands; and – second – that we can have academic freedom without having universities governed by a free speech ethos. (And indeed, that is basically what some higher education systems did have, during the brief period between the ascent of the Humboldtian model of the university, in the interwar period, until the 1960s and 1970s, when this model rapidly evolved towards a modified civil libertarian model.) In a university sector that cherishes academic freedom, but which adopts a more cautious, measured, balancing approach to free speech, we still have an institution that serves a vital role in democracy. The university’s core purpose, thus conceived, is to strengthen democratic competence. The work of democratic legitimation can be delegated to other discursive arenas. A reluctance to delegate may be well-meaning, but it runs the risk of furthering our society’s (apparently mushrooming) democratic incompetence.

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[1] Alvin I. Goldman and James C. Cox (1996), “Speech, truth, and the free market for ideas”, Legal Theory 2 (1), pp. 1-32.

Universities and Democratic Legitimacy (Part 1)

Free speech is vital to democracy. Alexander Meiklejohn offered a powerful defense of this idea in the mid-20th century, and since then it has gravitated towards centre stage in free speech discourse. The modern academic defenders of this view — people like Robert Post, Eric Heinze, and Ronald Dworkin — typically say that free speech isn’t just important for the health of a democracy, but that it’s also a necessary condition for democratic legitimacy. In a free society people are unafraid to broadcast their ethical convictions in public. There is a free press, an arts sector untouched by state censorship, and a cherished liberty for all to mock and criticise our leaders. The democratic government’s authority is legitimised partly through its upholding these freedoms.

But where does academic freedom fit into this picture? And what is the university’s role in ensuring the vitality and legitimacy of democratic society? By academic freedom I mean the special freedom for academics to teach, research, and write as they see fit, insulated from the threat of punishment for saying things that others think false, unjust, or offensive. Is this special sub-category of communicative liberty simply an extension of free speech, as far its democratic significance is concerned?

Robert Post, who I mentioned above, has done more than any scholar in the last generation to develop our understanding of the foundations of academic freedom. And his answer to this question about the relation between academic freedom and democracy is a surprising one. [1] The teaching and research work that define the scholarly vocation – the activities that the modern, disciplinary university was designed to facilitate – do not directly serve democratic legitimacy. They serve an ideal that complements democratic legitimacy, but which is importantly distinct from it. Academic teaching and research further our democratic competence. They provide a crucial contribution to society’s collective capacity to make intelligent, well-informed judgements about the matters of public concern which government must address.

If the people are to rule themselves capably, then they need to not be ignoramuses or chauvinists. They need to remember their history. They need to understand science and technology, and continue expanding its horizons. They need their judgement to be conditioned by a philosophical sense of the complexity in all things, and by a social scientific curiosity about how people’s lives and customs really work. And they need educators in academically-grounded professional vocations – like medicine, law, engineering, and economics – to have a scholarly sense of rigour concerning their spheres of expertise. Of course no-one among us needs to try realise all of these ideals under his or her own steam. But if we as a people are to rule ourselves well, then collectively we do need to realise all of them. The job of universities, and the teaching and research they deliver, is to further democratic competence, thus characterised. And principles of academic freedom identify the protections that should be given to universities and individual academics to help them achieve this.

I think this is the best account of the justificatory foundations of academic freedom. But it isn’t obvious how we square it with the view – which has been mainstream progressive opinion for half a century – that universities should also be bastions of free speech. Many people believe that the university is more than the institutionalised knowledge-engine envisioned by the German and American architects of modern higher education. The university isn’t exclusively about scholarly research and education. It is also a site for rowdier, messier, and more wide-open discursive activities. It’s like a miniaturised version of the public sphere at large; the place where we stage an ongoing kind of democratic happening, involving (among other things) political activism, popular debate, and creative experimentation.

If that view is correct, then it would be a mistake to think of universities as merely serving the ideal of democratic competence. They also serve the ideal of democratic legitimation. We can distinguish – as do Howard Gillman and Erwin Chemerinsky [2] – two different communicative zones in universities, corresponding to the service of these complementary ideals. Teaching and research take place in the academic zone; they are protected by academic freedom, and they further society’s democratic competence. But then there is also a free speech zone – where extra-curricular debates and student society events happen, where artists, preachers, anarchist drop-outs, and militant activists congregate and argue – and the communication that takes place there serves the complementary purpose of democratic legitimation.

In a democratic society, then, according to this view, the university’s mission is to play host to the important communicative activities that transpire in these two complementary discursive zones. This is an appealing picture. But in part 2 of this post, on Wednesday, I’ll argue that we should reject it.

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[1] See Robert C. Post (2009), Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (New Haven: Yale University Press, 2012); see also Matthew W. Finkin and Robert C. Post (2009), For the Common Good: Principles of American Academic Freedom (New Haven: Yale University Press).

[2] Erwin Chemerinsky and Howard Gillman (2017), Free Speech on Campus (New Haven: Yale University Press).

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