Academic freedom is under assault in the United States. Like the authoritarian populism rising across the globe, domestic attacks on individual professors and academic institutions buttress a broader and multifaceted campaign to undermine multiracial democracy and the institutions that sustain and safeguard it. The individuals and entities driving this antidemocratic movement have also targeted the electoral process; public education; the right to bodily autonomy; the civil rights and liberties of minoritized and marginalized communities; and freedom of speech and expression (increasingly marshalled against pro-Palestinian advocacy). Their openly stated goal is to delegitimize, defund, and “lay siege to” the institutions that anchor American democracy and civil society, including the institutions that comprise higher education.
So begins an essay that I and colleagues affiliated with the Critical (Legal) Collective (CLC) recently published in the UCLA Law Review Discourse. Climate change seems an apt metaphor for our situation. As with biophysical climate change, political-economic-legal climate change on our campuses has been happening stealthily for some time. What snaps us to attention as the relatively privileged professoriat are the spectacular moments – a professor attempting to destroy his own students’ careers; a university president throwing her own faculty under the bus; U.S. House members hurling caricatured claims at university presidents; those same presidents then forced to resign following a manufactured scandal – as well as certain key indicators. Our essay focuses on one key indicator of climate change in higher education: academic freedom, which is seeing a swift and sharp decline.
WHAT IS ACADEMIC FREEDOM?
Until recently, I would have described “academic freedom” as a fancy name for a norm as necessary and dull as air: We faculty get to say, think, and write what we want, with the most serious consequences being the risk of being disrespected by other academics (meaning at worst that we won’t get tenure and at best that we will snark about professors we disagree with, and be snarked about in return). More formally, we can describe academic freedom as the “principle that scholars, researchers, and educators can engage in teaching and scholarship without the fear of censorship or retribution.”
Academic freedom matters because we need it to properly carry out the goals of education. In 1915, the American Association of University Professors articulated three core functions of academic institutions:
- to promote inquiry and advance the sum of human knowledge;
- to provide general instruction to students; and
- to develop experts for various branches of the public service.
To carry out these core functions, according to the AAUP, professors need:
- freedom of inquiry and research;
- freedom of teaching within the university or college; and
- freedom of extramural utterance and action.
These freedoms enjoy some constitutional protection. In Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Supreme Court struck down regulations requiring professors at a New York public university to sign a loyalty oath attesting that they were not Communists. The majority opinion called academic freedom “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom,” and characterized the idea as being “of transcendent value to all of us and not merely the teachers concerned.” Indeed, according to the Court, academic freedom is central to democratic life and even “civilization” itself:
To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation . . . . Scholarship cannot flourish in an atmosphere or suspicion and distrust. Teachers 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.
What distinguishes academic freedom from regular First Amendment freedom of speech is its positive (in Isaiah Berlin’s sense) quality. It’s not actually a license to say and teach whatever you want (contrary to my earlier glib assumption). Rather, academic freedom emerges from a matrix of institutional practices and norms about how to produce and evaluate knowledge properly: how to distinguish meaningful from meaningless data, useful from pointless theorizing, plausible from risible interpretations. As Steven Calabresi puts it, “The praising of some things and the disapproving of others is basically at the core of what education itself is all about.” Teaching either that birds are not real, or that phlogiston is, can get you fired and the First Amendment will grant you no defense. Moreover, academic freedom doesn’t insulate even tenured professors from institutional regulations, administrative oversight, and campus misconduct rules.
Academic freedom’s grounding in this dense network of practices and norms also means, as Amy Kapczynski has written, that academic freedom is deeply structural. Protecting academic freedom means not only protecting the rights of mistreated individuals, but also preserving the labor regime that makes the exercise of those rights possible. Elements of this labor regime include norms and practices related to security of employment, pay equity, due process, and distributed governance among faculty and administrative employees, where faculty have primary responsibility over matters such as approving new academic programs and courses, faculty appointment searches, and promotions. On many campuses these bread-and-butter matters are secured by contract and protected through unions. In short (high-flown rhetoric about the nation and civilization notwithstanding), professors are workers, and without worker protections freedom of expression means nothing.
Enter climate change, driven by both state and market forces. Recently, ideologues affiliated with the Republican Party have used state power effectively to attack higher education. Their big story is that mainstream institutions of higher education have been “captured by woke diversicrats” poisoning America’s youth with wrong ideas about race, gender, and sexuality. This moral panic comes at a moment when the “corporatization of the university,” associated with the neoliberal turn of the last few decades, has left colleges and universities, and the people who teach in them, economically precarious.
ACADEMIC FREEDOM UNDER ATTACK, PART ONE: THE “ANTI-WOKE” CAMPAIGN
Drawing on research reports by the AAUP, our essay goes into some detail about GOP efforts to erode university autonomy and academic freedom in North Carolina and Florida. We describe, for instance, how in North Carolina, legislation stripping the incoming Democratic governor of the power to make appointments to campus-level boards of trustees, combined with a push to appoint right-wing ideologues to those boards, resulted in the closure of UNC-Chapel Hill’s privately funded Center for Poverty, Work, and Opportunity. That center had become a target for elimination after its director joined the state’s Moral Mondays movement and began to openly criticize actions taken by the state government.
We spend even more time on Florida, whose political leaders have leapt to the forefront in trying to destroy academic freedom in K-12 and higher education. As has been widely reported, Governor Ron DeSantis and members of the Florida state board of governors have taken over New College, a small alternative liberal arts college “known for its tolerance of diversity and its quirky and iconoclastic students.” In January 2023, they appointed seven new members to New College’s board of trustees, five of whom are described by the AAUP as “well-known conservative academics or activists who appear to live outside of Florida.” These include Christopher Rufo, architect of specious moral panics about critical race theory and diversity, equity, and inclusion programs in higher education. As the AAUP reports, the new trustees replaced New College’s president with the former commissioner of DeSantis’s Board of Education, terminated the college’s gender studies program, denied tenure to five faculty members, and took steps to remodel the New College curriculum along the lines of Hillsdale College, which “extoll[s] Western civilization, American exceptionalism and the idea that America was founded on ‘Judeo-Christian principles.” Certain ideas are plainly not welcome under the new regime: Just a few weeks ago, observers noticed dumpsters full of books (including, ironically, an encyclopedia of ethics), thrown out of the now-defunct Gender and Diversity Center.
These top-down interventions into university life grab headlines in part because of the reckless rhetoric they are packaged in. Republican politicians and advocates have worked hard to frighten parents about their children being railroaded to change their gender, being taught by incompetent and racist Black and brown teachers, and about being taught to think of themselves solely as members of rigid identity categories. Most recently, right-wing ideologues have hijacked serious discussion about a rise in American antisemitism, using the issue as yet another way to attack presumably left-wing faculty, students, and administrators – for example, by disbanding Florida chapters of Students for Justice in Palestine under a bill that requires that state’s colleges and universities “assess the out of state fee for [post-secondary] students who promote a foreign terrorist organization.”
But the North Carolina and Florida actions do not just represent ideological shifts among faculty and curricula. The disregard for institutional integrity and contempt for intellectual nuance demonstrated in these actions betrays a larger, and deeply anti-democratic mission: to destroy the commons that is public K-12 education, and the messy crucible for independent thought that is higher education, in favor of education that promotes indoctrination, that elevates the parental wish to control everything their children see and hear above students’ need to learn to think independently. These aims, visible in chapter 11 of Project 2025’s “Mandate for Leadership,” are bound up with another mission: to open education more fully to market power.
ACADEMIC FREEDOM UNDER ATTACK, PART TWO: THE NEOLIBERAL UNIVERSITY
Shocking as these abuses of state power may be, they represent only the most spectacular and recently opened front in the war on academic freedom. Decades of neoliberal “corporatization” – the restructuring of college and university finances and governance along the lines of corporate governance – have left US higher education vulnerable. As I and colleagues Athena Mutua and Francisco Valdes have written elsewhere, dramatic reductions in government funding have rendered colleges and universities dependent on private sources and student tuition, increasing the debt burden of students and their families along with the debt burden of educational institutions themselves. Market logic has taken over as education becomes an expensive private good. Higher education today is marketed and sold to students and their families as an exercise in credentializing; degrees are ranked according to their “return on investment;” and humanities degrees, programs, and departments are being drastically cut back or eliminated in the stampede to demonstrate superior ROI.
Reimagining higher education as a private good has also brought widespread workforce restructuring. Nationally, the percentage of tenure-track and tenured faculty positions has plummeted from 78 percent in 1969 to 30 percent today, shifting the bulk of the teaching function to academic gig workers and graduate students. Meanwhile, the number of full-time university executives and managers grew by 140 percent between 1976 and 2015.
The precarity of colleges and universities in this environment leaves them vulnerable to the whims of wealthy donors. Sometimes these donors use their money to influence faculty appointments and the direction of faculty research, as in the Koch foundation’s millions bestowed on George Mason University and its law school – and the program offering cash to faculty who write articles critical of Law and Political Economy. Other times, donors use their economic power to block faculty appointments not to their liking, or to remove faculty and administrators they dislike, as in UNC donor Walter Hussman, Jr.’s attack on Pulitzer prizewinner Nikole Hannah-Jones, whose faculty appointment was slow-walked and ultimately unsuccessful despite overwhelming support from UNC faculty and administrators. Whether private economic power is used to promote or to block certain academic activities, the result is erosion of the idea that faculties have the primary responsibility to constitute and govern themselves.
WHAT IS TO BE DONE?
A few years ago, a group of legal scholars rooted in a wide range of critical formations, including Critical Legal Studies, critical race theory, feminist theory, LatCrit, TWAIL, Native studies, and Law and Political Economy, came together on a Zoom call to discuss recent assaults on critical race theory. Those of us on the call believed that a threat to one critical tradition is a threat to all. We resolved not to try to duplicate the important work of Kimberle Crenshaw’s African American Policy Forum, but rather to supplement it – to “double down” on our conviction that the health of American democracy, freedom, and equality rests on our ability as a nation to learn about and honestly grapple with the legacies of settler colonialism, Atlantic slavery, and racial capitalism. Critical legal theory in all its forms, we felt, supports that capacity.
Today, the Critical (Legal) Collective works to defend the right to teach and the right to learn critical theory against both ideological and structural obstacles. We develop and disseminate critical pedagogy; we defend individuals attacked for their critical views and/or their stigmatized identities; we write in defense of academic freedom; and in conjunction with the Center for Civil Rights and Critical Justice at Seattle University Law School, we are designing a summer workshop open to faculty across the nation and SU students on the law and political economy of legal education. We believe that standing up against bullies is the only way to fight for the education we want to shape and that our students deserve. And we believe that collective action to build power is better than individual tactics of self-preservation.
So, what is to be done, fellow LPE-ers? Join your academic union, if you have one, and support union campaigns. Support organizations like the CLC, like AAPF, like the AAUP, and like HELU, with your time, energy, and money. Join the new AALS Section on Critical Theories and attend its panels and workshops. Teach your courses and seminars as if political and economic power mattered, whether you teach constitutional law, securities regulation, or torts. (But, of course, if you’re a regular reader of this blog, you do that already, right?)
Above all, reach out to people who may seem “other.” Law school faculty have traditionally enjoyed pay, prestige, and privileges denied to faculty in other departments. Tenure and tenure-track faculty have been able to ignore the long struggles of clinical faculty and legal research and writing faculty to achieve respect, dignity, and fair working conditions and pay. “Doctrinal” scholars and teachers have been able to stand on the sidelines while teachers who wade into controversial issues of race, gender, and sexuality face blowback not only from donors, but also from their own students. But today the citadel is on fire.
We need each other not just to defend the university we have, but to build the university we want. Valuable as our current conception of academic freedom and the institutions it protects are, US higher education today is poorly suited to promoting an educated, thoughtful, multiracial democracy. We need to shift power away from donors and boards of trustees and towards a broad range of stakeholders, including faculty, staff, students, and the communities from which knowledge and resources are often extracted by universities with little acknowledgment or recompense. We need to enlarge our conception of academic freedom to better protect marginalized groups as well as ideas. We need robust state funding as well as private funding for our institutions. And we need to better anchor academic freedom to higher education’s best aspirations: to produce knowledge for the common good; to prepare students for public service and economic security instead of simply ratifying their privilege; and to help us as a nation appropriately address our ongoing legacy of oppression – not for the purpose of feeling bad, but to design better futures for all of us.
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Climate change is an apt metaphor for what’s happening on campuses today, not only in the US, but around the world. As with climate change, the causes are not a mystery. As with climate change, the process has been happening for a very long time. As with climate change, those who initially sounded the alarm were ignored. As with climate change, substantial political and economic interests are invested in not only ignoring, but hastening the process for their own gain. As with climate change, people who did the least to cause the problem are the first to suffer. As with climate change, what’s being damaged permanently is a commons – a complex web of institutions, norms, people, and ideas that once degraded beyond a certain point, cannot be restored. And as with climate change, you always think it’s a thing that happens elsewhere or sometime in the distant future, until it happens to you.
