Definition and legal basis
Academic freedom, as discussed by Harvey Silverglate on The Bob Zadek Show, is a principle that protects free speech on private university campuses, where the First Amendment does not apply because the institution is not a government actor. Silverglate distinguished this from the constitutional protection available at public universities, which are considered government agencies for constitutional purposes. On private campuses, he said, free speech is protected by academic freedom, which all modern liberal arts universities ascribe to, and when a student is punished for speech, it constitutes a promise being broken and basically a contract between college and student being broken. Is Your Alma Mater a Soviet Gulag? (2011)
Bob Zadek raised the question of whether academic freedom flows only to faculty, not students. Silverglate responded that it can also flow to students, and courts have in many cases held that it flows to students because college and university handbooks frequently state that the institution is a liberal arts university and respects the free speech of its students. Once a college makes that statement, Silverglate said, advocates are able to latch onto those promises to some degree, though it is not as certain or as strong a protection as the constitutional right that applies at public universities. He added that these protections are ignored by most university administrations, well over 50%. Is Your Alma Mater a Soviet Gulag? (2011)
Joe Cohn, in a later episode, elaborated on the contract-law basis for academic freedom at private institutions. He explained that courts have for years protected concepts like academic freedom and free speech at private institutions not on the basis of constitutional protections but instead with respect to contract law. If a private institution promises free speech rights when a student applies and then does not live up to those promises, courts have been willing to say the institution breached its contract and enforce those rights in that way. Joe Cohn on Title IX and Due Process on Campus (2022)
Harassment codes and free speech zones
Silverglate described the tools universities use to stifle free speech. He said their overall tool is to torture the English language, citing George Orwell’s essay Politics and the English Language. As an example, he described campuses that designate a free speech area where all public discussion, speeches, and rallies are limited. He said this is not really a free speech area but a censorship area, because the free speech area frequently comprises less than 1% of the geographic area of the college campus and is almost invariably way distant from the center of activity. Is Your Alma Mater a Soviet Gulag? (2011)
Silverglate also discussed campus speech codes. When FIRE first began, he said, well over 90% of American college and university campuses had very restrictive speech codes. FIRE battled them back to somewhat fewer than 90%—he estimated 75% to 80%. But universities no longer call them speech codes; they call them harassment codes. He said universities claim they are not limiting free speech but limiting speech that reaches the level of harassment, and that by calling them harassment codes, these liberal arts universities that claim to protect academic freedom routinely prosecute students in campus disciplinary tribunals for saying politically incorrect things about hot-button issues such as gender, race, and sexual identity. Is Your Alma Mater a Soviet Gulag? (2011)
Silverglate connected this to a political power shift in American higher education. He said he started practicing law in 1967 and represented student leftists who were censored on campuses, defending their free speech interests. Many of those students later became professors and administrators. He said that to his horror, these people who he represented back then were not really interested in free speech—they were interested in their own free speech. Once in positions of power, he said, they thought nothing of doing to conservative students what conservative administrators did to them in the 1960s. He said academic freedom suffered mightily because these people running the campuses think they are so clearly right about all social and political issues that anybody who disagrees with them is what they would call a regressive fascist. Is Your Alma Mater a Soviet Gulag? (2011)
Title IX and its transformation
R. Shep Melnick, a professor of American politics, discussed Title IX as a statute that evolved far beyond its original text. He explained that Title IX is one section of omnibus education amendments passed in 1972, a hodgepodge of changes in education laws. Title IX itself simply says that any educational institution that receives federal funds cannot discriminate on the basis of sex. What that meant was left unclear. There was very little discussion of it in Congress at the time. When President Nixon signed that legislation, he did not even notice the importance of Title IX, nor did the New York Times when it reviewed its story on the passage of the legislation. Melnick described it as a very simple prohibition, open-ended, and said we have been arguing about its meaning ever since. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Bob Zadek raised the question of whether colleges and universities are permitted to have separate sports programs because of physical differences between men and women. He asked what would happen if a school, perhaps to save money or test the statute, said it would have one sports program and women could earn their way onto the varsity basketball team. Melnick agreed it would raise interesting intellectual issues but said no college would be willing to raise that issue, in part because the great accomplishment of Title IX, other than eliminating some barriers to education in the 1970s, was encouraging women to be more involved in sports. He called that a tremendous accomplishment and a symbolic accomplishment above all because it is not required by the act. He said if anyone is brave enough to challenge the strong support for women’s sports, he would welcome the intellectual debate, but he did not think they would be very wise to do so. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Civil liberties and private actors
Joe Cohn addressed the question of how civil liberties apply when the party depriving someone of rights is a private actor. He explained that with respect to public institutions of higher education, the institutions and their employees are government actors, so when a university expels someone for protected speech or punishes them without due process under another charge, it is government action implicating the deprivation of civil liberties. Joe Cohn on Title IX and Due Process on Campus (2022)
Cohn also described a trend on college campuses over the last six or seven years of more campaigns for censorship being led by fellow students. He called that a little bit of a depressing thought when historically the students themselves had been the leaders in fighting for free speech, and said they have by and large embraced a new tactic of appealing to administrators to silence their adversaries. He noted that in some instances fellow students, private actors, are the adversary. Joe Cohn on Title IX and Due Process on Campus (2022)
Bob Zadek observed that FIRE and other institutions—but FIRE clearly led the charge—came up with a theory for bringing a cause of action when a private university deprives someone of rights. He said the concept of using breach of contract was brilliant in his opinion and gave a perfect tool to use where the adverse party is a private college rather than a public, state-owned university or college. Joe Cohn on Title IX and Due Process on Campus (2022)
Amy Wax and academic freedom
Amy Wax, a University of Pennsylvania law professor, appeared on the show to discuss her op-ed “Paying the Price for the Breakdown of the Country’s Bourgeois Culture.” The episode description states that she discussed the specific cultural habits she advocates for—such as marriage, work ethic, and sobriety—and the intense backlash she received from the academic community for suggesting that all cultures are not equally conducive to success in a modern society. The topics listed for the episode include academic freedom, cultural norms, University of Pennsylvania, Larry Alexander, and social capital. Amy Wax Defends Bourgeois Norms (2017)
Across episodes
The topic of academic freedom appears across four episodes spanning 2011 to 2022. In the 2011 episode, Harvey Silverglate described the erosion of free speech through harassment codes and free speech zones and explained the contract-law basis for academic freedom at private universities. In the 2017 episode, Amy Wax discussed the backlash she received from the academic community for her op-ed on bourgeois culture. In the 2018 episode, R. Shep Melnick examined how Title IX transformed from a simple anti-discrimination statute into a tool for broad social engineering on college campuses. In the 2022 episode, Joe Cohn elaborated on the contract-law theory and described a trend of student-led censorship campaigns. The excerpts show a development in the discussion: the earlier episodes focus on administrative tools like harassment codes and free speech zones, while the later episodes examine Title IX’s expansion and the role of students as censors. Silverglate and Cohn both discuss the contract-law basis for academic freedom at private institutions, with Cohn providing more detail on how courts have enforced those promises.
What the sources do not cover
The excerpts do not provide the full text of any university handbook or the specific language of any harassment code. They do not name the specific cases in which courts held that academic freedom flows to students, nor do they identify the courts or jurisdictions involved. The excerpts do not state the outcome of any litigation involving FIRE or the students it represented. The Amy Wax episode excerpt is limited to a description of the episode’s topics and does not include the text of her remarks or the specific nature of the backlash she received.