Monday, May 9

Larry Summers + Ward Churchill ≠ Free Speech Issue

It's fair to say, I think, that at the present moment, the two most famous academics in the country are Larry Summers and Ward Churchill.

Larry Summers is the president of Harvard University, and so his fame is no surprise: Everyone with any interest at all in higher education knows who the president of Harvard is. Ward Churchill's fame, on the other hand, is of another order. Churchill is a professor at the University of Colorado at Boulder, and he is famous, or rather infamous, because of an essay he wrote more than three years ago in which he went so far as to say that those who died in the September 11 attack on the World Trade Center were part of the military-industrialist machine that had produced the policies that had produced the hatred that eventually produced the terrible events of that day. In a phrase that has been cited endlessly, he called those who died "little Eichmanns," that is, persons who willingly served a regime while taking no responsibility for its actions and their consequences. The chickens, he said, have come home to roost.

The predictable outcry against Churchill's words has been more than matched by the outcry against Summers's speculation, offered at an academic conference held in Cambridge, Mass., that the underrepresentation of women in the sciences might have a genetic basis. In more than a few essays, online journals, and mainstream op-eds, Summers and Churchill have been bracketed together, usually as an illustration of how the predominantly left-wing faculty on American campuses plays a double and hypocritical game. Here, for example, is a statement offered by George Neumayr in The American Spectator under the headline "Professors of Stupidity": "While Ward Churchill can tell lies about differences between America and the terrorists, Larry Summers is forbidden to tell truths about differences between men and women."

Although that parallelism of words and thought is neatly formulated, it is a bit too neat and not quite accurate. First of all, Churchill is not telling lies in the sense that he affirms something he knows to be false (that's what a lie is); rather he is telling what seem to him to be truths, but truths Neumayr rejects. Nor has Summers been forbidden to express the views he may hold to be true and others regard as false: Rather he expressed them freely and is now taking considerable heat for having done so. Churchill, too, is taking considerable heat for the views he expressed, and both men are reported to be in danger of losing their employment. On the surface, the two cases seem similar. I suggest, however, first that they raise different issues, and second that the issues they raise are by and large issues of administrative judgment and not issues of academic freedom or free speech.

It will be helpful to remind ourselves of exactly what freedom of speech is, especially as it relates to college and university life. The first thing to say is that freedom of speech is not an absolute right we carry with us from situation to situation; rather its relevance will vary from situation to situation, as will the force of invoking it. My so-called free-speech rights will be very different depending, for example, on whether I am a fan at a baseball game or a nurse in an operating room. In the first context, my free-speech rights are pretty broad; I can yell any number of things, even abusive profane things, without being silenced or arrested or thrown out of the stadium. In the context of the operating room, however, my free-speech rights barely exist at all; if I decide, in the middle of a procedure, to advocate for a higher salary or better working conditions, I will have no First Amendment defense when I am hauled out of the room and later fired. The reason is that I would have been fired not because of the content of what I said, but because my words, whatever their content, were uttered in a setting that rendered them inappropriate and even dangerous.

Academic situations fall somewhere in between the baseball stadium and the medical operating theater. But here, too, one must be careful to make distinctions, for even in the context of the academy, where free speech is generally highly valued, you will have more or less free-speech rights depending on what you're doing and where you're doing it. If I am a student, and I begin to say something, and the teacher cuts me off and says that my point is beside the point he or she wishes to pursue, I have no free-speech recourse. On the other side, as an instructor I can conduct my class in any manner I like -- lecture, discussion, group presentations -- and I can assign whatever readings I judge to be relevant to the course's topic. Those are pedagogical choices, and I cannot be penalized for making them.

But if I harass students, or call them names, or make fun of their ethnicity, or if I use class time to rehearse my personal political views or attempt to win students over to them, I might well find myself in a disciplinary hearing, either because I am abusing my pedagogical authority or because I am turning the scene of instruction into a scene of indoctrination. Political persuasion is just not what is supposed to go on in the college classroom, even though it may be going on -- and going on legitimately -- at the noontime rally or in dormitory bull sessions. What you are free to say in some venues you are not free to say in all venues, and your lack of freedom is not a First Amendment matter; it is a matter, rather, of the appropriateness or inappropriateness of certain kinds of speech relative to certain contexts of employment or social interaction.

What that means is that free speech as a general category will be a very crude instrument for assessing what is going on at Harvard and at Colorado. Before yielding to the impulse to yell "Free Speech, Free Speech," we should first ask some questions. Who is doing the speaking? Where is he or she when doing it? Who is paying the freight?

Let's take Churchill first. Churchill, as I have already noted, is a professor at the University of Colorado at Boulder. He is a member of the ethnic-studies department and was its chair until his recent resignation. In his resignation letter, he explained that he was taking that action because, given recent events and the political climate surrounding his writings, he was now "a liability in terms of representing either my department, the college, or the university." Let me say, first, that that is a good reason for resigning, and, moreover, it would have been a good reason for Philip P. DiStefano, interim chancellor, to have demanded Churchill's resignation or removed him on the spot.

The good reason -- we must be clear about this -- is not that Churchill said this or that about the causes and lessons of the September 11 attacks; the good reason is that the reaction to what he said -- a reaction for which he is not responsible and one engineered to some extent by Bill O'Reilly and other conservative pundits -- got in the way of his performing his duties as a department chair. The content of what Churchill wrote is irrelevant to the assessment of his administrative performance, and, indeed, any reference to that content by a senior administrator would be a mistake.

Chancellor DiStefano made that mistake when he said, upon accepting Churchill's resignation, "While Professor Churchill has the constitutional right to express his political views, his essay on 9/11 has outraged and appalled us and the general public." One knows what Di-Stefano is up to: He is wrapping himself in the flag and mantra of strong First Amendment doctrine; that is, "I despise what you say, but I will defend to the death your right to say it."

But it is not the job of a senior administrator either to approve or disapprove of what a faculty member writes in a nonuniversity publication. It is his job to make the jurisdictional boundaries clear, to say something like, "Mr. Churchill's remarks to the general public about matters of general political concern do not fall under the scope of the university's jurisdiction. He is, of course, free to make them, although one should not assume that in doing so he speaks for the university." Notice that would stop short of disavowing (or embracing) Churchill's remarks. Simply by throwing in the egregious "has ... appalled us," DiStefano has the university coming down on one side of a political question, and he also creates a First Amendment issue where there was none before. If, at a later juncture, Churchill is disciplined or dismissed, he will be able to cite DiStefano's statement as evidence that he is being discriminated against because of the content of his constitutionally protected speech: "They're doing this to me," he can say, "because they don't like -- are appalled by -- my ideas."

Must the university then resign itself to living with Professor Churchill? Can he not be fired? Well, that depends on the answer to the question, Fired for what? The governor of Colorado, many state legislators, and many more outraged citizens want him fired because they intensely dislike and are offended by what he said. They reason, "Given that Colorado is a state university, and we taxpayers finance his salary, why can't we get rid of him if we don't like what he's doing?" The answer is simple: Because the charter of the university does not say (and one cannot imagine it saying), "Faculty members at this institution will express only opinions (inside or outside the classroom) with which the citizens of Colorado, or the legislators of Colorado, or the governor of Colorado agree."

Academic activities, if they really are academic activities, cannot follow, in the sense of track, political trends; unless, that is, we want to go in the direction (symbolized for many by the old Soviet Union) of an academy whose research results are known in advance because they will always support the policies and reigning values of the state. Some in Colorado do seem to want to go in that direction. Interviewed on Chris Matthews's Hardball, Kevin Lundberg, a state representative, said that Churchill should be "held accountable" to "a common sense of values shared by the culture." Only in that way could he exhibit "professional integrity." The reverse is true. If Churchill were to limit his conclusions to those already reached by the culture, he would throw his professional integrity out the window. What Lundberg really wanted him to do is to stop being an academic and instead click his heels in time with the pronouncements of the state legislature.

Nevertheless, that doesn't mean that Churchill can't be disciplined or even fired. The analysis he presented of the September 11 attacks in his controversial essay was part and parcel of an avowedly polemical set of political recommendations, a veritable call to arms. He has every right to issue that call, as long as he doesn't do it in the classroom and, as it were, on the state's dime. While Churchill cannot or should not be disciplined for the political views he urges in his role as a citizen, he can and should be disciplined for urging those views in venues designated as academic and financed as such by state revenues or by tuition.

I am not saying that political matters can never be raised in an academic setting; such a draconian requirement would mean the end of departments of political science, philosophy, sociology, English, criminal justice, and more. I am just saying that when political matters do enter an academic setting, they must do so in academic terms. A few years ago, a national conference was held at my university on an important topic. A flier advertising the conference went out before I saw it. One sentence in that flier began, "Now that we are fighting a racist war in Afghanistan ... " Because the flier carried with it the imprimatur of the University of Illinois at Chicago, it seemed to be the university that was issuing that judgment.

The case would have been entirely different if there had been a list of the conference's panels on the flier, and if one of those panels had been titled, "Are We Fighting a Racist War in Afghanistan?" That would have been perfectly appropriate because it would have identified the question as one that would be debated at the conference: Speakers would give their answers and back up what they said with evidence, and other speakers would give opposing answers and cite alternative bodies of evidence. That's what we do in the academic world, and if Churchill is doing something else (and I don't know that he is), he is taking money under false pretenses, and he should be called to account for it.

There is at least one other possible reason for firing Professor Churchill. It is said by some that he is not really an American Indian, as he makes himself out to be, and that his credentials for that status are limited to a certificate of the kind you might get (and here I date myself) out of a Cracker Jack box. If that is so (and again, I don't know), Churchill is engaged in a professional misrepresentation (he aggressively identifies himself as a Native American in his writings) little different from the misrepresentations of several football and basketball coaches who listed on their résumés degrees from colleges they never attended. The coaches I am thinking of were dismissed, and if this charge against Churchill proves to be true, so could he. Notice that, like the other questions raised by the Churchill affair, that is not a philosophical or a constitutional matter. It is a matter, simply, of falsified credentials. When such a falsification has been documented, the action taken needs no fancy theoretical backup. You just don't want people around who lie to you about who they are and what they've done.


It turns out, however, that there is really not much to say about Summers except that he's a public-relations disaster, a walking time bomb likely to detonate at any moment, especially if his handlers let him out of their sight. One can say something about what issues the Summers brouhaha does not raise. It does not raise issues of free speech or academic freedom.

Stanley Kurtz opined in the National Review that Summers's critics have "turned him into a free-speech martyr," but that piece of alchemy could have been performed only if the hapless president had been prevented from speaking or punished by some state authority for the content of his words. In fact, he spoke freely (perhaps too freely), and if he is now suffering the consequences, they are not consequences from which the First Amendment protects him.

The First Amendment says that, in most circumstances, you can't be stopped from saying something and that, in many (but not all) circumstances, the content of what you say cannot be a reason for imprisoning you or firing you. But that doesn't mean that you get a free pass; you are not exempt from criticism; you are not exempt from public ridicule; you are not exempt from being voted out of your country club; and if what you have said causes enough of a ruckus, you are not exempt from being removed from your position, so long as the reason given for your removal is that your words have created conditions such that you can no longer do your job (others will do for you what Churchill did for himself) and not that somebody up there doesn't like their content. There is a big difference between "I don't like what that guy said, and I'm going to fire him" and "I don't like the effects brought about by what he said, and I'm going to fire him." The first raises constitutional issues; the second doesn't. It's just a judgment on job performance.

To be sure, some on the left do want Summers fired because of the content of what he said, while some on the right want him retained (and celebrated) because of the content of what he said. Both sides, then, want, in different ways and for different reasons, to make Summers into a First Amendment martyr and turn this incident into a First Amendment test. But the content of what Summers said is irrelevant to the only question that should be asked: Is he discharging the duties and obligations of his office in a way that protects the reputation of the university and fosters its academic, political, and financial health? There is good reason to answer no, an answer that would flow not from the fact that Summers said this or that about women in science, but from the fact that, whatever he said, he said it in a way that brought Harvard weeks, and now months, of hostile publicity, led some alumni to announce that they would never give a penny to the institution, probably led many senior female scientists to cross Harvard off their lists, and gave late-night comedians and independent pundits like me a new target. That's not exactly what you want on the résumé of your chief executive officer.

Defenders of Summers usually take two (related) tacks. They say, first, that he is an intellectual pathbreaker, and that (I quote from a particularly smarmy and pious editorial in the Chicago Tribune) his "comments were in the best tradition of free intellectual inquiry." Not unless the best traditions of intellectual inquiry include opening up your big mouth to pronounce publicly on matters far from your area of expertise. Richard A. Posner, the conservative jurist and law professor and sometime Harvard University Press author, points out (on his blog) that, since Summers has no credentials in the history of science or the field of gender discrimination, the odds of his contributing anything valuable to the discussion of women and science were low, while, on the other hand, the odds that he would misstep in some way were high. On a cost/benefit analysis, then, speaking up as he did was a bad idea.

The second line of defense begins by acknowledging that Summers wasn't exactly on familiar ground and was talking off the top of his head (with a little help from some members of his faculty), but contrives to make his ignorance a virtue: He wasn't offering scholarship or long-considered arguments; he was keeping the pot boiling; he was adding to the liveliness of the occasion; he was being (and this is the word Summers himself has used in his many apologies) "provocative." But being provocative is not in the job description; being provocative may be a qualification for a classroom teacher, or the host of a talk-radio show, or a backbencher in Parliament, but it is hardly first on the list of the qualities you look for when interviewing candidates for the presidency of a university...

It is not the first time. From the early days of his tenure as president, Summers has been making the wrong kind of headlines; wrong not because of his views, but because of the lack of tact with which he has announced and deployed them. One of those he bumped up against in a flap, whose reverberations have not yet subsided, was Cornel West, then at Harvard, now at Princeton University. The events of the past months gave West the delicious opportunity to speak more in sorrow than in anger. "I was praying for the brother, hoping he would change," West said, but then added, "It's clear he hasn't changed." Still and all, West acknowledged, there's a bright side to look on, for it's "good to see the faculty wake up." I guess, West concluded, "the chickens have come home to roost."

Man, those chickens are working overtime these days.

Stanley Fish is dean emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago.