Speaker 1:
As John Cochran this morning in his opening remarks said this conference is not just focusing on trying to understand and analyze the state of academic freedom, but also to think about practical and actionable solutions on how to protect or how to gain back some academic freedom in our universities. So this is the focus of this panel to think about some action solutions and we’ll go in the following order. In terms of opening remarks, Richard will go first setting the stage a little bit, sharing some of his experiences. Dorian will go next talking about the rules of engagement. Peter then will speak about how to engage the other side when necessary, and John will focus on how to enforce. So Richard, you can get us started.
Richard:
Okay, so I apologize. Slight change of plans since we switched to live-streaming. I know a lot about public universities. I know a lot about efforts to reform public universities, but I can’t talk about that and I can’t talk about why I can’t talk about that. So you can do whatever inferences you want there or we can have private conversations. But in the course of working on that issue, I’ve thought a lot about the distinction between private universities and public universities and how private universities could or could not get back to being something socially useful. So I think it might be safe for me to make some comments about private universities. It might not, we’ll probably find out. So here it goes.
So private universities, I think there are three things that need to be understood. Again, I’m taking John’s idea, if there’s a problem, we need to fix it. I’m not going to really go start with that, but what do we need to understand about private universities to figure out how to fix them? And I think there are three things that are worth focusing on. And I’m an economist and I’m actually a financial economist, so this is kind of informed by that. Three things we need to understand are governance, capital structure and what the product really is. What’s the product market we’re talking about? So governance in private universities is really strange. So who runs a private university? Some board. Who’s on that board a bunch of… And I’m going to focus on elite type private universities because that’s all anyone cares about really. So the boards, they’re a bunch of people who don’t know anything about universities. They’re the only ones who have any actual authority to change anything if they wanted to.
What do they mostly do? I think they’re mostly high-powered business types. I think that’s right. And what are their incentives to change things at universities as well? They have to do a lot of this kind of woke virtue signaling. They can either do that at their firms where it costs them money or they can do it at the university where it doesn’t cost them anything and they can just make other people’s lives miserable. So what’s the chances that your board is actually going to step up and do anything? It’s basically zero and there’s huge problems, faculty have a lot of independence, so they would need to really ride hard. That’s not going to work.
The capital structure, that means the financial positioning. How do they universities fund themselves? What happens to a firm if it’s just awful? It loses money and it goes out of business. We don’t see a lot of firms that pile up billions and billions of dollars more of resources that they don’t need just so they can hang around if they start to be terrible. That’s exactly what a university capital structure looks like. No matter how awful these places get, they still have tens of billions of extra dollars that they don’t need to make sure they don’t go away. So the capital structure is insane. You would never structure a firm with this many agency problems, the much difficulty in managing that way. They need to be subject to some sort of bankruptcy. We’re not there. We don’t have a capital structure that could bring about reform. So that’s two strikes already.
So what could we do? And thinking about what we could do, you have to think about what this product is. What are elite universities doing? What is Stanford doing? And as far as I can tell, they’re providing a coordination device where they designate certain people as in charge of things. You go to Harvard, you go to Stanford, people have to listen to you and do what you say. This used to be a process where there was some filtering and they would check and see who’s good and then maybe give you some training. But that’s not true anymore. The selection, maybe it’s still an IQ a little bit, but the selection of people and the way they’re trained is awful. And if you look at some of the things that come out of… There’s an example that I’d love to go into but I better not.
But some of the attitudes of people who raised to the top at elite universities, you could never get there if you had a sensible free environment. People would be told, “No, that’s a terrible thing to think. How dare you think that?” Instead, these people rise to the top and they get put in charge of important things. So what the university is selling is prestige. And by prestige I mean a designation that you’re the person who gets listened to in the future. So a quick aside, you might think universities create science and that’s an actual valuable product. But if you really think about the capital structure of the science project, money goes in, ideas come out, that’s great, but what is the university doing in that process? Mostly they’re just taxing it. Federal grants come in and the university lets the scientists have half of that and uses the other half for things.
So if we just move the science completely off, that would be better. And it’s not like we’re getting a great environment for science at universities. We already had that panel. This is the worst place to do it. Go find a new spot, get the federal grants and do it somewhere else. And that’s clearly better. So I don’t think that’s for the product. All we’re selling is this random designation. So what do we do? We have no capital structure approach. They’re not going to go bankrupt. The boards are useless. They won’t fix anything. How do we do anything productive here? Well, sorry, I should say, and the university, the moment the universities needed to stand up for discourse and argument and all of that and the pandemic, I’d say, they completely reversed. They just cracked down on any independent thought and just went straight to enforcing some zeitgeist orthodoxy.
So we really need to do something about that. So I think there is a solution, and I think the solution is something along the lines of a tobacco company treatment. What happened to the tobacco companies? People turned on them. They were doing things that people didn’t like and it used to be able to be great to go work for Philip Morris. Now it would be embarrassing. So we could do that if we really put a lot of effort into showing what actually goes on at universities, we could get the brand to look like Philip Morris and now Philip Morris is fine because they’re selling something that’s actually enjoyable. It’s not great, but there’s a reason people like nicotine.
Universities are only selling their reputation. So if all we did was put all our effort into showing people what’s really happening here, eventually that would go away and they wouldn’t be in charge of who is running things anymore. And we could come up with something else. I don’t know what that looks like, but it’s not going to be worse. So that’s, I think, the only practical solution I can come up with for private universities.
Speaker 1:
Thank you.
Speaker 3:
Okay, well I’m going to talk about some in the trenches solutions that maybe could be useful. So first I want to talk about what the objective should be, what the strengths our side has and formulate some plans. So I agree with Jerry Coyne what he said this morning, that the objectives should be Chicago Principles Kalven report and Shils report. So Chicago Principles say free expression on campus even if it offends someone and put in place punishments for disrupting other people’s speech. Kalven report says the institution can never take an official corporate position on any social and political issue at the risk of suppressing the speech of some members of the institution who disagree. And the Shils report says that academic appointments can only be made on the basis of academic qualifications and nothing else. And the Shils report is actually what’s keeping DEI statements out of University of Chicago hiring. So it has really important and immediate implications.
And the other thing is enforcement. So you can’t just have these principles and say, “Oh, we’ve got them, we’re happy.” You have to actually do something about them. And I’m going to talk a little bit about how we’ve been trying to make sure our administration enforces things at UChicago. So now the strengths, okay, the number one strength I think is public support. So the woke stuff is super unpopular and the vast majority of people of all races think that evaluations for university admissions and hiring should be done on the basis of merit, for example. I think it’s about three quarters of the public thinks that universities should have freedom of expression in place. So that’s a big strength.
The second is alumni. So I wore this pin from the MIT Free Speech Alliance. Bill Frezza, who spoke earlier is either the head of that or one of the big people on it. And so that’s a really important group. Carl Neuss is here sitting in the front for Cornell Free Speech. And so there are these alumni networks that have sprung up people who really care about their institution that they came from and they want to work with faculty to try to improve the situation. I think that’s a big strength. And fundraising, so the University of Austin launched. A lot of people on Twitter said that it was really bad and whatever, but they raised $150 million almost right away. So it doesn’t really matter if people say bad things on Twitter if you can go out and raise a bunch of money and do what you want to do.
I think the silent majority of students and faculty is on our side. They have been very silent. But for example, after I started getting in trouble, I was immediately elected onto the council of the university senate. And so as long as it’s an anonymous vote, you will sometimes win on those things. Not all the time, but sometimes. And then the last thing is sanity. So if you look at what the woke people say, it’s insane most of the time. And I think the presidents of the universities know that and they have to kowtow to them sometimes. But it is a strength to be able to go in and say something sane to the president and make a rational argument. So I think that’s a strength.
Okay, now I’m going to talk about three types of plans. The first is working within institutions, the second is starting new institutions, and the third is involving government, which I think will be the most provocative in this crowd, especially since there’s a lot of libertarian types.
So first working within institutions. So the woke people work really hard. They know how to grab institutional power and to take things over, and they’re a really small percentage of the population. And so that can be depressing, but it can make us feel optimistic because you don’t have 90% of the people be willing to be active on academic freedom issues. You just have to have, I don’t know, 5% or 10% of the faculty willing to be obstinate on it. And that can be enough to get a lot done. But we have to be willing to actually work hard. So many of us we’re interested in our scientific or other scholarly research and we’re not necessarily interested in going and sitting in a bunch of stupid council meetings or sitting on committees to decide who’s the next dean or whatever. But I think we’re going to have to do that because the other side is doing that. And so that’s what working within institutions looks like.
So at UChicago we founded a group called UChicago Free. We have about 50 faculty members who are willing to put their names on our website and publicly say that they support the Kalven Report and the Chicago Principles. We have a list serve where we discuss these issues, which has been very useful to me. Rick, in particular, has a huge institutional memory, Rick Shweder, and has shared with us a lot of former speeches he’s made and things that have happened in the past that not everybody would know about. And so these sorts of networks can be very useful. And we’ve also done practical things. So for example, we get people elected to the council of the university senate. Some of these things you just have to show up to win. And so we got to start showing up.
And then the other thing is, we have this Kalven report that the university is supposed to be neutral on social and political issues that was respected until 2020. Then all of a sudden it was just not respected. And so the provost sort of set the tone by repeatedly putting out statements about how we’re supposed to think about social and political stuff. And then it filtered down and every department chair was like, “Oh, I guess I got to do this now.” And it just went crazy. And so we had a two-year battle to get these statements removed that Jerry was one of the leaders of the fight. And it involved a lot of writing to the president. And eventually we had three meetings with the new president.
And finally a process was set up where we can submit an issue to the dean when there’s an offending statement put up and the dean will order the statement down. And if the dean doesn’t act, we go to the provost and then we can go to the president. And we’ve started getting these statements taken down and so far we have a hundred percent rate. Every statement we’ve said is a violation has been taken down. And so that took two years of fighting, but we eventually got it to happen. And so this stuff can be useful. And in terms of starting new institutions, I mentioned the University of Austin before, and so there’s scope for big projects like that, but also you can do little stuff. And so I founded this substack, the Heterodox STEM substack, and we get submissions from faculty and students, sometimes anonymous, sometimes signed, and people can put out what they’re thinking and what they’re experiencing. I think that’s been very useful to the community. And so you can try to just do something yourself and maybe it works, maybe it doesn’t work.
And finally, the provocative controversial idea. So some of these things might take more action, more collective action to get desirable results. And so I’m going to propose two potential ideas for discussion. I’m not necessarily advocating for them, but these are ways that the government could get involved that maybe during this conference we can talk about more. So the first is we talked about the Chicago trifecta, the Chicago Principles, the Kalven report and the Shils report. You could tie federal funding to adopting and enforcing these principles in some way, somehow like a Title IX kind of a thing. So that’s one idea.
And then the second idea is a way to enforce these is you could enable lawyers to file class action lawsuits if you could prove that a university was not following these. So one thing is you could tie funding to following them, but you could also say if you get insider information and you can prove that a university is not actually following these, then you can do a class action lawsuit. And every student who paid tuition that year gets their tuition refunded or something like that. And so those are two ideas. And I know there’s a lot of lawyers and people who know more about this kind of stuff in the audience, but maybe there could be some discussion about that if we have time on this panel.
Speaker 4:
I’m going to take a little bit of a different tack and talk about what we have agency over when we’re operating in a space where our views don’t fit in. And I think going to summarize it, we’ll call the three Cs that we need to have courage, compassion, and community. And I think all three of those are super central to preserving the academic freedom that we’re looking for. If we had courage, some people will think that because I’ve spoken up on particular things, that I’ve got courage and that there’s so many other things where I haven’t spoken up and completely wimped out. And I think that that’s true for probably everybody in this room. And I think it’s really hard to have that. So I think figuring out a way to say, “Okay, it’s worth it for me to do that.” It’s going to be a lot easier to do those things though if you have compassion.
You cannot be seeing the other people as not redeemable. So to me, one of the best examples of engaging on what we’re looking for is what [inaudible 00:18:50] does. And I think in particular that Daryl Davis symbolizes that incredibly well. The idea that a black jazz musician can go talk to people in the KKK and get them to turn over their hoods. If you could do that, that’s what we really need to be about. So I think that part of the reason I’ve been able to survive, given the views that I have, given the research that I’ve done, is because of my relationships with people who disagree with me. And I’ve got plenty of those people who I love and care about, and I’ve learned a ton from them. They say that it’s really bad for conservatives, but the reality is I end up learning a ton because my arguments actually get challenged. And when you don’t have those arguments get challenged, you’re just intellectually soft. And I think that’s a big barrier.
My kids go to a school that’s a classical school and they have what’s called grammar, logic and rhetoric. And I think a lot of times in an environment like this, we’re really focused on the logic, but the issue of communicating those ideas in ways that other people can actually hear is huge. I think about Jonathan Haidt’s book quite a bit, and why is it that people believe what they believe and the ability to describe that. I have faculty members who are warned before they come to join our faculty that I’m a racist. And that sucks, right? That definitely sucks, but I’m committed to having a relationship with these people. And so they know that that’s not the case.
That requires me not just sticking to a demonization of the other side, but to put up with being called those things and engage anyway and to love them anyway. And I think if we do that, that’s how the battle really turns. I disagree with the mockery. I think it can be in good fun, but fundamentally, we need to be having the relationship with those other people. Some of those other people, there’s a set who are not going to want to have any relationship with us, that’s fine, but there’s enough other people out there that we can engage with where that can work out. And so then on the last part, which is on the community, that’s where it’s really important to have each other’s backs on these types of things. And that involves you sending the emails to be encouraging when you see people going through those times. Joshua Katz says a great article on the culture of the canceled. And you read that article, there’s other people out there and that’s what can allow you to have the courage to speak out. That’s it.
Speaker 1:
Thank you.
Speaker 5:
Well, I think I’ll open my remarks with the disclaimer, which is my focus is fairly narrow. The things that I’m working on are limited to freedom of speech on campus and not the larger governance issues, but I’ve recently published an article that’s called Conquering the Climate of Fear. And climate of fear, it hollows back to the language of the blacklist. And I use that intentionally because there’s a great deal of fear to speak out freely on campus. And there’s two types of fear. The first one is fear of being sanctioned by the university itself in some capacity. And the second, perhaps the more important fear, is the fear of the reaction of your fellow students usually or of your colleagues and the social sanction that comes along with that. I only have a limited amount of time, so if I think it’s more important, I can’t talk about the second fear. So I’ll talk about the first fear and try to offer practical solutions, which is what this panel is for that.
With regard to freedom of speech on campus, the problem is not that there isn’t commitment from universities to that. Every public university is already committed to freedom of speech because it’s bound by the First Amendment. The sense in which the universities are committed to freedom of speech is a sense governed by the First Amendment, which is you must be free to express ideas and you can’t be punished for the content of your speech. The content of the speech is what’s protected. Other aspects of speech, like if you’re insulting, if it’s fraud, if it’s liable, if it’s all of these things, if you’re speaking on a loudspeaker that you’re bothering people, that’s regulatable. What’s protected is the content of your ideas. And if they’re offensive, you can’t be punished for that. The First Amendment protects that. For private universities, it’s basically the same. There’s, I think, over a hundred universities now that have adopted the Chicago Principles. The Chicago Principles were written by constitutional lawyers to make the restrictions of the First Amendment applicable to the universities.
As the university adopts that, they voluntarily apply the same commitment to themselves and even universities that haven’t explicitly adopted the Chicago Principles, if you look at their policy statements, they contain words like broadest, untrammeled, most extensive, unfettered. This is the language that they use to describe the commitment of freedom of speech. So universities are committed to freedom of speech. The problem is not the commitment. The problem is that the commitment’s not enforced. That’s where we should be focusing our attention. Think about it, the purpose of university speech policies is to restrain the actions of the university’s administrators, the deans, the provosts, the presidents who enforces the speech policies, the administrators, the deans, the provost, the presidents. It’s not surprising that the enforcement is somewhat lax. The wrong people are in charge.
I teach in law school, I also teach in the business school. Occupationally, I have to learn to look at incentives. So the problem here has a lot to do with incentives. There’s no incentive for enforcement. I’ve said to someone on the way in that many people who research this who work on this have to go out and research all of the instances about lack of enforcement in other universities. I don’t, I work at Georgetown University, I just have to go down the list of what we’ve done the last seven years. There’s great examples of why it isn’t enforced. Instead of wasting time on that, I’ll just read you an example.
We get campus climate newsletters all of the time. There’s an update on inclusion and strengthening our campus climate. We’re committed to free speech. We’ve adopted the Chicago statement, yet we get emails like this. The relevant excerpt is many of you may have been made aware about racially insensitive messages posted anonymously on the news social media app Flock, which somebody must know what that is. We will be continuing to investigate these incidents. If anyone has any information on these messages, we urge you to report them to the Office of Institutional Diversity, Equity and Inclusion.
So it’s not just that people have made insensitive comments that are offensive, it’s that the university is investigating them and incentivizing everyone else to inform on the people who are saying the wrong thing. That seems fairly antithetical to the commitment made by the Chicago statements, which the university has adopted. That’s a problem. What’s the solution? The solution is to change the incentives. The people who have no dean gets rewarded for upholding an abstract commitment. But if there’s dissension going on and students are going to cancel classes and there’s a big problem, their job is to keep the school going. They respond to their incentives.
In my experience, deans are not bad people. They’re not evil people, and they’re certainly not ideologues, they’re administrators. They’re not ideologues. They just have a job to do and they respond to their incentives, which is to keep the school going. So they have no incentive to uphold the principal. What we can do, I’ll give you two practical solutions. The first one is you have to write a particular clause into the speech and expression policy. I’ll call it a safe harbor clause. You get this sentence in the speech policy and that’s step one. The university will summarily dismiss any allegation that an individual or group has violated a policy of the university if it determines the allegation to be based solely on the individual group’s expression of his, her or its religious, philosophical, literary, artistic, political or scientific viewpoints. So you write the exclusive commitment into the university’s speech and expression policy.
Why is that important? If it goes into our faculty handbook, it’s now legally binding on the university. In many states that’s the case. In other states, even if it’s not definitely legally binding, it can be grounds for lawsuit. They’ve now made a commitment to free speech, not in the abstract, but a real binding commitment that’s legally enforceable. That’s step one. Step two, this only works if you also have a widespread network of pro bono legal organizations, which FIRE has already created or is in the process of creating people who will represent those whose speech is suppressed at no cost. Nobody can afford to do it themselves. There’s no return. But if you have people who are dedicated to freedom of speech and will bring lawsuits when universities, let’s say, some subject somebody to a four-month investigation because of what he said and make the investigation the punishment, then we have something that will change incentives, at least in my university.
University council is not in the business of winning lawsuits. University council is in the business of preventing lawsuits. And if universities can be sued whenever they violate this particular provision, they investigate people because of speech, it’s not going to change the dean’s incentive. It’s not going to change the provost’s incentive. It will change university counsel’s incentive. But that is an important incentive to change because that person will start saying, “We have to have different training, we have to have different rules.” So that’s step one.
Here’s possible solution two, which is change the decision making locus. So you create a prophylactic, in this sense. I’m the chair of the grievance committee at Georgetown, we have something called the initial review committee for grievances. You have an initial review committee for accusations of violations of freedom of speech. Before anything is pursued, before there’s any kind of investigation, the issue goes to the initial review committee. That committee is made up of people who understand the difference between speech and conduct. They know the legal distinction. It’s good if there are lawyers understand the constitutional distinction, at least in my case, it’s better if they’re not faculty. But you don’t want faculty making this decision. But you have people who know the difference between speech and conduct. It goes to them first. That group instantly dismisses anything based solely on the content of ideas, contents of speech, and only allows complaints to go forward if they find that there is some conduct that could violate policy.
That changes the location of decision-making. It’s another way of changing incentives. So my suggestion is that if you want to make the commitments realistic, then you simply don’t just call people names and don’t say we’re an ideological struggle. The issue is usually incentive structure. People do what they’re incentivized to do. You don’t want to hope for A and pay for B. Change the incentives and things should work out.
Speaker 1:
Thank you. Richard, I was hoping to get your reaction because obviously your suggestion was quite more extreme than many of the other practical solutions that your fellow panelists made. I’m assuming your pessimistic about the potential for success with some of these strategies. So what’s your reaction?
Richard:
So I think the strategies themselves are good. What I do not see is any hope of actually getting them implemented, because there’s nobody who actually wants to do that, who has the power to do it. Maybe the alumni do, but the alumni get ignored because it’s not all of them. And their money can be replaced with money from more DEI focused. There’s way more money on the other side than on our side. So your alumni are not going to be able to force you to do it. The board not going to do anything. So I don’t know how you get to the point where these incentives are changed. And I think we run the risk of telling ourselves stories about how things are that are how we want them to be. If we reach out to the people, we can convince people. And I just don’t see empirical evidence of that. Chicago is sort of a holdout, but I don’t see a lot of indication that we can actually get these things through at private schools.
Speaker 1:
Anybody else want to answer?
Speaker 5:
At least in my case, a hundred schools have adopted the Chicago Principles. They did that voluntarily.
Richard:
But you can write anything down you want. You can carve that into a lake for all the good it does if you’re not enforcing it.
Speaker 5:
Okay. So then that means you could also get them to adopt safe harbor provisions. What I propose is to make the commitment self-enforcing. You can’t make people do things that they don’t believe in. It’s self-enforcing. The individual whose speech is being attacked can sue the university, and the universities are afraid of lawsuit. It’s a way of making it self-enforcing rather than trying to make people do something different at the top level.
Richard:
But now you’re talking about change from the government.
Speaker 5:
No.
Richard:
Who’s going to make the lawsuits easier?
Speaker 5:
FIRE. They’ve already made a network of pro bono lawyers across the country who will take these cases. There’s no government. People whose speech is suppressed have been given a legal avenue for complaining to… The problem at my school on grievance committee, they just leave because it’s not worth it. There’s no threat. But if you can bring a lawsuit against the university and the university’s afraid of that, things can change. Obviously it can change because if the schools adopt the Chicago Principles, they can adopt this as well.
Richard:
I’m the last person who’s going to say that suing universities is a bad idea. So you think the policy change comes from the lawsuits, not a policy change voluntarily.
Speaker 5:
Absolutely.
Richard:
I’m more sympathetic to that. I still don’t think it’ll work.
Speaker 1:
Any other actions before we open it up for Q&A? No. All right, then go to Q&A. Please remember to introduce yourself and keep your questions brief.
Speaker 6:
How do I turn my [inaudible 00:35:18]?
Speaker 1:
Whoever has a microphone, that’s the determining factor.
Speaker 6:
Yeah, I’m going to say something very partisan here.
Speaker 1:
Can you please introduce yourself?
Speaker 6:
Can you hear me?
Speaker 1:
Yeah, can you introduce yourself please?
Speaker 6:
Oh, I’m Amy Wax. I’m a professor at the University of Pennsylvania Law School. I’m going to say something very partisan here. I think that there is potential for the government to take action. I know conservatives and libertarians are reluctant to push that, and I understand that perfectly. But there is an effort on to get legislators interested in trying to reform higher education. And of course, the only legislators who are interested in doing anything like that are Republicans. Democrats are a total loss. The Democrats are not your friend here. They are not going to do anything to undermine wokeism or progressivism or the growth of DEI bureaucracies in the university. They are a hundred percent behind those trends. So what can legislators do, Republican legislators? Well, there’s lots, but I think the real model here is Title VI. Title VI says that universities, private, public, or otherwise that want to receive federal funds must abide by certain rules. They can’t discriminate on the basis of race, sex, et cetera, et cetera.
One could leverage Title VI by imposing additional requirements, including every university taking federal funds must adopt First Amendment principles. Every university taking federal funds must write into its faculty handbook. And its rules, the kind of rules that John Hasnas is talking about, that all complaints based on speech rather than action shall be immediately dismissed. They could empower private individuals to sue, require the appointment of university officials who, of course, we don’t like bureaucracy, but I think this one bureaucrat we could tolerate to oversee speech violations and complaint of a justice department and enforce these rules. So I could go on and on. There are a lot of measures here. And Professor Abbot also has alluded to some of those that could be adopted if there was the power and the inclination to do that.
Speaker 1:
What’s your reaction to that?
Speaker 3:
Yeah, so I forgot to mention one thing. At UChicago, I filed eight Title IX and Title IX complaints in the last year against programs that were illegally discriminating on the basis of sex or race. And I filed them to the Title IX coordinator who was not particularly receptive to these complaints. So there were things like a physics graduate student fellowships only for women, just as an example. But after a year of pressing her and emailing again and again, and it went through the university council, they admitted that seven out of the eight had to be removed and they were discontinued. And so those sorts of efforts can be useful. And if we could add more stipulations for academic freedom, I think that would make a big difference.
Speaker 7:
I want to go back to Dorian’s point because I think that that’s-
Speaker 1:
Briefly introduce yourself.
Speaker 7:
Oh, sorry. Jonathan Burke, professor of finance in the graduate school of business. Of all the suggestions, the only one that was made that you could put in place right away is the suggestion of the class action lawsuit. And my question is, I don’t really understand why this hasn’t come up. So in the state of California, it’s even stronger. There’s a state law that does not allow a university or any institution to discriminate the basis of race, gender, and you go down the list. I’m not sure if Stanford does. Certainly, University of California Berkeley definitely does discriminate on that basis, and I don’t think it would be that hard to prove.
Now, if that’s true, it means there are many people who were denied employment opportunities at that institution, who you would think would have a pretty… Because getting a job at the University of California is a pretty prestigious thing to get. So if you don’t get that job, that would be pretty costly. If you didn’t get it because they violated state law, it would seem like the university’s very exposed. And the University of California Berkeley has an enormous endowment. So you would think that there would be a… Lawyers would say, “My God, there’s some money here.” get these letters from class action lawsuits for nonsense that the lawyers have made a lot of money out of. Why has that not occurred?
Speaker 3:
Yeah, so two improvements would be if you give it class action status and who has standing? So right now it has to be a specific person who is discriminated against who has to do the lawsuit. And so if you could somehow let the lawyers go at it like sharks, that would be better. But there is a professor I’m aware of who is suing Texas A&M because of some discrimination that they engaged in. But to answer your question directly, sorry for hemming and hawing, the real reason is you have to be a crazy person who doesn’t care if you have friends to file such a lawsuit. And so you’re immediately blacklisted. You’ll never get another job. Everybody will hate you. And if you file a lawsuit on this basis, and I think that’s preventing the lawsuits.
Speaker 5:
I’m going to disagree with the premise of the question. It’s not obvious that universities across the board are engaged in illegal discrimination, and it’s not an easy lawsuit to win. I know from my own university, all of the materials they publish on this are scrupulously and carefully written to skirt legality and not cross the line. We’re allowed to engage in affirmative action and outreach. We’re allowed to do all kinds of things to encourage minorities to apply for jobs in the school. We can’t make the selection on these bases. That’s illegal. And nowhere in the years I’ve been there, has my university ever put out something that tells us to cross the line and do things illegally. We may get the message in our minds. People who believe in racial decision making may make the decision on that basis. But it’s extremely unlikely that you’ll win a lawsuit or a class action lawsuit unless you’ve got some kind of smoking gun.
Speaker 7:
You are right about Georgetown. That’s true about Stanford because they’re lawyers and there’s a huge endowment to worry about, but it’s not true about the University of California Berkeley. Go and look at they have examples of correct diversity statements.
Speaker 5:
That’s right. And it’s not illegal.
Speaker 8:
I have a practical question on the same thing because MIT, I’m with the MIT Free Speech Alliance, Eric Rasmusen, is currently having the faculty consider adopting something like the Chicago Principles, and I was trying to persuade the faculty who were doing this that all the grand general statements can be dropped if they would just put in and agree that MIT will be bound by the same First Amendment law as state universities, and they don’t get it. They don’t get why that’s more important than saying free speech is guaranteed to everyone in the world at an MIT. So how do you persuade engineering professors, say, that they have to get down to nitty-gritty with law.
Speaker 5:
I spent two years doing that. You spend two years doing it. Get used to explaining what the law is and what the words mean over and over and over again. And then after you get it through one group and it comes back wrong, you do it again. You could just say, “We’ll apply the First Amendment to ourselves.” That’s all it takes. But they don’t know what the First Amendment means. The Chicago Principles are a way of saying, this is what the First Amendment means, all you have to do is adopt them. But it’s not easy to work inside a bureaucracy or inside a university bureaucracy, which is worse. Figure it’s going to take two years. It took me from 2015 to 2017 before Georgetown adopted it and I’m still working on it because then they wouldn’t enforce it. Just put your head down and say, “I’m going to get this through.”
Speaker 9:
Yeah. My name is Christopher Nadon. I’m currently in the process of getting fired at Claremont McKenna College. And so my question has some personal practical applications as well. Dorian Abbot talked about how there’s a possibility of having someone with insider information who comes forward and the other cases that bring forth wrongdoing. How does one then get around the problem, but then that leaves the person who provides the inside information as open to being fired on the basis of various kinds of violation of confidentiality, which colleges are certainly quite good at putting into statute and enforcing.
Richard:
I better not say anything about that.
Speaker 3:
But in the abstract you could talk about it.
Richard:
No.
Speaker 5:
You’ve identified a real issue, a real problem. If you have confidential information the university is lying and you reveal it, you’re serving a cause, but you’ve broken your own non-disclosure agreement and they can go after you for that and they will. That’s a serious problem.
Speaker 3:
Some state universities, can’t you get a Freedom Information Act and look at all the emails people have been sending or something like that?
Speaker 5:
Perhaps that’s a good idea.
Speaker 1:
Who has the mic?
Speaker 10:
Oh, can you hear me? Yeah. Eric Kaufmann, Birkbeck College, University of London, Political Science. I’ll be speaking later, so I don’t want to hog floor time here. Just a quick… I wanted to say that just this discussion I think brings home Amy’s point that really we’ve got to get government and legislation involved because if you talk about the law, like many of you, I’ve been through these internal investigations and what they’ll do is they’ll always throw your freedom of speech under the bus compared to our policy and work and study, which of course they always reference back to the legislative framework around not creating a hostile environment for designated groups and without specifying what takes precedent over what.
And of course, they’re violating actually these laws all the time, but still without getting government involved, I don’t see how we crack this nut because they’re always going to use, whether it’s civil rights law or whether it’s in Britain, the 2010 Equality Act provisions about not fostering positive relationships between… They will always drag out something that will trump your free speech. So I think unless that is finely tuned, finely specified in law, we’re not going to get anywhere.
Speaker 1:
Any reactions to the question?
Speaker 5:
Yeah, I’m sorry. It’s not an unfamiliar role for me, but I guess it’s my role to be a contrarian here. The last thing we want is to get the government involved. What you want is to empower individuals to enforce their rights themselves. An analogy is the difference between legislation and civil liability. You want people who are subjected to this to be able to bring pressure on the university to vindicate their rights as faculty members, as students. Last thing you want is the government making the rules. How do we get to the position we’re in now? You don’t want politicians involved in this. The problem is that things are too politically motivated. What you want to do is empower individuals to enforce their rights themselves. And you can do that by making the policies specific enough so that you can have a FIRE lawyer come in and sue for you in case your rights are violated.
Speaker 11:
Carl Neuss, I’m representing the National Alumni Free Speech Alliance, as well as Cornell Free Speech Alliance, and we’re very proud of a gentleman by the name of Leonard Leo, who is a Cornell grad and founder of the Federalist Society and trying to get advice from him, I had a very long conversation and he listened to me for about an hour, and then he had two words of advice which picks up on Richard’s idea. And he said, brand tarnishment. And whether you’re woke or whether you’re on the right, I’m sure all this faculty regard of what your political persuasion is, what’s most important to you if you’re at Stanford is that you’re a Stanford faculty member and you’re very extremely proud of that. You don’t want that to be tarnished regardless of what side of the political spectrum you’re on. And so I wonder what the potential there is, and not that we need to tarnish the brand, but we’ve had some success at Cornell in particular of pointing out that Cornell is tarnishing its own brand.
The administrators are tarnishing their brand. In particular, Randy Wayne was very important because they canceled Lincoln and Cornell happens to be the owner of the Gettysburg addressed in Lincoln’s own hand and a bust done of Lincoln in his last days of his life, and they canceled him. And once we threw a spotlight on that, a small group of people associated with the faculty and our group, it was amazing how fast the university capitulated. But unless someone threw a spotlight on it, it would’ve gone unnoticed and undealt with. So any comments on that strategy in terms of trying to turn things around?
Speaker 4:
So I think transparency is really a key thing and that the more transparency you get, the more you can see some of those things. You’ve got the case before the Supreme Court right now, and one of the things that’s hurt Harvard a lot is what’s exposed in their admissions processes. Gorsuch just hammered on the fact that it was a squash team. Over and over again, we’re giving free admission to the squash players. Those types of things, I think transparency is key to the whole operation. I think it’s a moral wrong that universities don’t use their data to help their students and that if we actually invested in having universities show their data, then I think we could actually make a lot of great progress in some of these debates that we’re having about DEI and such, they actually have implications for the empirics where we should evaluate it.
So my son’s a sophomore at Notre Dame now, and part of his first year experience, he had to read something by Robin DiAngelo with no counter. And that really bothered me. But the thing about it is, I may think that Robin DiAngelo’s work is toxic, but I’d be perfectly okay if you did a randomized thing where we’re going to have half the people stuff from [inaudible 00:51:12] and half the people Robin DiAngelo and then evaluate it. But I think what we really need to be pushing for, part of the practical solution, I forgot to mention, is pushing universities to be transparent to say, “Look, I want to solve racial issues. I disagree with your solutions. Give me the data so we can actually evaluate what works.” And I think through that, that’s a roundabout way of getting to the branding issue, I think a lot gets exposed.
Richard:
Can I jump in? So I’m obviously very much in line with the idea of brand tarnishing, but I think there’s a fundamental difference of opinion between what my approach is and what that is getting. I think the idea there is, “Oh, we’ll tarnish their brand and they’ll respond and fix things and things will get better.” My argument would be if you really dig down and you look at this, I’ve spent many years looking at this, there’s not stuff under the hood worth salvaging. We’re not going to fix university. You look at the personnel, you look at how people have behaved over the past 30, 40 years, it’s not the right set of people to be doing this job. We need to tarnish the brand to where we replace it with something else, not like course correct a little bit. We’ve got totally the wrong people, we’ve got totally the wrong institutions. We just need to go in that direction, I think.
Speaker 1:
I think we have time for two more questions. And then gentleman at the center table had his hand up from the very beginning, so if you can make sure-
Speaker 12:
So Carlos Carvalho from the Salem Center, University of Texas. I just have a question on the litigation side where sure we can sue universities one violation the First Amendment rights, they take place and they take place all the time and there’s some lawsuits coming up. Fire can report on that. But my understanding, and I’m married to an attorney, so I talked a lot about that with her, is that the punitive damages for the university are very low on this. It’s like a slap in the wrist. Is my dean apologizing for violating my First Amendment rights? And they sit on billions of dollars of endowment. So they’re not afraid of that. It’s like, “Oh sure, yeah, sue me, it’s going to be costing us time, money, prestige. My colleagues won’t talk to me, whatever if I go and engage in that lawsuit.” And yet the punishment is literally a slap on the wrists. Nobody’s going to give you money to pay for… Is that correct? Do we see a different route where you actually get some actual punishment at the universities?
Speaker 5:
No, you’re entirely correct. These lawsuits wouldn’t produce large punitive doubt. It’s possible you can get a case where it would, but they typically wouldn’t produce large punitive damages award. They may only have very moderate compensatory damage awards. Although in some cases, the defamation effect on the professor’s character could be significant. But you don’t need some massive punitive damage award in one case for this to have an effect. Because if all of the universities have these policies in place and every time somebody is punished for speech… University council is not about winning, it’s about preventing lawsuits. Even if they’re a $10,000 a shot, you get the deterrent effect where the university… My council’s always talking to us about how we can’t do this, not because it’s wrong, but because somebody might sue us.
What you want is university council to be the party motivated to change the internal structures and incentives so that deans don’t feel like it’s okay to punish speech just to mollify the students. And over time gradually you can make a difference this way. You don’t need big damages award, you just need the suit brought in to be something. You can’t do that now because of litigation costs, but FIRE is solving that problem for us by providing lawyers at no cost. It’s a step-by-step gradual thing. It can work. I don’t have any magic bullet that does it tomorrow. Let’s just change the incentives.
Speaker 1:
Anybody else comment back to that? All right then.
Speaker 13:
My name is John Etchemendy. I’m a professor here in philosophy. I was provost for a while and I just want to act as a meg phone to John. I agree with everything you’ve said John.
Speaker 5:
That never happens.
Speaker 13:
Especially with philosophers. But the important thing that I think people may be missing is that if you can get that sentence that he read off into the faculty handbook, that is the employment contract. At that point, you no longer have to worry about a class action suit or who is going to have the guts to file a class action suit. Then it becomes an individual suit. If the university violates that and does not follow that sentence, then the individual who has been wronged can sue and that will happen. So I think that is the most brilliant strategy I’ve heard in a long time. Now signing onto these statements, the Chicago statement, I think that’s wonderful, but that is not going to enforceable. So I think that I would very much like to see more people appreciate the importance of enforceability.
And by the way, so Richard, I disagree with just about everything you said, but in particular, who runs the university? It is the faculty. It really is the faculty. The faculty have the power to get a president fired. It’s not the board, not at all the board. You’re absolutely right about the board. They don’t know what they’re doing. But the faculty run the university, and if we can get the faculty to push for something like that change in the faculty handbook, we could actually get something done. The problem, now getting back to Amy’s point, the problem is that our faculties tend to be very, very liberal and very much have bought into the DEI agenda. So I don’t know if that’s going to happen, but I do think that that strategy is exactly the right way to go.
Speaker 5:
I have that before our faculty, send it right now at Georgetown.
Speaker 1:
All right, so please join in thanking the panelists.