The fragility of academic freedom

Authoritarian regimes cannot tolerate academic freedom. That is why the Chinese government's devastating crackdown in Hong Kong has taken aim at Hong Kong University, which has been a redoubt of political independence and democratic thought. As two exiled Hong Kong scholars, Shui-yin Sharon Yam and Alex Chow, recently explained in the New York Times, civil society suffers when university students and faculty are unable to "openly deliberate contentious political and moral issues and to examine state-sanctioned ideas and values."

Academic freedom has also been increasingly challenged in the United States. Restrictions at American universities have not been as severe as those in Hong Kong. But too many administrators appear to have taken preemptive steps to avoid offending political figures, undermining the free exchange of ideas at their own institutions.

At the University of Florida, three political science professors were recently denied permission to provide expert testimony in a lawsuit challenging the state's restrictive voting law. In an initial ruling from university administrators, the faculty members were barred from testifying because a "conflict of interest to the executive branch of the State of Florida create[s] a conflict for the University of Florida." Under that diktat, the results of faculty research were effectively suppressed - by prohibition from presentation in a courtroom - because they are contrary to the current governor's political views.

A tsunami of protests caused the university to mostly back down. President Kent Fuchs appointed a task force to make recommendations "on how UF should respond when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party." The three professors predictably filed a lawsuit against the university, alleging violations of academic freedom and the First Amendment.

The task force issued its recommendations in record time, which were quickly approved by President Fuchs. In the future, there will be a "strong presumption that the university will approve faculty or staff requests to testify as expert witnesses . . . regardless of the viewpoint of the faculty or staff member's testimony."

But there is a catch.

Permission to testify may still be denied by the administration when "such testimony would conflict with an important and particularized interest of the university." Referring to the new policy as "window-dressing," lawyers for the professors announced that they would continue the litigation because the revised policy allows "the university to restrain the faculty's free speech based on impermissible reasons and in the university's discretion."

Florida is not the only state where academic freedom is on increasingly shaky ground. Administrators at the University of Texas have ordered researchers to suspend recruiting subjects for a study on the effectiveness of anti-racism training for white children. The project planned to involve up to 200 pairs of white-identified children - ages four or five, and not yet in kindergarten - along with their caregivers, who would watch professionally produced videos and follow discussion guides. It was approved by the university's institutional review board and passed a peer review process for internal funding.

Following a complaint from an economist at the conservative American Enterprise Institute, however, the university administration informed the researchers that they could not launch their study, and instead had to "pause delivery of any educational program materials to the volunteers who have agreed to participate in this project."

The complaint, filed with the U.S. Department of Education's Office of Civil Rights (OCR), stated the same politically loaded accusations that have appeared on blogs and news sites. It alleged that the study "illegally engag[ed] in racial discrimination on the basis of skin color by promoting, sponsoring, offering, and marketing a discriminatory program that engages in racial segregation." The sponsors have explained, however, that the purpose of the project was to address anti-Black racism, and therefore "the study's sampling of one racial group ensures that its findings are more robust."

A letter of concern, signed by 18 education professors, called the preemptive suspension of the study "atypical and unprecedented," constituting "differential treatment of research based on subject matter." The outside opposition and OCR complaint amounted to "political coercion . . . that risks censoring and chilling professor speech."

The University of Texas provost finally reinstated the study after a weeks-long review, while partially blaming the researchers' own "public-facing descriptions[and] promotional materials" for creating an ambiguity that "led some to question" its validity. In other words, one over-hyped complaint, magnified on various websites, and the extraordinarily unlikely prospect of OCR intervention, were sufficient to disrupt previously approved faculty research that the administration should always have defended.

"Educational gag orders" have become distressingly common across the country, as too many university administrations claim to support academic freedom while weakening it in practice. Taken individually, these cases might just be annoyances, with faculty members ultimately able to pursue their research. Collectively, however, they represent a distinct threat to scholarly independence.

Nobody would suggest that we are on the verge of becoming another Hong Kong. Like all rights, however, academic freedom tends to be lost gradually, then suddenly. We should therefore heed the cautions of the Hong Kong scholars, who wrote that it has "been stunning to see how fragile the institutional infrastructures and the integrity of public institutions are in the face of pressure" from the government.

Steven Lubet is Williams Memorial Professor at the Northwestern University School of Law. His new book is "The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship."