Higher Education Webinar: Academic Freedom and Democracy

Tom Ginsburg, the Leo Spitz distinguished service professor of international law and faculty director of the Forum for Free Inquiry and Expression at the University of Chicago, leads a conversation on academic freedom and democracy.

Speaker
Tom Ginsburg
Leo Spitz Distinguished Service Professor of International Law and Faculty Director, Forum for Free Inquiry and Expression
University of Chicago

Presider
Irina A. Faskianos
Vice President, National Program and Outreach
Council on Foreign Relations

Transcript

FASKIANOS: Thank you. Welcome to today’s CFR’s Higher Education Webinar. I’m Irina Faskianos, vice president of the National Program and Outreach here at CFR.

Today’s discussion is on the record, and the video and transcript will be available on our website, education.CFR.org/events, if you would like to share it with your colleagues. As always, CFR takes no institutional positions on matters of policy. 

We’re delighted to have Tom Ginsburg with us to discuss academic freedom and democracy. Professor Ginsburg is the Leo Spitz distinguished service professor of International Law and founding faculty director of the Forum for Free Inquiry and Expression at the University of Chicago. He also serves as the Ludwig and Hilde Wolf research scholar, professor of political science, faculty director of the Malyi Center for the Study of Institutional and Legal Integrity, and is cohost of a podcast on human rights called Entitled. Professor Ginsburg has authored multiple books, including Democracies and International Law, How to Save a Constitutional Democracy, and The Endurance of National Constitutions, among others. Previously, he served as a legal advisor at the Iran-U.S. Claims Tribunal and The Hague, and continues to work with numerous international development agencies and foreign governments on legal and constitutional reform. 

Tom, thanks very much for being with us today. I thought we could begin by having you give us an overview of how academic freedom has evolved over time, and talking about the state of academic freedom in the United States today.

GINSBURG: Well, thanks so much, Irina. It’s really a pleasure to be here. And it’s a really important topic. I mean, this is, I think, the greatest crisis of academic freedom in the United States since the McCarthy period. And it’s something—you know, it’s a concept that we sort of talk about, but it’s not very well understood even in the academy. I know a lot of the participants here are academics. I know, when I became a professor no one ever took me aside and said, this is what academic freedom is. It’s something that, like many other freedoms, we only pay attention to when it’s being lost. And therefore, it’s important to have sort of conceptual clarity about what it is and, you know, how to parry the myriad threats to it. 

Einstein put it very well. You know, academic freedom is nothing more than the right to seek the truth and to publish and teach what is believed to be true. And in fact, the idea goes back to Germany, in the Western tradition. And there are other traditions of academic freedom, Confucian and such. But in the Western tradition, it goes back to the German reformer Wilhelm von Humboldt in the early nineteenth century, who distinguished the freedom to teach and the freedom to learn. And that was kind of the foundation of the modern research university, which in the nineteenth century was the German research university. 

But American reformers, including the first president of the University of Chicago, William Rainey Harper, really liked this idea. They liked the idea of scholarship as its own distinct sort of practice that should be professionalized and should be governed by professional norms, and not by state regulation. And so there’s a lot of really great stuff from the early twentieth century crystalizing the idea of academic freedom in the United States. And they kind of—there’s a little bit of a twist to the German idea, in that they talk much more about the service of the academy to democracy. They really talked about it as a democratic idea, you know, land-grant universities and such. 

We needed scholars to study stuff in the service of society. And in order to get the best scholarship, they had to be sort of left alone and not subject to, at that time, pressures that might have come from donors, in particular, then, with World War I, threats that were coming from the state, when many anti-war professors were fired from places like Columbia and such. And, you know, ultimately, I think threats have come from the society as well. And so the idea was that we have to insulate these folks to pursue what Max Weber around that time called “science’s vocation.” 

The twentieth century had a lot of challenges to academic freedom. And in the United States they really came from two sources—anti-war—or, you know, pro-war sentiment, and wanting to punish people who were anti-war, or critical of war efforts. And then, of course, anti-communism, which was a major and severe challenge. And obviously the best known, you know, case is McCarthy, but even in the 1930s you begin to get a lot of demands that professors be fired. 

And universities and scholars kind of went in different ways. Some said, yeah, we really shouldn’t have communists around because communists aren’t committed to this study of truth, so therefore it’s OK to fire them. Arthur Lovejoy, one of the founders of the American Association of University Professors, took that view. At our university, Ed Levi, who was later our president and then attorney general, actually went the other way. He said, not only don’t we care if our professors are communists, but if there are communists fired from other universities we’d like to hire them, if they’re good scholars. You know, so that’s the only criteria that we have had for hiring and firing. But obviously, you know, that was the last major instance. And you had hundreds of professors fired. 

Now, to jump way forward, because time is short, according to TheFIRE.org, which is kind of an academic freedom and free speech organization, we’ve had more professors fired in the last few years in the United States than in the entire McCarthy period. This is not just something that emerged from the Trump administration. The old threats from donors are always there, and have to be parried, of course. Threats from the state have been really rising, particularly in red states. A lot of new legislation preceding the second Trump administration trying to take away tenure. I think Indiana is a particularly egregious case I can talk about in the Q&A, if people like. 

But then there’s also been this threat from the society, if you will, from students who really don’t want to hear ideas that they already know they don’t agree with, from faculty groups that want to, you know, isolate others, and such. And that—you know, I guess this goes under the thumbnail name of “cancel culture,” but it’s been really effective. Hundreds of cancellations and firings on the left and the right. And that’s also a big danger to academic freedom. So it’s something we really have to watch out about. 

I want to say a little bit about why it’s important for democracy. You can’t really have a democracy without independent knowledge institutions that produce and verify facts. Otherwise, it’s all fake news. It’s all, you know, politics, if you will. And therefore, you know, there’s no stable core. I think kind of the paradigm of our democracy would be you have these two parties and they fight over policies, but they can rely on a common set of facts. And it’s our job to produce the facts. And it’s not just universities. It’s things like the Census, or the economic statistics that come from the government, or the media, traditionally. And all those institutions kind of, you know, help us verify facts that then politics can fight over. 

That’s the old paradigm. And we’ve seen it under grave attack in the last, you know, few years, with ideas about fake news, a grave undermining of public trust in fact-finders in the COVID crisis, partly, you know, due to, you know, government messaging, but also partly due to, you know, conspiracy theories which have just thrived. And this is a huge challenge because our entire social legitimacy, as academics, comes from the idea that we’re pursuing truth. 

There’s also, of course, you know, sort of Michel Foucault, for those who know about this, you know, like, a kind of brand in the academy of critical studies which says, you know, all facts are contingent anyway. And I was just reading a wonderful piece by the sociologist Bruno Latour in 2003, who said, even then, you know, maybe we have enough departments telling people that facts are unstable and all knowledge is political. Now this is being used by the political right to undermine, you know, vaccines and things like this. Wow, maybe we shouldn’t have done that, or maybe we need to rethink our approach. And so that’s a kind of internal debate within the academy. But you can see how the post-truth world has come from within, as well as from politicians seeking to exploit it. And it’s a very heavy time. 

I want to just say a little bit about what we’re actually seeing now and how it compares with what’s happening in other countries, because that’s my primary field is studying constitutional democracy around the world. So obviously, one of the great threats for academic freedom everywhere is funding. And in most countries, most funding comes from the state, if not all. And so in some sense, the United States is a little more insulated from that because even though the core of the great research compact between government and universities, which has been running now for seventy or eighty years, and it’s produced, you know, more Nobel Prizes—produced the greatest university system ever in human history. It’s generated an infinite number of innovations and wellbeing-enhancing inventions. 

That system depended in part on government money, but also on private money. And American universities do have these endowments, and donors, and things like that. So it’s been remarkably successful. In other countries, they don’t have that private base, that private leg, if you will. And so that has meant that they are much more vulnerable to state attacks. You know, in Mexico, for example, AMLO took away—basically destroyed a government-funded research institute, CIDE, which worked on economic policy. He didn’t like the results they were pushing for, and he basically removed them. He hasn’t really gone after private universities, interestingly.

But that threat of government funding, which we’re now seeing withdrawn here in a number of ways. First of all, the changing of what’s called the indirect cost rate, which is when universities do research for the government. We do, you know, cancer research or something. And if it’s a $10 million research grant, the university will tack on $5 million for overhead. And it’s just part of the way that we subsidize things. In order to do the cancer research you need to teach basic biology, you need the buildings, and such. But the Trump administration has going after that. Huge cuts to the funding programs on which science depends. And so that’s a squeezing of the funding. 

And then in the case of Harvard in particular, but other universities as well, the weaponization of antisemitism—or, claims of antisemitism—through Title VI, which is this part of American law which says you can’t discriminate. And as in so many things we’re seeing with the administration, rather than follow all the legal processes that would be required they go straight to the maximum punishment they could use. And they understand that that’s illegal. And they understand that they’ll lose in court. But they also understand that the universities need those flows of funding, so they can get a lot of leverage by doing something illegal. And that’s basically what’s happening with the Harvard suit. Harvard will probably win that suit, but will they win the war? Not clear. 

The final bit I want to mention is the immigration attack. This is very fundamental. It turns out that immigration is central to the United States and central to universities. And as my university president says, other countries pay us to take their best minds and then bring them here, and then they stay and they start fantastic companies. Something like a third of companies, valued at a billion dollars or more, was started by immigrants. And so it’s a huge benefit to the United States. But the pulling of visas is absolutely brutal for universities. We all depend—maybe not my place so much—but many universities depend very heavily on foreign students. And they enrich us. And they enrich our academic environment. So it’s a terrible blow. We can’t really be a university without foreigners and without immigration. So that’s all very bad. 

Now, I just want to say one last thing, because I want to go on for too long, which is just to say that it could be worse. When we look at other countries and we see the attacks on universities, clearly the funding mechanism is a big one. But, you know, Hong Kong is a place where they used to have very high levels of academic freedom. And just in the last three years, using the national security law, that has basically disappeared. People get thrown in jail or intimidated through government repression—very, very live government repression. We haven’t gone that far here. 

The use of private violence in Venezuela, for example. You know, if you say something that the government doesn’t like, you know, the thugs will come and visit you. That’s been a big factor in India also, which has a very rich, you know, academic tradition. But the combination of underfunding and then the Hindu right sort of paramilitaries, if you will—maybe that’s too strong a word—but the thugs who will call you up and intimidate you if they don’t like your result or what you’re saying about the government, that’s very, very bad. Even here, of course, we get a little of that. I’ve even gotten calls when one of my books that was, like, you know, from some angry, you know, Trump devotee. But that’s not a big threat here in the United States. It is a big threat to judges, and, as we’ve seen, politicians. So I really watch that. The threat of private violence is a very scary development here. 

And I guess the last thing I’ll say, in terms of tools which are used in other countries that might be adopted here, is libel law. So prominent critics of the Polish government, academic critics, got sued for libel and defamation, and then forced to spend lots of money on the courts. And again, even a losing suit can be a form of punishment. So all that’s very grim. (Laughs.) I do have a lot of thoughts on what we can do, but maybe I should, because I promise not to speak too long, leave that for the Q&A, if that’s OK, Irina.

FASKIANOS: That’s great. Thank you so much. And, yes, we do definitely want to circle back on what we can do. So we’re going to go to all of you now for your questions.

(Gives queuing instructions.)

And I can’t believe there are no questions. Somebody—you’ve done such a great job, Tom. (Laughs.) Oh, we have our first question from Jennifer McCoy. Thank you, Jennifer.

Q: Hi. Jennifer McCoy, Georgia State University. Hi, Tom. Good to see you. You too, Irina. 

I wanted to ask your views on—in terms of what to do. One of the things, of course, is, you know, some kind of coordination among universities to fight back. So not only lawsuits, potentially sharing resources, taking each other’s students have been suggested. But I wanted to ask you specifically about institutional neutrality in terms of statements, because I know you’ve written about this and thought about this. And if institutional, you know, neutrality is, you know, is becoming more widespread now, different statements to not speak out on specific issues, what about the threat to the actual democratic regime as a whole? Do you think that that merits speaking out, or only when an individual institution’s survival is at threat, or academic freedom? Because it blurs the line. Immigration, as you said, is a large issue and does affect the survival of individual institutions. And generally, the threats to speech and to academic freedom are part of democracy, as well as the survival of institutions. So, how do you thread that needle?
 

GINSBURG: That’s great. Great question. So let me back up and sort of explain what institutional neutrality is and isn’t, because I find that there’s a lot of misunderstanding about it. Institutional neutrality is a principle that most people associate with the Kalven Report of the University of Chicago from 1967, but in fact actually goes back to the very founding of the university. The founding president said, you know, we won’t take any position on issues of the day. That’s for the individual scholar. And it was a way of insulating the university from criticism from donors and others, just, you know, so some individual professor—well, that’s him saying that. That’s not us. And so we don’t say anything. And this was reinforced. And it’s been our policy. But there is a very important exception, which is under circumstances in which the university and its community of free inquiry is under threat. Then it becomes incumbent on the university to speak. That’s the language of the Kalven Report. So what we’re really talking about is the scope of the exception. And that’s what Jennifer’s question gets right to. 

Let me just first say, I do think institutional neutrality in general is a good idea. And it’s one reason that we have a bad reputation in the eyes of the public, is there have been so many violations of it. In some fields, entire depart—you know, in some fields they have foreign policies. They have views. They say—you know, announce something about Russia’s invasion of Ukraine, or there’s a lot of Israel-Palestine stuff, from particular disciplines, from particular departments. And that’s, to me, a violation of a duty of a discipline or department to provide the maximum space for debate. It’s stating an orthodoxy on a matter that doesn’t affect the university at all. We’ve done a lot of that. And that’s one reason, I think, you know, we’re seen as political by many on the political right, because there aren’t many of those statements which are on the political right. But now, when it comes to this moment, obviously, we are in exceptional territory. And we’ve talked about this here with our own president and such. Clearly, this is a moment in which the university and its community of free inquiry are under threat. And so what should you say, what must you say, when should you speak? 

And I guess the way I think about it is you—I would like to say that it should have some—the issue should have some potential impact on our university, on the specific university as a whole. But as I said, also the immigration issue affects virtually everyone. And so a few years ago, I think during the first Trump administration, our university president did speak out and say, immigration is critical. We need immigrants. And this is existential. And no one criticized him inside the university for violating the Kalven Report. Everyone kind of agreed on that. Not that there’s, like, a mechanism of enforcement, but it’s a matter of judgment. But then there have been some other instances when departments have spoken out, and other people criticized them, and such. So when I think about our moment, I think about issues that affect higher education certainly would allow people to speak out, to sign these public statements, and such. And does that mean that everyone has to do it? I don’t think so. There’s a lot of pragmatic judgment about what exactly is going to preserve the community of free inquiry when it’s under an autocratic threat. But certainly, it’s allowed. 

And then the question is, like, what are the actions that the university could take that would actually have an impact? I tend as a general matter, as you might have guessed, to be a little skeptical about mere statements. We ourselves pronounce that, you know, the sky is blue, or whatever it is. I think what I’d like to see much more is action. So signing amicus briefs, suing to defend the university. I think there’s a very important thing that we all must be doing, which is to mobilize our alums and our—you know, I mean, 40 percent of the country, at least, has college degrees. Wow. You’re going to attack the institution of higher education, you’d think there’d be a natural constituency for that. And yet, we find some of the alums are very hostile to the university and what it’s become. And so mobilizing them seems perfectly appropriate in this moment. That was a long way of saying, I think speaking out is perfectly OK now, even under a very strict view of institutional neutrality. But I always want to know—I think there’s pragmatic judgments, which are above my pay grade, about whether it will be good or bad, in a moment with such a vindictive, you know, administration. 

The final thing I wanted—you mentioned collective action. And there, I think we’ve seen some very nice developments. There was a statement by the big ten faculty senates, which said, we want to provide, like, a mutual defense pact, so if they come after any one of us, we’ll support each other. And I think that would mean, you know, a student from Indiana, if they shut down their program, can come and take the classes at Michigan, and Illinois, and such. And so providing resources, going to teach at those places, you know, God forbid people get fired for what they’re doing, and stuff. I think that’s a kind of collective action which we really should encourage. So I think that’s what the institutions can do. And, you know, there’s many other actors, you know, AAUP and others, who are also doing a lot of good work right now. And those are important too.

FASKIANOS: Thank you.

I’m going to take the next written question from Edie Gaythwaite, who’s at Valencia College: My institution is now not accepting international students. Do you see this as a trend? And he appreciates your talking about how important it is to have international students.

GINSBURG: Yeah. Well, obviously, I really hope it is not a trend. And, you know, I think—the arbitrariness of this policy, I think—you know, I think—I’m hoping that it will be like many of the other policies we see, which is just, OK, we’re not going to allow any foreign student to interview for a visa, right now. So that’s a body blow to those schools which were going to enroll many foreign students in the fall. But I expect that, at the end of the day, cooler heads will prevail and say, OK, well, yeah, you can. We’re just going to screen and make sure there are no terrorists, and whatever they want to do. Which, of course, they already were doing pretty well. And I think this spigot, if you will, of foreign students will be turned back in a year or two, because it’s just so essential to American innovation. I don’t believe that the Trump administration really wants to destroy the economy and all this. And I can’t—you know, have trouble believing that. And so I’m hoping that they’ll figure that out. 

That said, you know, obviously it’s a horrific policy. And I could see why a school would want to temporarily pause, because we have to figure out the finances of many schools. Many schools, unfortunately, are very dependent on foreign students. Many programs are. And maybe that went too much in that direction. I mean, I’m of the view that we need foreign students to enrich our educational environment. And, of course, they do cross-subsidize American students, which I feel like the administration doesn’t really understand. But at the same time, you know, you want to make sure that they have a maximally meaningful educational experience themselves, and not to bring them in just to—just for the money, and put them in a sort of academic ghetto, which, of course, at least in my field, some schools do that. And so, you know, maybe some recalibration about exactly what we’re doing this for would be in order. But I’m hoping that the spigot will be turned back on.

FASKIANOS: Thank you.

I’m going to go next to Mojúbàolú Okome. If you could accept the unmute—there we go. And if you can give your affiliation.

Q: I’m Mojúbàolú Olúfunké Okome. And I’m a professor of political science at Brooklyn College. 

And also, I am an immigrant who came to this country forty-four years ago to do my master’s and PhD, and then I never left. I intended to leave after five years. I didn’t. So I think that—and I’m from Nigeria, where we have had serious struggle over academic freedom as well as democracy. We’re still having those struggles. And I’m just wondering about, to my mind, I think what is happening in the U.S. is very alarming. And I don’t think that the response is even enough because once you have—first, I was scared about democratic backsliding. I don’t think that’s where we are now. A lot of what is happening is antidemocratic, and a willful desire to destroy democratic institutions and to subvert democratic values. So I hear you about, you know, the calm response, but I really think that if many of the measures and policies that are being used to restrict academic freedom and democratic values, if they are allowed to stand, that this country is going to have significant problems. Because it takes longer to rebuild than it takes to destroy institutions. 

So I’m also concerned about foreign students. Many of them—some of them have been admitted, and now their lives are in limbo. The students who are here, who are very scared, you know, and I like the mutual academic defense compacts. I think more of those—and I think more action in that regard is necessary, because, I mean, people are living in fear, if we don’t know. There are many students who are scared to death because they don’t know where their lives are going. There are people who were admitted to programs, and then the programs have said to them, you can’t come, you know? So given the urgency of the problem, I mean, do you think just kind of doing this routine responses are enough? Or is there something else that could be done to really ensure that we don’t really decline into authoritarianism?

GINSBURG: What a great set of questions and observations. And let me just start by saying, you know, in my experience, I’ve done some work in Africa, and you find some magnificent academics, but this is a good example of how governments, they don’t really want independent universities. And they starve them of resources. And they just make it very hard in many countries. And so in a way, as you say, like, that could be our fate if we allow the trend to continue, if we allow these attacks to go on forever. And, you know, I hope—I know I sound calm—(laughs)—but I’m not calm. I mean, I think this is, as I said, a major crisis in which I don’t believe you can have a free society without free universities. And the reverse is also true. You can’t have free universities without a free society. And so these things go together. 

I’ve, frankly, been a little frustrated that we had, you know, a bunch of protests last year about a war 6,000 miles away, which is apparently unsolvable, and we’ve seen nothing about this on this—on the campuses. And partly I think it’s because faculty sometimes have an adversarial relationship with the administrators. And sometimes that’s appropriate, I get it. But this would be a moment for us all to stand together and see what’s—and really agree that this is an existential crisis, and we really have to be working together to fight it off, and coming up with lots of creative answers in order to do that. 

You mentioned the fear of foreign students to travel. I mean, the very chilling moment was those two arrests—Mahmoud Khalil, who was the ex-student at Columbia, who’s in Georgia, and then, even more chillingly, the Turkish student was just disappeared, you know. And that was—that, as you know, struck a chill in every—not only every immigrant’s heart. I mean, the Mahmoud—that, combine with the Kilmar Abrego Garcia case, where—the fellow who was deported to El Salvador on the basis of an administrative error—that got everyone worried, because they could do that—you know, I was born in this country. They could do that to me, and say, administrative error, you’re in El Salvador. Sorry, we can’t get you back. That’s the kind of technique that they’re using to instill fear. 

Now, we know from dictatorships that fear is—and, you know, the chilling of free expression—is sort of the first step. And that’s why maybe we’re at a critical moment where we just have to push back on that with all of our might, because—and not give into the fear. Those of us who are, let’s say, like me, who are, you know, maybe a little less worried than someone who is on a green card, or even—I have friends who are naturalized citizens, like you, and they’re worried, because there is a process of denaturalization. I think we all have to really stand up for universities. 

And it’s a little hard to explain to the public what they get out of it. I think that’s—there’s the big structural problem, is that the great bargain that we had for seventy or eighty years has somehow frayed. And so the politicians think they can get—take some advantage by attacking us. And, you know, maybe we did make some mistakes. Maybe we do need some reforms and things. But ultimately, we have to restore the public trust in what we do. And that’s really a full-on effort. In a way, each of us—you know, we all have friends and relatives who are not academics. And to explain, yeah, I know you’re seeing this, like, story in the paper about this crazy professor at X/Y university. That’s not the day to day of what goes on in a university. You know, the day to day of what goes on in a university is research to solve the cancer you might get one day, and to really wrestle with social problems, and to teach students how to think. And that’s what goes on every day. But somehow, that’s not as popular a story on the news channels as, you know, some wacky professor in X or Y place, who’s really a fringe person. So maybe I’m suggesting PR as a part of this, too.

FASKIANOS: OK.

So I am going to go to Myles Williamson, lecturer at the University of Baltimore: In cases of democratic backsliding, we often see democracy struggle to recover and remain resilient, especially after sharp declines. Do you think there’s a critical tipping point when it comes to academic freedom, beyond which recovery becomes unlikely or impossible? What do you think is the most effective way to resist this kind of erosion in the United States? 

GINSBURG: Yeah. That’s a great question. And Professor Mojúbàolú already said, you know, like, institutions are hard to rebuild. They’re easier to destroy and degrade than to rebuild. Many of us—and I know Jennifer McCoy was on this call—she’s a former head of the American Political Science Association—that there have been efforts to understand cases in which there’s democratic backsliding, and then things get arrested. How do you—how do you make things more resilient to resist the backsliding? And then how do you rebuild? And there’s a lot of attention now in Europe to Poland, in what’s being called transition 2.0. How do you transition back after a spell of a kind of a populist government, which was anti-institutional. And it’s really hard. There aren’t a lot of—you know, there aren’t clear lessons.

At the macro level, I will say this. And I have a paper on situations where democracy seems to be dying, and then something happens to arrest it. We call these near misses—democratic near misses. One of the lessons of those near misses is that the institutions that save democracy in those moments are not themselves democratically legitimated. It’s not legislatures or mayors. It’s militaries who won’t go out—you know, will ignore an order, an illegal order. It’s election officials who resist the temptation to, you know, destroy votes, and things like this. It’s courts. It’s bureaucrats. It’s policemen. And all of those things have their own kind of professional knowledges, you know, professional ways of doing things. And so I think reinforcing norms of professionalism, again, it’s not very sexy and it’s not easy to figure out how to do it, but it really is important. 

I mean, when I go for a medical treatment, I want to make sure my doctor is a good doctor. I don’t want the idea that, oh, he’s just going to treat Republicans and Democrats differently, or something like that. So, reinforcing professional norms, of which academia is one of them, reinforcing our own set of professional commitments to, you know, being good educators, you know, to science as a vocation, and such, fixing the problems in science. All of that is super important to ensure that we are resilient from politicized attacks. Unfortunately, there’s, you know, enough stories out there, the replication crisis in science—in certain, you know, fields in science, certain disciplines which have decided that they’re just political, that they really have bought the idea that all knowledge is power anyway, so we don’t really have to do any real research. We’re just going to, you know, make political pronouncements. It’s just not good for all of us. And in some sense, they’ve been drawing down on the capital of legitimacy, which we’ve all built up. 

So I think, you know, not giving into political pressures, but rather fixing what we think is core in our system, and taking care to do the right thing, and then trying to rebuild the bargain with society, seems like what we’ve got to do. And more generally, I think finding coalition with other institutions in society which are professionally legitimated. Again, we all know we need these things, but they are under severe attack in this, you know, moment, where everything is political. That’s to be resisted. And I recognize that’s a tension between that and speaking out and defending ourselves. Of course, we have to defend ourselves, too. But I’m just trying to look at a more structural—to make a more structural point. We also have to kind of fix our own house and go back to what we do well.

This is one thing which—I’ll just say—which might insulate the United States from some of the worst things we’ve seen in other countries. We actually are not Venezuela. Our economy is big and complicated. And there’s a lot of wealth that is not on the side of the government. And it doesn’t depend on government for its exploitation. You know, a country like Nigeria, which is so oil dependent, or Venezuela, in government all they have to do is control the oil and they can kind of dictate a lot of things. The United States isn’t like that. We are complicated. It’s a federal system. There’s lots of sources of resilience. Even if the federal government took away all the money tomorrow, we would survive as universities and institutions, in a much smaller way. It would be much worse for the country. It would be much worse for the world. But we would survive. And that’s actually not true of a lot of other countries. So I think drawing up those plans—(laughs)—but hopefully never having to implement them. And going on offense in terms of what it is we offer society, again. 

FASKIANOS: Thank you.

I’m going to take the next question from Bruce Bueno de Mesquita.

Q: Bruce Bueno de Mesquita, Department of Politics, New York University. 

You touched on the collective action problem, but you haven’t returned to it. And I want to press you on it. A fundamental problem with collective action is that the action is costlier to the individual than their marginal improvement on the outcome. So they free ride on the effort of others. This seems to me currently to be a fundamental problem at universities. A few universities, including Harvard, are pushing back, and Columbia pretty much capitulated. Your university, my university have not been willing to do much more than—not even cheap talk. So, do you have a practical recipe for overcoming the collective action problem?

GINSBURG: Yeah. Boy, that’s such a great question, Bruce. It’s really something. Yes, obviously, we could have imagined a world where everyone banded with Harvard—and it still might happen, by the way. I think there might be a moment for that, which is when they win the lawsuit, which they will, if the Trump administration appeals then you could imagine would be an opportunity—you know, because one of the problems, I think, in the initial shock and awe period is there was so much going on, so many attacks on so many fronts, it didn’t allow for the consultations necessary for the kind of collective action for your school or my school to be willing to participate in. You know, no one actually wants to be defending Harvard either, because there are a lot of problems at Harvard. (Laughs.) And you might imagine that, you know, some are even cynically saying, gosh, well, if they go down, that’s an opportunity for us—which, of course, is not the case. You know, you want to see them reform without being destroyed. 

So I guess all I can say is I agree with you. And that’s why collective action problems are collective action problems, and they’re hard to solve. There are these things like the umbrella councils, the American Association of Universities and Colleges, they got 600 schools to sign on. And so there’s a lot happening out there that is overcoming the collective action problem, at least as far as statements goes. But I fear among the elites, the elite ten or twenty, we’re not seeing that. And that that could be the death of all of us. But again, part of the other problem here is no one really knows—there’s a game theory problem that we don’t know the strategy and the and the goals of the other side. The Trump administration moves around its focus of attention, you know, very quickly. And it could be that all they want to do is make an example out of Harvard and, you know, punish a couple other schools, and show that they have that power, and then they’ll move on to something else. And then everyone else will be intimidated and chilled into not crossing certain lines going forward. 

And that’s something that we have to resist as well, that chilling effect. But, you know, it’s there’s not much of an answer except to say, you’re right. It’s a collective action problem. The best-case scenario is that we come together to defend core things at the court of appeals level for Harvard. And that they do some kind of thing to, you know, make the demands more palatable. (Laughs.) And that we—you know, just make sure we don’t go—we don’t give up on core things. I think that’s why Harvard had to sue, because basically the administration was asking to take over their admissions and departmental hiring. Obviously, you can’t do that. Your university or mine would have to say, no, we won’t be a university if we do that. And drawing red lines, and maybe being clear about red lines, would also help in solving collective action problems.

FASKIANOS: Great. So, the next question is from Vance Gray, associate dean of academic affairs at the Pennsylvania Institute of Technology.

The question is: When did protests on campuses become out of the college tradition? Did we see this type of government reaction in the 1970s and the blowback concerning civil and human rights? And his second question is, what foundational documents would you include as a teaching tool to strengthen colleges and universities in this current era?

GINSBURG: Great. Protest. You know, I have discussions with some of my colleagues who say, look, you know, protest isn’t academic speech. We have Chicago principles, extremely broad parameters, you know, we will not shut down speech because it offends someone. But the paradigm, of course, is a seminar, not a protest on the quad where you’re yelling at people are going by and stuff. And so I have some colleagues who say, oh, we shouldn’t—we shouldn’t have any of that. And I don’t think that’s possible. I think after the 19’60s, you have to—some protest is acceptable. And we even have documents that state protest is sort of part of the university. Of course, the rules have to be enforced, obviously. And that’s where I think some schools did pretty bad jobs last year just enforcing basic time, place, and manner rules. 

But whatever the story was, clearly protest—Israel and Palestine is just an issue on which the country is and remains totally divided. And universities remain totally divided. So it was always going to be a problem. In the Vietnam era, there weren’t many people in the university who were saying, oh yeah, let’s go bomb the Viet Cong. Whereas, this is one where it’s really, you know, very divisive. And so it really did spin out of control. And I, as I said before, am frustrated that, in some sense, we—sorry to say this; it might offend some people—we kind of wasted our protest energy on that, and not this, which is much more fundamental.

In terms of foundational materials, let me tell you what we do here at Chicago. And this is something my Forum on Free Expression does, and I’m happy to talk to anybody about it. One thing is we try to orient everyone who walks through the door of the university in our own tradition, and, you know, what is academic freedom? You know, we do that for all incoming faculty now, because, again, no one tells you that when you become a faculty member, but also students. And we give them scenarios and put them in the shoes of an administrator, and have them wrestle with the concepts, and what they would do. And, you know, these are tough situations, tough judgments that administrators have to make. So we want to get them to kind of internalize that and know what the rules are. To some extent, we teach them how to protest—how you can protest without disrupting, which is actually an important thing to know. So I think that’s really important. 

Then, in terms of, you know, teaching tools, you see it now, a lot of these civics institutes popping up around the country. And sometimes they’re mandated by the state legislature and such. I think that’s fine, but it’s not sufficient. And it risks, like, sort of making a ghetto where the free speech stuff happens there, with the people who are excited about free and open discourse. I mean, it really has to be in everywhere. And students have to understand that they’re going to encounter ideas that they disagree with. And they have to learn to argue with them. That’s a very fundamental thing. So I think, like, having everyone understand that’s what we do in universities is really critical. And we’re pushing against the grain, because there’s been some generational change here. Particularly elite private high schools don’t really imbue people with this value and such. And so I think there’s a lot of that kind of thing which has to go on.

And then modeling. So, you know, we do a lot of things where we have faculty do panels where they talk about—you know, first of all, they disagree. And we don’t shy away from any issue. We’ve done abortion and, you know, affirmative action, and Israel and Palestine. One of our techniques is that we try to not just have the people on the stage doing stuff, but get people in the audience talking as well. So, breaking people up into little groups. OK, you guys talk about this with people you don’t know for fifteen minutes, or something. People are very scared to do that, but then they always enjoy it. People love talking to people. That’s just something that makes us human. And so giving people the opportunity in structured environments to do that is, I think, really important. And we should just do as much of that as we can. 

So we have a whole bunch of things we’re doing, practices that try to give the students the skill to learn how to do this, and then to try to remind the faculty that it’s their job to facilitate this as well. So it’s a little easier, I recognize, because we have a 130-year-old tradition of this, but there’s still some stuff out there. There’s great essays, obviously, that have—that are timeless and can be given to anybody.

FASKIANOS: Great.

Meena Bose has her hand up.

Q: Hello. Thank you, Irina. And thank you, Tom, for this very insightful discussion. 

You somewhat answered what my question was going to be just now, but I’ll just—maybe you might expand. The charge that universities are biased, right? The liberal bias, that we see this at a lot of—this has been going on for a couple of decades, right, actually back to the 1990s, in media and academia. How do you think faculty and institutions can address this critique? Is there a way—you’ve given us some examples right there about small groups, about panel discussions, addressing contentious topics. Are there institutional strategies or faculty strategies that you might recommend that could help to—that would address this issue, and perhaps also rebuild credibility for academia in the public eye?

GINSBURG: It’s a great question. I mean, I think it sort of operates at a lot of levels. One thing is, this is going to sound so basic, but, you know, hiring committees should make sure that they set aside political considerations when making hires. And that sounds so obvious. And you said, oh, no, of course we don’t—no, I think that happens a lot. I think it happens a lot. At least in my field I’ve seen it happen, in law. And, you know, sort of recommitting to the idea that we really are better off when we have people with whom we disagree or we can encounter each other. 

We’re seeing a lot of pressure from state legislatures to—and just in public discourse—to enhance viewpoint diversity, whatever that is—viewpoint diversity. And we all know there’s something there to it, but the problem is that, you know, obviously we’re not going to go revisit phrenology. And for some—you know, questions that are settled within the discipline. It’s also the case that many of the—I think sometimes, what’s meant by viewpoint diversity is hire more conservatives. Well, if you find a Republican anthropologist, let me know, because I don’t think there are very many. And that’s got to do with selection effects, and things like that. So that can’t be—that’s not a viable solution in some disciplines. And nor is it that we should close the anthropology department. 

But I do think it’s, like, sort of recommitting to the idea that we—you know, if—and maybe this requires much more interdisciplinary kind of encounter. Like, oh, you got to get the anthropologist arguing with the sociologists or, you know, the scientists. We’ve actually done a bunch of events now on humanities and science, because so much of the tension, like, at Columbia, is between those groups in the university. And the idea is, well, you know, are we really so different? Let’s talk that out. So even if you lack political diversity in a particular part of the university, you could still get diversity of discussion through a lot of creative strategies.

Ultimately, the boundaries of academic freedom—this is an important point I didn’t make at the outset—what are the boundaries of academic freedom? They’re determined by disciplines—by disciplines. I can go teach constitutional law, but I can’t teach the laws of physics. If I go teach the laws of physics in my law class, I’ll be fired because no one in law thinks that’s legal. And thus, there’s always these collective structures which determine what’s in and out in terms of academic speech. And I think a lot of those collective structures are not functioning well. 

I have a little piece called Undisciplined Disciplines, which really talks about disciplines which have just become just literally political. And that’s just not good they did this. So I think overcoming those and, to some degree, substituting for them, when the disciplinary structures are hindering what should—debate over what should be viable issues for discussion. And that was all very abstract, Meena, because they don’t have a quick solution for it. But it’s an important project that we have to at least recognize is really critical for our coordination.

FASKIANOS: I’m going to take the next question from Jon DiCicco, who’s a professor at Middle Tennessee State University: You mentioned students pushing back against professors. Our state has a divisive concepts law that, arguably, emboldens students to lodge formal complaints against professors. Do you have thoughts about the interplay among academic freedom, civic life in a democracy, and laws that ostensibly protect students’ rights to free speech by constraining instructors’ ability to explore controversial topics in the classroom?

GINSBURG: Yeah. This is a very interesting development, and a very bad one, because it turns students into, you know, cops—self-appointed, you know, deputized agents of the state legislature. We had a case in Indiana where they provide—they have such a rule. And an anti-Israel professor was just—you know, is being looked at in regard to this, because the students complained about something he said. Look, I mean, I think one thing is—maybe one way—what would I do if I were at your place? I might say to the students, look, by the way, we have this divisive context of concepts law. You know, obviously we have to talk about concepts that are controversial or we’re not doing our job. So if you have a problem with anything I’ve said, just challenge me. Let’s talk it out, you know? I know there’s the law. I know you could go complain. But let’s make the classroom a safe space for discussion, and genuine discussion. You got a problem with me? Let’s talk it out in front of everybody. I think that’s a much—that’s sort of subverting the mechanism of the law, which is to rat out people. And generally speaking, we have to lobby against these laws, which are spreading in the red states, unfortunately, because they, again, undermine the basic trust which is necessary for a classroom to operate. So I think they’re pretty bad.

FASKIANOS: Next going to Jay Parker.

Q: Yes. Hi. Thanks, Irina and CFR, for hosting this important discussion. And thanks, Professor Ginsburg, for parsing all these complex layers here. 

Two things. One, I’m really struck by the fact that even though the discipline of communication has grown considerably in recent decades, and there are more and more schools that have programs in communications, colleges and universities are terrible about communicating the very things that you’re talking about, about what the dangers are to society at large and on so many points that you’ve presented here. What are some ways in which colleges and universities, which admittedly are not doing very good at communicating within their walls, can communicate to the public at large on the risk and the dangers, and highlight the important benefits and opportunities? 

And on a related note, you also note that this is an international crisis. I was just involved in a case trying to assist an international student who obviously can’t stay in this country, but, because of political changes in her country, returning home is a very, very high risk. And what was striking to many of us involved in this effort was how little information there is out there and how little effective communication, if at all, exists from country to country. Trying to find her a place in a university outside the United States, again, the communication problem within those—the academics within those countries. But there also doesn’t seem to be, and maybe I’ve missed it, some sort of international organization or international effort to address this immediate challenge that puts so many international students at risk, and then moves forward to confront the long-term challenge of the credibility and legitimacy of higher education. Thank you. 

GINSBURG: Oh, that’s such a great idea. That’s a wonderful idea. You know, what we did see is when the Trump administration says we’re not going to allow any new foreign students, we did see the University of Tokyo, French universities, other schools say, hey, we’ll take those students, because they know that these are really a wonderful resource. But to systemize ties, that would be really valuable in the sense of, you know, having some resilience for scholars who can’t go—even just getting information on the conditions. And I think that’s something—I’m trying to think at what level—who could lead such a thing. Maybe our university president or something would take that on and organize schools around the world to do that. That’s a great idea. 

How to do better on communications? Wow. I mean, it’s really amazing. (Laughs.) It’s like—because universities are run typically by—they’re not run by media professionals. They’re run by scholars. Ours is run by a brilliant chemist. You know, and it’s often the case that communications is not the strong suit. It’s not traditionally been something that has been part of the set of skills that one needs to be a great university president. But I think it’s becoming one. I think it’s becoming one. And in this fraught political environment, where we just saw what happened with the Michigan president in Florida. You know, he’s an excellent administrator, but I think it’s going to be—it’s just a very hard job to get good people anyway. It’s becoming a lot harder. But that is certainly a skill that I wish we saw more of. And these various organizations are trying to do their best, but we need a lot more of them. And we need some of them to take fire somehow in the more public sphere.

FASKIANOS: I’m going to try to squeeze in one last question. We have lots of written questions and raised hands, so my apologies. Rita Edozie.

Q: Thank you, Irina. Thank you, Tom. Really a riveting discussion. 

I wonder, though, why you didn’t include a sort of major discussion about DEI in relation to academic freedom. It just seems to me that two years ago, when the first onslaught of DEI, through critical race theory bans, you know, that’s a threat to educational freedom. The first thing that the president did when he came to his second term was to ban these programs across universities and educational institutions. And yet, I just don’t see enough of the outcry that, you know, it was the university’s choice to include this as part of their mission. It is, you know, an academic—question of educational freedom, if not academic freedom. And could you speak to DEI, democracy, and the onslaught of academic freedom? Thank you.

GINSBURG: Yeah. I have a lot to say about it. I’ll try to do this in two minutes. So obviously, from my perspective, you can’t have inquiry without diversity of people, and experiences, and such, that—in conversation. And inclusion is obviously a fundamental value. We can’t have a classroom in which people are, you know, feeling that they can’t speak out because of racial stratification or gender stratification, but also for other issues. Like shy people, you know? We need to—we need everyone in the conversation to make progress on ideas. That’s how I think about it. And so, of course, we’re going to continue to ensure that we have diverse and inclusive practices, I would hope.

I think one has to separate critical race theory as an academic field, which is completely protected within academic freedom. You know, if the Trump administration came to us and said, you must close your race diaspora department or we’re cutting off the money, we would say goodbye. We don’t want your money. That’s core. But DEI has also come to stand for huge bureaucratic apparatus, at least in the public eye. And I think it’s an empirical question of how big these things were. But that’s what we’re really seeing the public has just changed on, in some sense. Like, how much work does one do in the bureaucratic sphere? So I guess I feel like that is not as core to academic freedom. Choosing our students, you would think would be. But affirmative action has now been taken off the table by the Supreme Court. So that’s another interference, at some level, with academic freedom, when they take affirmative action off the table. 

Still, I would distinguish between the academic study of race, how you can understand America without studying race and social stratification based on it, versus the actual bureaucratic offices. And many of those people are great, but it’s not as core. I guess that’s how I see it. But I should just say, since I know we’re at time, you know, you guys can find me. I love talking about this stuff, and would be happy to, you know, include you on our list for our Chicago forum events. We do a lot of these things all the time.

FASKIANOS: Wonderful. Tom Ginsburg, this has been fantastic. And thanks to all of you for your questions and comments. There were some resources dropped into the Q&A that we’ll circulate, as well as the link to Tom’s Undisciplined Disciplines. So we commend that to you all.

We will post the video and the transcript online so you can review it and share it out. I encourage you to visit Eeducation.CFR.org, CFR.org, ForeignAffairs.com, and ThinkGlobalHealth.org, for research and analysis on global issues. Again, thank you all for joining us today. Hopefully, you’re at the end, you’ve had your commencement and all of that, and can take a little breath before gearing up for the new school calendar year. So we appreciate your being with us. And, Tom Ginsburg, again, thank you.

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