The Volokh Conspiracy - Academic Freedom and Student In-Class/For-Class Speech:

I'm on the UCLA Academic Freedom Committee, and we're discussing an academic freedom policy -- guidelines, not legally enforceable rules -- related to student in-class (and for-class) speech. As to outside-class speech, I have pretty well-settled views, but in-class speech has always puzzled me. I'd love to hear your input on this, though note that we're talking here about ethical guidelines, not First Amendment doctrine or proposed statutes.

There are three main complicating factors here, I think.

1. Some in-class speech, as well as most for-class speech, must be evaluated by the professor; and this evaluation, while it should be "fair" (whatever exactly that means), can't be entirely viewpoint-neutral. For instance, a geology professor can accept in a paper or on an exam the undefended assertion that the world was created several billion years ago, but he may properly mark down a similar assertion that the world was created six thousand years ago (set aside the special case when someone says "I believe it was six thousand years ago, but for purposes of this class I know we're supposed to say several billion years ago").

He's treating different viewpoints differently; but that has to be permissible, I think. Nor is the matter cured by focusing on the amount of evidence that the writer adduces: The several billion year answer may often rightly get full credit without any supporting evidence (unless the question is all about giving the evidence for this assertion). It

So outside class, we can generally demand that the university not impose any content-based restrictions on student speech (setting aside some narrow exceptions, such as threats). Even when subject-matter-based restrictions (e.g., only curriculum-related speech gets funding, access to classrooms, and the like) are involved, the rule is one of broad viewpoint neutrality. But I can't quite see how this would apply to evaluation of students -- even though I agree that some kinds of viewpoint discrimination are impermissible.

2. A professor must also be able to control the pace of class, and maximize the pedagogical value of the class, for instance by cutting off digressions or errors, or by stopping students from hissing each other and being otherwise rude. Sometimes an error or a rudeness may be an occasion for a debate, not for professorial fiat. But only sometimes; every professor decides which things to discuss in detail from all sides, and which things to just assert.

Thus, for instance, I'm not going to just assert that the First Amendment must protect advocacy of nonimminent violence -- in fact, I spend a couple of class sessions airing the arguments on both sides of that. But I do assert that the Supreme Court has held that the First Amendment applies to the states via the Fourteenth Amendment just as it applies to the federal government. If someone wants to argue that the Court hasn't so held, I'll just alert the class that this is mistaken, and offer to discuss it more with the student after class. If someone wants to argue that the Court was wrong, I'll say that there are serious debates about this, but this is a topic that we're not going to study in detail in class, except to say that the Court held what it held. (Again, I'll offer to discuss the issue more with the student after class.)

This means that claims of a student's "right" to present dissenting views in class, or even a professor's obligation to make sure that the discussion includes diverging views, can't be categorical (though I do think there is a good deal of merit to them). It has to be, in some cases, constrained by the professor's choices about what to discuss as a debatable point, and what to present as background facts that enable the other discussions. I agree that some such judgments by the professor would be wrong, but I can't say that all of them are.

3. A professor also has his own interests in speaking candidly, tempered by the professor' professional responsibility. So it's generally right to require that the professor be respectful to students personally, and to people and ideas he discusses generally. But that can't be entirely true -- a professor may express disdain or even disgust for, say, Nazi views, Communist views, and the like (especially when they are tangential to the core class subject matter), and sometimes expressing this disdain can help students go beyond the assumption "Wow, he supports free speech for the KKK, he must be a Klansman."

Likewise, I have a problem about astrology in my textbook; do I really have to be respectful of beliefs in astrology, at least when they are beliefs I mention rather than beliefs a student in the class is insisting on? For that matter, does a professor have to be respectful (not just not profane, but actually respectful) about beliefs in the 6000-year-old Earth? What about creationism? (Again, set aside the situation in which a discussion of evolution is the core subject matter of the class; being disrespectful of the rival view would keep that discussion from being sensible.)

Relatedly, there is the question of letters of recommendation from professors, an important part of the value provided by a university or graduate school education (see here for one interesting example). For instance, I wouldn't, of course, reduce a student's grade because he expressed anti-Semitic views outside class, or even responded to a question about Nazi speech with the view that, no, it's not as bad as I make it out to be.

But I wouldn't write a positive letter of recommendation for him: I would thus be discriminating in my passing out of praise in letters of recommendation based on the student's viewpoint, even the student's outside-class viewpoint. My sense is that there ought not be any ethical constraints on that; though I do think that it is intolerant and unethical to act the same way based on the student's belonging to the Democratic Party when the professor is a Republican, or the student's being pro-choice when the professor is pro-life. Again, then, neither a categorical "no viewpoint discrimination" / "no punishment of dissent" ethical principle nor a categorical "refuse to write positive letters of recommendation whenever you disagree with the student's viewpoint" ethical principle sounds right.

* * *

So my question: Can any of you suggest possible ethical guidelines that (1) would be clear and precise enough -- not perfectly, but enough -- to convey the message to a wide range of students and professors, and that (2) would mirror as faithfully as possible the Right View, whatever that is, about what professors should be ethically constrained from doing? Many thanks.

	[Eugene Volokh, June 5, 2007 at 7:33pm] Trackbacks Academic Freedom and Student In-Class/For-Class Speech: I'm on the UCLA Academic Freedom Committee, and we're discussing an academic freedom policy -- guidelines, not legally enforceable rules -- related to student in-class (and for-class) speech. As to outside-class speech, I have pretty well-settled views, but in-class speech has always puzzled me. I'd love to hear your input on this, though note that we're talking here about ethical guidelines, not First Amendment doctrine or proposed statutes. There are three main complicating factors here, I think. 1. Some in-class speech, as well as most for-class speech, must be evaluated by the professor; and this evaluation, while it should be "fair" (whatever exactly that means), can't be entirely viewpoint-neutral. For instance, a geology professor can accept in a paper or on an exam the undefended assertion that the world was created several billion years ago, but he may properly mark down a similar assertion that the world was created six thousand years ago (set aside the special case when someone says "I believe it was six thousand years ago, but for purposes of this class I know we're supposed to say several billion years ago"). He's treating different viewpoints differently; but that has to be permissible, I think. Nor is the matter cured by focusing on the amount of evidence that the writer adduces: The several billion year answer may often rightly get full credit without any supporting evidence (unless the question is all about giving the evidence for this assertion). It So outside class, we can generally demand that the university not impose any content-based restrictions on student speech (setting aside some narrow exceptions, such as threats). Even when subject-matter-based restrictions (e.g., only curriculum-related speech gets funding, access to classrooms, and the like) are involved, the rule is one of broad viewpoint neutrality. But I can't quite see how this would apply to evaluation of students -- even though I agree that some kinds of viewpoint discrimination are impermissible. 2. A professor must also be able to control the pace of class, and maximize the pedagogical value of the class, for instance by cutting off digressions or errors, or by stopping students from hissing each other and being otherwise rude. Sometimes an error or a rudeness may be an occasion for a debate, not for professorial fiat. But only sometimes; every professor decides which things to discuss in detail from all sides, and which things to just assert. Thus, for instance, I'm not going to just assert that the First Amendment must protect advocacy of nonimminent violence -- in fact, I spend a couple of class sessions airing the arguments on both sides of that. But I do assert that the Supreme Court has held that the First Amendment applies to the states via the Fourteenth Amendment just as it applies to the federal government. If someone wants to argue that the Court hasn't so held, I'll just alert the class that this is mistaken, and offer to discuss it more with the student after class. If someone wants to argue that the Court was wrong, I'll say that there are serious debates about this, but this is a topic that we're not going to study in detail in class, except to say that the Court held what it held. (Again, I'll offer to discuss the issue more with the student after class.) This means that claims of a student's "right" to present dissenting views in class, or even a professor's obligation to make sure that the discussion includes diverging views, can't be categorical (though I do think there is a good deal of merit to them). It has to be, in some cases, constrained by the professor's choices about what to discuss as a debatable point, and what to present as background facts that enable the other discussions. I agree that some such judgments by the professor would be wrong, but I can't say that all of them are. 3. A professor also has his own interests in speaking candidly, tempered by the professor' professional responsibility. So it's generally right to require that the professor be respectful to students personally, and to people and ideas he discusses generally. But that can't be entirely true -- a professor may express disdain or even disgust for, say, Nazi views, Communist views, and the like (especially when they are tangential to the core class subject matter), and sometimes expressing this disdain can help students go beyond the assumption "Wow, he supports free speech for the KKK, he must be a Klansman." Likewise, I have a problem about astrology in my textbook; do I really have to be respectful of beliefs in astrology, at least when they are beliefs I mention rather than beliefs a student in the class is insisting on? For that matter, does a professor have to be respectful (not just not profane, but actually respectful) about beliefs in the 6000-year-old Earth? What about creationism? (Again, set aside the situation in which a discussion of evolution is the core subject matter of the class; being disrespectful of the rival view would keep that discussion from being sensible.) Relatedly, there is the question of letters of recommendation from professors, an important part of the value provided by a university or graduate school education (see here for one interesting example). For instance, I wouldn't, of course, reduce a student's grade because he expressed anti-Semitic views outside class, or even responded to a question about Nazi speech with the view that, no, it's not as bad as I make it out to be. But I wouldn't write a positive letter of recommendation for him: I would thus be discriminating in my passing out of praise in letters of recommendation based on the student's viewpoint, even the student's outside-class viewpoint. My sense is that there ought not be any ethical constraints on that; though I do think that it is intolerant and unethical to act the same way based on the student's belonging to the Democratic Party when the professor is a Republican, or the student's being pro-choice when the professor is pro-life. Again, then, neither a categorical "no viewpoint discrimination" / "no punishment of dissent" ethical principle nor a categorical "refuse to write positive letters of recommendation whenever you disagree with the student's viewpoint" ethical principle sounds right. * * * So my question: Can any of you suggest possible ethical guidelines that (1) would be clear and precise enough -- not perfectly, but enough -- to convey the message to a wide range of students and professors, and that (2) would mirror as faithfully as possible the Right View, whatever that is, about what professors should be ethically constrained from doing? Many thanks.