UPDATE:  The published letter is here.

…which I noted yesterday.  Here's the letter to the editor I sent to CHE:

To the Editor

Rutgers law professor Stacy Hawkins writes that, “The First Amendment, and the principle of academic freedom which emanates from it, is not exempt from the rule that no right is absolute.”   The First Amendment protection for academic freedom, however, only applies to faculty at public universities; faculty at private universities typically enjoy a contractual commitment from their university to protect academic freedom pursuant to the AAUP definition.  Employers can not violate contractual rights because they want to pursue other objectives incompatible with them:  it is thus false that “academic freedom may sometimes…need to cede to the responsibility academic administrators have to effective the institutional commitment to diversity, equity and inclusion.”  Academic administrators who take that approach are breaching a contract with their employees.  (Many public university faculty, it should be noted, also enjoy contractual protection for academic freedom.) 

Even in cases where the First Amendment does apply, there are, as Professor Hawkins presumably knows, hardly any exceptions to its protection when it comes to punishing speech based on its content (e.g., because it offends against diversity values).  There is certainly no “diversity” exception to the First Amendment, just as there is no “hate speech” exception.   So the whole “balancing interests” framing of this essay is completely beside the point.

It is true that “academic administrators also have an obligation to protect members of the community from discrimination and harassment on the basis of protected characteristics,” but that legal obligation is not triggered simply because speech offends against “other people’s…dignity” or their feelings of “psychological safety and emotional well-being.”  That is not the applicable standard under Titles VI or IX, as Professor Hawkins presumably knows.  By conflating exercises of academic freedom that hinder DEI with violations of laws prohibiting discrimination and harassment in the workplace or educational settings, Professor Hawkins simply misleads readers.

Professor Hawkins asserts that the AAUP and University of Chicago statements defining academic freedom “were conceived and drafted [when] academe was largely governed by and on behalf of a narrow set of interests (most notably white, male, and Christian).”  Many of those involved in conceiving these principles were, in fact, Jews and atheists, but in the litany of mistakes in Professor Hawkins’s essay, this is minor.  What is outrageous is the implication that the “interests” served by academic freedom have a race, gender or religion.  Academic freedom protects the pursuit of truth within the various scholarly disciplines, as well as the right of faculty to speak as citizens in the public square without professional sanction.  It is an equal opportunity principle.  Ironically, there is is some evidence that violations of this principle in recent years have affected non-whites and women slightly more often than others, so the groups Professor Hawkins professes an interest in protecting may well be among the first victims of the weakening of academic freedom protections she advocates.

Sincerely,

Brian Leiter

Karl N. Llewellyn Professor of Jurisprudence

Director, Center for Law, Philosophy & Human Values

University of Chicago

1111 E. 60th Street

Chicago, IL 60637