Unlearning Liberty:  Campus Censorship and the End of American Debate

By Greg Lukianoff

Encounter Books, 2014.

To set an appropriately Orwellian, dystopian tone for the true tales that follow, recall the opening moments of Rod Serling’s “The Twilight Zone.”  Remember?  Go ahead, watch.  I’ll wait.

Okay, you’re back.  Now: “Submitted for your consideration…”

On September 17, 2013 (Constitution Day), Robert Van Tuinen, a student at California’s Modesto Junior College, is told that he cannot hand out copies of the U.S. Constitution anywhere on campus except at the college’s tiny, designated “free speech zone,” and then only after getting permission well in advance.

In 2007, Hayden Barnes, a student at Valdosta State University in Georgia, is informed that he has been “administratively withdrawn” from campus because his online collage protesting the university’s plan to spend $30 million on parking garages referred sarcastically to the “Zaccari Memorial Parking Garage” and was thus deemed an “indirect threat” to University President Ronald Zaccari.

Also in 2007, Keith John Sampson, a student and janitor at Indiana University-Purdue University Indianapolis (IUIPUI), is found guilty of racial harassment without a hearing because some co-workers are offended by the cover of the book he was reading, Todd Tucker’s Notre Dame versus the Klan.  The cover included photos of KKK rallies (in addition to Notre Dame’s Golden Dome).  Neither the book nor the cover could reasonably be described as pro-Klan.  And even if they could, should it matter?

These incidents, which should be other-worldly but are in fact entirely this-worldly, represent just a tiny sample of those recounted in this updated paperback edition of Greg Lukianoff’s Unlearning Liberty (2012).  Lukianoff is a lawyer and president of the Foundation for Individual Rights in Education (FIRE), an organization founded in 1999 by two men of different political stripes, Alan Charles Kors, a conservative professor at the University of Pennsylvania and Harvey Silverglate, a civil rights lawyer from Boston.  Lukianoff’s book is, in a sense, a sequel to their The Shadow University: The Betrayal of Liberty on America’s Campuses (1998), which led to the organization’s founding. 

On its website, FIRE says that its mission is to protect “freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience” on campus.  What this entails is made clear by the vast range of issues that Lukianoff explores, many of them derived from over-the-top (and often clearly unconstitutional) campus speech codes and the colleges’ arbitrary and capricious enforcement of them.  Although often in the news for defending conservative religious groups, Lukianoff and his staff take cases from across the political and religious spectrum and sometimes work in tandem with groups such as the ACLU.  (Lukianoff makes a point of noting that he himself is a liberal Democrat.) 

Understandably, Lukianoff presents cases that FIRE took on and won; we aren’t told how many they decline to take on (their staff is small) or have lost (although given how clear-cut most of the cases seem to be, failure would be even bigger—and more alarming—news.)  Perhaps most troubling, Lukianoff observes that “the overwhelming majority of the cases in this book involve student bodies that didn’t care enough to react when they saw their fellow students’ rights being violated.  More disturbingly, the victims themselves often didn’t know they have the right to be free from viewpoint-based censorship, from being pressured to say things they don’t mean, and from speech codes.”  Thanks partly to the high school environments from which they come, most college students seem to have no awareness of the intellectually, legally and morally dubious practices that often enmesh them from the moment they set foot on campus.

Of the cases that received national attention, Lukianoff spends the most time on the University of Delaware’s notorious, mandatory “orientation” program, run by Residence Life officials and student Resident Assistants, and featuring mandatory meetings and activities for dorm residents throughout their time at the school.  “In one such activity, they had to stand along one wall if they supported various social causes, including the right to gay marriage or abortion, and along the other wall if they didn’t.  Students were not allowed to say they hadn’t made up their minds—it was explained to them that in the real world there is no middle ground.”  Lukianoff rightly concludes, “This event functioned as a state-sponsored public shaming of students with the ‘wrong’ beliefs.”

One young woman, evidently burdened by a sense of humor, “had fun with one of the questionnaires, answering the question “When was a time you felt oppressed?” by saying, “ I am oppressed every day [because of] my feelings for the opera.  Regularly [people] throw stones at me and jeer me with cruel names….But I will overcome, hear me, you rock loving majority.’”  Even this student had her limits, however.  “Asked ‘When did you discover your sexual identity?’ she responded, “That is none of your damn business.’  For challenging an unlawful intrusion into her private life by a state employee, this student was listed by name and room number in the [program’s] report as one of the ‘worst’ examples of students resisting the program.”  Lukianoff insists that the Delaware program “was not an aberration,” and notes that it had received an award from the American College Personnel Association.

It is important to emphasize that it was a “state employee” who overstepped legal bounds at Delaware.  Most of Lukianoff’s cases come from public institutions, where the First Amendment may be more readily protected than at private ones.  (Lest we think that such programs are confined to public institutions, one chapter warns, “All is not well at Harvard and Yale.”  Only California, thanks to the Leonard Law, specifically applies First Amendment protections to private colleges.)  When public institutions are involved, legal recourse seems clearer and less complicated. 

It’s also worth remembering that freedom of speech is not the same as academic freedom.  The latter, distinctive to colleges and universities, is usually written into the rules of governance.  Often its protections are stronger in private institutions—the Harvards and Yales—than in public ones.  (This may be even more the case since the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which said that the speech of public employees acting “pursuant to their official duties” is not protected.  Although it added that this did not apply to faculty, it is still not clear just where the limits are.)  FIRE generally doesn’t take on cases that involve just academic freedom, and most often they’re advocating for students, not faculty.  They did support Ward Churchill’s right to make his provocative remarks about 9/11, although they stepped back when the issue became plagiarism and other scholarly misconduct.  But it would have been nice to hear Lukianoff express at least some concern about groups such as David Horowitz’s misleadingly-named Students for Academic Freedom, whose proposals include affirmative action legislation mandating the hiring of conservative professors, and the American Council of Trustees and Alumni, which likes to pressure trustees to keep an eye on “tenured radicals.”

Lukianoff argues that “the primary source of abuses on college campuses… is not the faculty…[T]he actual regimes of censorship on campus are put in place primarily by the ever-growing army of administrators.”  (He notes that in 2005, for the first time, the number of administrators on campus outnumbered the fulltime faculty.) But students and faculty can play powerful roles, too, despite what would seem to be comprehensive protections.  To take a recent example, at Brown University, where I teach, the institution’s comprehensive statement on academic freedom includes the right “to invite speakers of their choice to the campus.”  But last fall, student protesters shouted down former New York City Police Commissioner Ray Kelly, violating his freedom of speech and the academic freedom of the students and faculty who came to hear him.  Although the President pronounced such behavior “unacceptable,” an ad hoc committee, including several faculty, issued a report that essentially ignored the incident and instead talked about wanting to eliminate “privilege” on campus and make students more comfortable with “difficult conversations.”  Some faculty publicly applauded the demonstrators for their “courage.”  To date, no disciplinary measures have been taken.  When Lukianoff identifies “four factors that work against campus free speech,” he names “Ignorance, Ideology, Liability, and Bureaucracy.”  It’s fair to say that some faculty and students contribute their mites to at least the first two.  All of which adds power and urgency to one of Lukianoff’s concluding comments:  “When you remove the process of open debate and discussion from colleges, you take away higher education’s reason for existence.”

As you may have gathered by now, Lukianoff’s style is direct, his arguments are clear and well-supported, and he makes use of evidence as a good lawyer should.  But there is irony aplenty when he deplores the “culture of outrage” on campus that stymies rational discussion, because he chooses stories that he and FIRE can present as outrageous.  (Generally, to be sure, that’s not difficult.)  FIRE publicizes them, demands change, and often threatens (and sometimes resorts to) legal action.  However, this may be not so much a comment about FIRE as it is about our polarized, bare-knuckle society, where “open debate and discussion,” even in higher education, may prove harder to sustain than the polar ice cap.  In the final analysis, FIRE’s fight is part of the right fight.  Along with organizations such as the ACLU and the AAUP, FIRE is holding the line for freedom of speech and inquiry.  They need all the help they can get, particularly on campus.

Nowadays, many institutions assign all freshmen a book to be read over the summer and then discussed when they arrive on campus, in a kind of intellectual bonding experience.  Certainly no freshman class will be asked to read Unlearning Liberty.  But it would be reassuring to know that at least some first-years hear about it, read it, and go off to college armed with a stronger sense of what higher education is supposed to be about, and determined to help to make it be that way.  After all: “There’s a signpost up ahead…”