“I Am for Diversity…”: How a Victimhood Legal Formula Weaponizes Faculty Academic Freedom Against Diversity, Equity, Inclusion, and Social Justice

Buskers are street performers who are performing for money — they are not panhandlers. Unfortunately though, they are being treated as such. Cities and municipalities are effectively infringing upon buskers’ free speech and expression rights under the First Amendment by promulgating vague or inadequate regulations that ban conduct often intertwined with busking. For example, officers enforcing these regulations can validly lump a busker’s conduct into an anti-panhandling regulation. Therefore, an intricate balance must be struck in order to justifiably further the governmental interests at play and honor buskers’ guaranteed free speech and expression rights under the First Amendment.Cities and municipalities are doing the courts no favors in this busker dilemma. The regulations that are regularly implemented inevitably result in litigation. Then, the regulations force courts to define indefinable concepts: art and expression. To help alleviate the courts’ definitional crisis, cities and municipalities should promulgate regulations aimed directly at advancing the governmental interests that necessitated the regulation, as opposed to aiming regulations at particular types of conduct. This would be a much-needed solution for the courts, and would also properly strike the balance between government interests and buskers’ free speech rights. Throughout this Article, the case law directly impacting and shaping buskers’ free speech rights is thoroughly dissected. Then, the proposed solution to appropriately strike the balance between government interests and buskers’ free speech rights is elucidated. Last, the current case law and proposed solution are applied to the pending busker case of Young v. Sarles, to exemplify the problems of the current approach and illuminate the ease of the proposed “advancing the interest” approach to this busker dilemma.

This chapter describes the structural elements or components of a free speech right. The nature and extent of a free speech right depends upon a number of legal components. The first is the legal source of the right (in common law, statute, or a constitution) and the force of the right having regard to how it is enforced, and whether and how it can be superseded. The second component is the ‘subject’ of free speech rights, or who are the rights-holders: citizens, natural or legal persons. The third is the ‘scope’ of a free speech right, while the fourth is the kind of obligation it imposes on others: a negative prohibition or a positive obligation. The fifth component is the ‘object’ of a free speech right: who is bound to respect a right of freedom of expression and against whom the right may be asserted. Finally, there is the ‘limitation’ of a free speech right.

The subject of freedom is fascinatingly complex. Academic freedom is a part of the general subject and shares its complexity. It may be defined theoretically as the right of the teacher to pursue the truth. It can be described actually as the scope the teacher possesses to study, teach, and say what he pleases so long as he remains within the limits allowed by the particular institution, state, or society in which he works. Academic freedom is not something which teachers provide for themselves, nor is it created by the universities, although universities sometimes place their own limits upon it. Academic freedom is a privilege granted teachers by the state. In this respect, there is no essential difference between public and private institutions. Where academic freedom is regarded as a right of free speech, it is, like all other legal rights, created by law. Where it is not regarded as a legal right, it exists by sufferance, by virtue of the absence of laws to the contrary. What the sovereign permits, it authorizes. Any relationship between academic freedom and world citizenship, either figurative or literal, is pretty nebulous. There is no world citizenship. If there were, it is not at all clear that it would or could provide for academic freedom in the sense in which it is practiced in American universities. Freedom to teach is created and sustained by the specific, identifiable community or nation in which the teaching is done. The degree of academic freedom permitted is determined by the purposes for which the community or the nation wants the teaching done. Academic freedom must be compatible with such purposes. An appreciation of this fact is of fundamental importance. It helps to make clear the origin, the present status, and the future hope of academic freedom. It tells us why a considerable degree of academic freedom exists in some societies, and little, if any, in others. The educational system of any nation, whether created and supported as a public system or permitted to exist as a private one, can be given only the degree of academic freedom which is compatible with the dominant sentiments, needs, and purposes of that particular society. If the dominant social or political ideas find academic freedom incompatible or dangerous, as in the case of Russia or Nazi Germany, such freedom will be restricted or adjusted accordingly. If, as in the United States, Great Britain, or France, it is believed that the prevailing sentiments or interests are not imperiled by academic freedom, a fairly wide degree of such freedom is allowed. Does this mean that if academic freedom were incompatible with or antagonistic to the dominant interests and sentiments of the United States, Great Britain, or France, academic freedom would be restricted accordingly? It does. Academic freedom exists only in those societies in which freedom in general is a matter of some national concern. If the dominant interests of a society become power or national security or even welfare, the freedom of the schools to teach will be tailored accord-

Chapter 7 addresses the relationship between the Free Speech Clause and the Second Amendment’s right to “keep and bear Arms.” Relative to the other non-speech rights examined in the book, recognition of an individual right to keep and bear arms occurred relatively recently (the Supreme Court recognized the right in 2008). As a result, the relationship between free speech and Second Amendment rights is still developing. The chapter focuses primarily on two aspects of their intersection. The first is the extent to which the nature and scope of Second Amendment rights ought to be modeled on Free Speech Clause doctrines and principles. The chapter considers the pros and (mostly) cons of “borrowing” the Free Speech Clause for this purpose. The second aspect of the relationship between the Free Speech Clause and the Second Amendment relates to potential conflicts between them. The chapter addresses two tension points—the effect on free speech of openly carrying firearms at public protests and demonstrations, and the effect on academic freedom and inquiry from the presence of firearms in university classrooms. The chapter argues that the future of the Second Amendment will not be determined by explicit borrowing of Free Speech Clause doctrines. However, in terms of constructing the modern right to keep and bear arms, there is much we can learn from the nation’s long experience with free speech rights.

Забезпечення прав і свобод людини, зокрема права на свободу совісті і віросповідання, є одним із пріоритетів міжнародної спільноти. Свідченням цього є нормотворча діяльність ООН у відповідній сфері. Україна, розвиваючи власну правову систему та законодавство, дотримується взятих на себе міжнародних зобов’язань, у тому числі щодо захисту прав людини на свободу совісті і віросповідання. Метою статті є аналіз базових документів ООН у сфері свободи совісті і віросповідання та виділення основних напрямків розвитку нормотворчості Організації щодо забезпечення прав людини на свободу совісті і віросповідання. Наукова новизна статті полягає у виділенні основних напрямків діяльності ООН щодо забезпечення прав людини на свободу совісті і віросповідання, аналізі базових документів ООН щодо забезпечення у них гарантій і прав людини на свободу совісті і віросповідання, визначенні відповідності українського законодавства у сфері свободи совісті і віросповідання основним нормам актів ООН. Висновки. Україна, будучи державою-засновницею ООН, спрямовує свою діяльність у сфері захисту прав людини відповідно до статутних документів Організації. Виділено такі основні напрямки нормотворчої діяльності ООН щодо забезпечення прав людини на свободу совісті і віросповідання: 1) загальні засади захисту прав людини на свободу совісті і віросповідання; 2) протидія дискримінації на основі релігії чи переконань; 3) захист прав на свободу совісті і віросповідання окремих груп і категорій осіб. Наша держава ратифікувала основні пакти та конвенції ООН, спрямовані на захист прав людини, у тому числі Міжнародний пакт про громадянські і політичні права, Міжнародний пакт про економічні, соціальні і культурні права, Конвенцію про права дитини, Конвенцію ООН про статус біженців тощо. Крім того, під час удосконалення національного законодавства у сфері свободи совісті і віросповідання українські законотворці враховують положення інших актів ООН – як обов’язкових, так і рекомендаційного характеру. Завдяки цьому національне законодавство щодо захисту релігійних прав людини загалом відповідає міжнародним актам ООН. Водночас ряд пактів і конвенцій Україні ще необхідно ратифікувати, зокрема таких актуальних для нашої держави, як Міжнародна конвенція про захист прав всіх трудящих-мігрантів та членів їх сімей тощо.

Debates about academic freedom have become increasingly fierce and frequent. Legislative efforts to regulate American professors proliferate across the nation. Although most American scholars desire to protect academic freedom, they have only a vague and uncertain apprehension of its basic principles and structure. This book offers a concise explanation of the history and meaning of American academic freedom and it attempts to intervene into contemporary debates by clarifying the fundamental functions and purposes of academic freedom in America. Matthew Finkin and Robert Post trace how the American conception of academic freedom was first systematically articulated in 1915 by the American Association of University Professors (AAUP) and how this conception was in subsequent years elaborated and applied by a Committee of the AAUP. The authors discuss the four primary dimensions of academic freedom: research and publication, teaching, intramural speech, and extramural speech. They carefully distinguish academic freedom from the kind of individual free speech right that is created by the First Amendment. The authors strongly argue that academic freedom protects the capacity of a faculty to pursue the scholar's profession according to the standards of that profession.

Academic freedom is a German import. Throughout the 19th century, more and more American scholars undertook advanced study in Germany and returned to the United States committed to wissenschaft (systematic research), a commitment that in their view required lehrfreiheit (faculty’s freedom to teach) and lernfreiheit (students’ freedom to learn). Institutional resistance to these ideas resulted in highly publicized instances of faculty being fired, but although academic freedom did not acquire force of law, competition for notable scholars, the need for expertise in an increasingly complex society, and other factors helped to get faculty demands incorporated into university governance. The landmark event in academic freedom’s early years was the founding of the American Association of University Professors (AAUP) in 1915. Their “Declaration of Principles on Academic Freedom and Academic Tenure” insisted that university faculty are “appointees,” like judges, with “professional functions to perform in which the appointing authorities have neither competency nor moral right to intervene.” Since then, the definition of academic freedom has evolved to include specific protection of research, teaching, and, most controversial and problematic, extramural speech. It has also expanded to include more and more institutions, with backing from prominent professional organizations—the 1940 “Statement of Principles” (which updated the 1915 “Declaration”) along with the 1970 “Interpretive Comments” has been endorsed by literally hundreds of academic groups. These supportive developments periodically met resistance from business, government, and populist elements, which argued that academic freedom shielded economic inefficiency or political radicalism. The First Red Scare (during and after World War I) and the Second Red Scare, featuring McCarthyism (after World War II), are just two eras during which academic freedom was under serious attack. Today, postmodern theory calls “objective truth” into question, leading some academics themselves to doubt the usefulness or even the possibility of academic freedom. This bibliography is an introductory guide to past and present arguments for and conflicts about academic freedom. Many works mentioned here define “academic freedom” broadly and include free speech and other rights often linked to the narrower definition of academic freedom that pertains to faculty research, teaching, and extramural speech. Entries indicate which aspects of academic freedom are dealt with in each work. This bibliography builds on the work of previous bibliographers and includes the most important items they mention, but most references here have been published (either in print or online) since the earlier bibliographies appeared.

Many Academics Who are troubled by the growing power of administrators on their campuses believe that their jobs are protected by tenure and their campus activities by academic freedom. Hence, they believe that they, personally, have little to fear from the advent of the all-administrative university. Yet, these unworried professors might do well to fret just a bit. Tenure does not provide absolute protection, and at any rate only about 30 percent of the current professorate is tenured or even on the tenure track. The remaining 70 percent are hired on a contingent basis and can be dismissed at any time. The question of academic freedom is more complex and more dispiriting. In recent years, the federal courts have decided that deanlets, not professors, are entitled to academic freedom. This proposition may be surprising to academics, who, usually without giving the matter much thought, believe they possess a special freedom derived from the German concept of Lehrfreiheit, which they think protects their freedom to teach, to express opinions, and to engage in scholarly inquiry without interference from university administrators or government officials. It certainly seems reasonable to think that professors should possess Lehrfreiheit. Academics play an important part in the production, dissemination, and evaluation of ideas, and a free and dynamic society depends on a steady flow of new ideas in the sciences, politics, and the arts. The late Chief Justice Earl Warren once opined that American society would “stagnate and die” if scholars were not free to inquire, study, and evaluate. Accordingly, he said, academic freedom “is of transcendent value to all of us and not merely to the teachers concerned.” Despite Chief Justice Warren’s endorsement, professors’ ideas and utterances do not have any special constitutional status. Like other Americans, professors have free speech rights under the First Amendment. In a number of cases decided during the 1950s and 1960s, the Supreme Court made it clear that the First Amendment offered professors considerable protection from the efforts of federal, state, and local governments to intrude on their freedom of speech and association.

Academic freedom, and the closely related concept of free speech, is challenged by actors across the political continuum. After reviewing the growing threats to academic freedom and the attendant effects on faculty, we describe eight reasons why social workers should support the free speech rights of faculty. Specifically, we contend that academic freedom: (a) enhances educational quality, (b) supports the social work profession’s ethics and standards, (c) stimulates research innovation, (d) counters disinformation, (e) engenders public confidence in science, (f) models civil discourse for an increasingly polarized culture, (g) strengthens liberal democracy, and (h) facilitates the creation of more socially just societies. We conclude by acknowledging that affirming and defending academic freedom is often difficult but is a necessary choice, as it plays an indispensable role in scholarly discourse, enhancing the well-being of our clients and the society in which they are embedded.

Editor's Note Mari Yoshihara, Editor This issue begins with Kandice Chuh's presidential address delivered at the ASA annual meeting in Chicago in November 2017. In the face of a wide range of attacks on academic freedom nationally and globally, Chuh asks us to deliberate responses to the current scene, not by defending academic freedom but first by tracing the longue durée of the principle originating in professionalization of the academy with its underpinning liberal ideology and US nationalism. She further reminds us of the conceptions of the autonomous rights-bearing citizen that shape the understanding of academic freedom, which has then been deployed against the interrogation of racism and settler colonialism in the name of civility. She calls on us, as an association, to unlearn the inherited ways of knowing and being and to practice the year's conference theme, "a pedagogy of dissent": "an organized approach to un/learning grounded in the world and founded in generosity and compassion, understood to be essential to social transformation." In response, Soo Ah Kwon reflects on the ways in which our own professional labor in universities is often implicated in the logic of liberal academic freedom and its neoliberal products—for instance, in our advocacy for institutional diversity that is devoid of political and structural inquiry into inequality and injustice. She reminds us of the need for a relentless critique of our profession, its governing logic, and our relationship to universities as our workplace. Jodi Melamed uses Chuh's address to situate US higher education in the context of the proliferation of rights-based forms of racial and colonial capitalist violence in the name of the common good. Discussing how the ASA itself has been a very site of such contestations, she asks us to contemplate the kinds and forms of "thick relationality" that would form pedagogies of collective action in our own association. Four essays address various modes of temporalities and spatialities in the way the world is captured by artists, writers, and critics. Frances Tran's elegant essay, "Time Traveling with Care: On Female Coolies and Archival Speculations," approaches the history of the coolie trade and the figure of the female coolie using the science fiction trope of time travel, proposing an affective and aesthetic practice with the archive that does not aim to reproduce mastery or establish subjects as knowable entities. In "Appraisal Narratives: Reading Race on the Midcentury Block," Adrienne Brown problematizes another set of archives—narratives of residential segregation in literary fiction, forms, manuals, maps, and urban reportage—to illustrate how idioms of perception, value, and taste undergirding home ownership and neighborhood value in the United [End Page vii] States have been organized by race. Brandon Webb's "Laughter Louder Than Bombs? Apocalyptic Graphic Satire in Cold War Cartooning, 1946–1959" examines the left-liberal divide in the works of the nation's leading syndicated cartoonists, Herbert Block and Jules Feiffer, to argue that satirizing the contradictions of the nuclear era meant questioning the basic assumptions of the Cold War rivalry and breaking from the consensus framework. Simon Willmetts's "Digital Dystopia: Surveillance, Autonomy, and Social Justice in Gary Shteyngart's Super Sad True Love Story" analyzes the question of autonomy in Shteyngart's novel to argue for personhood presented in the dystopian genre that is socially embedded and politically engaged, and a necessary but insufficient precondition for the resistance and refusal of digital mass surveillance. The issue carries four book reviews on topics that are all the more relevant in our times. Joseph Stuart reviews five books on racial formation and the civil rights movement. Rebecca Hill discusses works on the history of political culture and the shaping of public opinion and discourse. The three books reviewed by Benjamin Medeiros take up the political and cultural battles over free speech on college campuses. Christopher Perreira discusses three books that deal with the cultures and logics of the carceral state and settler colonialism. In the Event Review, Doug Ishii discusses the exhibit on the incarceration of Japanese Americans during World War II at Alphawood Gallery in Chicago. The social impact game Survivance—which takes its name from Anishinaabe scholar Gerald Vizenor's term that...

What to do about sexual harassment on campus has troubled higher education leaders for decades. The courts and regulatory authorities have clearly stated that institutions must develop and implement clear policies that prohibit unlawful harassment and provide a procedure for harassment complaints. Once a complaint is received, the institution is responsible for investigating and taking appropriate action to stop future misconduct. When the accused harasser is an instructor, additional factors must be considered. For example, instructors may have particular due process rights associated with their status or, depending on the nature of the allegations, an interest in academic freedom or free speech rights that may be breached by the institution’s response to the complaint. Recent guidance from the United States Departments of Justice and Education direct institutions to be aggressive in encouraging victims to report harassment and to take decisive action to ensure that no further harassment occurs, even before the investigation is concluded and guilt is assessed. Institutions are concerned that this regulatory pressure goes too far and exposes institutions to liability for infringing the rights of accused instructors. This study examines litigation in the federal appeals courts from 1993-2013 involving lawsuits filed by harassment victims and accused higher education instructors. The study evaluates institutional responsibilities to victims and accused instructors as reflected in 58 different appellate decisions for the purpose of answering two research questions: 1. How have courts responded to lawsuits against colleges and universities brought by alleged victims claiming that they were harassed by instructors?

In a time where democratic freedoms are being challenged, the concepts of intellectual freedom and academic freedom require examination as key tenets of our democracy to be upheld, celebrated and honored. This chapter will critique and consider how institutions, organizations and entities have a keen ability to be empowered and disempowered by the appropriate execution or the lack of execution of both the tenets of intellectual and academic freedoms. This chapter will deconstruct both concepts through the lens of a social justice framework, thereby posing the question how challenging key democratic elements of the citizenry to express and share ideas, inform and responsibly disseminate ideas handicaps both the will and core of a democracy to thrive. This chapter will highlight how communities expand and narrow the domains of intellectual and academic freedom, from within the United States exploring the role of the Constitution, yet also infusing a global perspective. This chapter will examine what both academic and intellectual freedoms look like outside of the United States, and how theoretically and tangibly the concepts are applied. This chapter explores the application of the core tenets of intellectual and academic freedoms through a social justice framework and the introduction of reframing the consideration of both freedoms as human rights. A social justice framework incorporates the principle of fair and impartial treatment being afforded and entitled to all members of the citizenry. Seemingly to oppose and prevent these modes of expression and foundational elements of freedom both obstruct the principles of social justice and disrupt a democracy.

Many theorists treat free speech as a special right. Other theorists argue that, in order for free speech to be important, it must be a special right, but they conclude that it is not. What the term “special right” means in these contexts, however, remains elusive. The term usually suggests that the right in question is distinguishable from the usual governmental decision making processes and from other rights. But just how distinctive the right must be, and in what ways, is rarely defined clearly. Indeed, many discussions of free speech assume quite demanding criteria for a special right of freedom of speech, even as these criteria remain incompletely articulated. This paper seeks to define the criteria for a special right. It argues that the idea of a special right actually conceals two separate requirements. First, a special right must be distinct, in that the activities covered by the right must be analytically distinguishable from the activities outside of it. Second, a special right must be robust in the protection it affords. Most theories demand that a free speech right be highly distinctive, if not singular, and that it receive highly robust protection. By contrast, this paper posits that distinctiveness is a requirement of a special right only to a minimal extent and robustness, as commonly understood, not at all. On the revised criteria offered here, it seems possible that speech may after all be special, though the free speech right we want may be different from the one we can have.

Chapter 6 examines the relationship between the Free Speech Clause and reproductive rights, specifically the Due Process Clause-based right to obtain an abortion. It explores early intersections between free speech and abortion rights, and also examines the circumstances and effects of their later intersections. The chapter focuses in particular on the controversies surrounding protests and other speech activities at or near abortion clinics, which significantly affected abortion rights discourse in the United States. These interactions also influenced interpretations of both reproductive and free speech rights. The chapter critically assesses the manner in which free speech concerns have tended to crowd out concerns about reproductive rights, and suggests some ways in which we might the relationship between free speech and abortion rights.

THE Conference on Academic Freedom held at Oxford on August 1416 was arranged by tho provisional committee formed last October following the censure passed on addresses by Mr. H. D. Dickinson, of the University of Leeds, and Prof. H. J. Laski, of the University of London, The Conference opened with a discussion on academic and professional freedom, ovor which Prof. J. L. Myres presided, and a standing committee was formed to give permanent character to the protest against any infringement of the rights of academic freedom. Mr. G. D. H. Cole pointed out that, although in Great Britain we are relatively immune from interference with academic and professional freedom, there is a sorious danger of a rapid growth of intolerance, and this applies particularly to the professional worker in business or industry. What is wanted is not to prevent interference altogether but to keep it within the limits within which it is absolutely necessary. The difficulty arises over the exercise of the professional man's rights as a citizen and the rights he holds in common with other people in matters of personal conduct and behaviour. Bertrand Russell made a vigorous plea for freedom for teachers to express their opinions within as well as outside their professional activities, and for organised defence against victimisation.