Friday, January 28, 2022

The Central Importance of Judicial Independence for Preserving Academic Freedom

by Neil H. Buchanan

There is a growing likelihood that Republicans will force universities to toe their party line.  Having long convinced themselves that higher education (and, more recently, even K-12 education) is a hotbed of leftist indoctrination, they will surely enforce their orthodoxy without compunction.  Rush Limbaugh spent years telling them that academia is one of the "four corners of deceit" (the others being government, media, and science, the latter of which is in large part carried out in universities), and now they are ready to act.
The irony is that Republicans view the statistics showing that most professors are registered Democrats as proof of political bias, but even scholars in the pure sciences are understandably aligning with Democrats in the face of Republicans' anti-knowledge hysteria (which has intensified in the last two years but has been brewing on the right for generations).  So Republicans' attacks on universities as being partisan only give people who pursue knowledge at universities more reason to resist reactionary efforts to control what they do.  And the party to which they turn is necessarily the Democrats.

Much to my chagrin, it appears that the first serious testing ground for this attack on academia is my institution, the University of Florida (UF).  As I explained yesterday, free speech and academic freedom won an important battle last week, when Chief Judge Mark E. Walker of the United States District Court for the Northern District of Florida issued a preliminary injunction against UF to prevent it from continuing to selectively enforce a standardless policy that can be used to prevent professors from testifying against "the state" -- and supposedly, therefore, the "interests of the university" -- as expert witnesses.  As I noted, Walker's reasoned ruling was simply masterful.

As I also pointed out, however, the judge's important work will almost immediately be undone by a hostile Eleventh Circuit, which also knocked down Walker's attempt in an earlier case to prevent Republican politicians in Florida from continuing to disenfranchise ex-felons (even after Florida's voters, by a margin of 65-35 in a statewide referendum, amended the state constitution to expand the franchise).  The opinion supporting that overruling was pure hackery, and the smart money is on the same thing happening again in this case.

Where will it go from there?  The future does not look good.

Most importantly, readers will notice that today's headline does not indicate that this column is confined to a discussion of my new home state.  Florida is, as I suggested above, merely the first state to move in this dangerous direction.  In yesterday's column, I promised to explain, among other things, "why this is going to be only a temporary victory for academic freedom -- in Florida and, soon, at state universities around the country."  I did not ultimately deliver on that last part, so that is my first agenda item today.

The fact is that there is nothing Florida-specific about what the UF administration has done -- in an act that Judge Walker accurately described as "anticipatory obedience," whereby the president and provost acted in ways that they hoped would please the ruling party, without apparently having been explicitly ordered to do so.  This was a straight-up attempt to change longstanding policy (a policy that exists at essentially every university in this country, and certainly has been well established for decades at UF) in order to prevent university professors from angering the powers that be by -- heaven forfend -- arguing in a court of law that the ruling party has passed unwise and unconstitutional laws.  There is nothing to stop this from going nationwide.

The analogies are many and obvious.  Republican-dominated state legislatures spent years trying to pass the most restrictive abortion laws that they could imagine, even when those laws were plainly unconstitutional.  Once Texas came up with the private-enforcement workaround in its notorious SB8 law -- paying non-governmental actors to harass law-abiding citizens -- that idea spread to other states.  That includes Florida, where the state now "allows students to sue schools that permit transgender girls to play on girls’ sports teams.  Additional bills are in the works across several jurisdictions authorizing parents to sue schools if teachers or outside speakers mention the principles of critical race theory."
And of course, as soon as Georgia's Republicans pushed through their voter suppression bill early last year (the one that gives the state's Republicans the ability to replace county-level officials who certify the votes, thus making it more than "mere" voter suppression and turning it into a law that says that only one outcome is possible in an election), other states jumped on board.  Even though the initial national reaction against Georgia was fierce, including pointed opposition to the bill by many large corporations (and Atlanta also lost the hosting rights to the baseball all-star game), Republicans in Texas, Florida, and many other states understood that the harsh spotlight would soon move on to a different subject.  And sure enough, anti-voting (and anti-counting) laws were soon on the books in states around the country.

One might take solace from the fact that the American university system is strongly affected by -- and, especially at the upper echelons, dominated by -- private institutions.  As I noted in my column yesterday, I took some comfort (regarding the other issue in Judge Walker's ruling, regarding disclaimers by those who sign amicus briefs) when I stumbled upon New York University School of Law's disclaimer policy, which mirrors the one at UF that Judge Walker allowed to stand.  My point there was that the NYU policy could not have been motivated by the desire to keep state-level politicians happy, whereas the strong suspicion is that UF's policy changes (especially the restrictions on expert witnesses) were adopted to please the paymasters in Tallahassee.

But how long will that last?  I am not saying that this country will cease to have independent universities, but I am saying that once Republicans come back into power at the federal level, they will see advantage in putting financial pressure on NYU, Harvard, Northwestern, and other private universities to conform to the new orthodoxy.  There are plenty of federal dollars at stake for private institutions.  (MIT has been half-jokingly described as "America's other military academy.")  Some will hold out longer than others, but there is no reason to think that private universities will be immune to political manipulation.

Moreover, now that it is clear that the Supreme Court's right-wing majority is eager to stop even private universities from using affirmative action policies in admissions, it is no longer plausible to think that a public/private distinction is going to hold back the partisans who have been eager to attack universities and now see a path forward that did not previously exist.

This is, therefore, a national issue, both as a matter of a bad idea spreading among Republican-dominated states and as a problem that will almost certainly soon become a federal-level effort.  Even so, one might ask what the big deal is about preventing professors from testifying in court, especially if the university will only deny permission occasionally.  After all, in the words of UF's president, "under the new policy, denials would be rare."  I have never testified as an expert witness in any case (much less one in which my employer was on the other side), and the vast majority of professors do not do so, either.  Why the fuss?

Judge Walker's ruling makes clear why even that seemingly limited violation of academic freedom and free speech is deeply worrying and offensive.  Unbridled power to, on a politically-motivated whim, stop a professor from using her expertise in the pursuit of justice is dangerous, and even in a world where people tend to imagine that slopes are much steeper and slipperier than they actually are, this is a steep and slippery slope.  If university administrations can tell professors when they can testify as expert witnesses on the basis of the content of their testimony, the floodgates are open.

Walker helpfully includes some chilling evidence in this regard.  He notes that the top trustee of the university had echoed UF's president and provost, but much more expansively.  Walker reported that this important official had "made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee by 'advocat[ing] personal political viewpoints to the exclusion of others,' [adding, 'i]t must stop, and it WILL stop.'"

Note that the quoted statement has nothing specifically limiting it to professors' in-court testimony as expert witnesses.  This is all about stopping (again, "it WILL stop") scholars from "offending" lawmakers.  And what do professors do that might offend the dominant party in a state?  We sometimes say things that can be mis-described as "personal political viewpoints to the exclusion of others."
For example, will UF's biology professors soon be required to teach creationism or "intelligent design" in their courses, because evolution is "just a theory" and is thus a personal political viewpoint to the exclusion of alternatives?

Or if I say in class, as I do, that the tax-protester movement's arguments are legally frivolous, is that merely my personal political viewpoint?  Even though I can point to an IRS document that summarizes those arguments and explains why they are frivolous -- the publication is titled "The Truth About Frivolous Tax Arguments" -- am I merely spouting "personal political viewpoints," because I am saying that the IRS is a reliable source?  After all, the IRS itself has long been a partisan flashpoint.

How far will this or any university push it?  Walker again makes a telling point:
"[C]onsider the costs UF is willing to bear to maintain its power to discriminate based on viewpoint.  It is willing to suffer threats to its accreditation, congressional inquiries, unrelenting bad press, an all-but-certain hit to its rankings, and the substantial monetary cost of hiring an experienced D.C. firm to defend its policy.  The only thing UF will not do, it seems, is amend its policy to make clear that it will never consider viewpoint in denying a request to testify."
Predicting an "all-but-certain hit to its rankings" is a major twist of the knife, because UF's rise in the rankings has been an obsession for the people who run the university and the state government.  It has also been bipartisan until now, that is, Republicans seem to have understood that hiring established scholars to enhance the school's reputation must necessarily include hiring people whose views -- both professional and personal -- do not align with conservative orthodoxy.  If that bipartisan agreement were to be lost, that is, if the state's ruling party decides that it is willing to punish the citizens of this state by attacking their state university system for the sin of practicing academic freedom -- what limits would remain to prevent turning the universities into institutions that only tell Republicans what they want to hear?

Most importantly, this is the tragedy of losing an independent judiciary.  Even when a university's administrators go down this dangerous path, it is in courtrooms like Judge Walker's where free speech and free inquiry are supposed to be vindicated.  And smart politicians understand that this is good, even purely as a political matter, because they can then say: "Hey, I might not like that Professor X said something controversial, but the courts say that we cannot and should not punish her or stop her."  The state then continues to benefit from a university system that respects academic freedom, and the politicians are off the hook.

Because movement conservatism has been so centrally focused on taking over the judicial system, however, the notion of a truly independent judiciary taking the heat for making principled decisions is disappearing.  It has not yet completely gone away, of course, even among the judges that Mitch McConnell put on the court from 2017-21.  For example, a Trump-appointed federal judge recently dismissed a Trump lawsuit and thus allowed Congress to see records that Donald Trump had tried to hide.
My first thoughts upon reading that news were: "Does this judge not understand that Trumpism is the end of the rule of law?  Does he think that it will be possible to rule against Republicans and not be punished?  Is he hedging his bets in case the coup fails?  Why would he think any of that?"  I have no idea what that judge was thinking, and although I am glad that he had the integrity to uphold justice, this kind of judicial independence on the right is already quite rare.
Because the courts are where constitutional rights -- especially when they apply to politically disfavored people or views -- must be defended, the saddest lesson that I will take from Judge Walker's sure-to-come repudiation by the appellate court is that the judge who could have saved UF's top decision makers from indulging their worst impulses will be pushed aside by people who fail to understand that universities are an essential component of a free society.