Category: UNC

Further Thoughts on Civil Disobedience

My colleague Eric Muller, who teaches at UNC’s Law School and has done important and wonderful work on Japanese internment during World War II, responded to my previous post about the toppling of Silent Sam as an act of civil disobedience in this way:

“A thoughtful and excellent piece about the nature of the act of toppling Silent Sam (our Confederate statue on campus) by my UNC colleague John McGowan. I am with him right up to the very last couple of lines. But I part with him there.

What is the moral justification for lying to the police – effectively committing the crime of filing a false police report – in order to impede the prosecution and possible conviction of those who engaged in civil disobedience? When a person thinks things through and decides to engage in an unlawful act in order to make a larger moral or ethical point, or to bring about some change, it seems to me that she has made the choice to risk prosecution and conviction. In fact, it’s precisely the acceptance of that risk that makes the act courageous and gives it broader meaning. So I am hard-pressed to see a case for others telling lies in order to prevent the outcome that the civilly disobedient person knowingly risked.

(And this is not even to mention the fact that if hundreds of people file false police reports, that will impede the prosecution not just of the people who toppled Silent Sam, but will slow the administration of justice in that jurisdiction more generally. What’s the moral case for that?)”

Eric’s response has pushed me to think through my notions of and intuitions about civil disobedience.  I will end up, to a fairly large extent although not entirely, disagreeing with his disapproval of having many people step forward as perpetrators of the toppling—but it is going to take me some time to get there.  So I am begging your indulgence and your patience as I try to work this through.

Civil disobedience is the act of disobeying a law, where the justification for that disobedience is an appeal to some other standard of judgment apart from sheer (or mere) legality.  In the name of justice, of the right, of the good, or even of a “higher” moral law, a civil disobeyer says: “I cannot act legally in this case because it violates my sense of what is the right thing to do.”

Such an act can be individual.  Some pacifists and some conscientious objectors will defy conscription laws because, as a matter of individual conscience, they cannot participate in a war.  How they define participation can also vary, with some COs willing to serve as medics or in other non-combat roles, while others think that any assistance offered to the war effort is wrong. Those who take this latter position have two choices: one, to go to prison or two, to attempt to evade the law’s punishments (by, for example, going into exile, as many did during the Vietnam War.)  Evasion could also, of course, just mean lying low, trying to avoid the law’s notice.

It seems to me that everything changes drastically when acts of civil disobedience turn rhetorical—that is, when such acts are not a question of an individual attending to her own conscience, but are publically enacted violations of the law that seek to demonstrate to fellow citizens that law’s deficiencies.  An act of civil disobedience, in such cases, is the staging of a dramatic argument.  It asks the non-participating spectators, those who are simply witnessing this forced (by the civil disobeyers) confrontation between the law and those who deem it unjust, to decide what side they are on.  Do these spectators favor the continuation of the law in question and favor the fullest prosecution of the civil disobeyers—or do those spectators recognize that the law is deficient in this case, and actually want to thank the disobeyers for making that fact dramatically clear?

First consequence of this rhetorical view: the act of civil disobedience must be public, must be visible.  The CO doesn’t necessarily turn his evasion of conscription into a public spectacle.  But those who practice civil disobedience in an attempt to sway public opinion, as a tactic within a larger plan to change the law, must act in public—and, in fact, desire the widest possible publicity in order to grab the attention of the widest possible public.  Thus, as distinct from the ordinary criminal, who tries to break the law invisibly, the civil disobeyer performs his law breaking in the light of day.  Otherwise, she cannot achieve her goal, which is extensive public deliberation about the justice of the law.

Breaking the law in full view means that evading punishment becomes difficult, if not impossible.  In fact, as Eric alludes to in his comment, many theorists of civil disobedience take the full assumption of responsibility for the act of disobedience as a crucial component of civil disobedience. The dignity and the impact of the act is heightened by the stalwart presentation of oneself in the public sphere: I committed this act of disobedience in the name of these principles, and am fully willing to be called to account by the law for my action.

Let’s call that the heroic model of civil disobedience—and I use that term “heroic” completely .  The gambit here is that the spectacle of the law prosecuting these individuals of conscience will aid the cause of revealing the law’s injustice (according to the “other” standard being appealed to against the law’s own standards). The nobility of the disobeyers (their integrity and willingness to undergo punishment from an unjust law in the name of their alternative notion of what is right) furthers the attempt to sway public opinion to their side.

And, certainly, we needn’t be utterly rhetorical about this.  Stoically accepting responsibility and punishment is not just a rhetorical ploy; it also accords with the disobeyer’s own sense of dignity, which includes differentiating her acts from those of a criminal.  That is why, for so many dissidents, the distinction between a political prisoner (a prisoner of conscience), and a criminal prisoner is such an important one.

The heroic stance can be summed up in this way:  I did this act, I did it in full public view because I am proud of this act since I fully believe it was the essentially right way to act even though it was illegal, and I will take full responsibility for the consequences of the act, including being punished by the law.

But there are alternatives to the heroic view.  And those alternatives are what I need to explore here.  I am deeply attracted to the heroic view—and fully respect Eric’s position that the heroic route is the way to go.  But I do think there are circumstances where it is not the optimal strategy—and I find (as I reflect upon these matters, as Eric has pushed me to do) that I am willing to jettison some of the heroic in the name of effectiveness.  I am committed to civil disobedience successfully leading to the reformation or repeal of bad laws—and unheroic approaches may be more effective in some cases.

Let me throw out a big question first, even though I will postpone full consideration of how to answer it.  Why should I, who think a law unjust, enable (through cooperation with the process of prosecuting me and others for violating it) the smooth functioning of that law?  Having stated the point so abstractly, let’s think about it applies in four different cases.

Case 1: One way to render a law a dead letter is massive non-compliance.  Prohibition in American history is the obvious example, but there are others.  Any law’s effectiveness depends on large-scale voluntary compliance.  If the strategy of dissenters is to inspire wide-spread non-compliance, there is no particularly compelling reason to adopt the heroic strategy of being prosecuted.  Instead, the strategy is to make the law look ridiculous, incredible.  They want to (think they can) stop us from doing that?  Let them try.

Case 2: Jim Crow laws.  The strategy here was not direct violation of those laws—with the consequent punishment of such violators.  Instead, the strategy was to stage massive public demonstrations to publicize the widespread dissent from those laws.  The aim was repeal (or the court nullification of the laws as unconstitutional) and the enactment of new legislation (Civil Rights Act, Voting Rights Bill) that would make segregation illegal.  If laws were going to be violated in this movement, it would be the violation of laws that hampered public expressions of opinion.  More to the point: the civil rights demonstrators provoked their opponents into over-reaction, which played badly to a wider national audience.  Before he turned to economic issues and to racism in the North, MLK won the rhetorical battle.  His movement did so, in part, by having its members go to prison, but much more important was the public spectacle of the battering of non-violent demonstrators by infuriated police and other public authorities.  Arguably, the anti-Vietnam protestors were not as rhetorically successful because not as disciplined in their non-violence and because they never had—or created—the solidarity among whites that the civil right movement (at least until 1965-66) achieved among blacks.

Case 3: Immigration laws.  When Trump was elected, I figured that meant I would end up getting arrested some time in the coming four years.  It was just a matter of time—and of choosing the occasion where I felt it might make some positive difference, or be such an urgent matter of conscience that I would have to make a stand.  I assumed the real push-comes-to-shove moment would involve immigration.  If the Trump administration were to attempt to expel (for any reason) undocumented immigrants from my community or to harass/deport foreign students on our campus, I would feel compelled to do something to hinder such efforts.  Here is the case where I find myself most at odds with Eric.  I would consider every and any way of hindering the  law’s enforcement justified (and imperative upon me personally) in that case—and think the heroic stance would be utterly counter-productive.  The goal would be to throw as much sand into the gears as possible—using every single tactic that could frustrate the law’s ability to operate.  I wonder how Eric would think about this case in relation to the internment of the Japanese during World War II.  I think also of the Danish all wearing yellow stars as a way of frustrating the Nazi’s murderous anti-Semitism.  This would precisely be the case of presenting the law with more perpetrators, more deemed guilty under its understanding of guilty, than it could handle.

Case 4:  Silent Sam.  So what kind of case is Silent Sam?  A very odd case once I am forced to think hard about it.  Odd, first of all, because of the ambiguities I have noted (in my previous post) about whose property the statue is anyway. And then there is all the stuff about “destruction of property” as referenced in the statement from Margaret Spellings et.al.  Which is really a red herring, because the real nub here is a specific state law—not some general set of property rights. That specific state law says that a certain class of property—namely memorials on public property—are removed from all public deliberation about their desirability.  It is widely acknowledged that general property rights do not trump all other considerations.  There are grounds on which property rights can be overruled or suspended.  But the state law on the public memorials says that kind of debate cannot be held, that kind of case cannot be brought forward. In short, it takes out of a community’s hands, the ability to decide, after a due process of deliberation, whether it wants a memorial present or not in its community.

It is, as I also mentioned in my previous post, precisely in cases where legal methods of appeal and redress are blocked that civil disobedience is most likely to occur.  Again, the Jim Crow South offers the classic example.  When the law and public officials and the courts are completely stacked against you, civil disobedience is one of the few alternatives left (violent rebellion is another).  Legal avenues for the removal of Silent Sam appeared completely blocked.  (Of course, as Eric eloquently argued in public—and within university circles—that there was a legal pathway for removal available, but the university refused to pursue that path, not by rejecting it outright but by refusing to ever acknowledge that such a path existed.  A frustrating approach to the whole dilemma of Silent Sam to say the least.  But from start to finish, the university’s leadership has failed miserably in its response to the presence of Silent Sam on our campus.)

A further oddity: even though we have this state law that was blocking any legal way to remove or move Silent Sam, the protestors were not interested in the repeal of said law.  They just wanted to remove Sam, the law be damned.  So once they toppled Sam, their work was done.  (Unless if gets undone by an effort to re-install the statue.)  Unlike many cases of civil disobedience, there is no on-going need to demonstrate the law’s injustice, to win over a public to the law’s repeal.

Thus, their work being done, why not “try to get away with it”?  We did the right thing, the demonstrators might think, so why should we be punished for it?  Eric’s position, which I respect and 20% agree with, is that the toppling of the statue only becomes a criminal action, not an act of civil disobedience, if you try to evade punishment.

But here’s where I take my 80% stand: it was a collective act of civil disobedience.  Allowing the law to single out a handful of “ring-leaders” will only support their desired narrative of a “few” trouble-makers and outside agitators.  I think the rhetorical battle is ongoing in this case—and that one key rhetorical point to make is that there is wide-scale endorsement of Monday’s action, which includes wide-scale endorsement of the means used (an unauthorized toppling of the statue) and thereof a wide-scale acceptance of responsibility for that action.  If that gums up the works, so be it.

There is, after all, fairly wide discretion about which laws to enforce—and to what extent.  Making it both absurd and costly to enforce the protection of Silent Sam, making the state divert what are always limited resources, to this particular vendetta, helps to make the argument about their priorities and their values that we—those against the prominent presence of Silent Sam on our campus—have been trying to make all along.

In short, it seems to me an acceptable tactic of a campaign of civil disobedience in certain cases to make the functioning of the law in question difficult.  And in cases where there are wide divergences of opinion, I also think that standing in solidarity with those in your camp is incredibly important.  There will be various attempts to divide and conquer going forward, some dependent on making the costs of solidarity high, some dependent on painting the dissenters in certain kinds of way—and then tarring fellow travelers with the same brush.  Anticipating this ongoing rhetorical battle, I still think (despite Eric’s cogent arguments) that counter-acting the law’s attempt to identify a few perpetrators by a mass declaration of guilt is the right move.  My “moral case” (which is what Eric asks for) is based, then, on these claims of solidarity, in the name of the collective that both enacted and endorsed the toppling—and which wishes to resist the attempt to label it the action of just a few outliers, some easy to isolate and dismiss dissidents.

No, It Was Not Mob Rule. It Was Civil Disobedience.

More responsive, as always, to their legislative overlords than to the students and public they purportedly serve, UNC system president Margaret Spellings and Board of Governors Chair Harry Smith issued the following statement concerning the toppling of Silent Sam on Monday night on the UNC Chapel Hill campus.

“We have been in touch with UNC-Chapel Hill Trustee Chair Cochrane and Chancellor Folt both last night and this morning about the removal of the Silent Sam statue on UNC-CH’s campus. Campus leadership is in collaboration with campus police, who are pulling together a timeline of the events, reviewing video evidence, and conducting interviews that will inform a full criminal investigation.

The safety and security of our students, faculty, and staff are paramount. And the actions last evening were unacceptable, dangerous, and incomprehensible. We are a nation of laws — and mob rule and the intentional destruction of public property will not be tolerated.”

The statement was circulated to the UNC, Chapel Hill community with the additional signatures of Chancellor Folt and Board of Trustee Chair Haywood Cochrane.

Leaving aside the laughable comment that the actions of Monday evening were “incomprehensible,” we should be clear that they were the antithesis of “mob rule.”  To use an odious term our military likes to employ to show it is in full control of the mayhem it unleashes, the toppling of Silent Sam was “surgical.”  It was obviously well-planned and carried out with care, resulting in no harm to anyone or anything except the statue itself.  This was a disciplined collective act of civil disobedience, not mob rule. A mob would have broken windows, turned over cars, rampaged across campus and Franklin Street; a mob would have, in other words, acted indiscriminately.

The first statement from Chancellor Folt’s office about Monday evening’s action referred to persons “unaffiliated with the University”—the old “outside agitators” canard.  Can we please recognize the irrelevance of making any distinction in this case between those officially connected to the university—as current students, faculty, and staff—and the general public?  We are a public university.  As such, we have no right to exclude anyone from walking on our campus or speaking their mind on its grassy lawns or (as happens every day) in the “pit” in front of the student union.

Furthermore, Silent Sam was a statue placed on the campus by the United Daughters of the Confederacy.  The university granted the UDC access to the campus; it did not erect or pay for the statue itself.  It has always been unclear to me who actually “owns” the statue; there is no good case for claiming it is university property.  Instead, we seem to have been its cooperating—and increasing troubled—custodian.  As a target of protest or of support, then, it seems clear to me that the statue was fair game for all citizens, irrespective of their affiliation or not with the university, since the statue’s own “affiliation” is cloudy at best.

Civil disobedience entails breaking the law.  It does so when the established modes of redress for a wrong have proved unavailing, and it does so in the name of a good that it claims the law is flouting.  Law enforcement, the powers that be, can respond with outrage, insist that the majesty of the law requires these offenders be punished, and resolutely ignore the moral point the protesters are making.  That becomes the ground on which the battle is waged.

At least Chancellor Folt acknowledges that the statue is “divisive,” and that what it stands for is offensive to some people.  I assume that, in her case, the protestors’ actions were not “incomprehensible.”  But she seems, for reasons I will not presume to speculate about, to have lined up with the decision to refuse to “tolerate” this civil disobedience and to conduct a “full criminal investigation.”

Civil disobedience always carries with it the recognition that laws are being broken and there may be consequences for that fact.  Some writers on civil disobedience even claim that a willingness to submit to punishment is part and parcel of this particular type of action. It is certainly true that, in the past, the spectacle of the law coming down on the protestors has sometimes served the cause those protestors are trying to promote.  In our polarized moment (much the same was true in the 1960s), I think it highly likely that sympathy for the protestors and the desire to throw the book at them will both be in ample evidence as this story unfolds.

However, in one way, Monday evening did not replay the 1960s.  The police (like the crowd itself) showed admirable restraint.  Obviously, a decision was made (by whom I do not know) that the welfare of a statue was not worth harming a single, real living human being.  An admirable decision—and I took the occasion of thanking the first campus police officer I saw on campus yesterday for the way the whole campus force handled the evening.  He responded that the safety and well-being of the people there was their chief concern, to which I responded: “Exactly.  As it should be.  Well done.”  Unlike so many 1960s demonstrations, Monday evening did not turn into a riot.

The law is within its rights to conduct its full criminal investigation and to show that it places the destruction of public property [again, whose property is Silent Sam anyway?] above the welfare of the public who find it an insult (and worse).  My hope is that if a decision to prosecute is actually made, that hundreds of those, like me, who sympathize with the protestors’ actions will step forward, say we were there that night and participated in its toppling of the statue, and insist on being held to account with all the others.  That, at least, is my plan for myself as we wait and see what happens next.  If they want to create martyrs, let’s give them bushels full.

Holding Professors Accountable in the Midst of Political Attacks on the University

I was a participant in a roundtable on public higher education last Friday that included two UNC faculty members, a senior associate dean of the College of Arts & Sciences, two current students, a state legislator (Republican), a business man who is also a big donor to UNC, a former member of the UNC board of trustees (from the financial world), and the executive directors of two right wing think tanks in the state, including the notorious Pope Foundation (which has recently changed its name to the Martin Institute.)  The Pope Foundation, as well as the John Locke Foundation (the other group represented), has been consistently critical of UNC courses in women’s and sexuality studies, requesting syllabi and then criticizing specific professors and courses in the public media.  More generally, they have both been scornful of the language of “diversity.”

The context for the conversation was a forthcoming book by our ex-Chancellor and the founder of our undergraduate program in entrepreneurship in which they argue 1) that universities cannot and should not be run like corporations, and 2) that the basic social contract that generated support for public higher education from 1950 to 1990 is now badly strained, if not completely broken.  Their book sets out to find a way to repair that broken compact.  So the goal of the round-table, which was filmed, was to discover if there was any common ground on which to build in the effort to heal the rift.

Substantively, not much was accomplished.  Everyone was on their best behavior, perhaps because being filmed.  Our right wing guests didn’t have much to say; they mostly listened.  Everyone affirmed the idea of a liberal arts education; everyone seemed to sign off on the notion of “access,” another key theme.  Similarly, there was no push-back against the idea that the universities of North Carolina were an economic driver—and a major reason why we were not Mississippi.

Our businessman philanthropist was the one who said we, as a society, were failing to invest in our future—and that tax cuts had gone too far.  No one really took up that point, although the state legislator was willing to say that tax cuts needed to stop—and that “maybe” we had gone too far in that direction.  When asked about the legislature’s thinking about higher education, he denied there was any hostility to it.  The legislature simply faced a number of competing demands when it came to budgeting—and all of those demands were legitimate, good things to support.  He made it sound all ideology-free, just a matter of making do with the available resources.

It didn’t help that our dean told the group that North Carolina was still the 4th best state in the nation in terms of its support of its higher education system. (NC started out in 2008 as one of the best–and the pace of cuts here in NC was similar to the pace across the whole country, so we did not fall in this particular ranking.) That fed an unjustified complacency in the room—unjustified because it allowed everyone to ignore the ways recent actions have hurt instruction on our campuses and limited access.  The egregious mandate from the Board of Governors (which rules over the whole system, as distinct from the Board of Trustees for each individual campus) that only 25% of tuition increases can be used to fund need-based aid never came up.  (I have seen that number reported as 15% in the UNC Alumni magazine; I was pretty sure it was 25%, but could be wrong.)  Thus, as the BoG approves tuition hikes, it makes sure the most vulnerable are hurt by them.  Their rationale was that more affluent students should not be “taxed” to supplement the fees of less affluent students.

I have a friend who attends BoG meetings regularly.  He confirms that they hate Chapel Hill in ways that they don’t hate NC State or the other schools in the system.  There is no consistency either to their hatred or to their ways they would like to transform UNC, Chapel Hill.  He characterizes the BoG members as the wealthiest people from their rural communities—who have witnessed the precipitous decline of those communities after the death of tobacco and textiles and the furniture business (the three pillars of the NC general economy prior to 1990.)  NC was never a rich state, but it was one that functioned for all of its citizens.  Now we have a very prosperous middle of the state—with per capita incomes that rival Connecticut’s—yoked to a depopulated east (except for the booming ocean front resorts) and an Appalachian west where the poverty levels match those of Mississippi.  Governing a state that is both Connecticut and Mississippi is well-nigh impossible.  But the legislative power rests in the hands of the white Mississippians.

Those rural legislators—and the supporters that they have appointed to our Board of Governors—have no remedies.  They don’t know any better than anyone else how to revive the dead economies of the places where they grew up and where they still live.  They look at Chapel Hill and see an elitist, rich, and complacent institution that takes thousands of kids from the Raleigh and Charlotte suburbs, while taking one or two top students from the rural high schools, turning up their noses at the rest.  So they (Chapel Hill) sneer at us (white Southerners), while stealing away our best and brightest—who they turn into Democrats and snobs, people who are never going to come back to the dying towns they grew up in.  And while they are turning down our kids as not good enough, they (in the name of diversity) are giving slots to all those blacks, Latinos, and Asians who have crowded into the outer suburbs and inner cities of our state.

When it comes to solutions, these guys (again, I am going on the reports of my friend) swing wildly and incoherently between free market fundamentalism and socialism.  They can move from praise of the market to suggesting all kinds of state interventions on the turn of a dime.  They don’t know what to do, but they know who the enemy is, and they want to lash out and do some hurting.

None of that came to the surface in our polite conversation.  The right-wingers in the room would, I assume, distance themselves from the no-nothings.  But the real conflict is that these educated, smooth right wingers (Paul Ryan types) are against public education.  They are Milton Friedman acolytes.  Education is a private investment that families make in their future—and schools get lazy, complacent, and inefficient when not subjected to competition and the resultant market discipline.

I am not as hostile to these arguments as most faculty members are.  And maybe when I expressed my version of anti-complacency, I was guilty of trying to placate the right-wingers in the room.  (Note that all of this is implied; they did not articulate any such arguments in our conversation.)

Here’s how I make the case.  I was in a room with some financial world people—hedge fund managers, and folks at Goldman Sachs—just shortly after the election in November 2008.  The financial guys (and they were all guys, about 10 of them in a mixed crowd of about 25 total where the other 15 were not financial types) all agreed that the Democrats (Nancy Pelosi was their particular bête noir; I guess because dissing a woman was better in their eyes than dissing a black man) were going to screw the nation’s economy horribly with their urge for regulations and taxes.  Nothing about the financial collapse seemed to have altered one iota these guy’s confidence that they knew what they were doing—and about how to best organize the nation’s economic well-being.  Sure there had been some mistakes, but they knew how to fix them.  Just keep those no-nothing politicians from messing things up.

My reaction was predictable.  These guys need to be accountable; there needs to be watch-dogs, and there needs to be consequences for bad results.  And my argument is that it works no differently for teachers.  We should be accountable for outcomes.  We claim we are teaching these students—and should hardly expect the public we claim to serve to be satisfied when we assure them: “Don’t worry.  We know what we are doing and we know your kids are learning lots and lots.”

That’s not good enough.  To take just one example: there is now tons and tons of research that shows that presenting information (in no matter what format: a book, a lecture, a power point presentation) has very little impact.  People do not learn things by being told them.  Active learning produces vastly better results for the retention of information and the fuller comprehension of that information (as demonstrated by the ability to put it to use in different contexts).  Yet many of my professorial colleagues resist that finding.  Lectures and reading books worked well for them—with no thought about the fact that they are outliers or for finding ways to promote learning for the majority of their students, not just a talented minority.

Even more basic.  We are now required to state the course’s objectives on our syllabi—and are encouraged to think about how our pedagogical strategies and our assignments (what students are asked to read, write, do projects or reports on etc.) might lend themselves to achieving those objectives.  Again, many of my colleagues think of this as philistinism, as creeping corporatization.  The nerve of asking that we define “outcomes.”  I have no patience for such responses.  We (the professors) are the anti-intellectuals we claim to abhor when we refuse to a) take seriously the research about what enhances learning and what does not, and b) refuse to self-consciously and critically think about our own goals and strategies in the courses we teach.

In short, the public has as much right to ask teachers to justify their practices and to reform them when results are not particularly good as they have the right to insist that bankers be regulated by external watch-dogs.

The measures are the hard part.  Numerically based assessments of learning outcomes are crude at best, and worthless at worst.  But stricter assessment of outcomes is coming—and it is in the interest of professors to be deeply involved in the establishment of the metrics.  I am reasonably confident that qualitative assessment will be our friend, not our enemy.  My bet is that such assessments will prove, rather conclusively, that education does not scale well.  There are not many efficiencies that will actually produce better results.  As teachers, we should stand staunchly and unequivocally for getting the best results for all of our students—and such results are not going to be achieved (in most cases) by on-line courses or 350 pupil lecture courses.  In some select instances, on-line instruction may prove effective—and we (the professors) should embrace such cases.  Any money saved can be used to promote more hands-on teaching in places where that is required.

In short, just as we would be appalled at doctors who did not make use of data about results to influence treatment of future patients, we as professional educators should be eager to discover what works well and what does not—and have it guide our future practice.  To run away from such self-study, screaming “corporatization,” is irresponsible and, in my view, indefensible.  It also suggests we are terrified by what we might discover—which belies our publicly displayed confidence that we know what we are doing.

We are rightfully resentful of—and resistant to—a knee-jerk hostility to universities as elitist and left-wing, and to the professors as under-worked and over-paid sycophants.  But that doesn’t entitle us to a free ride and a total refusal to change our ways.  I am going to allow myself a gross overgeneralization: I have seldom met any group more conservative (in the sense of clinging to the established ways of doing things) than a faculty that prides itself on being progressive, even revolutionary.

Free Speech and Civility

I have, over the past month, been a member of a University committee that has produced a “resolution” that will have the faculty at UNC endorsing the “Chicago principles” on free speech.

I went into our deliberations deeply suspicious of this whole furor about “free speech” on campus.  If the ability to speak one’s mind freely is in jeopardy in the United States, it is not on college campuses the main threat exists.  An excellent law review article we were given to read made it very clear that case law is unambiguous: employees have just about no right to free speech.  The courts have upheld corporation’s right to fire any employee for just about any reason, including expressing an opinion the employer finds objectionable.  Similarly, high school students have almost no right to free speech—and absolutely no right to a free press.  High school newspapers are routinely censored and, it turns out, so are college newspapers.

I remain convinced that the furor over free speech on campus is a red herring, a typical jujitsu move by an authoritarian right wing that loves to portray itself as the victim of an authoritarian left.

Furthermore, I think that no one has a “right” to speak on a college campus.  Universities are in the business of evaluating knowledge claims.  Your opinion that the Holocaust did not happen or that climate change is not real or caused by human actions does not meet the minimum standards by which academia determines the legitimacy of statements.  The university can—and should—extend invitations to speak judiciously—and is fully justified not to extend such invitations to those who reject canons of evidence and logic that govern the identification of knowledge in specific fields, nor to those who espouse views that certain people should not be on our campus as students or teachers.

And, finally, I came in very sympathetic to the idea that speakers who express disdain and outright hostility to members of the university community should not be given an opportunity to express their uncivil (to put it mildly) views on campus.

Our deliberations changed my mind.  The lawyers in the room convinced me that, simply as a matter of law, there was no way to limit what could be said on a campus that is, after all, public property.  If someone wants to walk across our campus carrying a Confederate flag and spouting racist bile, there is no legal recourse but to allow him to continue (unless direct threats or incitements to violence are uttered).  And, on the whole, that’s a good thing.

Why a good thing?  Because I do remain convinced that threats to free speech come more from the right than from the left.  So it would be a massive mistake, at this moment (or any moment) in time, to let the right wrap itself in the mantle of free speech, while the left tries on various forms of abridging that freedom. Not only are the optics bad, but it is also a substantive mistake.  Just because the devil can quote scripture, that doesn’t mean we should cede the field to the devil.  Democracy, human rights, and now free speech have been slogans used by the right in the past twenty years to justify hateful and disastrous policies.  But we need to accept as inevitable that such terms will be contested—and that all sides will try to wrap themselves in the mantle of these high ideals.  It is one of the jobs of the left to fight the corruption of these terms, to fight for what we deem their proper and salutary referents.

So: I would much prefer that no one in our community invite Richard Spencer or Ann Coulter to come on campus to speak.  We are not compelled to invite anyone—and we should not dignify their bile with such an invitation. But we are also not in a position to keep them from walking onto campus and speaking their piece.

Finally, I did come to believe that a strong statement on free speech might prove useful to our university’s employees, who do not feel free to speak their minds. Unprotected by either academic freedom or tenure, they feel all the precarity that afflicts employees in this day and age.  Perhaps, they might be able to leverage this enunciation of principle to afford themselves more freedom.

All that said, the Chicago principles seemed to me an aggressive, in your face, statement of the principle of free speech.  That is, those principles are couched in such a way to support the right wing narrative about the suppression of non-leftist ideas on campus.  So I rewrote the Chicago principles in a way that I thought a) softened their implied criticism of leftist censors and b) indicated that the law was not the only norm operative when considering the tenor of speech on campus.

My idea is that universities should be committed to productive speech, to dialogic exchanges that actually move the conversation forward, that build bridges across intellectual, political, disciplinary, and other divides.  We could, while acknowledging the stringencies of the First Amendment, also articulate a commitment to civility—and recognize that it was our collective responsibility as a community to realize those ideals of civility.  My thought was that universities could model the kinds of civil conversations that have become increasingly rare, even impossible, in our society.  I will even venture to say that I have been party to many such productive conversations over my years in academia.  The way that this committee’s meetings changed my mind offers only one example.

So here, in italics, is the way that I rewrote the Chicago principles, with the aim of outlining the legal norms while also adding to them an extra-legal statement of support for a norm of civility:

The University greatly values civility—and we remind all the members of our community that they share in the responsibility for maintaining a climate of mutual respect. The advancement of knowledge depends fundamentally on open-mindedness, which entails granting a hearing to even seemingly outrageous claims and views. Because all views share a right to free public expression, the University may restrict expression only if it violates the law, falsely defames a specific individual, constitutes a general threat or harassment, unjustifiably invades substantial privacy or confidentiality issues, or is directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. These narrow exceptions afford the University the ability to constrain speech and actions that would unduly interfere with others’ freedom of expression and/or are not instances of protected speech under the First Amendment. The requirements for civility and open-mindedness extend beyond such legal protections—and a truly welcoming and productive intellectual community requires forms of mutual respect and civility that cannot be mandated by law.

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

This attempted revision proved a spectacular failure.  We have not yet had our faculty vote on whether to endorse the Chicago principles.  But we at UNC will vote on the unrevised principles (reprinted below), with their stringent statement of the legal requirements, including the Chicago principles’ explicit comment (in the unrevised principles) that “civility” cannot be used as a standard to censor someone’s speech.

What caused the failure?  Basically, the notion that appeals to “civility” would be used to silence unwelcome expressions of opinion.  The employees, especially, saw “civility” as a subtle—or not so subtle—form of censorship, of putting people in their place.  Politeness was a bar to candor as well as a way to shut people up.

I don’t fully know what to make of this argument.  On the one hand, it fills me with despair.  It suggests that people have no desire to be civil.  They just want to shout loudly and score points, tossing “red meat” to those on their side.  I guess we should never underestimate the pleasures of indignant self-righteousness.  It does seem emblematic of our times that civility is seen as a vice, not a virtue.

On the other hand, this seems a case where the current obsession with “privilege” is applicable.  Sitting where I do, as a tenured and respected member of the university’s faculty, my words in just about any setting are met with respect.  I seldom feel that I have not been heard, while no one dares to shut me up, and I have tenure to protect me even when I criticize the Chancellor in the press and at public meetings.  Civility, in other words, comes easy for me—and poses no threat.

I still want to make a plea for civility—one that returns to this notion of “productive” dialogue.  If we cannot foster respect for our interlocutors, we are not going to move forward.  Yes, it’s the old liberal dilemma—which keeps rearing its familiar ugly head precisely because it is a real dilemma.  How are we to respond to participants in the dialogue who are committed to shutting the dialogue down or to excluding some from participation in the dialogue?  I can’t believe that abandoning a norm of civility, based upon an attempt to establish mutual respect and an equal right to be fully heard, is a fruitful response to that dilemma.

Here are the unrevised Chicago principles:

 

[T]he ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas.

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

UNC Now Spies on Its Students

Spying on the students.  The disheartening actions of Chancellor Carol Folt’s administration at UNC, Chapel Hill just keep coming.

Last Friday, the university community learned that an undercover policeman spied on the students who participated in an eight day vigil to protest the continued presence of Silent Sam, UNC’s Confederate monument, on campus.  Claiming to be an auto mechanic named Victor, sympathetic to their cause, the undercover policeman from UNC’s Department of Public Safety, chatted up those at the vigil.  Does the university now have dossiers on students that contain information gathered under false pretenses?  What exactly was the spy fishing for?  What threat did the administration imagine these protestors—conspicuously non-violent throughout their vigil—posed?

The student vigil at the Confederate statue lasted from August 22nd to August 31st, at which point the administration intervened and insisted that it come to an end.  The vigil itself, the two mass rallies that took place during its eight days, and its dismantling (which the students did not contest) never disrupted normal operations at UNC and, apart from two arrests for very minor infractions the night of August 22nd , never involved any illegal or violent behavior. At least two uniformed police officers were on site at every moment during the vigil.  Their presence (in my view) was completely appropriate. Maybe even having a plainclothes policeman on the scene can be justified.  But to infiltrate the student group gathered around the statue?  Those are J. Edgar Hoover tactics.

These are our students! The university’s educational mission is predicated on the free and open exchange of ideas.  When there are disagreements or even more serious conflicts on campus, we address them by talking to our fellow community members with whom we disagree.  If the matter at hand is too delicate, that conversation may have to take place in private. Ideally, however, –and in 90% of the cases in actuality—the dialogue is public, starting with frank discussions in our classrooms and spilling over from there into the other spaces our campus provides for open inquiry and spirited debate.

Yet no one in the administration ever approached the student protestors and asked for an opportunity to talk with them about their opinions or goals.  The only meeting of administration personnel, including the Chancellor, with the student protestors was a belated gathering on September 23rd, held in response to threats the students had received.  The students were told at this meeting that “we are not here to discuss Silent Sam, but only your safety.”

Where does the fear, the suspicion, that would motivate sending a spy to infiltrate the students camping out around the statue come from? Why should they be treated as potentially dangerous criminals instead as participants in the general conversation that is at the heart of education? These are our students, whom we work with every day, trying to give them the knowledge and skills they need to grow and prosper.

Is this the message we want to send to prospective and current students: you attend a university that instead of talking with you will accord itself the right to spy on you?

If Chancellor Folt did not authorize this over-the-top response to a student protest, then the person who did so should be fired.  The undercover police officer should be suspended, pending a full investigation, not for following orders and doing his job, but for his behavior when “outed” by students who recognized him on campus in his police uniform.  According to reports (and video of the incident), he told the students they could not film their interaction with him, a clear violation of their unambiguous rights, while also threatening them as they tried to walk away.  There should be no rush to judgment here, but what exactly happened needs to be discovered—and appropriate action taken once the facts are determined.

If the Chancellor herself authorized this undercover operation, she owes the campus community an explanation—and an apology.  What was the administration aiming to accomplish and how has it used the information collected?  The apology is for spying on students, a practice that only the most extreme circumstances could ever justify.

If neither an explanation nor an apology is forthcoming, the disintegration of our educational community, based on transparency and open dialogue, will continue apace.