MONTPELIER — The Diversity, Equity and Inclusion (DEI) Committee of the Vermont State Colleges Board of Trustees met recently with President Rodney Smolla, head of the Vermont Law School and Graduate School, who delivered a presentation about the critical intersection of DEI principles with Freedom of Speech and Academic Freedom on university campuses.
Committee Chair Shirley Jefferson advised at the meeting’s start on Jan. 18 held via Zoom and in-person at the VSCS offices in Montpelier, that public comment would be welcome following Smolla’s presentation.
“We are very honored to have him today, he is an accomplished educator and scholar, renowned for his work in constitutional law, civil rights, freedom of speech and mass media law,” said Jefferson, introducing Smolla. “He is a first-generation college grad.”
He noted that in that long tenure, he has seen “many, many conflicts” involving some of the themes he would be addressing. Smolla noted that he is also a scholar who has written 17 books and a number of legal treatises, and he held up a recent title to show the group.
That title is Confessions of a Free Speech Lawyer: Charlottesville and the Politics of Hate, published by Cornell University Press.
The crisis in Charlottesville in 2017 led Smolla to be asked by the governor of Virginia “to be part of a task force in the aftermath of that violence, and that led me to write a book about these issues and some of the things I will talk to you about are reflections from that book,” he advised DEI committee members. The DEI Committee of the VSCS Board will give a report to the full board this Monday when the board meets.
When the phrase academic freedom is heard, “which we use so often in higher education,” Smolla asked, “Are we using that in a technical sense, does it have meaning, or are we using it in a kind of folksy colloquial way?”
“I think it has actual meaning, but if that’s true, where does the meaning come from? When people like me use that phrase, what are the sources of it? And I think there are three.”
“In one sense when we’re talking about academic freedom, we’re talking about how those constitutional concepts apply in the context of college and universities, it’s the translation of those larger concepts … in the arena of higher education,” explained Smolla. He went on, noting that custom also weighs heavily, as they create expectations, “We come from hundreds of years of customs … and those customs create expectations for constituencies on our campuses and inform a lot of our discussion about academic freedom.”
He said, “And then finally there’s the law of contracts, a university is a complicated criss-crossing system of contracts, faculty members have contracts, staff members have contracts, students have contracts.”
He began with a First Amendment discussion as it applies to the conflicts Smolla was touching on; he said he would share the same information with students at the Vermont Law and Graduate School later that day. “It turns out the law is very complicated, almost like tax law in some respects.”
“But despite all of that, I have my own pet view, and my own pet view is that you can basically distill all of our debates in American life and all of our history with regard to free speech and all of the controversies that occur on a modern campus to two competing ideas about what free speech means, and both ideas are to make life beautiful, both are elegant ideas and powerful ideas, but they are in opposition to one another and a large part of our history in this country a large part of our debate on college campuses is the tug and pull between these two competing notions.”
He went on, “The first, the oldest, is what I call order and morality theory,” noting a famous Supreme Court case, saying, “It involved a Jehovah’s’s Witness preaching on the street and who was eventually arrested for disturbing the peace.” The case he referenced happened in New Hampshire.
His arrest was affirmed by the Supreme Court, Smolla continued, saying, “But in this very famous case, “The Supreme Court said there are certain kinds of speech that don’t get any protection under our Constitution. They don’t raise serious First Amendment issues.”
“And in one sentence, beautiful, elegant sentence, the court explained why,” Smolla continued. “And it said, ‘Such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth, that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’”
He said, “That sentence has a lot in it, first of all it seems to say that free speech is about ideas, it’s about rational discourse, and secondly it says that a society can override free speech, can ban certain types of expression, either because the expression is an affront to order, which we usually think of as peace, keeping the peace, preventing violence, let’s say, or morality, if our views as to what is right or wrong, good and evil, is an affront to our values, we have the right to ban it.”
“The order and morality theory really dictated policy in American life for a large part of the history of our country and reigned supreme as late as 1952,” Smolla continued. “And a really important famous case in 1952 illustrates it, and it’s directly relevant to what we’re talking about. It’s a case from my hometown, Chicago, which is a town that has a long history of being racked with racial violence and racial division … this was in the 1950s, and white supremacists from Illinois, people like the Illinois Nazis … people you see in the movie The Blues Brothers, white supremacists were passing out incendiary leaflets on the south side of Chicago, attacking people of color on the south side of Chicago.”
Smolla went on, “And these were vicious attacks, racist attacks on African-Americans. Illinois had a law prohibiting this kind of attack, and the leader of this racial supremacist group was arrested and charged with violating this Illinois law, and he raised a free speech defense.”
“He said, ‘All I did was pass out leaflets, all I did was express my opinions about black people, there was no threat to anybody, there was no incitement to violence, no clear and present danger of violence .. my racist leaflets should be protected under the First Amendment.”
Smolla said, “And the Supreme Court of the United States ruled against the racist leader and upheld the conviction.” The opinion was written by the only Jewish member of the high court at that time.
Higher Ed Settings
“The fact is, this is a great debate in the history of American education,” said Smolla. “It’s a wide open place where everybody is entitled to their views … that’s one vision of what a university is, but of course, there’s a competing vision, which is that it’s a place of rationality, a place of respect, a place of order and decorum … and we don’t allow everything that is allowed in the ‘open marketplace.’ ”
He referred to the debate as “almost schizophrenic,” where academic freedom comes in, saying there are complexities when academic freedom is discussed. He said there are conflicts where academic freedom comes into play related to professors, students, administrators, staff members, trustees and visitors to the campus. “One person’s assertion of academic freedom might be in tension with another person’s … There is an age-old debate … we are talking about the rights of an individual or we re talking about the rights of the college itself … to decide what’s going to be taught, who is going to teach.”
“The hard cases involve expression that would clearly be protected … out in the general world,” continued Smolla, using an example of a professor or a student saying things they would have absolute right to say out in the street.
Crossing a border into the campus where “now you have to check your racism at the door … those are the hard cases.”
His writing on free speech touches on the body of law dealing with the speech rights of public employees, saying everyone that is part of the VSCS system is a state employee. “Professors may not like to think of themselves as state employees, but they are … basically everyone on the payroll is a government employee,” said Smolla.
The Supreme Court has handed down a 2-step process for government employees, “First the Supreme Court has said the speech that the employee has engaged in only gets protection of any kind if the employee is speaking as a citizen on a matter of public concern.”
“On the other hand, if the employee is speaking as an employee, as part of his or her job duties, on issues inside the workplace, there is no First Amendment protection, this is a harsh world,” said Smolla.
Chancellor Sophie Zdatny thanked Smolla for highlighting the law on the important issues, saying, “I just found it really, really helpful.”
“What we never permit is censorship on the basis of a person’s viewpoint, you are entitled to have whatever views you want,” stressed Smolla. “You’re entitled to have whatever views you want on Roe v Wade or on whether the election was stolen … you can punish people for creating a hostile work environment, you can punish people for creating a hostile educational environment.”
Jefferson, the committee chair, said, “That was a lot to take in! I know our trustees and the public have some questions.”
“Different points of view and ideas are welcome here,” said Jefferson.
There were a handful of questions, about Title 9 and 7, and about a statement related to free speech that some universities are signing onto. with faculty posing questions along with committee members.
Trustee Bill Lippert asked about what is taught in a classroom, saying something may be within the province of what is taught, “But I’m unclear as to whether a controversial topic, brought into a classroom setting, becomes the grounds, could become the grounds for some type of consequence for a professor … there are so many fascinating issues and controversial issues. Who sets that standard? And it’s usually a minority point of view that’s controversial.”
Smolla offered what he called a few guideposts, “One school of thought, it happens to be my personal school of thought, I shouldn’t use my podium, I shouldn’t use my position as a lecturer in the classroom as my platform for proselytising” on personal viewpoints, saying there is a counter argument to that. When he teaches a controversial topic, he teaches multiple perspectives and he goes out of his way to be even-handed and not share his own view.
To hear the full presentation delivered to the committee by President Rodney Smolla, visit: https://www.youtube.com/watch?v=WD64txXU39A