November 17, 2023

By Corey Fedorowich and Abed Rahman

Day One Overview:

What impact is the onslaught of recent efforts to restrict teaching and research on “controversial subjects,” particularly with respect to race and gender, having on society? And what connection is there between those efforts and parallel concerns about the weakening of political institutions and erosion of democracy? These questions were at the heart of Drexel Law Review’s two-day symposium: “Knowledge at Risk: Democratic Erosion and the Contemporary Assault on Education and Expertise.” Symposium speakers discussed these issues in the higher education context both domestically and abroad.

Dean Dan Filler provided an uplifting introduction to the day’s events outlining the importance of the panels and conversations. Professor Anil Kalhan then provided insightful commentary into the Symposium’s topic, panelists, and important themes and their meaning in the broader academic landscape and why he felt this Symposium was important. Executive Editor of Symposium, Sarah Stone, concluded the opening remarks with thanks to the panelists, staff, and Drexel Law Review members.

Panel One: Contextualizing the Contemporary Assault on Knowledge

Opening the Symposium, panelists Jacqueline Allain, Ph.D., M.Ed.; Anne X Lofaso, J.D., D.Phil; Eve Darian-Smith, Ph.D., B.A.(Hons) and LL.B.; and Kim Lane Scheppele, Ph.D. contextualized the contemporary assault on knowledge in higher education through both a domestic and global lens. After explaining the landscape, the speakers suggested various methods of combatting this assault. Moderating this discussion was Sharrona Pearl, Ph.D., an Associate Professor of Medical Ethics and History at Drexel University.

Jacqueline Allain, the Program Coordinator for Freedom to Learn at PEN America, gave an overview on “gag orders”—PEN America’s term for anti-“critical race theory” laws. These unpopular laws negatively label discussions about race and sex as “divisive concepts.” Many state legislatures have proposed, and some have adopted, a variation of these laws. The laws permeate higher education and curtail classroom discussions related to these topics, altering curricula and leaving students ill-prepared for future education and employment in an increasingly diverse society. Dr. Allain gave tips to educators, citizens, and professionals to discuss these topics and promote their right to do so in higher education environments and broader society.

Anne Marie Lofaso, an Associate Dean for Faculty Research and Development and professor at the West Virginia University College of Law, examined how professors can use labor law tactics to protect academic freedom in classrooms. Unions can squarely address educators’ grievances with their employers’ infringement of this freedom. Unionization of adjunct faculty is increasingly popular due to their lack of tenure and universities’ financial struggles. Still, there are some shortcomings of unionization as a solution: not all public-school educators can unionize under their state law, and private-school educators may be excluded if they are considered management under Yeshiva. But if universities are now overtaking the managerial function of professors, Yeshiva should be reconsidered.

Eve Darian-Smith, a professor and chair in Global Studies and International Studies at the University of California Irvine, discussed the limits and potential of international law to combat attacks on higher education. The United States is not alone—two in five people globally are living in a culture-war landscape because of a rise in right-wing extremism. While today’s protection of academic freedom stems from freedom of speech, international law post-WWII granted everyone a right to education. But international law is in a weakened state. As education occurs cross-border, we should advocate for knowledge to be globally protected and determined.

Kim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs and the University Center for Human Values at Princeton University, examined what confers the right to academic freedom. She argued that this right is an individual right contingent upon the certification of the individual seeking to leverage academic freedom as “qualified” by academic institutions. As these institutions exercise autonomy through certification, they should be given protection from state intervention like religious institutions. Current universities are corporatized and susceptible to outside political and social pressure. Maintaining democracy requires insulating universities, which can be accomplished by giving them legal rights, causes of action, and constitutional autonomy.

Panel Two: Dimensions of the Legal Assault

For the second panel, Theodore W. Ruger, J.D., the Former Dean of and current Professor of Law at the Pennsylvania Carey Law School, moderated a discussion about the origins and processes of the anti-truth legal assault. Panelists highlighted examples from conservative states and how this assault affects institutions and individuals. Panelists included Morenike Fajana, J.D., Katrina Feldkamp, J.D., Liz Leininger, Ph.D., and Emily Houh, J.D.

Morenike Fajana and Katrina Feldkamp, Senior Counsel and Assistant Counsel at the NAACP Legal Defense and Education Fund respectively, presented on anti-truth laws’ origins and effects. Fajana examined how these “gag laws” are backlash responses to Black and queer-led movements to increase visibility and create spaces to discuss oppression. These laws aim not only to limit research, conversation, and information access, but to defund public education and make higher learning less hospitable for minorities. The laws are intentionally overbroad and vague to strike fear of litigation into institutions and encourage over-compliance in the classroom. Challenging them via litigation is difficult due to redressability—how will enjoining a law solve the problem when the real issue is the state’s political climate? Additionally, those enforcing the law are administrators, not the politicians causing the damage. These legislators are thus insulated from harm.

Feldkamp then discussed the broader harm these laws cause. They send a message to students of color and LGBTQ+ students that their stories are not appropriate to share. Administrators and leaders buying into these laws and censoring stories negatively impacts students’ mental health and self-worth. It also emboldens anti-truth actions against other marginalized groups. This hostile environment will have the effect of creating cisgender, white institutions. These laws impact educators and administrators too, who are being pushed out. The threat of defunding and promotion of voucher programs echoes the Brown v. Board of Education and Reconstruction periods, where funds were diverted from public to private institutions.

Liz Leininger, an Associate Professor at St. Mary’s College of Maryland, profiled the New College of Florida, where she previously served as an Associate Professor. It started as a progressive, private, liberal arts college where students were responsible for their own education but because of bankruptcy, it became public. Governor Ron DeSantis initiated a “takeover” from 2021 to 2023, appointing six board of trustees members. The conservative-right wing has taken over leadership, faculty, staff, and curriculum and eliminated all DEI culture. DeSantis openly weaponized an institution to “beat the left,” providing a model for other conservative states. New College has resisted. Academic freedom advocates have fundraised to create courses, encouraged protests, and advocated through writing and speaking engagements to stop DeSantis’ agenda.

Emily Houh, the Gustavus Henry Wald Professor of the Law and Contracts at the University of Cincinnati College of Law, focused on Ohio. Ohio “aspires to be Florida and Texas.” Recent proposed bills include SB117 and SB83, which bolster conservative ideology. Despite Senate support, neither bill has passed in the House. SB117 would create institutes for “educational diversity” in public universities headed by an academic council. The council would only have one institutional faculty member. SB83 would prevent discussion of “controversial beliefs or policies” in higher education. This would prohibit DEI programs, require faculty to demonstrate intellectual diversity for course approval, and prevent criticism of society and individuals as racist or sexist. Universities exist to create knowledge and test ideas and theories, and SB83 misclassifies universities as a public forum where all ideas have equal value and limits the ability to cultivate knowledge in a diverse setting.

Keynote Speaker: Building Trust

Day One’s keynote was Sigal Ben-Porath, Ph. D., M.A., the MRMJJ Presidential Professor at the University of Pennsylvania. She also chaired the Committee for Free Expression at Penn beginning in 2015. She stated that current laws do not prepare us for the democratic citizenship required by design in American society. While open expression indeed can expose the speaker to bigoted attacks, protections for academic speech are actually at their zenith at higher education institutions. Knowing this to be true may help campus community conflicts among those claiming freedom of expression and those claiming dignitary harm.

Society is polarized. It characterizes those on the other ideological side as inherently different and untrustworthy. It also engenders people’s willful ignorance of opposing viewpoints. Eroding institutional autonomy by allowing state influence erodes open discussion of thought and prevents the intended function of institutions. The underlying theme challenging universities is a reduction in social trust. Distrust amongst ourselves and of the government leads to distrust of knowledge. We must create communities of learning, see how knowledge is developed, and critically evaluate information for reliability. We must create conditions creating trust for effective dialogue and shared learning. Learning cannot happen while emotions are high or while people are shouting.

Panel Three: Conceptual Perspectives on Academic Freedom, Equity and Inclusion, and Democratic Education

For the third panel, Ed Brockenbrough, Ph. D., M.S.Ed., the Associate Professor and Calvin Bland Fellow at the University of Pennsylvania, moderated. Panelists, Dara Purvis, J.D., M.Phil., Brian Soucek, J.D., Ph.D., and Jennifer Ruth, Ph.D., M.A., disaggregated the right to academic freedom from different conceptual perspectives.

Dara Purvis, a Professor of Law at Penn State University, discussed how parents’ rights are being used in anti-democratic ways. The Supreme Court established these rights as a shield, preventing the state from telling parents how to raise their children. Now, the state is exerting this “parental right” by proxy, protecting parents who ideologically agree with the state. This is evidenced by the “Don’t Say Gay” bill from Florida, which created a civil cause of action against teachers who teach about gender identity and sexuality. This law gives rights only to some parents, those who object to non-heteronormative ideas. Transgender children and their parents feel direct effects, but this also censors or removes classes entirely. These laws are not limited to targeting LGBTQ people. The anti-truth movement states that some ideas are “too mature or complicated for kids.” As such, the constitutional right to control one’s child is morphing into a right to control the world in which one’s child exists.

Brian Soucek, a Professor of Law and Chancellor’s Fellow at the University of California, Davis School of Law, examined how expanding free speech rights can actually undermine academic freedom. A Sixth Circuit opinion, Meriwether, caused the media to proliferate the idea that faculty members may misgender students freely in class. Meriwether, a Christian, misgendered a student several times. The university reprimanded him. The Sixth Circuit held that Meriwether’s speech was advancing a viewpoint on gender identity and was not outweighed by any disruption to the student’s education or the university’s mission. This misconstrues academic freedom, which gives professors freedom on how to instruct. Meriwether’s misgendering was completely disconnected from the class’s subject matter. The undermining of expertise can erode democracy, and this opinion failed to recognize expertise. The opinion did not hold however that a professor has a First Amendment right to misgender her students.

Jennifer Ruth, a Professor and Associate Dean of the College of the Arts at Portland State University, examined the role of students, faculty, the institutions with academic freedom in higher education. The Kalven Report encouraged universities to remain neutral to not stifle those who dissent with them. But universities do not speak for faculty and vice versa. Faculty have less of an individual right and more of a corporate right of the faculty body to come to their own conclusions without pressure. This right is not derived from free speech and personal beliefs, it is derived from expertise and objective facts. As such, administrators have no such right because they are acting outside of their educational competence. This right is essential for democratic participation and advancement of societal knowledge.

Panel Four: Threats from Civil Society

Chloe Silverman, Ph.D., an Associate Professor of Politics at Drexel University, moderated the last panel of the day. Panelists Jyoti Jasrasaria, J.D., Isaac Kamola, Ph.D., M.A., and Dheepa Sundaram, Ph.D., M.A., discussed how donations, political mobilization, and actions by civilians and non-governmental organizations also threaten academic freedom.

Jyoti Jasrasariam, an Associate at Elias Law Group, LLP, discussed her work on a lawsuit against Florida HB233. This law mandated Boards of Governors and Education to conduct annual assessments on whether there is intellectual freedom and viewpoint diversity in college communities. The law prevented the boards and public institutions from shielding faculty and staff from expressive activity they may not agree with. It also allowed students to record lectures without professor consent to collect evidence and enforce the law’s anti-shielding provisions. All of this caused a chilling effect, as professors feared students policing their teaching. Students found the law suppressed open classroom discussions from varying viewpoints. They also feared it would stifle recruitment for student organizations or allow organization affiliation to be weaponized.

While the law was objective on its face, social context in Florida and the understood purpose of the law led it to be interpreted by students in an anti-WOKE way. Only right-wing students felt like they could enforce the law in the classroom. Students who wanted to learn CRT felt like they could not do so. The suit against HB233 was ultimately dismissed on standing grounds. Although the court understood the law chilled speech and made a statutory scheme of punishment, standing law does not allow for challenges without more direct evidence of harm and causation.

Isaac Kamola, an Associate Professor of Political Science at Trinity College, examined the flow of money, the main thing driving the attack on academic freedom. Protests of high-profile conservative speakers and subsequent media coverage spurred legislative response and donations. Koch brothers-controlled organizations are the main contributors. They view indoctrination of academics and graduates as the way to have minority, right-wing political views become policy. Academic centers receive funds, they send people into change-making spaces like think tanks, which then shape law through model legislation and advocacy. Koch-affiliated organizations spent $1.1 billion on education in 2020.

Dheepa Sundaram, an Assistant Professor of Religious Studies at the University of Denver, discussed religious extremism’s attacks on academic freedom. Unknown actors called in over 200 threats of direct harm, including bomb threats, to participants of a conference advocating for dismantling Hindu nationalism. The Hindu American Foundation (HAF), an extremist Hindu nationalist group, was a main opposition group. HAF has advocated to remove content from textbooks correlating castes to Hinduism and to oppose anti-discrimination laws based on castes. In 2021, HAF filed a Title VI complaint against the University of Pennsylvania alleging the conference promoted harm against Hindu students, despite alleging no specific harms and having no student plaintiffs. Nationalists thus found a way to weaponize the study of Hindu nationalism to lodge a discrimination complaint.

Day One Impact Paragraph

After the first day of the Symposium, students left with a greater understanding of the varied political and social factors contributing to the modern assault on academic freedom. Hearing examples from different states made attendees more aware of the processes leading to this assault and more equipped to recognize and combat those processes. Students learned it is critical to foster open, collaborative, and critical discussion of topics with opposing viewpoints in the academic setting without being hostile. It is imperative for our democracy that we build trust amongst ourselves and keep institutions of learning autonomous from governmental and social influence.

To read more about some of the issues discussed, please see our Symposium Issue.