Jun 22, 2024 By Gary Stout 5 min read

The country has recently witnessed a national surge of campus protests supporting the end to Israeli military operations against the terrorist group known as Hamas. Last October, Hamas terrorists attacked Israel, and more than 1,200 people were killed. Hamas is still holding 120 individuals in captivity. The attack included atrocities against children, sexual violence against women and the burning alive of entire families.

The Israeli military response to destroy Hamas in Gaza has continued relentlessly since the October attack. An estimated 37,000 Palestinians have been killed in Gaza and 85,000 wounded. A majority of the casualties are women, children, and other Palestinians unaffiliated with Hamas.

The student protests against continued hostilities are reminiscent of the Vietnam War period, both because of their scale and university administrators’ use of law enforcement to assert control. The student activism and campus “solidarity” encampments were mainly peaceful. However, numerous incidents of controversial speech and signage were antisemitic, and some students ignored orders to disperse.

This commentary is not about analyzing the ongoing Israeli-Hamas conflict. Such an effort would require a review of many years of history and the political missteps in failing to reach a comprehensive solution between Israel and the Palestinians. Instead, I will use the student protests to draw attention to an important, little understood element of American democracy – academic freedom. In my view, academic freedom is under attack by Republicans and in danger of suffering irreparable harm.

According to Wikipedia, a working definition of academic freedom is that “a professor has a right to instruct and a student has a right to learn in an academic setting unhampered by outside interference.” In addition, all members of an academic community have the right to engage in social and political criticism. The principle also refers to the ability of professors, students, and educational institutions to pursue knowledge without unreasonable political or government interference.

In 1940, the American Association of University Professors (AAUP) was the first domestic organization to propose that academic freedom be a foundational principle of university life. The AAUP wanted to ensure that the “ivory towers” of higher education could police themselves by reaching reasonable accommodations between administrators, faculty, and students while promoting independence of ideas and speech.

In 1967, the U.S. Supreme Court weighed in on academic freedom in the decision Keyishian vs. Board of Regents. According to the AAUP, this case “explicitly extended First Amendment protection to academic freedom.” A school’s faculty refused to sign loyalty oaths and were fired. The court held that by imposing such a requirement and prohibiting membership in “subversive groups,” the law unconstitutionally infringed on academic freedom and freedom of association. The opinion concluded, “Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”

I have been paying close attention to attacks against academic freedom since the MAGA movement consumed the Republican Party. Seventy percent of all American students are enrolled at public colleges and universities, where more often than not, conservative state legislatures control the school budgets. Last year, professors at state universities in Florida were barred from teaching course material that discussed systemic racism, sexism, oppression, and white privilege. Professors in Texas can now have their tenure revoked because of government defined “moral turpitude.”

Since the Gaza protests began, the Republican Party has been emboldened to expand its sense of grievance against private, liberal universities. It seeks to replace academic freedom with its own version of “cancel culture”. According to CNN, “the Republican controlled House Ways and Means Committee threatened to reconsider the tax-exempt status of Harvard University, the Massachusetts Institute of Technology, the University of Pennsylvania, and Cornell University amid allegations that these elite schools have failed to fight antisemitism on campus.”

U.S. Speaker of the House Mike Johnson, recently visited Columbia University and suggested that the National Guard be called in. He labeled all the protesters as “lawless agitators and radicals.” Wealthy supporters of Israel and conservative alumni from the involved private universities have also demanded that punitive actions be taken against the protesting students.

University administrators have caved in to the congressional and donor demands. This spring, more than 2,000 U.S. students and hundreds of faculty members were arrested, while expressing their views against what they consider an inhumane war.

The justification for initiating police action was the intimidation of Jewish students. According to the Jewish organization Hillel International, six out of 10 Jewish students reported that the protests adversely affected their life on campus. The dilemma is that free speech never and academic freedom seldom prohibits offensive speech unless it is leveled directly against an individual Jewish student or his or her living space. Ironically, Congress cannot attack the protesting students head-on because of protections afforded to free speech. Instead, conservatives pressure school administrators to suspend them or call in the police.

Notwithstanding its long history, academic freedom remains a principle and not a law to be enforced. For this principle to be meaningful, most forms of campus expression must be tolerated and defended. It is up to university administrators to protect this important cornerstone of academic life.

Sadly, the capitulation of universities to outside pressure has dominated the latest round of Republican threats and congressional hearings. Unfortunately, if university administrators suddenly find some backbone and bring legal action, it seems unlikely that the present Supreme Court would uphold such a critical element of our self-governing academic system.

Gary Stout is a Washington attorney.