Art credit: Chris Gall
This post is based on one of the best things written lately on the toxic mentality dominating today’s college campus. It is a rich, in-depth exploration of the issue, and rewarding to those reading the whole article. Some excerpts in italics here with my bolds to show the train of thought and some of the pearls.
Peter Berkowitz writes in The Standard on Liberal Education and Liberal Democracy Excerpts in italics with my bolds.
Colleges foster smugness on the left and resentment on the right.
According to John Stuart Mill, liberal education furnishes and refines the mind. It furnishes the mind with general knowledge of history and literature, science, economics and politics, morality, religion, and philosophy. It refines the mind by teaching students to grasp the complexities of critical issues and to appreciate the several sides of moral and political questions. In furnishing and refining the mind, liberal education tends to temper judgment, elevate character, and form richer and fuller human beings.
Though different from professional education, liberal education improves the ability of professionals to practice their professions wisely. As Mill observed, “Men may be competent lawyers without general education, but it depends on general education to make them philosophic lawyers who demand, and are capable of apprehending, principles, instead of merely cramming their memory with details.”
Chris Gall recalls some examples where Justice Scalia demonstrates Mill’s point, and then digs into the heart of the matter.
Unfortunately, liberal education in America is in bad shape. Our colleges have exposed it to three major threats. They have attacked and curtailed free speech. They have denigrated and diluted due process. And they have hollowed and politicized the curriculum. These threats are not isolated and independent. They are intertwined. All are rooted in the conceit of infallibility. To remedy one requires progress in remedying all.
Free Speech Curtailed
From speech codes, trigger warnings, microaggressions, and safe spaces to disinviting speakers and shouting down lecturers, free speech is under assault on college campuses. One reason is that, as polls by Gallup and others show, many students do not understand the First Amendment. And when they learn that it protects offensive and even hateful speech, they dislike it.
Why has free speech fallen out of favor? Many university students, faculty, and administrators suppose there is a fundamental conflict between free speech on one side and diversity and inclusion on the other. The freer the speech, the argument goes, the more pain and suffering for marginalized students. This way of thinking springs from a faulty understanding of free speech and of diversity and inclusion in education.
Yes, words wound. Children learn that from experience. History teaches, however, that beyond certain narrow exceptions—such as true threats, direct and immediate incitement to violence, defamation, and sexual harassment—the costs of regulating speech greatly exceed the benefits. One cost is that regulating speech disposes majorities to ban opinions that differ from their own.
Well-meaning people will say, “I hear you, I’m with you, I support free speech, too. But what does free speech offer to historically discriminated-against minorities and women?” The short answer is the same precious goods that it offers to everyone else: knowledge and truth. The long answer begins with three observations.
First, for many years women have formed the majority on campuses around the country. Approximately 56 percent of university students are female. On any given campus, women and historically discriminated-against minorities are together likely to represent a large majority. Thus, the curtailing of campus speech on behalf of these minorities and women reflects the will of a new campus majority. This new majority exhibits the same old antipathy to free speech. It plays the same old trick of repressing speech it labels offensive. And it succumbs to the same old tyrannical impulse to silence dissenting views that has always been a bane of democracy.
Second, as Erwin Chemerinsky and Howard Gillman argued last year in their book Free Speech on Campus, far from serving as an instrument of oppression and a tool of white male privilege, free speech has always been a weapon of those challenging the authorities—on the side of persecuted minorities, dissenters, iconoclasts, and reformers. In the United States, free speech has been essential to abolition, women’s suffrage, the civil rights movement, feminism, and gay rights. All took advantage of the room that free speech creates to criticize and correct the established order. Restricting speech—that is, censorship—has been from time immemorial a favorite weapon of authoritarians.
Third, a campus that upholds free speech and promotes its practice is by its very nature diverse and inclusive. Such a campus offers marvelous benefits to everyone regardless of race, class, or gender. These benefits include the opportunity to express one’s thoughts with the best evidence and arguments at one’s disposal; the opportunity to listen to and learn from a variety of voices, some bound to complement and some sure to conflict with one’s own convictions; and, not least, the opportunity to live in a special sort of community, one dedicated to intellectual exploration and the pursuit of truth.
Instead of touting free speech’s benefits, however, schools are encouraging students—especially but not only historically discriminated-against minorities and women—to see themselves as unfit for free speech, as weak and wounded, as fragile and vulnerable, as subjugated by invisible but pervasive social and political forces. Standing liberal education on its head, colleges and universities enlist students in cracking down on the lively exchange of opinion.
Liberal education ought to champion the virtues of freedom. It ought to cultivate curiosity and skepticism in inquiry, conscientiousness and boldness in argument, civility in speaking, attentiveness in listening, and coolness and clarity in responding to provocation. These virtues enable students—regardless of race, class, or gender—to take full advantage of free speech.
Since free speech is essential to liberal education, we must devise reforms that will enable colleges and universities to reinvigorate it on their campuses. Last year, the Phoenix-based Goldwater Institute developed “model state-level legislation designed to safeguard freedom of speech at America’s public university systems.” Consistent with its recommendations, universities could take several salutary steps:
Abolish speech codes and all other forms of censorship.
Publish a formal statement setting forth the purposes of free speech.
Create freshman orientation programs on free speech.
Punish those who attempt to disrupt free speech.
Host an annual lecture on the theory and practice of free speech.
Issue an annual report on the state of free speech on campus.
Strive where possible for institutional neutrality on partisan controversies, the better to serve as an arena for vigorous debate of the enduring controversies.
Many colleges and universities won’t act on such principles. Public universities, however, are subject to the First Amendment, and state representatives can enact legislation to assist state schools in complying with their constitutional obligations.
Due Process Denigrated
The curtailing of free speech on campus has not occurred in a vacuum. It is closely connected to the denial of due process in disciplinary proceedings dealing with allegations of sexual misconduct. Both suppose that little is to be gained from listening to the other side. Both rest on the conceit of infallibility.
Campus practices, for example, can presume guilt by designating accusers as “victims” and those accused as “perpetrators.” Universities sometimes deprive the accused of full knowledge of the charges and evidence and of access to counsel. It is typical for them to use the lowest standard of proof—a preponderance of the evidence—despite the gravity of allegations. In many instances, universities withhold exculpatory evidence and prevent the accused from presenting what exculpatory evidence is available; they deny the accused the right to cross-examine witnesses, even indirectly; and they allow unsuccessful complainants to appeal, effectively exposing the accused to double jeopardy. To achieve their preferred outcomes in disciplinary hearings and grievance procedures, universities have even been known to flout their own published rules and regulations.
There is, of course, no room for sexual harassment on campus or anywhere else. Predators must be stopped. Sexual assault is a heinous crime. Allegations should be fully investigated. Universities should provide complainants immediate medical care and where appropriate psychological counseling and educational accommodations. Students found guilty should be punished to the full extent of the law.
At the same time, schools must honor due process, which rightly embodies the recognition that accusations and defenses are put forward by fallible human beings and implementing justice is always the work of fallible human beings. Some would nevertheless truncate due process on the grounds that a rape epidemic plagues higher education, but, fortunately, there is no such thing. The common claim that women who attend four-year colleges face a one in five chance of being sexually assaulted has been debunked. According to the most recent Department of Justice data, 6.1 in every 1,000 female students will be raped or sexually assaulted; the rate for non-student females in the same age group is 7.6 per 1,000. Yes, even one incident of sexual assault is too many. Yes, women’s safety must be a priority. And yes, we can do more. But contrary to conventional campus wisdom, university women confront a lower incidence of sexual assault than do women outside of higher education.
Others would curb due process because all women should just be believed. Certainly they should be heard. But no one should just be believed, especially when another’s rights are at stake. And for a simple reason: Human beings are fallible. As Harvard professor of psychology Daniel Schacter amply demonstrated in The Seven Sins of Memory: How the Mind Forgets and Remembers (2001), we humans routinely forget, routinely remember things that never were, and routinely reconstruct the past in ways that serve our passions and interests.
Then there’s the question of why universities are involved at all in adjudicating allegations of nonconsensual sex. Nonconsensual sex is a common statutory definition of rape. Generally, universities leave violent crimes to the police and courts. If a student were accused of murdering a fellow student, who would dream of convening a committee of administrators, professors, and students to investigate, prosecute, judge, and punish? For that matter, if a student were accused of stealing or vandalizing a fellow student’s car, would we turn to a university committee for justice? If both murder, the gravest crime, and crimes much less grave than sexual assault—theft and vandalism—are matters for the criminal justice system, why isn’t the violent crime of sexual assault?
The denial of female agency, which follows from the claim that women are incapable of truly consenting to sex, implies that a man who acknowledges having had sex with a woman has prima facie committed assault. This approach—common on campuses—may be illegal. Insofar as it presumes male guilt and denies men due process, it appears to violate Title IX by discriminating against men on the basis of sex. It is also profoundly illiberal and anti-woman. It turns out that the denial of due process for men rests on the rejection of the belief—central to liberal democracy—that women, as human beings, are free and equal, able to decide for themselves, and responsible for their actions.
The willingness of university officials to deny female agency, presume male guilt, and dispense with due process is on display in the more than 150 lawsuits filed since 2011 in state and federal courts challenging universities’ handlings of sexual-assault accusations. Lawsuits arising from allegations of deprivation of due process at Amherst, Berkeley, Colgate, Oberlin, Swarthmore, USC, Yale, and many more make chilling reading. Numerous plaintiff victories have already been recorded.
To take advantage of their newfound freedom to provide due process for all their students, universities might consult the October 2014 statement published by 28 Harvard Law School professors in the Boston Globe. The statement offers guidance in reconciling the struggle against sexual misconduct with the imperatives of due process. It counsels universities to adopt several measures:
Inform accused students in a timely fashion of the precise charges against them and of the facts alleged.
Ensure that accused students have adequate representation. Adopt a standard of proof and other procedural protections commensurate with the gravity of the charge, which should include the right to cross-examine witnesses, even if indirectly, and the opportunity to present a full defense at an adversarial hearing.
Adopt a standard of proof and other procedural protections commensurate with the gravity of the charge, which should include the right to cross-examine witnesses, even if indirectly, and the opportunity to present a full defense at an adversarial hearing.
Avoid assigning any one office—particularly the Title IX office, which is an interested party because maximizing convictions justifies its presence—responsibility for fact-finding, prosecuting, adjudicating, and appeals.
In, addition, universities ought to make sessions on due process an essential part of freshman orientation.
It is unreasonable, however, to expect the restoration of due process on campuses anytime soon. For starters, it depends on reinvigoration of free speech. A culture of free speech presupposes and promotes a healthy sense of fallibility. That opens one to the justice of due process. For what is due process but formalization of the effort by fallible human beings to fairly evaluate other fallible human beings’ conflicting claims?
Free speech, however, is not enough on its own to rehabilitate due process. Commitment to both is rooted in an understanding of their indispensable role in vindicating liberal democracy’s promise of freedom and equality. To recover that understanding, it is necessary to renovate the curriculum so that liberal education prepares students for freedom.
The Curriculum Politicized
The college curriculum has been hollowed out and politicized. The conceit of infallibility is again at work—in the conviction that the past is either a well-known and reprehensible repository of cruel ideas and oppressive practices or not worth knowing because progress has refuted or otherwise rendered irrelevant the foolish old ways of comprehending the world and organizing human affairs.
The disdain for the serious study of the history of literature, philosophy, religion, politics, and war that our colleges and universities implicitly teach by neglecting them, denigrating them, or omitting them entirely from the curriculum, has devastating consequences for liberal education. Without a solid foundation of historical knowledge, students cannot understand the ideas and events that have shaped our culture, the practices and institutions that undergird liberal democracy in America, the advantages and weaknesses of constitutional self-government, and the social and political alternatives to regimes based on freedom and equality. Absent such an understanding, students’ reasoning lacks suppleness, perspective, and depth. Consequently, graduates of America’s colleges and universities, many of whom will go on to occupy positions of leadership in their communities and in the nation, are poorly equipped to form reasoned judgments about the complex challenges America faces and the purposes to which they might wish to devote their lives.
To say that the curriculum has been hollowed is not to say that it fails to deliver a message but that it lacks a core. Much of college education is a mishmash of unconnected courses. Most undergraduates are required to fulfill some form of distribution requirements. Typically, this involves a few classes in the humanities, a few in the social sciences, and a few in the natural sciences. Within those broad parameters, students generally pick and choose as they like. For fulfilling requirements in the humanities, schools tend to treat courses on the sociology of sports, American film and race, and queer literary theory as just as good as classical history, Shakespeare, or American political thought.
The most common objection to a coherent and substantive core curriculum is that it would impair students’ freedom. Each undergraduate is different, the argument goes, and each knows best the topics and courses that will advance his or her educational goals. What right do professors and administrators have to tell students what they must study?
The better question is why we put up with professors and administrators who lack the confidence and competence to fashion and implement a core curriculum that provides a solid foundation for a lifetime of learning. Every discipline recognizes that one must learn to walk before one learns to run.
In every discipline, excellence depends on the acquisition of primary knowledge and necessary skills. Even the ability to improvise effectively—with a game-winning shot, a searing riff, or a devastating cross-examination—is acquired initially through submission to widely shared standards and training in established practices. It is peculiar, to put it mildly, that the authorities on college campuses are in the habit of insisting on their lack of qualifications to specify for novices the proper path to excellence.
For many professors, ideological opposition to a core curriculum on the grounds that it interferes with students’ freedom merges with self-interested opposition to it on the grounds that having to teach a common and required course of study would interfere with faculty members’ freedom. University hiring, promotion, and tenure decisions usually turn on scholarly achievement in rarefied areas of research. Powerful professional interests impel faculty to avoid teaching the sort of courses that provide students with general introductions, solid foundations, and broad overviews because those take time away from the specialized scholarly labors that confer prestige and status. Much better for professors, given the incentives for professional advancement entrenched by university administrations, to offer courses that focus on small aspects of arcane issues.
The hollowed-out curriculum, moreover, is politicized as much by routine exclusion of conservative perspectives as by aggressive promulgation of progressive doctrines. Students who express conservative opinions—about romance, sex, and the family; abortion and affirmative action; and individual liberty, limited government, and capitalism—often encounter mockery, incredulity, or hostile silence. Few professors who teach moral and political philosophy recognize the obligation to ensure in their classroom the full and energetic representation of the conservative sides of questions. Courses featuring Jean-Jacques Rousseau, Karl Marx, and John Rawls abound; those featuring Adam Smith, Edmund Burke, and Friedrich Hayek are scant.
Worse still, higher education fails to teach the truly liberal principles that explain why study of both conservative and progressive ideas nourishes the virtues of toleration and civility so vital to liberal democracy. Many faculty in the humanities and social sciences suppose they are champions of pluralism even as they inculcate progressive ideas. The cause of their delusion is that the rightward extreme of their intellectual universe extends no further than the center-left. Many were themselves so thoroughly cheated of a liberal education that, unaware of their loss, they blithely perpetuate the crime against education by cheating their students.
Small wonder that our politics is polarized. Both through their content and their omissions, college curricula teach students on the left that their outlook is self-evidently correct and that the purpose of intellectual inquiry is to determine how best to implement progressive ideas. At the same time, students on the right hear loud and clear that their opinions are ugly expressions of ignorance and bigotry and do not deserve serious consideration in pressing public-policy debates. By fostering smugness on the left and resentment on the right, our colleges and universities make a major contribution to polarizing young voters and future public officials.
What should be done?
First, freshman orientation must be restructured. Schools should not dwell on diversity, equality, and inclusion while excluding diversity of thought. In addition to providing sessions on the fundamentals of free speech and the essentials of due process, they ought to give pride of place in orientation to explaining the proper purposes of liberal education. This means, among other things, reining in the routine exhortations to students to change the world—as if there were no controversial issues wrapped up in determining which changes would be for the better and which for the worse. Instead, orientation programming should concentrate on helping students understand the distinctive role higher education plays in preserving civilization’s precious inheritance and the distinctive role such preservation plays in enriching students’ capacity for living free and worthy lives.
Second, curricula must be restructured to make room for a core. In our day and age, undergraduate specialization in the form of a major is inevitable. And students accustomed to a wealth of choice and to personalizing their music lists and news sources cannot be expected to abide a curriculum that does not provide a generous offering of electives. But even if a third of college were devoted to a major and a third to pure electives, that would leave a third—more than a year’s worth of study—to core knowledge.
A proper curriculum should not only introduce students to the humanities, social sciences, and natural sciences. It should also make mandatory a course on the tradition of freedom that underlies the American constitutional order and clarifies the benefits of a liberal education. In addition, the curriculum should require study of the great moral, political, and religious questions, and the seminal and conflicting answers, that define Western civilization. And it should require study of the seminal and conflicting answers to those great questions about our humanity and our place in the world given by non-Western civilizations.
Third, professors must bring the spirit of liberal education to their classrooms. The most carefully crafted and farsighted revisions of the curriculum will not succeed in revivifying liberal education unless professors teach in the spirit of Mill’s dictum from On Liberty, “He who knows only his own side of the case, knows little of that.” Indeed, unless professors recognize the wisdom of Mill’s dictum, they will fail to grasp the defects of the contemporary curriculum that make its revision urgent.
The Professor’s Vocation
To provide a properly liberal education, then, our colleges and universities must undertake three substantial reforms. They must institutionalize the unfettered exchange of ideas. They must govern campus life on the premise that students are endowed with equal rights and therefore equally deserving of due process without regard to race, class, or gender. And they must renovate the curriculum by introducing all students to the principles of freedom; to the continuities, cleavages, and controversies that constitute America and the West; and to the continuities, cleavages, and controversies that constitute at least one other civilization.
To accomplish these reforms, the conceit of infallibility must be tamed. Progress in one area of reform depends on progress in all. But to recall a matter Marx touched on and, long before him, Plato pursued: Who will educate the educators?
Times have changed. The academy has undergone a kind of religious awakening. These days many professors resemble priests who believe their job is to impose their faith. But the zealous priest is no more suited to the vocation of liberal education than is the cynical priest. Professors would do better to take the midwife—in the Socratic spirit that Mill embraced—as their model.
Liberal education’s task is to liberate students from ignorance and emancipate them from dogma so that they can live examined lives. It does this by furnishing and refining minds—transmitting knowledge and equipping students to think for themselves.
What about political responsibility? What about justice? What about saving the country and the world?
Through the discipline of liberal education, professors do what is in their limited power to cultivate citizens capable of self-government. And law professors do what is in their limited power to cultivate thoughtful lawyers. Those are lofty contributions since self-government and the rule of law are essential features of liberal democracy—the regime most compatible with our freedom, our equality, and our natural desire to understand the world and live rightly and well in it.
Peter Berkowitz is the Tad and Dianne Taube senior fellow at the Hoover Institution, Stanford University. This is a revised and expanded version of the 2018 Justice Antonin Scalia Lecture delivered on February 5 at Harvard Law School. It draws on previously published essays.