December 11, the University of Wisconsin Board of Regents, on a divided voice vote, approved a resolution reiterating the University’s commitment to academic freedom and freedom of expression. The inspiration for the resolution is unclear although its timing suggests that controversies regarding racial bias at other universities played a role. The ACLU of Wisconsin had written the regents to point out some deficiencies in the resolution. After the regents passed the resolution, the ACLU of Wisconsin made the following statement, which may be attributed to its executive director, Chris Ahmuty:
The ACLU of Wisconsin is disappointed that the UW Regents did not allow for a wider university community discussion regarding free speech and academic freedom on UW campuses around the state. The extent of university limitations on speech is unclear and mostly speculative. The ACLU of Wisconsin is concerned that the resolution does not address protection of the free speech rights of students who have little or no power. The ACLU of Wisconsin believes there should be a discussion on ways to increase the free marketplace of ideas by promoting a robust and honest debate regarding the university’s failure to address the inclusion of marginalized students in campus life. Racial justice and free speech are not mutually exclusive.
The following letter was sent on December 9, 2015 from the ACLU of Wisconsin to the UW Board of Regents in response to their draft resolution about academic freedom and freedom of expression. Please also refer to the following ACLU blog post, "Racial Justice and Free Speech Are Not Mutually Exclusive" for additional information on this issue.
The University of Wisconsin Board of Regents’ Education Committee is considering a resolution reiterating the Board’s commitment to academic freedom and freedom of expression on Thursday, December 10, 2015. The ACLU of Wisconsin believes that current draft of the resolution is deficient in a couple of ways.
First, even for a statement of principles the resolution is hopelessly vague in a key section. In a paragraph regarding acceptable limitations on expression, the current language includes the phrase, “or [expression] that is otherwise directly incompatible with the functioning of the university.” Who gets to decide when to invoke this exception? Of course the university does. This language sounds as if it was written by the lawyers in risk management. It’s a loophole that may be utilized in an arbitrary and capricious manner.
Second, while statements of principle need to be broad to cover a wide array of circumstances, the resolution appears to ignore contemporary issues facing its implementation. For instance, given the balance of power on UW system campuses, freedom of expression, much less academic freedom, is not significantly threatened by the Black Lives Matter movement. The resolution should be considered on its own merits (which are considerable) and not as a backlash to campus debates over inclusion.
The UW Regent Policy Document 14-6 on Discrimination, Harassment, and Retaliation does not limit expression in an unconstitutional manner. It stops properly at limiting discriminatory conduct. It explicitly recognizes First Amendment rights. The proposed resolution might return the favor and explicitly recognize that freedom of expression and academic freedom will not be used to allow discriminatory harassing conduct that diminishes educational opportunity for any and all students.
Thank you for your consideration.