Levin, Jeffries, and the fate of academic autonomy - College professors Michael Levin and Leonard Jeffries

Nathan Glazer

Professors Michael Levin and Leonard Jeffries of the City College of New York have both been in the news - Professor Jeffries is still in the news - for things they have written and said, and for which, they have charged, they have been punished by the college. Both, in the end, appealed to the federal courts for redress on the grounds that their freedom of speech had been infringed. Professor Levin offended blacks with his public letters and articles. Professor Jeffries offended Jews with his speeches. Both found satisfaction in the decisions of the federal district court to which they appealed: The court ruled that they had been improperly punished for their speech. Professor Jeffries' case then ran a different legal course, and may still be subject to further legal developments, but these do not affect the central thrust of this article, which is to ask: Are federal courts and the application of free-speech standards the way to deal with these difficult issues for higher education? I believe they are not, and this article, describing the Levin and Jeffries cases, explains why.

There will undoubtedly be more cases of the same kind. Colleges and universities have been trying to deal with the issue of what is now called "hate speech." Generally when we use that term, and argue over the rules that are being written in various colleges and universities to control or punish obnoxious speech, we have in mind students and student behavior. Some of these cases - such as that of Eden Jacobowitz at the University of Pennsylvania, who called a group of black female students talking under his window "water buffalo," and whom the college authorities tried to discipline - have received national attention.

The Levin and Jeffries cases raise a different but related issue. Here what is at issue is the writing and speeches and teaching of faculty members with tenure, not epithets uttered in the heat of the moment. Faculty members are, of course, capable of expressing wounding epithets, in the heat of the moment or otherwise, just as students are capable of reasoned speech. The issue raised by Levin and Jeffries at City College is that of reasoned speech and writing by faculty members that have been found offensive and outrageous by one or another group. Of course, the line between the reasoned (even if not fully reasoned) positions of faculty members and epithets is not easy to draw: One fear about speech codes is that they will inhibit reasoned speech. What one person may consider reasonable argument (what was the scale of the Holocaust, are blacks intellectually inferior), another will consider outrageous, a harmful expression of hate, damaging to students of the affected group.

Clearly, we are only at the beginning of the emergence and development of some complex issues. We are trying to deal with these issues by calling upon Constitutional standards governing free speech, either by writing - or not writing - speech codes or by resorting to federal courts when faculty members are disciplined or punished for something said or written. But how appropriate are free-speech standards in responding to the problem created when faculty members take positions in writing, speech, and teaching that one or another group finds outrageous and damaging?

Levin and Jeffries: the similarities

Both Professors Michael Levin and Leonard Jeffries are tenured members of the City College of New York (CCNY), a component unit of the City University of New York (CUNY).(1) Both wrote or said things that persons in the college and outside, including faculty, students, administrators, and elements of the general public, believed were reprehensible, outrageous, offensive, false. In both instances, the college took some action against them. In both instances, the subjects of these actions resorted to the federal courts, arguing that they had been damaged by this action and, since it was action taken by a state agency (the college is public) in response to their speech, that their right to free speech had been violated. In both instances, a federal judge (the same judge, it turned out, Kenneth Conboy, now retired) agreed that they had been penalized for their exercise of free speech, and directed the college to restore them to their previous positions. (The Levin proceedings were before the judge alone, the Jeffries proceedings before judge and jury, and, in the latter case, the jury also awarded substantial financial compensation, reduced by the judge.) In both instances, one may see the outcome as a positive example of the proper protection of individual rights by the Constitution and a triumph of American Constitutional law.

Thus, it is possible, if one closes one's eyes to a great deal, to see the two cases as equivalent. This I believe was the position of the president of the college at the time of the two cases, Bernard Harleston, who saw himself as defending the same important values in both cases, and who took the position that the college was threatened in a very similar way by the actions of the two faculty members. As the losing defendant in both cases, he, of course, defended the actions the college took in response to the protests of students and outside elements attacking the views and actions of Professors Levin and Jeffries. Defenders of the appropriateness of resorting to free-speech doctrine in bringing the two cases to a satisfactory resolution would also see the two cases as equivalent. In both cases, objectionable things were said and written, the college took some action, and the Constitutional law protecting freedom of speech was appealed to in order to defend a major principle.

Those who see the two cases as equivalent emphasize two basic values, the maintenance of harmony among the various ethnic and racial and religious groups that make up our diverse society, and the particularly diverse City College of New York, as well as academic values placing truth and the search for truth above all others. The defenders of the outcomes in the Levin and Jeffries cases generally see no conflict between these two values. They attack the views of both Levin and Jeffries as false and hateful, as well as disruptive of intergroup harmony. What their posture would be if they recognized that sometimes true assertions can undermine intergroup harmony is not easy to divine. They are content to believe that the two plaintiffs were in the same position in regard to truth as well as Constitutional law: wrong about truth, but equally entitled to propagate their falsehoods.

It was clearly the president's view that there was no contradiction between the two objectives of upholding truth and fostering intergroup harmony: The truth would serve to promote harmony among ethnic groups, and even if there was no way to expunge fully what were to him the obnoxious falsehoods propounded by the two professors who were undermining harmony, at least it could be made clear to those outraged by them that the administration would in some way show its displeasure with the two faculty members in question.

To present the two cases as parallel, as President Harleston has, shows the evenhandedness and fair-mindedness of the administrator. Racism, whether that of a white philosopher justifying the differential treatment of blacks, or a black scholar condemning Jews for mistreatment of blacks, would be found equally reprehensible, and some action to demonstrate the administrator's sympathy with those outraged by these views would be taken.

An insistence on the equivalence of the two cases would also provide a rhetorical stick to beat those who have expressed their outrage that Professor Jeffries still maintains his position as professor and chairman of Black Studies while remaining silent on Professor Levin. When the two cases are considered equivalent, the words of both professors equally obnoxious, one can argue that criticism of one should be stayed, unless it is made equally of both. Thus, consider the letter of Reginald Wilson, senior scholar with the American Council of Education, in the Chronicle of Higher Education:

I find Mary Lefkowitz's outrage at the academy not meting out swift justice to Anthony C. Martin [a professor at Wellesley College who argues, as Jeffries does, that Jews bear some special culpability for slavery] and Leonard Jeffries, Jr., a little naive ("Combatting False Theories in the Classroom," January 19)....

Just prior to the Leonard Jeffries incident, there was the case of Michael Levin, who teaches that blacks are genetically inferior to whites, which is conspicuously absent from Ms. Lefkowitz's complaints. In that case, the judge ruled not only that Mr. Levin was protected by academic freedom, but that the university could not offer an alternative section for students who might have been offended by his "false theories." But, then, I suppose that what Mr. Levin teaches is all right, it's just upsetting when someone teaches falsehoods about my group.

Let me say that I find Mr. Martin's and Mr. Jeffries's views repugnant and, moreover, not substantiated by scientific evidence. But I will not pursue them with the zeal Ms. Lefkowitz demands while academics rise in the defense of Mr. Levin, Arthur Jensen, Philippe Rushton, William Shockley, and the legions of academics who insist that these professors who propound erroneous racial theories are merely pursuing "disinterested research."(2)

However, despite the similarities between the two cases, there are also profound differences between them, and the differences raise a number of crucial issues for the college and university. To consider them only as cases of the penalization of free speech, which is the only way they could be considered in a federal court, was to minimize or ignore the differences between them. These differences should have been primary in an academic institution. They could not even be raised in the forum of the federal courtroom. This might, from one point of view, be considered a virtue. From the point of view of the college and university and its values, it is rather a serious limitation.

In an academic institution, truth must be a primary value. In making free speech the central issue in these cases, truth became irrelevant. Free-speech Constitutional law has evolved and been elaborated to a degree that is often surprising to many of us - regulations on what sort of clothing one may wear to school, for example, have become "free-speech" cases. Obviously, in view of the development and present posture of free-speech law, it was perfectly appropriate for a federal court to have accepted as legitimate both complaints. I will explore what to me seem to be the great differences between the cases and ask what the alternative was to a judicial settlement of the matter under Constitutional law.

The facts in the Levin case

The facts in the two cases are well presented in Judge Kenneth Conboy's Opinion and Order for each. In his Opinion and Order in Levin, he writes:

A professor who has had tenure for over sixteen years at one of America's most famous institutions of higher learning, singularly noted for its bracing environment of broad and untrammeled speech [footnote omitted], claims that his tenure is in jeopardy, his students drawn away, his classes disrupted, his reputation injured and his speech chilled as a result of the actions of his college's administrators, who are said to be repelled by his views on affirmative action quotas and the relative intelligence of blacks and whites, and who are said to be, by their actions, seeking to suppress his views.

The college officials say that his views are odious, and rightly denounced, and that although he has committed no act of academic misconduct or discrimination against his students, and although there is no complaint by any of his students against him, they are permitted to structure the class schedule to provide alternative professors to "insulate" and "protect" his present and future students from his views.

Michael Levin's troubles arose from a letter he wrote to the New York Times (January 11, 1987), a book review he published in the Australian journal Quadrant (January/February 1988), and a letter he published in the Proceedings and Addresses of the American Philosophical Association (January 1990). The New York Times letter responded to an editorial that had appeared in the newspaper (December 28, 1986) on the issue of whether young black men may be treated differently because they are statistically more likely to commit criminal acts - for example, should storekeepers deny admittance to persons whom they consider, simply because of their race, to be a possible threat? The issue was raised by the assault on some black men who were in a white neighborhood in New York City. The many, the Times argued, should not be penalized for the sins of the few. The Times referred to the philosopher John Rawls and paraphrased his position as follows: "No one ought to endorse a social order he could not accept if he were not in the shoes of the disadvantaged." Levin's letter argued against this use of the Rawls principle. His language was direct and unmodulated:

Rawls proposes this principle as a test of the basic institutions of a society, if they were being chosen from a position of total ignorance about one's actual place in that society. It does not constrain particular decisions made within a given society ... when specific information is available about the actual risks one faces....

If information about appearance can be used to reduce the probability of being attacked, one may use it. Even other blacks are presumably more wary of 17-year-old black males wearing running shoes and hooded sweatshirts that they are of other members of the population.

He then goes on to criticize the Times for supporting affirmative action, which he asserts penalizes whites innocent of discrimination. "Is discriminating against innocent whites a tolerable price for insuring jobs for blacks while discriminatory inconvenience for innocent blacks is too high a price for reducing the risk of murder for white store owners?"

A year later, Michael Levin reviewed, in the January/February 1988 Quadrant, E.D. Hirsch's Cultural Literacy and Allan Bloom's The Closing of the American Mind. Here he refers to the well-known discrepancy between white and black academic performance, and writes:

[T]he only adjustments in educational measures that will allow blacks their due number of successes amount to making course-work easier and easier, and this is what has been going on for over thirty years. Conversely, if standards are going to be raised, cultural literacy reasserted, and college education given its old depth and focus, the American polity will have to reconcile itself to an embarrassing failure rate for blacks.

The letter to the Proceedings and Addresses of the American Philosophical Association in January 1990 argued that the reason for the low representation of blacks in the field of philosophy was their lower level of intelligence on average.

The college's reaction to Levin

Shortly after he published his letter in the Times, Michael Levin's troubles began. Pamphlets were distributed outside his class, a demonstration outside his classroom blocked students from entering, and other demonstrations followed. Levin reported all this to campus security, the administration, even President Harleston. While no action was taken against the student demonstrators, a security guard was assigned to Professor Levin's classes.

After his review in Quadrant appeared, Michael Levin was condemned by the Faculty Senate of City College for expressing "racist prejudices [offensive to] our fundamental notions of human decency." President Harleston commended the action of the faculty senate and suggested it appoint a special committee "to receive, investigate and make recommendations concerning any charges of bias related activities by faculty directed to or in interaction with students." The senate took no action on this.

City College has a required course for undergraduates in philosophy, which Michael Levin, among others, teaches. In the spring of 1990, shortly after his letter in the Proceedings and Addresses of the American Philosophical Association appeared, Levin was scheduled to teach this course, and, without his knowledge, a section of this course, meeting at the same time as his, was created. The action was taken by a dean, against the opposition of the chairman of the philosophy department, and the dean sent a letter to Professor Levin's students informing them of this alternative and its availability, explaining that this action was taken because "Professor Levin has expressed controversial views."

In April 1990, President Harleston, having been rebuffed a second time in a request to the college faculty senate that it appoint a committee to look into the issue of bias or racism at the college, and specifically the writings of Professor Levin, announced that he would form an ad hoc committee to consider whether Professor Levin's views affected his teaching ability. In a campus newspaper report, President Harleston was quoted as saying "The process of removing a tenured professor is a complicated one." The formal charge to the committee was "to review the question o when speech both in and outside the classroom may go beyond the protection of academic freedom or become conduct unbecoming a member of the faculty, or some other form of misconduct." The committee was asked specifically to review information concerning Michael Levin. This action was later deplored in a resolution by the faculty senate.

The committee report, dated February 5, 1991, asserted that there was a tension between the principles of academic freedom and free speech, and the college's obligation to

uphold students' rights to a supportive learning environment. It finds that there are utterances by faculty, even outside of class, that can have a detrimental impact on the educational process. In particular, statements denigrating the intellectual capability of groups by virtue of race, ethnicity or gender have the clear potential to undermine the learning environment and to place students in academic jeopardy.

This was the situation in regard to Professor Levin's students:

The statements by Professor Levin alleging the intellectual inferiority of blacks does, in our view, clearly have the potential to harm the process of education in his classes. Thus we find that it is appropriate for the College to continue to carefully implement ways to protect the students from such harm.

The committee report supported the establishment of the parallel section to Professor Levin's courses but recommended no disciplinary action.

By the time the report was published, Jeffries, professor and chairman of Black Studies, had also become notorious. The report referred to "statements attributed to Professor Jeffries to the effect that AIDS was created as part of a conspiracy by whites to destroy blacks or that make sweeping negative characterizations of whites." While "many would find [these statements] outrageous and possibly offensive," the committee asserts that they "do not impact directly on the process of education in class." While "they may be deplorable, they should neither lead to disciplinary proceedings ... nor other College administrative responses."

A key distinction made in the report that I have summarized was between statements made in public forums or in class that have the capacity to affect the learning environment in class, and statements that "have a generally negative effect on campus atmosphere, but that do not impact directly on the process of education in class." Jeffries' and Levin's statements both have a negative effect, yet only Levin's statements apparently affect the process of classroom education. Thus, ways to protect students from harm are appropriate in the case of Levin but not, it appears, in the case of Jeffries. The report does not present any evidence regarding the work of Levin and Jeffries as classroom teachers but takes it as a given, requiring no further argument, that Levin's publicly stated position must affect how minority students will respond to him as a teacher.

At the trial, Levin testified that he believed that his tenure was in danger, that Harleston was going to try to fire him, and that, as a consequence, he turned down many invitations to speak or write about his views. Judge Conboy found that there had been a chilling effect on Levin's exercise of his right to free speech, and, therefore, that the college was permanently enjoined from "commencing or threatening to commence any disciplinary proceedings against ... Levin [and] ... from creating or maintaining 'shadow' or 'parallel' sections of his classes." The college was also enjoined to take "reasonable steps to prevent disruption of Professor Michael Levin's classes."(3) There were further legal proceedings in the case, but, on the key issues, Judge Conboy's injunction was sustained.(4)

The facts in the Jeffries case

Leonard Jeffries was chairman of the Black Studies department at City College. He had been chairman since the department was created in 1972, having been nominated by the department faculty for a sixth consecutive term of three years on June 5, 1991. At CUNY, the faculties of each department nominate chairmen through elections, subject to the approval of the president of the college and the board of trustees. The board of trustees missed voting on this normally pro forma action before the end of his previous term as chairman on June 30, but the president of the college sent him a congratulatory letter on his reappointment on July 1.

On July 20, Jeffries gave a speech in Albany, New York, at the Empire State Black Arts Festival, on multicultural education. Jeffries had previously served as a consultant to a New York State task force on multicultural education and was chief author of its report. The report, which advocated a complete reformation of New York State education to reverse what it called the "intellectual and educational oppression [of minorities] that has characterized the culture and institutions of the United States and the European American world for centuries," was severely criticized for its intemperateness and its proposals by leading historians and by the media. The controversy led to the appointment of another committee, whose own report had just appeared, again to a storm of criticism. So multiculturalism and its implications for education were high on the public agenda in New York State in the summer of 1991.

In his speech on multicultural education, Jeffries characterized his critics as Jews hostile to blacks, attacking Jews generally for their role in the slave trade and in Hollywood, where he asserted they were responsible for a demeaning representation of blacks. A storm of criticism by major media organs and by leading public officials followed. Editorialists and political officials demanded to know why Jeffries (who had been in the news earlier because of his outlandish theories, as propagated in his classes) was still a tenured professor at City College and still chairman of the Black Studies program.

There were a variety of responses to this uproar by the college administration and the Board of Trustees of CUNY. The college administration, which had had a good deal of experience with Jeffries, and the CUNY Chancellor basically wanted to find the minimal response that would still the outcry. In contrast, the board of trustees included a good number of individuals who desired, but lacked the authority, to fire Jeffries. The solution that finally emerged, which scarcely satisfied those who had called for Jeffries' ouster, was to reduce his term as chairman from three years to one. The college went on to seek a new chairman, and the board of trustees voted to appoint Professor Edmund Gordon, who had long served at Yale, to take over the chairmanship when Jeffries' abbreviated term ended in June. Jeffries then sued the president of the college, the chancellor of CUNY, and members of the board of trustees who had voted to reduce the length of his chairmanship, on the grounds that he was removed from the department chairmanship in violation of his First Amendment right to free speech. He asked for punitive damages and that his chairmanship be reinstated.

The case was tried before a jury which, responding to questions set by the judge, found that Jeffries' Albany speech was "a substantial or motivating factor" in the reduction of his term as chairman; that he would not have had his term reduced had he not made the speech in Albany; that the defendants had not shown that his speech "hampered the effective and efficient operation of the Black Studies Department." But, in apparent contradiction to this last vote, the jury also found that the defendants "were motivated in their action by a reasonable expectation that the plaintiff's July 20, 1991 speech would cause the disruption of the effective and efficient operation of the Black Studies Department, the College, or the University." The jury also agreed that Jeffries had been "deprived ... of property rights without due process of law." The jury awarded him $400,000 in punitive damages, assessed against the defendants. The judge accepted the jury's verdicts, but reduced the punitive damages.

Jeffries was reinstated as chairman so that he could serve the two years remaining on his appointment. On appeal, the Second Circuit upheld his reinstatement but found in the contradictory determinations of the jury a basis to vacate the award of punitive damages. On appeal to the Supreme Court, the Court remanded the case and asked the Second Circuit to review it in the light of a recent case, Waters v. Churchill, where a nurse had been dismissed from a public hospital for making critical remarks. The Court in that case made a distinction between the government as "sovereign" (in which capacity it must give greater deference to free speech), and the government as "employer" (in which case it can penalize an employee for speech if it expects that speech to be disruptive). On the basis of this remand, the Second Circuit has now ruled in favor of City College, and Jeffries is back to square one.

The judge decides

Judge Conboy, in his Opinion and Order, indicated what he thought the defendants - college president, university chancellor, and members of the board of trustees - would have had to do to defend themselves against the charge of violating Jeffries' freedom of speech. They would have had to show that "either the consequences of the speech disrupted the campus, classes, administration, fund-raising or faculty relations, or that the professor had turned his classroom into a forum for bizarre, shallow, racist and incompetent pseudo-thinking and pseudo-teaching."

The judge's language, here and elsewhere in his Opinion and Order, suggests strongly that he believed that the defendants could have made such an effective defense but did not. His Opinion and Order is peppered with such terms as "amazingly" and "astonishingly" to describe the fact that the administration did not create the "paper trail" that would have justified action against Jeffries.

The defense did show that Jeffries had long been a subject of administrative concern:

As far back as November of 1984, Professor Jeffries made anti-Semitic and racist remarks to a candidate interviewing for the position of director of the College's International Studies Program. As a result of the remarks, the candidate withdrew.... In the face of what seems to be totally unacceptable behavior for a Department Chair, the CUNY administrators allowed Professor Jeffries to retain his Chairmanship, only sending him a letter of reprimand.

There is a case of a student dropping Jeffries' course and asking for a refund because, to quote him, Jeffries "spouted the most racist line of nonsense." His classes were reviewed by a student for a campus newspaper, and the absurd content of these classes could have been taken notice of by the administration. There was evidence that the defendants were looking for a new chairman even before his infamous speech. Yet, the judge ruled that "there is insufficient evidence that there was a purposeful and structured search or a sense of urgency about the matter."

The defense's introduction of Jeffries' past derelictions and more recent bizarre and disruptive acts seems to have worked against it. In the judge's opinion:

The defendants' position is undermined by their own presentation at trial of broad evidence of impropriety and extremely questionable behavior on the part of Professor Jeffries well before the speech.... This evidence suggests, and certainly the jury could have found, that the ... incidents cited by defendants [after his term as chairman was reduced] were ... characteristic of Professor Jeffries' conduct throughout his tenure at the College.

The judge's reasoning seems to be that if outrageous behavior in the past did not lead the college to take action against Jeffries, then it must not have been his outrageous behavior but only his Constitutionally protected speech which led to the reduction of his chairmanship. The college tried to put the speech in the context of many actions, of which the speech was simply the last straw; to the judge, the college was "cowardly" in not responding to Jeffries in the past, and it was only the uproar that led to the reduction of his chairmanship.

It would have appeared, on the face of it, a very simple task to demonstrate that Jeffries had hurt the college. The college's alumni and major contributors are in large measure Jewish. The college was aware of how angry alumni were at Jeffries and at the college for maintaining him in his position. In fact, they sent letters to alumni trying to mollify them. Certainly Jeffries' activities must have affected fund-raising, as President Harleston himself testified. But, to Judge Conboy, this was not sufficient: "[D]efendants made no attempt to provide data or an analysis of alumni giving after the speech. Nor did the defendants present any correspondence from alumni or put on the stand a single alumnus."

It is clear from his two opinions where Judge Conboy's sympathies lie: They are with Levin, who has been unfairly penalized for his speech, and against Jeffries, concerning whom the administration, had it not been cowardly and incompetent, could have made a good case for some sanction. According to the judge, the administration could even have acted against him, despite his protected speech, if he "had turned his classroom into a forum for bizarre, shallow, racist and incompetent pseudo-thinking and pseudo-teaching."

But the fact that they never acted against Jeffries, and only did so after the public uproar, was decisive: He was being punished for speech on a matter of public interest. Thus, the two defendants were formally in the same relation to the college and deserved the same relief. We come back to the issue, then, that before the law and its defense of free speech, there is no difference between Levin and Jeffries. My argument is that there are vast differences between the two cases, differences that are irrelevant to the law but should be of the essence to an academic institution and the values of higher education. Because these values could not be considered under the rubric of the Constitutional protection of free speech, I see a radical discordance between the way the cases should have been handled under academic criteria, the way they were actually handled by the administration of the college, and the way they were finally determined in federal court.

The differences that should have mattered

The key difference was that Levin was engaged in legitimate academic activities, which are generally summed up under the three headings of research, teaching, and public service. Jeffries conducted no research - at any rate, he published no research. His teaching was outrageous, and it was only his public service that deserved protection. Research and teaching are considered essential duties of a college professor. Public service, which can take a number of forms, including nonprofessional writing, public speeches, and service on public bodies, is considered, when exercised on the basis of one's professional qualification in a specialized discipline, a legitimate activity of academics. It may be included when they are professionally evaluated, though it is not central to their evaluation. Comment on public affairs may also be considered simply a part of one's role as a citizen, entirely independent of faculty obligations, duties, or restraints.

Despite the legitimacy of Levin's activities, as an academic or as a citizen, he ran afoul of the administration. As he charged in his suit, his classes were disrupted, and the college did little to restrain the disrupters or punish them; the college set up a section of the required course he taught to parallel his own, and informed students that, if they believed they would be uncomfortable in his section, they could transfer to the new one; finally, the college set up a committee to examine his behavior, that is, his research and writing, to determine if any action against him was appropriate, and he believed that this action might include the termination of his tenure.

In regard to Levin, the duty of the college administrator was simply to take no notice of his activities, aside from the necessary one of preventing his classes from being disrupted and enabling him to continue his work as teacher and researcher. It would have been perfectly legitimate to point out to disrupters and protesters that the college protects the freedom of inquiry and discussion of faculty and students, as well as the right to contest the positions taken by researchers and advocates within reasonable limits. Yet, as Levin argued in his suit, and the court confirmed, the college joined in his harassment.

In the case of Jeffries, what he was doing as a teacher and scholar was beyond the pale of what was acceptable in a college. His teaching was the purveying of nonsense, based on no scholarship at all or on scholarship violently wrenched out of context to serve his demagoguery. His research was nonexistent. There is no record that he has published anything in his 20 years as professor and chairman (though before that he did complete a doctoral dissertation at Columbia University). His public service reflected the quality of his research and teaching.

Clearly, the college should have at some point taken notice of his performance. While I would go so far as to say he no longer deserved the protection of tenure, as little as a geographer who insists that the earth is flat, or a historian who asserts that human history began with the creation of the earth in the year 4004 B.C., I would understand why the college, or any institution that grants tenure, would have hesitated to withdraw this protection. Prudential grounds rather than grounds of principle would have made it unwise. The costs of dismissing a professor with tenure are so great that it is simply not worth it. These costs in this case would not only have been monetary, involving something in the order of an extended trial with appeals and the like, but would certainly have included considerable disruption, for Jeffries had organized a core of fervent supporters among students.

Despite the fact that he had no standing as a scholar, whether in his field or outside it, and had written or published nothing in his more than two decades at City College, despite the publicity that his outlandish views received, despite the fact that he brought the department he had chaired for two decades into disrepute, the college tolerated his presence as chairman of Black Studies.

In the Levin case, the college acted not to defend Professor Levin but to examine his suitability. In the Jeffries case, it reduced the term of Professor Jeffries' chairmanship only after huge public protest. The question I have raised from the beginning, as to the equivalence of the two cases, can now be sharpened. In brief, from the point of view of the prime objectives of a college or university, Levin was engaged in a legitimate exercise of scholarship, despite the pain it caused and the strains it introduced into relationships between the races. Jeffries aroused the same pain and strain, mostly by raising the specter of an irrational hatred of Jews. From the point of view of an institution of higher education, they stood in very different positions, and the differences between them should have led to differences in how they were treated. When they both end up in the same court, treated under the same law, both declared equally worthy of the protection of the First Amendment, I think something has gone wrong. It is, of course, true that both the scholar and the charlatan are deserving of equal treatment under the law. But they are not deserving of equal treatment by an institution of higher education.

The search for truth

What is at issue here is the difference in how the law must treat freedom of speech and how the academy must treat freedom of speech. From the point of view of Constitutional law, what was said in a case of freedom of speech is of no consequence. There was no reason to examine the truth, by whatever means available, of what Levin had written or what Jeffries had said. "Under our system, there is 'no such thing as a false idea,'" according to the Supreme Court.(5) The issue in a federal court examining a claim brought under the Constitutional protection of free speech is not what was written or said but what was done by some authority on the basis of what was said. From the point of view of a college or university, what was written and said, and its relation to the primary function of a college or university - viz., the search for and the teaching of truth, as best we can determine it - should be of the essence. This essence is, however, a matter of indifference to the court applying the Constitutional law of freedom of speech.

One who is convinced of the substantial difference between the two cases when judged by academic criteria is likely to conclude, seeing that these criteria played no role at all in the legal arguments and decisions in the two cases, that something must be wrong, either with the law to which they appealed, or the judge who tried their cases, or the forum in which the cases were tried. Considering the law in its own terms, one cannot argue very effectively that the law or the judge were defective. Both decisions were upheld, in their crucial parts, by the Second Circuit, so it is not possible to fault the law or the judge. (The law may change on the basis of the recent Supreme Court action, referred to above, and the Second Circuit decision. Now fear of disruption may be sufficient to penalize a public employee for speech, but that can hardly give any satisfaction to a defender of academic values. What Levin wrote produced far more disruption on campus than what Jeffries said. Using the logic of the Waters case, the College had more grounds for punishing Levin than Jeffries.)

My argument is that the forum was wrong: These cases belong in the academy, to be settled by academic institutions and the formal and informal bodies within and outside these institutions that are expected to maintain the integrity of academic life. These were not matters for federal courts, judges, or Constitutional law on the subject of free speech. These were issues internal to the academy, to be determined by considering its own functions and objectives.

Whose ox is gored?

At one time, it was still a subject of serious discussion whether academic regulations of various kinds should be subject to the law governing free speech, as developed by the judiciary. This was the case at the beginning of the free-speech movement in Berkeley in the 1960s, when some of us argued that the university had an independent right to regulate some kinds of student political behavior (e.g., where tables distributing and selling leaflets could be put up). This sort of thing was not to be decided by the law governing what could be done in public spaces or by judges who might know much about Constitutional law but little about the conditions that were desirable for colleges and universities.(6)

At the time, this was considered a conservative position. This is not surprising because, in the mid-1960s, colleges and universities and academic bodies were still considered, for the most part, conservative institutions, and if they ruled on such matters they might be expected to rule in a conservative direction. Courts, it is true, were also more conservative at the time, but they operated under Constitutional law, which was steadily becoming more expansive in its interpretation of what was protected under the First Amendment. In contrast, the regulations of autonomous institutions, which had some supervisory role over young people, were then more restrictive. Those were the days, we should recall, when boys and girls were uniformly separated, and by a substantial distance, in college living quarters, when indeed they were still called "boys" and "girls," implying that they were properly subject to parental discipline and its authorized representatives.

This view, that an independent and autonomous academic institution may properly have rules different from those established for society in general by courts operating under Constitutional law, and that these rules may be more restrictive than those general rules, is now considered a liberal, or even radical, position.(7) It is this point of view, after all, that justifies "speech codes" on campus. When Harvard Law professor Randall Kennedy argued in a public forum for the legitimacy of rules in an academic institution more restrictive than the rules that govern what any citizen can do in the public street, he was criticized roundly in an editorial in the Wall Street Journal,

The Journal wrote:

At a forum on universities and free speech held at Harvard recently, Professor Randall Kennedy of Harvard Law School challenged the close association between free speech [on the campus] and the First Amendment. According to an account of Professor Kennedy's "argument" in the Harvard Gazette, the university's official newspaper:

"'A university must set its own standards because the Supreme Court can rule either way on freedom of expression cases,' he said. 'If the court, for example, ruled that shouting racial epithets was protected under the Constitution, then Harvard should offer less free speech than the surrounding society,' he reasoned."

He reasoned?(8)

The Journal had forgotten, or never knew, that this was once sound conservative doctrine.

Of course, we all know the reason why liberals and radicals may want special rules for the campus, such as speech codes, sexual-harassment regulations, and the like. Liberal faculty and administrators, responding to the pressure of minority student leaders and radical feminists, are now the ones who would write and enforce these codes, not the conservative university and college administrations of the past. Administrations these days are hardly and rarely conservative. Administrations were once more conservative than their faculties; they are now commonly more liberal and responsive to demonstrating activist students who have taken up the causes, as they see them, of minorities and women. Indeed, the refuge of any administrator who is not enthusiastic about new and more stringent rules to protect the sensitivities of minority-organization militants and feminists, or rules to punish those students and faculty insufficiently respectful of these sensitivities, is Constitutional law. We can't have a code, they will say, or too strict a code, for the courts won't allow it.

The rules that conservatives once defended against the overriding right of free speech were restrictive rules to control nontraditional and radical student behavior and political behavior. The conservatives lost: Free speech on campus came to mean that campus rules could be no more restrictive than those of the public marketplace.

The rules that are likely to be written today will also be restrictive, but they will be written and implemented generally by liberal student bodies and administrators, responsive to the sensitivities of minorities and women. Now it is conservatives who resort to the Constitutional law of free speech to prevent the implementation of these rules. One wonders whether this is the best we can do, whether our Constitutional principles are simply partisan weapons, brought into play depending on who will write and enforce the rules, and whether this fact alone will determine whether we cry "free speech" or not.

The question then becomes whether there is any general principle that should prevail regarding the governing of the academy and the relationship of its government to the general principles of Constitutional law. Or is it all a matter of whose ox is gored? If we are conservative, and college administrations are conservative, we are all for the independence and autonomy of the college and the university; when administrations become liberal or fall under the influence of liberal or radical students and faculty, conservatives will turn against the principle of academic autonomy. Alternatively, liberals will resort to the courts when conservatives are powerful in academic administrations but insist on their autonomous right to regulate speech when they are in control.

Law's Procrustean bed

The Constitutional law of free speech is a crude instrument, indifferent to the content of speech, and that is as it should be. At the margin, there is the potential limitation of libel law and the still-disputed question of whether "group libel" should be allowed as a cause of action, but, on the whole, the First Amendment, intended for the government of the polity, takes no stand on content.

My argument is that the college and university must take a stand on content. Indeed, in the instances involving Levin and Jeffries, the college did take a stand on content. It happened to be, because of the constellation of political forces, the wrong stand from the point of view of academic values. The search for truth was punished while the demagogic spread of falsehoods went unpunished. The college censured Levin but refused to act against Jeffries until forced to do so by a political uproar. The college administrators took a stand on content and were punished for doing so: Both men were exonerated, and could continue to propagate their point of view without fear of any loss of rights and privileges. Under the law of free speech, the differences between them became a matter of indifference. Under the principles that should govern an academic institution, they could not and should not have been a matter to which the administration was indifferent.

The heart of the matter is that an honest effort to reach truth through the established means of reason and research should have been respected, and that the demagogic advocacy of invented and harmful myths should not have been. The academic response in the two cases was exactly the reverse of what it should have been, which perhaps settles the matter. Crude as the instrument of Constitutionally defined free speech is for settling matters of truth and legitimacy in the academy, it is the only one available, and so there is no longer any argument for academic autonomy. That may be our situation today, but I would like to hold this unhappy, but very likely, conclusion in abeyance for a while in order to explore in somewhat more detail the unsuitability of the courts as the key arbiters in the issues raised by the Levin and Jeffries cases.

One oddity of the two cases was that they were resolved under the principles that govern the rights of public employees to speak without penalty. Thus, for example, the cases cited by advocates, judge, and appeals court deal with such issues as whether a comment by a government employee to the effect that the President should be assassinated was fair public comment, and therefore protected. (The Supreme Court ruled it was.)(9) The law of Constitutionally protected free speech turns out to be a Procrustean bed in which academic issues are placed uneasily. This law was developed in cases brought by public employees in hierarchical institutions of government with duties remote from scholarship and teaching. This seems hardly relevant to Levin and Jeffries and similar cases.

This law became applicable because City College is a public institution, and so it is properly regulated under law developed in cases brought by policemen, social workers, claims adjudicators, and the like. Whether the same law would have applied to a private university is murky, but it is hard to see how this distinction could have been maintained: Every private college and university takes public funds, or its students do, or it benefits from the tax code; ergo, it can be argued that it is also "public."

The Procrustean bed not only had to accommodate cases dealing with institutions hardly typical of public agencies, but it had to ignore the key differences between the Levin and Jeffries cases, differences that played almost no role in the trials or the opinions of the judge. Under the law of free speech, they could not.

Thus, the facts that Levin is a legitimate scholar working professionally in philosophy, that his objectionable views come from his work, that he publishes these views in professional journals where he constructs a coherent argument, marshals data, and footnotes his sources, and that his views can therefore be judged, criticized, and modified, whereas Jeffries has published nothing, despite a presence of more than 20 years at City College, were of no consequence. The problem with Jeffries is that he cannot play a role in the research and discussion process and in settling such matters as his claim about the Jewish role in slavery because he does not write and does not publish. Rather, he makes speeches to audiences incapable of judging the truth of his claims. The difference in the quality of their teaching, previously alluded to, can of course play no role in a free-speech case.

Another difference, which might have been taken notice of in an academic context, was a matter of indifference in a free-speech case: Levin presented his controversial views outside of class and outside the context of the college. Is it a virtue or a defect from the point of view of an institution of higher education that his views on these topics were not presented in class or on the campus? It certainly suggests that he was not activated by any desire to heighten group conflict or animosity. Because he had to know his views would be controversial and arouse anger, he tried to keep them away from the context of his teaching. Possibly, he was simply being cautious and prudent in separating his views on these subjects from his teaching.

Perhaps this was a case of self-censorship that can be criticized in a teacher. Alternatively, it was a case of eschewing notoriety so that Levin's teaching would not be influenced by students' knowledge of his views on subjects that were only on occasion or tangentially relevant to the topics he discussed in his philosophy courses. Jeffries' idiosyncratic doctrines, on the other hand, were the chief subject of his classroom lectures and were presented at public meetings. There are intriguing issues here; they could not be handled in the context of free-speech proceedings.

Scholars and charlatans

But, finally, the key issue is truth. Levin was harassed for taking part in psychology debates over intelligence and its determinants and in moral-philosophical disputes over the legitimacy of taking into account in one's behavior towards individuals statistical patterns that differentiate various groups. Reginald Wilson, in his letter on Mary Lefkowitz quoted above, writes: "Ms. Lefkowitz says as long as it wears the trappings of science and 'reasoned argument' it's all right. This kind of vast loophole lets a lot of racist scholarship through." When racism wears the trappings of science and reasoned argument, it remains racism and should be condemned. But does this properly characterize Levin's work? Isn't there a means of distinguishing between racism wearing the trappings of science and legitimate science based on reasoned argument? If there is such a difference, if it is a meaningful one, who is capable of making the distinction? Certainly not the courts defending the right of free speech. As we have seen, they are indifferent to the content of the speech they defend.

If there is a difference between science, scholarship, and reasoned argument, and non-science and irrational argument - and I believe, despite some recent academic trends that seem to deny the difference, or our ability to make it, there is - the community of scholars and scientists must make the distinction and act on it, and one of the places in which they gather to do so is the college and university. This difference has to be taken into account in making academic distinctions.

It was taken into account at City College but in a perverse, if understandable, way. The serious pursuit of truth was greeted by disruptions, and the spread of nonsense, even harmful nonsense, was ignored. If the behavior of the serious scholar leads to disruption, and that of the charlatan is ignored by those who find it obnoxious, is the institution to penalize the first and ignore the second? Is it to respond primarily to the disruption, or is it capable of making a judgment between science and scholarship, and nonsense and charlatanry?

Because their concern was disruption, and black students supporting Jeffries and opposing Levin were undoubtedly more likely to be disruptive than students supporting Levin and opposing Jeffries, the authorities were severe in their actions against Levin. In the Jeffries case, despite deficient teaching and the absence of any publications, the college allowed him to remain for two decades as chair of the Black Studies department and acted to reduce the length of his chairmanship only on the basis of pressure from public officials and the media.

Levin deserved the protection of the administration against students trying to disrupt his classes; Jeffries deserved its contempt and whatever action it could take to limit his influence. If we defend academic autonomy, we have to confront the problem that the treatment of the two men was exactly the opposite of what it should have been. What about academic autonomy under these circumstances? Do we abandon it? Do we run off to the courts, so a decent scholar and teacher may be protected, even at the cost of the protection of a charlatan?

Our situation today is that both will appeal to the courts, whether to protest decisions not to grant tenure, penalties under new rules of sexual harassment, punishments for unpopular opinions, or actions in response to political pressure. And the courts will find some basis, inappropriate as it may be to any given situation, for judgment. Just as any tenure decision today can be disputed in the courts on grounds of discrimination on the basis of race, sex, age, physical handicap, or what not, so any decision to uphold prime academic values of truth and responsible scholarship - if any institutions are so bold as to make such distinctions - would be disputed.

Mary Lefkowitz first got into this dispute when she reported the story of a visitor to the Wellesley campus in connection with Black History Month who claimed Aristotle had stolen his philosophy from the famous library of Alexandria in Egypt. When she pointed out this was impossible, that the library did not exist in his day, students said, "how do you know, maybe there is later information our visitor has that you are not aware of." Further, faculty members shied away from the issue because it wasn't their field. If this is the way our academic institutions manage such issues today, if we can expect their students, faculty, and, yes, often their administrations, to respond to arrant nonsense in this way, perhaps there is no alternative but the courts, which may be able to impose at least a modicum of crude fairness.

This means that the courts will also intervene in such matters as whether a chairman should serve for three years or one, and in doing so, they will, of course, not be able to take into account the many subtle factors that go into making such a decision (or that go into decisions on tenure). They will be able to wield only the clubs of free speech or nondiscrimination. Of course, these principles should be adhered to in colleges and universities, as they should be throughout society. But when we give them absolute primacy, the proper functions and prime aims of academic institutions will be reduced to insignificance. We will be fair: Truth and nonsense, competence and incompetence, will hold the same position.

Maybe there is no alternative. City College was certainly doing a very poor job in making these necessary distinctions. However, when it was corrected by the courts, it was not, as we have seen, to uphold truth and competence but free speech. Maybe the ideal of academic autonomy has become an anachronism, and there is no alternative to the courts in a case such as Levin's or Jeffries': The institutions cannot be expected to act right and must be viewed with minatory suspicion.

I would prefer to think of the present situation as simply a bad time in colleges and universities - not all of them - and believe that academic ideals remain as ideals, and will prevail in many institutions in decision making. For the rest, one has the options of voice or exit. If voice will be ignored by a herd of conformists, and exit is too personally painful, then there still remain the courts and the law, with all their limitations. We should not be too comfortable with this last alternative if we have any concern for the mission of institutions of higher education.

1 The facts about the two cases are to be found in the Opinion and Order of Judge Kenneth Conboy in the two cases, both of which have been reported: Levin v. Harleston, 770 F. Supp. 895 (S.D.N.Y. 1991), and Jeffries v. Harleston, 828 F. Supp. 1066 (S.D.N.Y. 1993).

2 Chronicle of Higher Education (March 2, 1994), B3.

3 Levin, 770 F. Supp. at 927.

4 See Levin v. Harleston, 986 F. 2nd 85 (2nd Cir. 1992).

5 Gertz v. Robert Welch, Inc., 418 US 323, 330 (1974), as cited in Mari J. Matsuda et al., Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder: Westview Press, 1993), 31-2.

6 I so argued in Remembering the Answers: Essays on the American Student Revolt (New York: Basic Books, 1970), 250-72.

7 So Matsuda (see footnote 5) and her co-authors are all considered liberal or radical in their argument that hate speech may be regulated by public and campus authorities.

8 "Restoring Liberal Education," Wall Street Journal, 10 May 1993.

9 See Opinion and Order in Levin v. Harleston, reference to Rankin v. McPherson, 483 U.S. 378 (1987).

NATHAN GLAZER is co-editor of The Public Interest and professor emeritus of education and sociology at Harvard University.

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