NY Governor’s Actions Pose Significant Threat to Academic Freedom

We cannot censor our way out of bigotry.

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New York Governor Kathy Hochul (D) recently took a pair of actions that pose significant threats to academic freedom. First, she ordered City University of New York’s (CUNY’s) Hunter College to remove a job posting for a tenure-track position in the Palestinian Studies department. And second, she ordered CUNY to initiate a probe of Hunter College “to ensure that antisemitic theories are not promoted in the classroom.”

It is understandable that Governor Hochul is concerned about antisemitism at CUNY. On Sept 23, 2024, Hochul received a report on “Antisemitism and Discrimination at the City University of New York” by retired New York Judge Jonathan Lippman. The report included descriptions of a number of antisemitic events at CUNY. For example, the report cited the Department of Education’s Office for Civil Rights’s (OCR) recent settlement agreement with CUNY where it “confirmed that in 2021 certain faculty members at Hunter College took part in incidents that involved disrupting sessions of a required college course by commandeering the scheduled course discussion, which was occurring over Zoom, to call for the decolonization of Palestine.”

The report concluded that “CUNY’s current policies and procedures for preventing and addressing antisemitism and discrimination need to be significantly overhauled and updated in order to handle the levels of antisemitism and discrimination that exist on CUNY’s campuses today.”

What Hochul’s team might not have fully appreciated is that this incident, like several other antisemitic incidents described in the report, could have been remedied by a prompt and consistent application of existing First Amendment rules and guidelines. Classrooms are not public forums, and disruptions to classrooms do not constitute protected speech.

Consistent enforcement of rules against disruptions of this nature are necessary to restore the proper functioning of institutions. After all, what good are educational institutions if students can be prevented from learning by activists highjacking classrooms? Nor does the First Amendment protect harassment, true threats, or incitement to commit imminent unlawful acts as the Supreme Court has defined those exceptions.

The caselaw makes powerful tools available to university leaders (including trustees and the president) that they should be using to ensure their campuses foster a culture where people from different backgrounds, cultures, and religions can come together to learn from one another in pursuit of knowledge.

Leaders of schools that have committed to institutional neutrality—the policy that the university itself should generally not take sides in political controverias—nonetheless retain an obligation to speak out when the core mission of their university is threatened. While recognizing the legal right of students and professors to engage in expressive behavior that erodes the communal culture needed for truth-seeking, those presidents have the power, and the responsibility, to remind students that, for education to be meaningful, we must be able to talk across our differences, which requires a willingness to listen to each other and treat each other with respect.

Specifically, regarding the class of (First Amendment protected) antisemitic speech acts, college presidents should respond to such speech—as they should to any bigoted speech that targets any member of their campus communities—by defending the core mission of their university and by condemning those behaviors as contrary to the very idea of a university as a pluralistic community of learners.

While university leaders should be neutral on Middle East policy, they should speak out against those who would censor their peers, reminding them of their responsibilities as members of a pluralistic campus community, while also elevating more positive voices. Presidents can reinforce this by sponsoring high quality scholarly events on the topic of dispute, thus providing students who are deeply concerned about events in the Middle East a more positive venue for engagement.

Governors can play a constructive role in ensuring that campus leaders tackle antisemitism and other forms of bigotry productively. One important step governors should take is to make sure that campus policies actually track the Supreme Court’s lines. This is particularly important with respect to defining harassment properly to avoid prohibiting speech protected by the First Amendment and with respect to ensuring that campus rules that prohibit disruptions to the institution’s key functions are enforced.

Beyond demanding that institutions enforce rules to ensure campuses are free from harassment and students are able to use campus spaces for learning, there are additional strategies that might be employed to fight antisemitism at CUNY and elsewhere. For example, the governor should be providing institutions the resources to create programming to help students develop better tools for having disagreements constructively.

But all this brings us to the two actions that Hochul elected to take: ordering the cancellation of a search on the grounds that the ideas to be studied in the course were antisemitic and so should be banned, and launching an investigation aimed at banning teaching ideas deemed antisemitic elsewhere across the CUNY curriculum.

Both actions are incompatible with open inquiry and neither is constitutional, since they violate longstanding Supreme Court precedents that bar the government from banning ideas from classrooms.

The job posting

The job posting, taken down after the Governor ordered its removal (see it here), stated:

We seek a historically grounded scholar who takes a critical lens to issues pertaining to Palestine including but not limited to: settler colonialism, genocide, human rights, apartheid, migration, climate and infrastructure devastation, health, race, gender, and sexuality…Ideal candidates will also have a record of public engagement and community action.

This posting clearly seeks applicants to put activism above scholarship. HxA objects to the search for that reason.

But the key point is that, while it would have been reasonable for the Board of Trustees to insist that the post be rewritten, the government cannot intervene in the hiring process. Institutions of higher education cannot be subject to government bans on ideas and remain institutions where open inquiry is a reality.

Making it clear that the governor’s actions were about culling disfavored ideas from classrooms, a spokesperson from her office told the Post, “Governor Hochul has directed CUNY to immediately remove this job posting and conduct a thorough review of the position to ensure that antisemitic theories are not promoted in the classroom.”

Even if one believes—plausibly— that the ideas set forth in the job posting are biased against Israel, if the government can declare that bias against Israel is discriminatory and thus banned, what is to stop other government actors elsewhere from concluding that pro-Israel courses are discriminatory against Palestinians and thus must be banned? After all, what’s good for the goose is good for the gander.

Importantly, even when academic freedom allows a professor to teach from a particular perspective, they may not discriminate against students who wish to explore that topic from a different perspective. Professors must treat students with alternative views fairly and grade them on the basis of the quality of their arguments.

Moreover, the right to teach from one’s perspective on contested issues is not a license to ignore facts that may be contrary to the professor’s view, nor should any responsible professor hide such facts from their students. Academic freedom protects the right for people including professors to draw differing conclusions from evidence, but it does not protect activism that is evident when established facts are ignored and “alternative facts” are fabricated.

This is true not just with respect to teaching about the conflict in the Middle East, but is true of all teaching. One interesting factor here is that CUNY Chancellor Felix Matos and Board of Trustees Chairperson William Thompson shared a statement about the job description with the New York Post stating, “We find this language divisive, polarizing and inappropriate and strongly agree with Governor Hochul’s direction to remove this posting, which we have ensured Hunter College has since done.”

There would have been nothing wrong with the Board of Trustees independently using its oversight authority to review a job posting for alignment with the institution’s mission. But here there are two problems.

First, if a board of trustees thinks there are already significant resources allocated to teach and research a particular point of view, such that allocating additional resources is inappropriate, that would be unobjectionable, because a decision along those lines is not designed to suppress a particular point of view. But when that oversight is used to ensure that certain ideas just aren’t taught, that exercise of authority undermines open inquiry. Here, the joint statement emphasizes that the language in the post was “divisive, polarizing, and inappropriate.” The statement does not address competing needs or priorities. When a chancellor or board of trustees oversees a hiring decision, it is not healthy for open inquiry when they use that oversight to screen out ideas.

The other problem is that CUNY’s chancellor and board chair’s joint statement explicitly states that the post’s removal was not independent at all, but rather at “Governor Hochul’s direction.” Injecting political litmus tests into hiring decisions is also contrary to open inquiry. When job listings are subject to gubernatorial veto, that is a pretty straightforward injection of a political litmus test into the hiring and firing process.

If the governor wanted to use her bully pulpit to criticize the activist nature of the job listing, she would have been within her rights to do so. But even then, the governor should make clear that curricular decisions are not subject to government review, that no viewpoint is off limits at CUNY even though the institution should hire scholars for scholarship and not activism, and that hiring decisions are ultimately up to the institution’s leadership.

At institutions of higher education that value open inquiry, bad ideas are scrutinized and met with more compelling ideas. They are not banned.

The antisemitism probe

The governor’s order to CUNY demanding that it probe Hunter College “to ensure that antisemitic theories are not promoted in the classroom” is a straightforward attempt to cull disfavored ideas from college classrooms. It's unclear whether the probe is designed to review all course content, or only the content of courses that would have been taught with this new hire, but either way it is deeply chilling to faculty to set a precedent where administrators review courses for ideas they wish to ban.

Whether it’s Florida attempting to ban ideas it deems “too woke” from college classrooms or New York seeking to eliminate ideas it deems antisemitic, no government ban can survive judicial scrutiny. That’s because the protections of academic freedom are rooted in decades of First Amendment jurisprudence.

In Sweezy v. New Hampshire, the U.S. Supreme Court explained:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.

In Keyishian v. Board of Regents, the Supreme court hammered the point home (internal quotations and citations omitted; emphasis added):

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. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.

Universities are about the free, serious and mutually respectful exchange of ideas, in service to expanding and deepening human understanding—especially on the most difficult and controversial topics. Government bans on ideas, from whatever political direction, undermine that ideal.

A better path forward

While bans on ideas are an unconstitutional approach, governments and educational institutions should take seriously their legal and moral obligation to combat antisemitism and other forms of bigotry. The government should insist that institutions take firm action when students are targeted with conduct that meets the Supreme Court's standard for what constitutes harassment. And the government should insist that colleges and universities take firm action when there are substantial disruptions to classes or events in reserved locations. They should be creating programming that develops students' skills to disagree constructively.

In the period since the attacks of October 7, campuses across the country have become increasingly balkanized and politicized over the conflict in the Middle East. Antisemitism, that ancient hatred, has been arising in ways that are complexly entangled with legitimate concerns that students feel about the fate of the people of Gaza. Some institutions have allowed protesters to disrupt the functioning of their institutions and/or have insufficiently protected Jewish students and faculty from harassment. The federal government and state governments are now determined to correct these problems—and willing to take drastic actions, including imposing deep funding cuts, to do so.

But as this example in New York State illustrates, not all of the responses are consistent with maintaining the integrity of higher education. Because addressing antisemitism on campus and preserving open inquiry are both essential, we have laid out a variety of tools that university leaders can and must employ in response to these developments. We cannot censor our way out of bigotry. New York and other jurisdictions should instead prioritize tactics that rely on dialogue over politically-enforced silence.