July 15, 2024
StandWithUs Saidoff Legal Department's Reply to FIRE’s Analysis of StandWithUs Letter to Santa Monica College re: Academic Freedom
On July 9, 2024, the Foundation for Individual Rights and Expression (“FIRE”) published an analysis (“FIRE’s Response”) of a StandWithUs letter to Santa Monica College (“SMC”) dated June 10, 2024 (the “StandWithUs Letter” or the “Letter”). While some of the positions expressed in FIRE’s Response are correct in a general sense, as applied to the assignments addressed in the StandWithUs letter, they mischaracterize and oversimplify the legitimate concerns raised in that letter—namely that universities must safeguard their students’ freedom of speech and should not tolerate academic freedom being used as a cloak to promote indoctrination and harassment that threaten students’ educational rights.
As such, this reply is intended to provide clarification to FIRE’s Response. To begin, the StandWithUs Letter does not allege that professors are prohibited from addressing the Israel-Hamas war or discussing the effectiveness of protests or encampments in their classrooms. Similarly, the Letter does not argue that professors should be constitutionally prohibited from asking “is Israel committing genocide in Gaza?” in their classrooms.
Like FIRE, StandWithUs is an ardent proponent of the First Amendment’s strong protections for private speech and its respect for academic freedom, including many controversial matters that some may find offensive or objectionable. As such, taking issue with or attempting to undermine such protections was not the purpose of the StandWithUs Letter. Rather, the Letter addresses two important functions of the First Amendment, namely that it (1) protects the right of students in public colleges such as SMC to freely express opposition to official positions free from harassment, hostility, or other retribution and (2) prohibits public institutions from compelling students to conform their beliefs or expressions to any particular ideological preferences.
FIRE’s Response unfortunately ignores the balance that an institution like SMC must strike between respect for academic freedom and its duty to provide its students with an environment that is free from unlawful harassment and discrimination, including in the context of class assignments. Contrary to the framing of FIRE’s Response, academic freedom rights, like others protected by the First Amendment (from which the concept of academic freedom is derived), are not absolute. “Significantly, the Court has never recognized that professors possess a First Amendment right of academic freedom to determine for themselves the content of their courses and scholarship, despite opportunities to do so.”1 “While teachers possess certain First Amendment protections over their in-class speech, their ‘right to academic freedom is not absolute’ and may be subject to limitations that ensure the effectiveness of their educational duties and the institution's mission.”2
Universities must balance a professor’s academic freedom with students’ rights to be free from harassment or hostility in the educational setting. As one federal appellate court noted,
"[C]olleges and universities are legally required to maintain a hostile-free learning environment and must strive to create policies which serve that purpose. While a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student's right to learn in a hostile-free environment. To hold otherwise under these circumstances would send a message that the First Amendment may be used as a shield by teachers who choose to use their unique and superior position to [] harass students secure in the knowledge that whatever they say or do will be protected. Such a result is one that a state college or university is legally obligated to prevent, and such a result would fail to consider the countervailing interests." 3
Additionally, FIRE’s Response disregards the realities of the power dynamic between a professor and his/her students, failing to acknowledge the constitutional violation that can result from biased assignments, particularly on controversial matters that touch upon aspects of personal identity. While a professor’s mere framing of an assignment in a biased way may not, without more, create a constitutional violation, such prompts may well infringe on students’ First Amendment rights by effectively coercing them into agreeing with their professors’ stance or risk receiving bad grades—or worse.4 In such situations, many students are either unaware of their right to express disagreement with the professor’s viewpoint or unwilling to take what is a valid risk of retribution. In light of the obvious power disparity, many students would likely feel coerced into mirroring the professor’s views.
The assignments addressed in the StandWithUs Letter (based on the information provided to us at the time by those asserting firsthand knowledge of the situations)5 presented viewpoints that many Jewish individuals would experience as an attack against an integral component of their Jewish identity and in a manner such that students might well believe they were required to adopt and espouse those viewpoints in order to successfully complete the assignment and avoid retribution (grading or otherwise). As such, the assignments at issue, especially in the overall context of pervasive anti-Jewish and anti-Israel hostility being experienced by many students after October 7, posed the serious risks of (1) compromising students “right to learn in a hostile-free environment” and (2) (intentionally or not) improperly compelling students to espouse positions with which they do not agree.
In short, the purpose of the StandWithUs Letter was to ensure that SMC, consistent with its obligations to students, was aware of this concerning situation and proactively monitoring and providing appropriate oversight to those tasked with classroom instruction. Through such monitoring and transparency, SMC could thereby strike the proper balance between respect for faculty academic freedom and protection of students’ rights in the educational setting.
1 Urofsky v. Gilmore, 216 F.3d 401, 415 (4th Cir. 2000).
2 Tennessee v. Cardone, No. 2: 24-072-DCR, 2024 WL 3019146, at *18 (E.D. Ky. June 17, 2024) (internal citation omitted) (emphasis added).
3 Bonnell v. Lorenzo, 241 F.3d 800, 823-24 (6th Cir. 2001) (emphasis added).
4 Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”).
5 It appears from SMC’s response to the StandWithUs Letter that the content of at least one of the assignments was in fact altered after similar concerns were raised directly with the professor. While StandWithUs did not have that information at the time of its Letter, we are encouraged by the update, as it demonstrates Santa Monica College’s understanding of -- and willingness to adhere to -- the very constitutional principles addressed in the Letter.
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