Higher Ed Today: Balancing Expression and Conflict

March 14, 2024

Issaccharoff asked Kennedy, who is the Michael R. Klein Professor of Law at Harvard Law School, about his role on the National Coalition Against Censorship, wondering why he had devoted himself to the “triage” that the group performs as “first responders” to issues of compromised expression. He explained that there is one word he would currently use to express his great concern for freedom of expression in higher education: Government. Now, you know, listen, I think that there's criticisms to be made of, you know, various DEI programs and DEI initiatives, just like there are problems with everything. But here we have a situation in which a legislature, mainly for political reasons, partisan political reasons, reached into higher education in Texas and wiped out DEI. Higher education has never faced such a concerted attack.”Issacharoff is a leading expert in the study of democracy, constitutions, and the courts.

Issaccharoff asked Kennedy, who is the Michael R. Klein Professor of Law at Harvard Law School, about his role on the National Coalition Against Censorship, wondering why he had devoted himself to the “triage” that the group performs as “first responders” to issues of compromised expression.

“There was a period of time in which I really wasn't part of such groups,” said Kennedy. “But over the last five years, I've joined every civil liberties, freedom of expression, freedom to teach, freedom to listen group that I can get my hands on because I think we are really, as a culture, in peril.”

Kennedy’s areas of scholarship include contracts, racial relations law, and civil rights legislation, and he has clerked for judge J. Skelly Wright of the United States Court of Appeals as well as for Justice Thurgood Marshall of the US Supreme Court. He explained that there is one word he would currently use to express his great concern for freedom of expression in higher education: Government.

“A year ago, the Texas Legislature passed a law, SB-17, telling all public institutions of higher education in the state of Texas: you cannot have any organization, any program, anything with DEI associated with it. So Texas just wiped out DEI. Now, you know, listen, I think that there's criticisms to be made of, you know, various DEI programs and DEI initiatives, just like there are problems with everything. But here we have a situation in which a legislature, mainly for political reasons, partisan political reasons, reached into higher education in Texas and wiped out DEI. 

“My home institution, Harvard University, is currently facing subpoenas coming from a committee of the United States House of Representatives, which is clearly aimed at embarrassing, humiliating, and intimidating Harvard University for ideological and political reasons. You know, at this point that's already taken a toll. But things could get a lot worse… It may very well be the case that by the end of this year the situation will be that political forces in Washington, D.C., are aligned in a way such that they tell institutions of higher education, public and private, either do this or don't do this. Or we're going to cut off the money. Higher education has never faced such a concerted attack.”

Issacharoff is a leading expert in the study of democracy, constitutions, and the courts. He served as a senior legal advisor to the presidential campaigns of Barack Obama, and he has extensive experience as an appellate advocate in the American courts. And while he acknowledged Kennedy’s concerns as serious, he said his own “personal sense is that a lot of it is showboating,” and wondered how many real consequences will result. 

What is a clear and present issue, he noted, is that “we also live in a time where we increasingly have demands from students, from faculty, to silence speech of all kinds, not as a result of governmental pressure, but as a result of, initially, a sense of protecting students from ideas that they are not comfortable with. And we've known each other long enough to know that neither one of us ever wanted to be protected from ideas, including from each other.” 

The source of this news is from New York University

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