14 - Knowledge Institutions and Resisting ‘Truth Decay’

Summary

Today is a time of retrogression in sustaining rights-protecting democracies, and of high levels of distrust in institutions. Of particular concern are threats to the institutions, including universities and the press, that help provide the information base for successful democracies. Attacks on universities, and university faculties, are rising. In Poland over the last four years, a world-renowned constitutional law theorist, Wojciech Sadurski, has been subject to civil and criminal prosecutions for defamation of the governing party. In Hungary, the Central European University (CEU) was ejected by the government, and had to partly relocate to Vienna, and other attacks on academic freedom followed. Faculty members in a number of countries have needed to relocate to other countries for their own safety. Governments attack what subjects can be taught – in Hungary bans on gender studies; in Poland, a government minister issued a call to ban gender studies and ‘LGBT ideology’. Attacks on academics and universities, through government restrictions and public or private violence, are not limited to Poland and Hungary, but are of concern in Brazil, India, Turkey and a range of other countries. Attacks on journalists are similarly rising. These developments are deeply concerning. The proliferation of ‘fake news’, doctored photos and false claims on social media has been widely documented. Constitutional democracy cannot long be sustained in an ‘age of lies’, where truth and knowledge no longer matter.

14.1 Introduction

Today is a time of retrogression in sustaining rights-protecting democracies, and of high levels of distrust in institutions.¹ Of particular concern are threats to the institutions, including universities and the press, that help provide the information base for successful democracies. Attacks on universities, and university faculties, are rising. In Poland over the last four years, a world-renowned constitutional law theorist, Wojciech Sadurski, has been subject to civil and criminal prosecutions for defamation of the governing party.² In Hungary, the Central European University (CEU) was ejected by the government, and had to partly relocate to Vienna,³ and other attacks on academic freedom followed.⁴ Faculty members in a number of countries have needed to relocate to other countries for their own safety.⁵ Governments attack what subjects can be taught – in Hungary bans on gender studies;⁶ in Poland, a government minister issued a call to ban gender studies and ‘LGBT ideology’.⁷ Attacks on academics and universities, through government restrictions and public or private violence, are not limited to Poland and Hungary, but are of concern in Brazil, India, Turkey and a range of other countries.⁸ Attacks on journalists are similarly rising.⁹ These developments are deeply concerning. The proliferation of ‘fake news’, doctored photos and false claims on social media has been widely documented.¹⁰ Constitutional democracy cannot long be sustained in an ‘age of lies’, where truth and knowledge no longer matter.¹¹

Turning from the world to the United States of America, the position of the USA in rankings of respect for political and civil liberties has suffered a marked decline.¹² Likewise, the USA has seen a decline in its ranking for academic freedoms.¹³ Waning confidence in the value of a college education has been accompanied by a pronounced partisan skew in evaluating the value of higher education.¹⁴ Suspicion of expertise, along with tolerance by significant parts of the public and by leading political figures for outright fabrications, have increased.¹⁵ Bans on teaching Critical Race Theory were encouraged initially by an executive order in 2020 banning the teaching of ‘divisive topics’.¹⁶ Tracking language from this executive order, a number of states enacted bans, including Iowa’s 2021 law banning institutions of higher education from promoting ‘specific defined concepts’ including ‘race or sex scapegoating’ and teaching that ‘that the United States of America and the state of Iowa are fundamentally or systemically racist or sexist’.¹⁷ Whether or not the federal courts ultimately will uphold this law, its enactment is plainly inconsistent with basic ideas of pursuing truth through academic freedoms.¹⁸

This chapter argues that constitutional democracies need ‘knowledge institutions’, in part because of the role they can play as intermediary organizations for the public in sorting out genuine claims of knowledge from false claims and in checking false claims by those with power. These ‘knowledge institutions’ should be recognized in comparative constitutional studies as essential elements of a constitutional infrastructure. Section 14.2 introduces a general claim about knowledge institutions in constitutional democracies.¹⁹ Section 14.3 raises a set of concerns about the implications of some recent US Supreme Court case law for the knowledge functions of public universities. It argues that these decisions reflect a fundamental failure to appreciate the role of these and other knowledge institutions in the infrastructure necessary for constitutional democracies to sustain themselves.

14.2 Knowledge Institutions in Constitutional Democracies

Justice Felix Frankfurter once suggested that government-employed college ‘teachers’ are vital in developing public views that are ‘disciplined and responsible’, it being their ‘special task to foster those habits of open-mindedness and of critical inquiry, which … make possible an enlightened and effective public opinion’.²⁰ Knowledge institutions are central to these goals. This section will discuss some definitional questions about knowledge institutions, and explain the need to focus on those institutions in democracies..

14.2.1 A Simple Definition

Knowledge institutions are ongoing entities that have, as a central purpose, the dissemination, preservation or production of knowledge.²¹ They aspire to some degree of objectivity, reliability or accuracy in evaluating claims and evidence, including the consideration of opposing evidence or views. In doing so they apply distinct disciplinary methodologies designed to enhance the search for better understandings of the world;²² they seek to maintain an epistemic openness, consistent with commitments to knowledge based on evidence and disciplinary methodologies that, over time, may lead to changed or expanded understandings.²³ In order to aspire to objectivity in the pursuit of knowledge, independence in the application of disciplinary methods and openness to having one’s beliefs dis-verified through those methods are required. To be sure, what is accepted as true may vary over time; scientific findings may be based in part on assumptions that are matters of legitimate public debate;²⁴ but the processes of knowledge development allow for correction and improvement and, over the long run, real lives of real people have thereby improved.²⁵

Knowledge institutions include ongoing entities that are public and private – universities, the free truth-seeking press,²⁶ courts and some government offices (such as the Census Bureau or other government offices charged with collecting and disseminating accurate, reliable data).²⁷ They are not a ‘branch’ of government but an essential part of the infrastructure of democratic constitutionalism. Knowledge institutions act as informational intermediaries for the public, helping to navigate among the many claims (some false, some true, some uncertain) now being disseminated.²⁸ A diverse group of knowledge institutions populated by diverse professionals is a valuable part of the knowledge infrastructure, providing different perspectives and cross-checks on developing understandings of knowledge.

14.2.2 Knowledge

The concept of knowledge is a contested one. There are important philosophical disagreements about the nature of epistemic claims; but there is fairly wide agreement on the proposition that knowledge should be understood to mean ‘justified true beliefs’, or that truth alone does not establish knowledge without something like some further grounds or account for why something is true.²⁹ Yet, I claim, attempting to govern based on knowledge is likely to yield better outcomes than not doing so, even though ‘knowledge’ is in some respects socially constructed and subject to change as scientific paradigms shift or new evidence is discovered challenging orthodox beliefs.³⁰ ‘Knowledge’ here is understood not in absolute terms but rather, as referring to the best current understanding of descriptive and causal realities, reflecting justified current beliefs about what is true, based on reliable evidence.³¹ To recognize this kind of role for ‘knowledge’ is to embrace the distinction between facts and opinions, to accept that there are understandings of the world about which, for practical purposes, there is a truth of the matter.³² But it also embraces the idea that knowledge must remain open to being corrected or displaced by new, verifiable, knowledge claims.³³

14.2.3 Why Focus on Institutions?

Many constitutional rights provisions – including those of expression, of association, and of the press – serve both democracy-enhancing and knowledge-producing functions, as argued by Alexander Meiklejohn and Justice Oliver Wendell Holmes.³⁴ Given the robust presence, in the USA and many other constitutional democracies, of judicially enforced protections for freedoms of speech, association and the press, why focus on institutions? Some excellent scholarly work has recently argued that the meaning of freedom of expression must be analyzed differently within different institutional contexts.³⁵ My own view is in great sympathy with these, but focuses on the institutions as objects of protection as well as the individual speech or speakers within the institutions.³⁶

To be sure, individual freedoms are of great importance. They can and do promote the goal of developing and diffusing knowledge. But knowledge institutions – with their aspirations towards objectivity, their role as disciplinary gatekeepers to review the soundness of what is being taken as reliable information, and their epistemic openness to new evidence – offer some distinct advantages in the protection of rights and advancement of knowledge not served as well by a focus that looks solely to individual rights claimants.³⁷ This is so for several reasons. Institutions can provide focal points for organized action by knowledge producers or disseminators.³⁸ Ongoing institutions can, moreover, also enhance and reinforce disciplinary cultures of independence and knowledge-seeking. The existence of institutions may offer legal protection for their members when their professional knowledge products lead to liability claims. Such institutions serve as much-needed intermediaries, helping to sort out genuine knowledge from the gushers of information that are now available to so many through social media. And knowledge institutions perform their truth-seeking/dissemination roles non-coercively, unlike regulatory arms of government that may seek to prohibit and punish speech. Although institutions may come under conflicting pressures, it is important that their role as knowledge producers and disseminators, and their independence in that role, be reinforced. An elaboration of these points follows.

14.2.3.1 On Focal Points for Collective Action

Adam Chilton and Mila Versteeg’s research discloses an interesting relationship between the presence of written constitutional rights and actual levels of being able to exercise those rights. A positive relationship did not hold for all of the rights they investigated; the presence of rights to be free from torture, or to free speech, typically asserted by individuals, had no association with actual levels of respect for those rights. But for those rights held or exercised by collective entities – religious groups, trade unions or political parties – written protections were associated with greater levels of respect for those rights. Chilton and Versteeg suggest an explanation for the difference might be that the collective entities in which certain rights are exercised provide focal points for coordinated, collective action (such as organized protests) that may result in the protection of the rights, even without intervention of courts. That is, ongoing entities can facilitate coordination and collective action to protect those rights whose exercise is necessary to the core functions of the entity.³⁹ Particular universities and press institutions may provide a powerful focal point for the protection of academic and journalistic speech, research and investigation. Similarly, some government offices may provide powerful focal points for the preservation of the integrity of their own work, including knowledge production. Consider, for example, the collective efforts of Department of Justice officials to prevent the Attorney General from being persuaded by White House pressures to an erroneous legal interpretation as the basis for unlawful action,⁴⁰ or the concerted efforts by former members of the Department of Justice Office of Legal Counsel (OLC) to uphold or re-envision the legal integrity and knowledge practices of that office in the face of apparent egregious departures.⁴¹

14.2.3.2 On Disciplinary Cultures

Institutions have institutional cultures, which include habits and norms about valid methods of producing and testing knowledge. Institutions help sustain and pass on these cultures, shared assumptions and codes of behaviors.⁴² Institutions sustain their cultures in a variety of ways, including unconscious imitation, reward structures,⁴³ mission statements and codes of ethics.⁴⁴ Many opportunities exist to promote the truth-seeking mission of universities and colleges and their faculties, including in hiring, promotion and tenure review; mission statements of universities, public and private, emphasize their role in knowledge production, preservation and transmission.⁴⁵ At a high level of generality, many in the sciences would agree with the National Academies of Science, Engineering and Medicine in the USA that ‘the values of objectivity, honesty, openness, accountability, [and] fairness’ are essential.⁴⁶ A more general statement, cognizant of the variation in some standards among disciplines, is found in Cambridge University’s statement of good research practices, that ‘the highest standards of integrity, honesty and professionalism in respect of their own actions in research and in their responses to the actions of others’ is necessary, as is ‘openness’ about research and its availability.⁴⁷ Tenure standards of particular schools and departments cast further light on how particular schools talk about research quality.⁴⁸ Academic cultures are passed on in various ways – including, inter alia, through policy statements, tenure requirements, formal reviews, informal reviews, academic mentoring and professional associations in the various academic disciplines. So institutions matter because, in part by bringing together people with similar professional commitments over time, they can reinforce disciplinary cultures for the production of different kinds of knowledge.⁴⁹

14.2.3.3 Material Resources for Discipline-Conforming Knowledge Work

As discussed elsewhere, institutions matter because they are likely to have material capacities and incentives to protect the rights of their members, at least where their members are seeking to produce or identify knowledge in accordance with the relevant disciplinary norms.⁵⁰ Constitutional rights, of course, also provide protection, but that protection can be supported – or supplemented – by aspects of the institutional presence. This protection may take different forms. Institutions will, typically, have more money and access to legal expertise than any individual member. If a New York Times journalist or a Harvard scholar is sued or subject to investigation for their journalistic or academic work, their employers may be able to assist in their defense;⁵¹ government employees are often able to have government support for their defense unless the employee’s conduct ‘does not reasonably appear to have been performed within the scope of his employment with the federal government … [or] is otherwise determined … not [to be] in the interest of the United States to provide’.⁵² Of course, the interests of institutions and their employees may diverge,⁵³ but the presence of an institution whose goals generally overlap with those of its employees may provide added support against attacks on those employees for doing their jobs. If institutions fail to support employees in their knowledge production or disseminating capacities, the consequences for an epistemically sound system may be quite adverse.

14.2.3.4 Intermediaries and Massive Misinformation Flows

Another reason to give special attention to knowledge institutions as such arises from the profusion of communications sources that now exist in the world. This profusion of communications sources, including through social media, facilitate very quick and widespread diffusion of claims that may have little foundation or be completely untrue.⁵⁴ Major sources of information flow on social media such as Facebook, YouTube or Twitter do not generally purport to screen what they disseminate for truthfulness;⁵⁵ their principal purposes do not include the creation or dissemination of knowledge, but rather the flow of communications. University communities and those of other intermediary institutions can often sort out true from false knowledge claims in a more authoritative way than any isolated individual acting on their own.

Knowledge institutions serve this function generally by applying appropriate disciplinary standards to determine what counts as ‘knowledge’, including the credentialing of experts and the identification of areas of epistemic uncertainty.⁵⁶ Moreover, a number of knowledge institutions (some independent non-governmental organizations, some universities) have in recent years supported scholarly work and established knowledge-disseminating projects specifically designed to understand, and to help check, the flow of misinformation online.⁵⁷ These projects directly seek to play an intermediary and knowledge-preserving role.

14.2.3.5 Knowledge Institutions as Less Coercive than Government Regulation

Knowledge institutions rely on less coercive measures in promoting knowledge than government regulation. Allowing the coercive powers of government to be used intrusively to regulate knowledge production, testing and dissemination poses acute risks to constitutional democracy. As current events have shown, some governments have invoked the COVID pandemic as a pretext to suppress and punish criticism of the incumbents by asserting coercive control over purportedly ‘fake news’.⁵⁸ Although knowledge institutions may refuse to reward work that is deemed below par, or may impose employment-related sanctions, they do not have the coercive powers of government to prohibit speech or jail dissidents. Such milder forms of influence exercised by knowledge institutions offer a less threatening alternative to government efforts directly to sanction or suppress speech and the dissemination of knowledge.⁵⁹

14.2.4 Why Focus on Democracies?⁶⁰

All governments need knowledge in order to be able effectively to govern; even the most authoritarian of governments will need knowledge to maintain their own power.⁶¹ But democracies are particularly dependent on knowledge institutions for their own legitimacy and effectiveness. Democratic constitutionalism requires at least to some degree the active involvement of knowledgeable citizens, even if only to participate in elections where public approval or displeasure with the performance of office holders can be expressed.⁶² On more demanding understandings of democracy, elected representatives must deliberate seriously over issues of policy or, on some accounts, citizens must participate actively in influencing government bodies’ agendas and policy outcomes.⁶³ Elections legitimize government insofar as they reflect the views of the voters who have access to information (about choices of candidates and policies) and access to voting without obstruction or coercion.⁶⁴ Thus legitimate elections depend on ample sources of information,⁶⁵ as well as unobstructed access to voting. On any version of a real democracy, knowledge relevant to evaluating issues and representatives must be available to voters.⁶⁶

Second, constitutional democracies require knowledge institutions to sustain their constitutionalist character. A core idea of constitutionalism is that the rule of law applies to the government itself so as to constrain the government from arbitrary action.⁶⁷ Central elements of the rule of law require that the laws, and what they prohibit or authorize, be knowable, and that the enforcement of the law be characterized by some degree of consistency and reliability.⁶⁸ Thus, in order to secure the ‘constitutionalist’ aspect of constitutional democracy, knowledge of the law, about what it is, how it is being applied and how it can be improved, is necessary.

Third, knowledge is essential to the effective policy development and implementation that is necessary for government to respond to the needs and preferences of the public. Democratic constitutions must enable elected governments to work effectively in meeting the material needs of their societies, while at the same time protecting the individual rights that are central to human liberty and equality.⁶⁹ Constitutions not only impose constraints on governments but also empower governments to act for the benefit of their people.⁷⁰ The democratic and constitutionalist pillars of constitutional democracy must be accompanied by a pillar of effective government.⁷¹ Effective government requires competency in decision-making.⁷²

Democratic elections mean less if elected officials are incompetent or lack access to knowledge that forms the basis for competent decisions. Incompetent government cannot effectively respond to and provide for the material needs of the people; constitutional democracies cannot long survive if their governments are not seen as effective in advancing the welfare of the people. Even the protection of individual rights rests on the ability of government to have an effective system that works to promote the protection of rights, including well-trained police, prosecutors, lawyers, judges and courts. Competency, in turn, rests on decision-makers having reliable knowledge of the world.

Constitutional democracies, then, rest on multiple pillars – of democracy and public consent, of respect for rule-of-law protections from arbitrary government conduct, of protection of individual rights and of competent, ‘workable’ governance.⁷³ To secure ‘democratic’, ‘constitutionalist’ and ‘competency’ forms of legitimation, constitutional democracies require what Ginsburg and Huq call a ‘shared epistemic’ foundation.⁷⁴ A shared epistemic foundation is one that is rooted in verifiable knowledge about the world and a reasoned and open process for interpreting what that knowledge means for policymaking. To this end, democratic constitutionalism requires vibrant ‘knowledge institutions’, both within and outside of government, to help secure this shared epistemic foundation.

For the reasons discussed above, institutions devoted to knowledge production or dissemination deserve special attention in the field of constitutional studies; their role is a distinctive one in securing the freedoms and epistemological grounding necessary in constitutional democracies. Yet the role of knowledge institutions in constitutional democracy has gone underappreciated, both in US constitutional discourse and in comparative constitutional studies. Shoring up appreciation of and protections for knowledge institutions is thus urgently important.

14.3 Brief Examples: Of Public Universities and Government Offices

Both government offices and universities, public and private, can be ‘knowledge institutions’. Some government offices exist for the principal purpose of compiling and creating knowledge – about different sectors of the economy, about the population as a whole, about natural phenomena.⁷⁵ Many government offices also have other purposes to be pursued through the exercise of professionally informed knowledge, as in criminal prosecutors’ offices, or in offices of health and safety regulation. In carrying out their knowledge-related functions, ongoing organizations in government, like academic departments, require commitments to the pursuit of truth or knowledge; the application of appropriate disciplinary standards designed to identify reliable knowledge claims; and the ability independently to apply those disciplinary criteria. In the sections that follow, I discuss case law that threatens that independence, in both government offices and public universities.

14.3.1 Garcetti and Government Employees

In Garcetti v. Ceballos,⁷⁶ the Court held that criminal prosecutors, and government employees generally, are not protected by the First Amendment from adverse employment action for statements made pursuant to the government employees’ official duties – apparently even if the statements address matters of public concern, or of professional ethics and constitutional responsibility.⁷⁷ It explained that: ‘Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.’⁷⁸ The implications for faculty at public universities aroused considerable concern,⁷⁹ although the Court reserved that question.⁸⁰

Government offices no doubt have ‘managerial’ needs that warrant control over employee speech that would be unconstitutional if extended by the government as regulator to the citizenry as a whole.⁸¹ But Garcetti’s prioritization of bureaucratic control over other public values of truth and legality remains a significant deterrent to expressions of professional disagreement within government offices, including those that are knowledge institutions, even when expressing those disagreements may be in the public interest. Government employees may develop specialized expert knowledge, making their observations and concerns of high value to the public as well as the government.⁸² And government officials, like other employers, have incentives to avoid acknowledging or redressing their own mistakes,⁸³ a tendency that could be mitigated, or deterred, by recognizing that government employees doing ‘knowledge’ work for the government require, by virtue of the function of their office, greater protection for their speech in the course of official duties. In denying that a government employee has any First Amendment interest in speech made as part of their official duties as a government employee, Garcetti also undervalues the role of such speech in serving knowledge-related interests vital in a democracy, including checking or disclosing misinformation and breaches of constitutional requirements.

Although categorical rules have important advantages of clarity, and error avoidance,⁸⁴ when deployed to strip all constitutional protections from government employee speech in their official duties, that approach goes too far in cutting off potentially valuable information. At the same time, governments as employers have undoubted interests in being able to manage their workforce, including the ability to discipline employees for errors, incompetence or disruptive behavior at work.⁸⁵ And the constitutional system as a whole, and all of its members, have an interest in effective government that requires acknowledging the hierarchical authority in heads of offices to manage their staff.⁸⁶

Those legitimate interests can be accommodated through doctrine that does less harm to the interests of the First Amendment and the public in the kind of information government employees can and should be able to provide,⁸⁷ while at the same time recognizing the knowledge-producing roles of government offices. Fred Schauer, among others, has criticized the Court for too rigid an application of legal categories that are insufficiently attentive to contextual differences between institutional settings.⁸⁸ As such work suggests, ‘government speech’ should not be deployed as a category to preclude careful attention to the competing values at stake in conflicts between managerial authority for work-related errors, on the one hand, and the professional judgment of professional employees exercised on behalf of public values, on the other.⁸⁹

These arguments warrant significant modification of Garcetti, notwithstanding its concern for managerial prerogatives.⁹⁰ The US approach severs too completely the public employees’ constitutional accountability to the public from its bureaucratically focused conception of the hierarchical responsibility of a public servant.⁹¹ The question of government employee speech highlights one of the benefits of seeing knowledge institutions as a category in constitutionalism, because the benefits to be achieved by protecting the professionally informed, expert speech of some government workers overlap with the benefits to be derived from protecting academic and press freedoms, in ways that separate treatment may obscure.

14.3.2 Universities as a Special Case?

As noted, Garcetti did not rule on whether its holding – that government employees had no First Amendment protection for speech that was part of their official duties – would apply to professors at public universities. This unanswered question of Garcetti has assumed increasing importance, as attacks on basic elements of American academic freedom traditions mount while the Court has seemingly retreated from its prior support for the constitutional status of academic freedom in the context of student admissions. As Paul Horwitz argues, the law of free speech protection ‘should be responsive to context, specifically including institutional context’, and ‘should be built from the perspective of important speech institutions, not imposed upon them’.⁹² Academic freedom is central to sustaining constitutional democracy.⁹³ The central functions of universities as institutions – whether public or private – are to advance knowledge through research and teaching. Similar protections of academic freedoms should be accorded to those operating as public as well as those operating as private universities.

14.3.2.1 Student Admissions

In Sweezy v. New Hampshire,⁹⁴ Chief Justice Earl Warren’s plurality opinion noted the ‘essentiality of freedom in the community of American universities’ as a ‘self-evident’ feature of the First Amendment, and cautioned against ‘imposing any strait jacket upon the intellectual leaders in our colleges and universities’. In a concurrence, Justice Felix Frankfurter famously described the constitutional scope of academic freedom in explaining what freedoms of universities were necessary to maintaining a ‘free society’.⁹⁵ Drawing from a statement by South African academics, his opinion stated that

[i]t is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university – to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.⁹⁶

Widely cited,⁹⁷ this statement of a US idea of academic freedom proved central to supporting decisions in subsequent cases upholding the use of race in university admissions to promote the diversity of the student body: Justice Lewis Powell’s opinion in Regents of University of California v. Bakke quoted and relied on Justice Frankfurter’s Sweezy discussion of academic freedom,⁹⁸ and this rationale was relied on as well in Grutter v. Bollinger.⁹⁹

However, in Students for Fair Admissions v. Harvard College,¹⁰⁰ the Supreme Court in effect disavowed the reasoning in Bakke and Grutter, holding that consideration of race as such in university admissions violates the Equal Protection Clause; the Court invalidated the Harvard College plan (whose predecessor had been specifically approved by Justice Powell in Bakke). Contrary to the reasoning in prior cases, the Court treated the university’s aims – including ‘better educating its students through diversity’ and ‘producing new knowledge stemming from diverse outlooks’ – as ‘commendable goals, [but] not sufficiently coherent for purposes of strict scrutiny’, ‘worthy’, but not enough to justify the use of race¹⁰¹ – notwithstanding their acceptance in prior cases. The lack of respect for universities’ academic decisions is manifest in the evident hostility with which strict scrutiny is applied (for example, the Court’s claim that the educational benefits of student body diversity are not ‘sufficiently coherent’).

Students for Fair Admissions was a major case, with long majority, concurring and dissenting opinions. Of further concern, then, is that in this major case, in which universities defended an admissions program on academic freedom grounds,¹⁰² not one opinion cites Sweezy. Why not? Should the majority in Students for Fair Admissions be understood as rejecting Frankfurter’s formulation of academic freedom, at least as it applies to the admission of students? How concerned should one be about universities’ capacities to remain independent ‘knowledge institutions’ if their academic freedom does not extend, generally, to selection of students? Even more concerning is the possibility that the Court’s silence in Students for Fair Admissions implies skepticism that ‘academic freedom’ has any constitutional foundation whatsoever, for in that case, university faculty would be in the same position as government employees under Garcetti. Garcetti’s unanswered question about its application to public colleges and universities thus looms even larger in light of Students for Fair Admissions.

How central to universities is the ability to develop and apply selection criteria for choosing their students? One could perhaps argue – not very. One could argue that the core, or most central, reason to protect universities as knowledge institutions is for the production of knowledge that comes from faculty who are relatively untrammeled by the limits of conventional wisdom, and for teaching students both current knowledge and to open their minds to further learning as they go on in life. These core functions, it could further be argued, are not much influenced by the admission of those students – at least at the undergraduate level – who are primarily there to learn from their professors, rather than to assist professors in their research. Or one could argue that the reasons for active selection in the past, rather than, say, accepting as many students as the university had room for, had more to do with maintaining elite status or membership in a particular religion, considerations that are no longer persuasive in a more egalitarian society.

But is this really persuasive? In the context of modern colleges and universities – especially contemporary research universities – does the quality and diversity of one’s students not affect the quality of faculty research? Do admissions decisions not reflect profoundly academic judgments about how to achieve a quality education? Such claims seem wholly implausible as applied to graduate students, who are often employed as teaching or research assistants to faculty members. But even undergraduate students may help faculty with their research. And classroom interactions with adult students of all ages, whose diverse experiences lead them to ask different kinds of questions that in turn lead faculty to see materials in new lights, have the potential to sharpen faculty minds and expand their horizons.¹⁰³ Thus, the autonomy of faculties over whom to admit seems closely related to core reasons for recognizing academic freedoms in universities and their faculties. Moreover, the qualities of mind and range of experiences that their classmate students have will affect the quality of student learning experience.¹⁰⁴ If research, teaching and learning are the core elements of universities as knowledge institutions, these favor considerable autonomy for universities in selecting their students. And if universities that have adopted affirmative action programs have made deliberate academic judgments about their educational mission (perhaps relying on academic studies to support their educational conclusions),¹⁰⁵ values of academic freedom are, at least arguably, seriously at risk when a court declares their program is invalid.

In this light, the absence of discussion of universities’ academic freedoms in Students for Fair Admissions is troubling. True, the issue of racial justice/injustice under the equal protection clause dominated, under the standards of strict scrutiny established in Grutter and Bakke, and is of surpassing importance; constitutional interests in equality clearly support general rules prohibiting invidious discrimination against students based on race, sex or religion.¹⁰⁶ Moreover, it is not uncommon for public universities to experience external pressures or constraints to admit, for example, students from their own state,¹⁰⁷ and/or for financial reasons to admit other categories of students (including out-of-state) who can pay higher or full tuition fees.¹⁰⁸ But it was significant that these affirmative action programs reflected exercises of academic judgment, and the Court’s decision interfered with those judgments and resulting programs. There are sound reasons to include the right to decide on selection criteria for students as part of a university’s academic freedom. Had the protection of academic freedom been seen as of higher constitutional value, then a different balance might well have been struck between presumptive rules against considering race and the universities considered, non-invidious reasons for doing so as a method for building a more inclusive, more diverse student body.

14.3.2.2 Curriculum

The questions of what and how to teach are often said to be at the core, along with freedom of research, of the academic freedom of universities.¹⁰⁹ True, there is often some degree of shared control: it is not uncommon for governments to decide to support particular fields of study – such as medicine, veterinary medicine, mechanical arts or agriculture¹¹⁰ – and to provide funds to be used towards that purpose,¹¹¹ and curriculum decisions are often made for universities based on a consensus among faculty and academic staff.¹¹² But as a matter of academic freedom, it must be up to academic faculty to determine the content of a course and how it should be taught.¹¹³ In this way, the academic expertise of faculty is deployed to advance the field of knowledge that has attracted the government’s interest; faculty are not required to speak or teach or write in ways that misrepresent their academically informed views. For governments to offer funds for the study of particular areas is not necessarily incompatible with leading understandings of academic freedom; for governments to require universities to offer specific courses of study may raise questions of academic freedom, perhaps depending on the degree of faculty involvement in defining the curriculum;¹¹⁴ but for governments to prohibit the study or teaching of particular topics or content plainly is wholly incompatible with the spirit of free inquiry in prevailing conceptions of academic freedom. Recent events in the USA and in other countries, including Poland and Hungary, challenge this basic aspect of academic freedom and of universities as knowledge institutions.

As noted earlier, the State of Iowa’s House Bill 802 applies to public institutions of higher learning. Benignly, it states clearly that it does not prohibit teaching about the ‘topics of sexism, slavery, racial oppression, racial segregation, or racial discrimination including topics related to the enactment and enforcement of laws resulting in sexism, racial oppression, segregation and discrimination’.¹¹⁵ Yet it provides that any ‘mandatory staff or student training’ must not ‘teach, advocate, act upon or promote specific defined concepts’. ‘Specific defined concepts’ include ‘that the United States or State of Iowa are fundamentally or systematically racist or sexist’. The law also says that public employees are not ‘prohibited from discussing such specific defined topics as part of a larger course of academic instruction’. So it would appear that faculty can discuss whether the USA or Iowa are fundamentally racist, but cannot argue – even if based on their academic expertise – that they are, at least if they are teaching something that could be regarded as ‘mandatory student training’ (whose application to, for example, a required history class is on its face unclear).¹¹⁶

The law is a clear violation of basic principles of academic freedom.¹¹⁷ And if it were applied to private colleges and universities, it is reasonably clear that the law would be found to violate the First Amendment: it is a content- and viewpoint-based distinction, and it is difficult to imagine any argument that such a restriction would pass muster under the decided cases.¹¹⁸ But the Iowa law applies only to public employees. As such, it raises the question reserved in Garcetti – whether the holding applies to faculty at public universities – which is now of critical importance.¹¹⁹ Will Students for Fair Admissions’ failure to endorse the constitutional concept of academic freedoms affect resolution of this question?

Allowing government to dictate what positions faculty can take in teaching university students, as the Iowa law appears to do, is incompatible with the independence necessary for a knowledge institution to function. It is a form of censorship with all of censorship’s well-known potentials for harm; it prevents the free deployment of academic expertise for the benefit of student learners; and it can function as a form of government propaganda, anathema to a free society.¹²⁰ Seeing universities (whether public or private) as knowledge institutions should make this clear.

As noted, careful attention must be given to the competing values at stake when the managerial authority of government as employer is countered by a claim that the professional judgment of professional employees be exercised on behalf of public values. In the academic setting, the balance tilts decisively in favor of providing autonomy for the professional judgments of academics, taken in academic contexts; it is the very function of faculty in these institutions to question, dissent and take sides – supported by evidence – on all kinds of subjects, notably including difficult issues. If Garcetti’s categorical exclusion of government employees from First Amendment protection when they are speaking within their official capacity survives (it should not), a categorical exception should be applied for academic staff in institutions of higher education. As the Court said in Keyishian v. Board of Regents of the University of State of New York, ‘academic freedom … 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’.¹²¹ A ‘pall of orthodoxy’ is precisely what the Iowa law purports to prescribe – and the fact that it was proposed and enacted into law should raise deep concerns.

Freedom of research and freedom of teaching within areas of expertise, according to disciplinary standards of the field, is at the core of academic freedoms. As many scholars note, academic freedom is quite distinct from freedom of speech entitled to constitutional protection; academic freedoms require content-based distinctions to be drawn, and require viewpoints expressed in the classroom and in writing to be adequately supported in an academic way. As Adrienne Stone and Carolyn Evans put it: ‘Freedom of speech is a political freedom that should be enjoyed by all people in democratic nations. Academic freedom has a more specific purpose. It protects the pursuit and dissemination of knowledge through free inquiry and ensures that university research and teaching is authoritative and unbiased.’¹²² Academic freedoms are necessary in a constitutional democracy because without those freedoms, we stand on less certain ground about what is true knowledge; genuine inquiry requires space to test, explore and try out arguments for what may not yet be known to be true (and for what on further inquiry may not survive the disciplinary processes of justification and critique). The pursuit of knowledge is a good in itself and is also a good for society and for democracy, because of the valuable function the institution serves in developing and applying standards for the pursuit and verification of truth. Without independent knowledge institutions as important parts of our constitutional infrastructure, finally, the intermediary role in helping to sort out and check misinformation will go unfulfilled.¹²³