December 20, 2004
Mr. Lee C. Bollinger
President, Columbia University
New York, New York 10027
Dear President Bollinger:
We are writing with respect to the current controversy at Columbia University arising out of a film, entitled "Columbia Unbecoming." This controversy deeply implicates issues of academic freedom and civil discourse on campus. We recognize your distinguished academic career as a First Amendment scholar and your professional and personal commitment to freedom of speech and to what you have variously described in your writings as the "ethic of tolerance" and the "virtue of magnanimity."1 Accordingly, we do not presume to lecture you on the principles and importance of academic freedom. Nevertheless, we feel compelled to address this matter because of its seriousness as a public controversy and because of the need -- in circumstances such as this when fundamental principles as well as the university itself are under attack -- to lend our voice in defense of academic freedom and to express our long-standing commitment to ideological diversity, pluralism and tolerance upon which any community of scholars and any system of intellectual discourse must ultimately rest.
The New York Civil Liberties Union (NYCLU) believes that it is vitally important to foster an academic environment conducive to the free exchange of ideas. We further believe that, in order to foster such an environment, freedom of thought and expression must be scrupulously protected even when, in doing so, protection is bestowed upon ideas that are deeply offensive to a distinct segment of the community. We recognize that, as Provost Alan Brinkley has observed, "… students have a right to learn in an atmosphere that permits an open exchange of ideas." We do not, however, regard these rights of students, correctly understood, as incompatible with principles of academic freedom. Moreover, when one closely scrutinizes the assertion of student rights as set forth in the film and when one considers the film's accusations directed at the conduct of certain Columbia professors in failing to provide an appropriate classroom atmosphere, the line between ideological content and conduct seems to blur significantly and one is left with the distinct impression that these accusations are really about the content of academic lectures and writings. Thus, in the end, the attempt by some outside the academy to transform these accusations into a demand for the termination of a scholar or other sanctions reduces to a direct attack upon principles of academic freedom. Our reasons for reaching this conclusion are amplified below. Our suggestions as to how the University should respond to this attack upon academic freedom are also set forth below.
The facts of the controversy, as we understand them, are as follows. The David Project has produced a film2 that contains accusations that Columbia professors -- particularly from the Middle East Asian Language and Culture (MEALAC) Department -- have taken positions that are seriously critical of policies pursued by the Israeli government and have engaged in the intimidation of students "when they voiced pro-Israel views."3 And, according to the Columbia Spectator, "[o]ne professor featured in the film is Professor Joseph Massad."
Two episodes involving Professor Massad's interactions with students are apparently identified in the film. One involves an alleged exchange outside the classroom between Professor Massad and Tomy Schoenfeld, a former member of the Israel Defense Forces, in which Mr. Schoenfeld reportedly asked Professor Massad a question and the Professor responded that he would not answer the question until Mr. Schoenfeld revealed "How many Palestinians [he had] killed."4 The second episode involves an exchange between a student, Noah Liben, who was defending the treatment of Sephardic Jews by the Ashkenazi majority in Israel and who concluded this discussion by asking whether Professor Massad understood the student's point. Professor Massad allegedly answered that he did not understand the point that the student was trying to make and, according to Mr. Liben, the Professor "smirked" during the student-teacher exchange. In the film, and elsewhere,5 Professor Massad is further accused, in his lectures and writings, of describing the State of Israel as "a racist state that does not legitimately represent Jews."
The accusations set forth in the film have provoked a variety of responses. Congressman Anthony Weiner has called upon Columbia University to terminate Professor Massad's appointment. New York City Councilmember Michael Nelson has threatened to have the City Council investigate the academic environment at Columbia. The New York Sun has written an editorial criticizing Columbia and urging the University to "fire Mr. Massad … and to discipline  Mr. [Rashid] Khalidi for the errors in his book." The New York Daily News issued a more moderate statement but its editorial, nevertheless, grudgingly described academic freedom as a "guise" rather than recognizing its important instrumental value.6 It has been further reported that potential donors to Columbia have read accounts of this controversy and have threatened to withhold funding unless Columbia responds adequately to the accusations set forth in the David Project film. On the other hand, many scholars within the university and around the country have rallied to the defense of the professors who were accused of misconduct in the film.
Moreover, Professor Massad has issued a detailed and vigorous response to the accusations. Professor Massad asserts that the David Project film is part of a "witch-hunt [that] aims to stifle pluralism, academic freedom and the freedom of expression on university campuses"; that such a campaign is "pressuring the university to abandon proper academic procedures for evaluating scholarship"; and that "the major strategy " of those engaged in this campaign is to "equate criticism of Israel with anti-Semitism." As to the specific accusations set forth by students in the film, Professor Massad asserts that Tomy Schoenfeld was not a student of his and he does not recall ever having met Mr. Schoenfeld. As for his exchanges with Noah Liben, Professor Massad asserts that he "remember[s] having [had] a friendly rapport with Noah" characterized by ongoing communications between Professor and student long after the incidents which were described in the film. Moreover, Professor Massad states that "the lie that the film propagates claiming that I would equate Israel with Nazi Germany is abhorrent." Professor Massad further asserts: "I have never made such a reprehensible equation."
It is the obligation of a university to create and to maintain an environment conducive to academic freedom. This obligation which is owed by the university to its scholars and students is necessary to protect diversity of discourse and experimentation even if such intellectual pursuits are provocative, unorthodox and controversial. Accordingly, faculty members must retain broad latitude to think as they will and to write as they think and to suffer no recriminations, from outside the academy, for the content of their scholarship.
This does not mean that such scholarship is immune from criticism. Within the university community, academic judgments such as tenure and promotion can and should rest upon the content and quality of one's scholarship. It is to be expected, therefore, that such scholarship will be critically scrutinized within the academy. Moreover, members of the academic community and even those that are outside the academy who believe that an academic writing or lecture is wrong-minded have every right to respond, on the merits, with a public refutation of the perceived error. But the appropriate response must be substantive. It must be on the merits. And critics outside the academy must avoid seeking to support their substantive arguments with threats and sanctions. This requirement is in keeping with the concept of the academic campus as a paradigmatic marketplace of ideas where the appropriate response to bad ideas cannot be coerced silence but must instead, involve "more speech" to refute and correct the unwisdom of the original expression.7
Accordingly, while those outside the university community remain free to criticize academic scholarship, it is entirely inappropriate for potential donors to try to use the power of the purse to dictate the content of scholarship or the composition of a university's faculty or one of its departments. As Arthur Lovejoy, one of the founders of the American Association of University Professors has observed: "the distinctive social function of the scholar's trade cannot be fulfilled if those who pay the piper are permitted to call the tune."8 Similarly, it is also inappropriate for public officials to try to intrude into the academic processes with threats of sanctions or investigations. We learned this in Sweezy v. New Hampshire, 354 U.S. 234 (1957) where Justice Frankfurter's concurring opinion correctly observed that "political power must abstain from intrusion into this activity of [academic] freedom, pursued in the interest of wise government and the people's well-being except for reasons that are exigent and obviously compelling."9 The observations of Professor Lovejoy and the experience of Sweezy reinforce the importance of a central principle of academic freedom. That principle holds that academic judgments regarding the content of curriculum and the composition of the faculty reside, as a matter of academic self-governance, within the academy and that intrusion into these matters by those outside the academy must be vigorously resisted.
In extolling the importance of academic freedom we do not mean to suggest that professors bear no responsibility to treat their students with civility and respect. As noted above, Provost Alan Brinkley has correctly observed that "students have a right to learn in an atmosphere that permits an open exchange of ideas." So understood, students have the right to express their own views. They have the right to criticize the professors for the content of their scholarship, for the nature of their pedagogical style or for what they perceive to be a lack of open-mindedness. They can advance such criticism in student newspapers, in off-campus publications, at rallies, in student surveys, in private conversations and in evaluations of instructors that are routinely submitted by students at the conclusion of a course. They can even advance such criticism in class if permitted by the professor to do so. In this way, the commitment to civil discourse is entirely compatible with principles of academic freedom.
But, in asserting their right to criticize, students must also understand the limitations of such rights. The classroom is a bounded educational environment. It is not, except at the invitation of the professor, an open forum for students to express any views that they wish at any time. It is not, except at the invitation of a professor, an opportunity for those not enrolled in a course to attend and participate in classroom discussions. Additionally, students cannot expect, through the use of a grievance procedure10 or otherwise that the university administrators will call professors to account for the content of their lectures or their ideological assertions within the classroom.
Moreover, the right of students to an appropriate learning environment does not immunize them from ideas that they find provocative or disturbing or even offensive. Students can expect to be treated with respect. They cannot expect that their views and opinions will be unchallenged. And they cannot expect that their professors will trim the cut of their convictions so as not to offend the sensibilities of their students. The notion of a system of free expression embraces the commitment to speech that is wide-open, unfettered and robust. Such robust expression requires that teachers and students alike must remain persons "of fortitude able to thrive in a hardy climate." Craig v. Harney, 331 U.S. 367, 376 (1947).
As suggested above, the claims of incivility of professors in their treatment of students seem, in this case, to be inextricably bound to the ideological disputes between certain professors and the students advancing these claims. We reach this conclusion for several reasons. First, the episodes identified by the students do not appear to involve situations where the allegations of uncongeniality were unrelated to substantive or ideological conversations taking place within the classroom.11 Second, we suspect that this controversy would not have acquired the attention that is has received had it been simply about the rudeness of professors or their intolerance of other points of view. This film would not have provoked the sort of controversy that has now developed had it not arisen in the context of the deeply divisive political controversy involving Israel and Palestinians.
So understood, the attack upon Professor Massad and others in the MEALAC Department is fundamentally about their scholarship and political expression. Thus, the criticism of these academics must be seen for what it is: an assault upon principles of academic freedom and upon political speech. V.
In a December 6 letter to you, Provost Brinkley advanced three recommendations for your consideration: First, in the belief that the grievance procedures available to students "are not sufficiently robust to deal effectively with controversies of this kind," Provost Brinkley recommended that "all schools work carefully at their existing grievance procedures" and that they develop more effective procedures, if necessary. Second, Provost Brinkley recommended that all "schools make a major effort to educate students, faculty and administrators on what the procedures are and how they can be used." Third, Provost Brinkley recommended the appointment of an ad hoc committee to entertain and investigate student complaints including the current complaints directed at the MEALAC Department. In a December 8 memorandum to the Columbia community you endorsed and implemented the third recommendation.
Where, as here, the accusations from students about the conduct of certain professors remain deeply contested, a serious investigation of those claims may well be useful to determine the truthfulness of the competing claims. Nevertheless, we have grave reservations about an ad hoc committee engaging such an investigation. First, where, as here, the accusations with respect to professorial conduct are so inextricably bound with ideological disagreements, we fear that holding professors to account for their statements runs a severe risk of intrusion by administrators into academic content and political ideology. Accordingly, in a controversy as politically charged as is this one, we are concerned that the investigation, if not undertaken with appropriate sensitivity toward academic freedom, will descend into an inquisition into the ideological or political views of the professors who have been accused. Finally, we are troubled that in discussing the need for more effective procedures for the consideration of student grievances, Provost Brinkley seemed to ignore the substantive limitations, discussed above,12 respecting the right of students to an appropriate learning environment. We are concerned that unless students understand those limitations the grievance procedures will become, at best, a source of misunderstanding and, worse still, a license for censorship.
We also note from conversations that we have had with undergraduate students at Columbia that some have suggested, by way of a resolution of this controversy, that Columbia should insist on more ideological balance within the MEALAC Department. This is a seductive but ultimately flawed recommendation.
It is flawed because it is fundamentally at odds with the marketplace theory of free expression. Under that theory, balance is loosely but imperfectly achieved through the self-corrective mechanism of "more speech" as a response to bad ideas. And if we abandon that theory because it is not really working in practice we are left with the question as to whom we would trust to make the decision that the ideological composition of a particular department is balanced. Because judgments about "balance" are inevitably so subjective, efforts to achieve balance almost always fail. Thus, for example, for about 20 years we tried to achieve "balance" within the broadcast media by adopting a "fairness doctrine." But a few years ago the "fairness doctrine" was abandoned as a failure. The FCC concluded that fairness had the net effect of reducing the volume and quality and diversity of expression.13 Moreover, trying to impose balance from outside the Department might well violate academic freedom principles of self-governance. Would those who urge balance within the MEALAC Department go to the University of Chicago and tell the economics department that it needs to be more balanced? The point is that the marketplace model rather than the model insisting on balance seems more effective at provoking intellectual creativity and in achieving pluralism and diversity. Under that model, one must look beyond a particular department or even a particular university to acquire a full exposure to the diversity of expression.
For all of these reasons, we call upon the University to respond appropriately to this assault on academic freedom. This response can and should involve several initiatives. First, we urge that you make clear to the public that academic judgments about members of the faculty must be left to the academy and that the attempted intrusion by donors or by politicians into this matter is entirely inappropriate. Second, you should use your office to educate the Columbia community about the importance and value of academic freedom and of freedom of speech on campus. Third, you should use your office to educate the Columbia student body about the nature of the learning environment to which they are entitled and about the limitations of that entitlement including the fact that they are not immune from hearing provocative or disagreeable or even offensive ideas from instructors or fellow students. You might inform students that they have a right to criticize their professors for what they regard as errors in scholarship or politics or even pedagogical style. But students have no right to initiate administrative investigations designed to call professors to account for their substantive views.
Finally, we urge the University to do what it can do best. It can convene a symposium to explore fully the real issues that have provoked this controversy. The University has the capacity to bring to the symposium table those representing a broad array of perspectives and viewpoints on this divisive topic and it can use the vehicle of "more speech" to address the current disagreements that so obviously exist.
We would be happy to meet with you to discuss any and all of these issues.
cc: Provost Alan Brinkley
1 Bollinger, "The Tolerant Society: A Response to Critics," 90 Columbia L.Rev. 979, 984 (1990). We may have some reservations with respect to the conceptual model that you advance in your 1990 Columbia Law Review piece. But that is the subject of another discussion and a very different letter.
2 The David Project is a Boston-based non-profit organization. The film is entitled "Columbia Unbecoming." The film has apparently been screened for interested Columbia students and Columbia officials and for the press and for certain public officials and some others. But it has apparently not been released for public exhibition. The authors of this letter have not seen the film. Assertions about its content, as set forth in this letter, are therefore derived from secondary sources including Columbia undergraduate students who have seen the film. 3 Columbia Spectator, November 4, 2004. 4 According to Jewish Week, October 29, 2004, Mr. Schoenfeld described this encounter as occurring "at an off-campus lecture … three years old."
5 The New York Sun, Nov. 4, 2004. The New York Sun further describes Professor Massad as "the most outspoken critics of Israel and Zionism at Columbia …. [who] argues that Israel is a racist state that does not legitimately represent Jews. He supports a one-state solution to the Middle East conflict …."
6 The Daily News editorial stated, inter alia, that "Columbia's Department of Middle Eastern and Asian Languages and Cultures … has built a steady reputation for having a faculty that enforces some rather distasteful views under the guise of academic freedom." Daily News, Editorial, October 21, 2004. 7 See, Milton, Areopagitica.
8 See, Lovejoy, "Professional Association or Trade Union?" 24 AAUP Bull. 409, 414 (1938), quoted in Rabban, "Does Academic Freedom Limit Faculty Autonomy," 66 Tex. L. Rev. 1405, 1413 (1988).
9 354 U.S. at 262. In this regard, Justice Frankfurter quoted from a South African statement on open universities:
"It 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." Sweezy, 354 U.S. at 263.
10 In our view grievance procedures which allow administrators to call professors to account for conduct or even "speech acts" must be limited to circumstances where professors engage in behavior unrelated to the content of their lectures or writings.
11 The episode involving Tomy Schoenfeld did not involve a student of Professor Massad and did not take place within a classroom at all.
12 Supra, Section III.
13 This outcome should not have been surprising. Consider the term "fair and balanced" as used by Fox News in its self-promotion. It may well be that Roger Ailes and Bill O'Reilly believe that Fox broadcasts are "fair and balanced", but a great many people do not share that view. And if one were to ask the public to evaluate the fairness and balance of a wide-range of news outlets from the New York Post to the New York Times you would get wildly different assessments.