A debating society of lawyers shows our universities how intellectual freedom is done.
A debating society of lawyers shows our universities how intellectual freedom is done.
I recently read the classic first book by William F. Buckley Jr., God and Man at Yale (yes, I was overdue to read it). Going through the book while traveling to last month’s Federalist Society National Lawyers Convention in Washington, it occurred to me that the Federalist Society stands as a model of what Buckley found to be missing from the universities of his day and would find much more sorely lacking in those of today. Therein lies a model for how we might rebuild.
Sounding the Alarm
When Buckley’s book was published in 1951, it created a sensation for three reasons. Two of those were particular to the circumstances of publication: the spectacle (more novel in its time) of a 25-year-old recent college graduate taking on the institutional authority of his alma mater, and the ill-considered decision of the Yale establishment to rally high-profile criticisms of Buckley and his book, which only interested more people in what he was saying. The third factor was the power of his arguments, which incisively dissected what the subtitle of the book branded “the Superstitions of ‘Academic Freedom.’”
In broadest outline, Buckley argued that Yale was indoctrinating its students against two ideas (Christianity and free-market individualism) that it ought to instead be promoting in its curriculum, and that its excuse of “academic freedom” for allowing the faculty to go down this road was intellectually incoherent. Where Buckley moved from the specific case of Yale (documented in depth) to a more general theory about academic freedom is where the book remains both as compelling and as controversial today as it was 73 years ago.
Buckley was prophetic in seeing, in its infancy, the trajectory of many American universities, which have been the targets of a decades-old Gramscian long march through the institutions. It may not have been entirely a conscious project in the 1940s, when Buckley and other freshly demobilized GIs arrived on campus, but it surely became one. In time, it evolved from that into an assumption that colleges must be the vanguard of a project that rejects all the things that Buckley thought Yale ought to be in the business of conserving. That’s how institutions work: Once you build an ethos into the people who populate it, it no longer needs to be stated out loud in order to perpetuate itself.
But a self-perpetuating ethos will be the ethos of the people who really run the place — not those who are formally in charge. That divergence is precisely the subject of the book’s philosophical argument.
Buckley saw what was happening, and raised the alarm:
At least at this college level, the great transformation has actually taken place. The conservatives, as a minority, are the new radicals. The evidence is overwhelming. . . . Individualism is dying at Yale, and without a fight. . . . If the alumni wish secular and collectivist influences to prevail at Yale, that is their privilege. What is more, if that is what they want, they need bestir themselves very little. The task has been done for them.
Moreover, Buckley predicted that “if the present generation of Yale graduates does not check the University’s ideological drive, the next generation most probably will not want to.” And the contagion would not be contained to the campuses: “observing the heated debate that takes place in the [Yale] Political Union, a spectator can get a vivid, dramatic picture of the short, short path between the classroom and the national legislature.” If “the alumnus finds himself in accord with the values that are being fostered at his college,” Buckley noted archly, “I have nothing more to say to him — unless, of course, I find him, some day, lamenting the collectivist drift of our government.” He concluded the book by arguing that “preliminary to endowing . . . future leaders of this country we have some obligation to speculate as to the direction in which they will lead us.”
His view of the role of the college was informed by “a world-situation that seems to render totally irrelevant any fight except the power struggle against Communism,” in which “the duel between Christianity and atheism is the most important in the world” and “the struggle between individualism and collectivism is the same struggle reproduced on another level.” He noted that, in Allied-occupied Germany, “the children of Germany are being taught the evils of Nazism, and forcefully warned against succumbing to the blandishments of Fascism, in the hope, presumably, that this approach to truth will prove more efficacious” than “bank[ing] too heavily on the emergence of truth in the free arena of ideas.” But he also wrote for the longer term because “if and when the menace of Communism is gone, other vital battles, at present subordinated, will emerge to the foreground. And the winner must have help from the classroom.”
Creature of the State
The problem wasn’t just that the college affected the government; the influence also went the other way. Buckley foresaw that Yale and other universities would lose their independence from the government, although he thought this would be the result of socialist economics’ impoverishing large donors rather than the corrupting influence of big-government largesse. The outgoing president of the university “has unequivocally ruled against accepting government money. The consequences of this he regards as disastrous.” But Yale was “working toward her own destruction, i.e., to the day when some future Yale president, fedora in hand, will knock at the door of some politician with palm outstretched. This day, of course, means the end of Yale as a private institution.”
Buckley noted, in his introduction to a 1977 edition of the book, that Yale was intellectually defenseless against such a day: “I cannot think what arguments most of the distinguished teachers mentioned in this book would use to oppose in principle turning Yale over to the public sector.” He added that “I know why Yale shouldn’t be turned over to the state,” because “from time to time the interests of the state and those of civilization will bifurcate, and unless there is independence, the cause of civilization is neglected.”
Where is that independence now? “Yale received $899 million in federal grants and contracts in the 2024 fiscal year to fund research and financial aid.” That means it can be called on the carpet by federal investigators and threatened with the loss of federal funding. It means that the heads of Ivy League colleges can be hauled before Congress to explain how they run their schools. The hat may no longer be a fedora, but it is most certainly in hand. Only a tiny number of major colleges, such as Hillsdale, have opted out. The result is that colleges look and sound more like one another than ever before.
The Reaction
Buckley was derided at the time for alarmism in noticing all of this. It was, after all, an era in which “Yale, I judge deservedly, has earned a reputation as a citadel of ‘triumphant conservatism,’ as Time magazine recently put it.” Only 14 years earlier, the president of Yale had used the occasion of his installation to issue a call to the faculty “freely to recognize the tremendous validity and power of the teachings of Christ.” Buckley was effectively accused of trying to import a Catholic model into proudly Protestant Yale. As he noted in the 1977 edition:
The Reverend Henry Sloan Coffin, former head of the Union Theological Seminary, former chairman of the Educational Policy Committee of Yale, former trustee of the Corporation, chairman of a committee commissioned by the Yale Corporation to investigate my charges about Yale education without ever acknowledging them . . . was so incautious as to write to an alumnus, . . . “Mr. Buckley’s book is really a misrepresentation and [is] distorted by his Roman Catholic point of view. Yale is a Puritan and Protestant institution by its heritage and he should have attended Fordham or some similar institution.”
Buckley was vindicated by history. Nobody today would describe Yale as Puritan or Protestant, and indeed, today one must labor even to describe Fordham as Catholic. Buckley also vanquished those who sought to discredit him personally. They instead made him a prominent enough figure to found a political magazine before his 30th birthday.
But he lost the battle to stop what he described. Until the past few years, he even lost the battle within much of the Right over the concept of academic freedom. A capacious legal and cultural defense of academic free speech has been the frequent refuge of the conservative minority on campuses, both among students and among the faculty. Only today’s new republicanism, forged in the past decade’s reaction to woke overreach in American education, has revived a serious debate over whether Buckley was right all along.
Academic Freedom and Academic Mission
It oversimplifies Buckley’s argument to contend that he was against free speech or free inquiry. In fact, even to consider the concepts of free speech and free thought in the academy, one must begin with the recognition that the academy consists of three distinct groups with free speech interests, and to privilege one of these interests as sacrosanct and absolute is necessarily to trample on the other two.
Those groups are the faculty, the students, and what we might call the owners of the school. In the case of a public university, the owners are ultimately the taxpayers and their representatives in the government. In the case of a religious school, the owner may be a church or religious order. In the case of Yale in the 1940s, it was a board of trustees elected by the alumni, which is why Buckley stressed that “the faculty of Yale is morally and constitutionally responsible to the trustees of Yale, who are in turn responsible to the alumni, and thus duty bound to transmit to their students the wisdom, insight, and value judgments which in the trustees’ opinion will enable the American citizen to make the optimum adjustment to the community and to the world.”
I might suggest that, in thinking about academic freedom, we stop conceptualizing the question in terms of a straight-line spectrum from freedom to repressive orthodoxy and instead visualize a triangle:
“At the private college,” Buckley argued, “the sense of mission is distinguishing.” The people who found, own, fund, or run a college are entitled to expect that the college promote the ideals and ideas they wish to advance — or at least guarantee them a fair hearing. The act of creating a school, or of running one, is expressive. It is as entitled to protection in the theory and law of free speech as any other expressive act. Buckley explained:
The question arises, of course, whether or not the alumni have the power or the right to interfere if they are in disagreement with Yale’s educational policy. My contention on both points is yes, they have the power and they have the right to “interfere.” But I go one step farther than some people; for I maintain they also have the duty to “interfere.”
Buckley argued, moreover, that Yale’s trustees acknowledged this principle when hiring administrators such as the president of the college: “No avowed agnostic or atheist, no outspoken socialist, would have been so much as considered for the post of president of Yale” because nobody really believed that “in the course of his administration the president is not to allow his values to influence in any way the educational policies of the university over which he is to preside.”
Today, of course, administrators have grown into their own class, which wields tremendous power and ideological cohesion. That power only grows as universities add ever more full-time administrators while teaching duties are increasingly handled by underpaid part-time adjuncts. But the administrative class does not deserve to turn the triangle into a square. In a properly constituted school at any level, the administrators should have no more rights of free speech than any other employee of any business. The dean of diversity has no greater right to academic freedom than does the janitor; both are simply hired to facilitate the exchange of ideas between the faculty and the students.
The progressive concept of the university invariably defaults to hegemony by either the faculty or the students, depending on which is in the progressive vanguard of the moment. If the faculty have maximum freedom of speech, that stifles the other two groups in distinct ways. At a college where the faculty is entirely free to disregard the values of the owners, the owners have been deprived of their power to express and transmit those values to the students. This ends up, as Buckley noted, as a swindle: “the institution that derives its moral and financial support from Christian individualists and then addresses itself to the task of persuading the sons of these supporters to be atheistic socialists.”
At the same time, where the faculty is politically monolithic, against the grain of the owners, and enjoys freed expression that cannot be disciplined, the students are not only deprived of choices in what to learn; they can and often are suppressed in their own speech when the orthodoxy of the faculty leads to punishments of students who do not share it and rewards and promotion for those who parrot it.
By contrast, where the students’ rights are deemed absolute, the college becomes ungovernable. Students can disrupt and shout down other students, terrorize faculty, and hold administrators and campus facilities hostage.
The owners of the school are, in this sense, the least dangerous branch of the three. An academy dominated by the owners is publicly known as such, and if it is unduly restrictive in its orthodoxies, the simple solution is for other owners of other schools to offer something different. In a nation of many colleges, that can lead to a wide diversity of offerings — but only if the owners have the latitude to ensure that the schools they run reflect the values they wish to impart.
The Purpose and Function of Academic Freedom
Buckley had two further points to make. One is that the ideal of neutrality is frequently impossible to carry out and is (at least in its strongest form) never actually found in practice: Every school places limits on what ideas the faculty as well as the administration may espouse:
I hasten to dissociate myself from the school of thought, largely staffed by conservatives, that believes teachers ought to be “at all times neutral.” Where values are concerned, effective teaching is difficult and stilted, if not impossible, in the context of neutrality; and further, I believe such a policy to be a lazy denial of educational responsibility.
I would not go quite so far. There are many instances when schools would be better off at least aspiring to be neutral, by, for example, avoiding the express advocacy of a political party. There are others in which a school ought to adopt administrative rather than faculty neutrality, by promoting civil discourse between professors with distinct and sometimes clashing points of view. That can be the case on matters of social and political values, or even on matters such as provable but not yet proven scientific fact. But, as Buckley noted, the mere existence of standards of educational quality means that teachers with certain ideas and points of view won’t be hired simply because the people doing the hiring believe that those ideas are wrong and poorly thought. Thus, “I believe it to be an indisputable fact that most colleges and universities, and certainly Yale, the protests and pretensions of their educators and theorists notwithstanding, do not practice, cannot practice, and cannot even believe what they say about education and academic freedom.”
His second point is that the true social purpose of robust academic freedom is not to ensure liberty in the classroom but to promote free-thinking research. Conflating the two roles simply because universities hire scholars to perform both of them is another bait and switch:
Cannily, [the scholar] distends the protective cloak of research to include his activities as a teacher, thereby insuring to himself license in the laboratory, which is right and proper, and license in the classroom, which is wrong and improper.
Buckley’s vision did not call for indoctrination but for open advocacy coupled with free inquiry and civil discourse in which the freedom of the student remains unfettered. Thus, the duty of the owners of the school is to hire faculty who will promote the truth, in order to give truth an advantage over falsity in the marketplace of ideas: “The most casual student of history knows that, as a matter of fact, truth does not necessarily vanquish. What is more, truth can never win unless it is promulgated. Truth does not carry within itself an antitoxin to falsehood. The cause of truth must be championed, and it must be championed dynamically.” He cited the then-recent triumphs of fascism in Italy, Germany, and Japan as proof of this, as well as the then-ongoing battle against communism as a reason not to abandon that approach:
Ultimately, of course, the student must decide for himself. If he chooses to repudiate the values of his instructor, he is free — and ought to be free — to do so. No coercion of any sort, whether through low examination grades, ridicule, or academic bullying, would be tolerable. The teacher must rest his case after he has done his best to show why one value is better than another. He can do no more. The institution can do no more. Neither should try to do more. Both have discharged their responsibilities to steer the student toward the truth as they see it.
This is not “academic freedom,” but it is intellectual freedom. It is the atmosphere that actually promotes rather than merely pantomimes freedom of thought.
A Society of Debate
This brings me back to where I began: the Federalist Society. The convention closed with a tribute to Eugene Meyer, the president and CEO of the society and its first employee 40 years ago. The remarkable success of the organization in spreading its values — foremost among them the value that judges should be subservient to the written text of democratic enactments, such as statutes and the Constitution — has come from the fact that it has managed to strike the proper balance between promoting those values at a general level of organizational ownership, allow for extensive and spirited civil discourse and contention within the events it holds, and leave its members and attendees at those events free in the end to be persuaded, or not. There are a few outer boundaries, but the roster of regular speakers includes a lot of very provocative thinkers.
FedSoc has avoided orthodoxy. Within the broad umbrella of its overall values, it has always made room for vigorous disagreements and even offered space to some apparently out-there ideas (some of which became mainstream, others of which failed the test of debate) and to counterpoints from outside dissenting voices.
The voluble professor Richard Epstein recounted how Meyer, one of the most self-effacing men you will ever encounter in that sort of job, helped shape that posture of organizational humility without succumbing to a desiccated neutrality. I will quote Epstein’s remarks at some length because they describe, first, the challenge:
When Gene picks his title, he does it in an extremely clever way. You’ve got to get the libertarians in (regrettably), and you also have to have the conservatives (regrettably), so what you do is you give yourself a title in which you allow both people to coexist underneath the banner. But, . . . also in order to have an organization which includes you have to have an organization that excludes. Otherwise, it turns out, . . . you’re formless. . . .
You had to find out a way to make sure that the modern intellectual Left was not part of the party. . . . if you bring everybody inside the tent, you don’t have a tent and you don’t have a definition. So, we knew on the issues on which we were prepared to disagree, but we also knew on the issues that we in fact were in favor of.
Then the solution:
The Federalist Society had a general conception that the form of government should be one which was limited in its powers and designed to protect fundamental liberties, so that the debate that we had amongst ourselves was what was the best arrangement which we could endure to achieve that particular end. . . .
What Gene did is, in effect, he set up a society in which that debate could take place not with rancor but with intelligence and vigor. But he was even more clever than that. One of the things that Gene always did is he said, We may control the table. And indeed, he did — effectively, but quietly. But we do not exclude the people who are not members or believers in the Federalist Society from its deliberations.
And so Gene started a policy from the very earliest stage to try to get people of prominent views which are different from our own to participate in the debates, because what he said was it may well be the case that we have to have our own internal coherence and organization, but we will only be as strong as we can be if we are prepared to deal with the best and the brightest of people who disagree with us. And so, what he did is he managed to treat this as a controlled enterprise which did not limit people in terms of discussion even though he maintained through his board the kind of control he wanted.
Epstein continued that “the other thing that Gene realized, as an extremely clever guy, is you can’t be all things to all people,” and so the organization simply stayed out of activities such as filing legal briefs and giving congressional testimony. Unlike the American Bar Association, it does not take positions or engage in lobbying or litigation. It would be a debating society, and anything else it did would be only whatever followed from that, such as helping build networks among the people who engaged in the debate and could carry its ideas outside its four walls.
When you think about it, this is Buckley’s vision of what the university ought to do and what it ought to be. The organizational vision is clear and well known, and it comes through in every FedSoc event. A panel discussion may well invite a liberal or a progressive or two, but the majority of speakers will always be those who promote the values of the society. Yet, within that tent, there is very broad freedom to think and argue, as well as to expose the audience to the opposing point of view. It is the promotion of truth yet the furthest thing from indoctrination.
Is it any wonder that the group has grown organically on campuses (and not just law schools) in parallel to the descent that Buckley observed and predicted? It turns out that students, as well as the practicing lawyers who attend lawyer chapter events, actually like being challenged with arguments that hit the sweet spot between bland neutrality and rigid enforcement of dogma. It turns out that real intellectual freedom is something different from a rights-based view of academic freedom.
Our universities could take a lesson.