In Trump v. Barbara, the Supreme Court held that the 14th Amendment protects birthright citizenship, a view rejected by four justices, including Justice Brett Kavanaugh, who would have struck down the underlying executive order on other grounds.
This has long been a debate that divided legal experts. Given the purging of our law schools of conservative scholars, the rejection of birthright citizenship is not a popular view in higher education. However, some of us stressed when the decision came down that there were good-faith arguments on both sides and defended conservative justices like Justice Amy Coney Barrett for voting with the liberal justices in rejecting the claim.
That tolerance, however, is intolerable for professors like Pfaff. After the decision, Professor Pfaff went on BlueSky to vent against anyone who dared to voice a dissenting view in academia, calling such faculty “parasites” that have to be effectively stomped out of higher education. In his post, Pfaff declared:
“There MUST be repercussions for the lawprofs who advanced such untenable arguments. Their behavior is — and I mean this literally, not dehumanizingly — parasitic.
They exploit norms of collegiality and presumptions of integrity to advance trash. Which undermines the work of ALL of us.”
His rationale for punishing opposing viewpoints is an insight into the arguments used against intellectual diversity and institutional neutrality in higher education.
I recently returned from a debate with the President of the American Association of University Professors (AAUP) who opposed institutional neutrality principles. I also previously debated Professor Randall Kennedy at Harvard Law School on the lack of intellectual diversity at Harvard.
I had a dinner with another Harvard Law Professor who expressed disbelief that I expected him to vote for any faculty applicants who held views that he considered wrong. When I noted that I regularly vote for faculty candidates who hold opposing views, he just shrugged and said that, if he rejects their views, he cannot vote for those views to be taught to students.
Many faculty members have rejected free speech and intellectual diversity arguments to restore greater balance in our universities. In my book, “The Indispensable Right: Free Speech in an Age of Rage,” I discuss these arguments to justify the current levels of intolerance and orthodoxy in higher education.
We previously discussed how two Arizona State University professors — Richard Amesbury and Catherine O’Donnell — wrote that free speech concerns yield too much to the “right wing” and that free speech should not be given the protection currently afforded by universities and colleges. Indeed, they argue that free speech may be harming higher education by fostering “unworthy” ideas.
Amesbury teaches religious studies and O’Donnell teaches history at ASU. They wrote an article titled “Dear Administrators: Enough with the Free Speech Rhetoric! It Concedes Too Much to the Right-Wing Agenda.”
Their view of “unworthy ideas” is used by many to justify the overwhelmingly liberal makeup of our faculties and is reflected in Pfaff’s claim that such opposing views, even from a tiny minority of professors, undermined the work of all professors.
Some sites, such as Above the Law, have supported the exclusion of conservative faculty. Senior Editor Joe Patrice defended “predominantly liberal faculties” by arguing that hiring a conservative law professor is akin to allowing a believer in geocentrism to teach at a university.
Pfaff expressly lashed out at Professor Ilan Wurman (whose scholarship was cited by Justice Thomas in his dissent) as an example of the type of professor who needs to be punished for expressing opposing viewpoints:
“If there are no costs to that — and only the upside to fancy dinners funded by antidemocratic oligarchs and the ‘nonpartisan institutions’ they have endowed — then we can only reward this behavior. Everyone involved in this canard should be frozen out of academic life until they recant.
Academics cannot simultaneously complain about the inability for facts and reality to drive policy while simultaneously refusing to confront the fabulists in our midst. Wurman et al do not just demean originalism or history. They demean ALL of us, by making ALL of us less credible.”
Professor Wurman responded, “Ah yes, time to push for that traditional tool of academic thought and freedom—the recantation!”
Pfaff was responding to an unhinged posting from Georgia State University Professor Anthony Michael Kreis, who has also shown some of the same intolerance for opposing views in academia. (Notably, Kreis was made an Associate Dean for Faculty Research & Development by his school). While not calling for compelled recantation, he also denounced those who disagree with his views. In his BlueSky posting, Kreis wrote:
“I’m mad about today. I’m mad that justices can’t do the bare minimum to uphold the Constitution. I’m mad that the law and our history, which I have dedicated so much of my life to, is an inconvenience than an inheritance to many. I’m mad that the academy, which I love, rewards and enables it.” (emphasis added).
I will remind you that the Court ruled in favor of birthright citizenship, but Kreis appears upset that there are dissenting views on the Court and there are academics who “enable” such dissenting views. Kreis also has denounced Professor Randy Barnett (a leading constitutional scholar who wrote an opinion piece with Wurman) as engaging in shameful “hackery” that is “not scholarly.”
These are the voices of a perpetually angry and intellectually intolerant of academia.
The views and anger of Pfaff and Kries are clearly shared by many in higher education, though I would like to think that most academics still recoil from this type of raw intolerance.
Indeed, after backlash over his comments, Pfaff made a half-hearted effort to address the critics but seemed to make it worse after acknowledging that perhaps he was “too blunt”:
“I stand by the idea, but I should have phrased it better. Academic freedom is the right to say what you want, without INSTITUTIONAL repercussions (generally). But it’s not the right to speak w NO repercussions.”
He then appeared to take an implied swipe again at Wurman for having been cited by the justices:
“Ideally, bad work is self-sanctioning: it gets ignored,” he continued. “That, though, is not what happened here. An idea [with] no prior historical support gained enough traction after an aggressive post-EO campaign to nearly sway a SCOTUS majority. That sets a dangerous precedent.”
So academic freedom is nice, but there still have to be repercussions, and those voicing dissenting views are setting “a dangerous precedent.”
These exchanges give outsiders a chilling insight into the rationalization of many in higher education to maintain orthodoxy. Many others would not voice such views openly, but their hiring records demonstrate a similar intolerance of opposing views.