Free to Teach, Free to Learn

Sitting in the faculty room alongside my colleagues at Harvard Law School, I read the words projected on the screen above us and tried to place a dawning sense of dread.

The bolded words at the top of the screen should have been a source of comfort. “Harvard University Non-Discrimination Policy,” they read. As a legal scholar who has written academically and publicly about racial discrimination, as a lawyer who has defended scores of Black and Latino people harmed by the US penal system, and as the director of an organization called the Institute to End Mass Incarceration, I’ve spent much of the past decade working to combat unlawful and unjust discrimination in our society. My efforts have focused on the criminal system. But I have long held the conviction that discrimination needs to be identified and opposed in our educational systems as well.

That conviction was impressed upon me from an early age by my first and best teacher. For 40 years, my mother taught in public elementary schools. In the school where she spent the lion’s share of her career, she was the first Latina and the first person of color hired to be a teacher. For decades, she was the only one.

I will always remember being seven years old and asking my mom why she hadn’t taught me Spanish, the only language her father, my grandfather, comfortably spoke (and which I later learned to speak reasonably well). “I saw too many teachers discriminate against Latino kids in their classrooms,” she answered. “I didn’t want you to have an accent.”

From those early lessons, and on through almost 20 years studying and later teaching at Harvard, I’ve always believed discrimination to be antithetical to what education is all about. Educators teach everyone. And students learn best from a diversity of experiences and perspectives—among their instructors and among their peers. This much I know to be true. And so I remember reading with approval the announcement from our university’s provost sometime in 2021 that Harvard would be assembling a working group to “develop new University-wide policies” to “address forms of prohibited discrimination” in the learning environment.¹

But sitting in the faculty room and reading the resulting policy on the screen two years later, the feeling I experienced was, at the very least, dread adjacent. Reading it closely, I was able to pinpoint my concern to two words at the end of the policy’s opening sentences.

Harvard University is committed to the principles of equal opportunity in education and employment. Discrimination on the basis of the following protected categories, or any other legally protected basis, is unlawful and is prohibited by this Policy: age (40+), race, color, national origin, sex (including gender identity and gender expression, as well as pregnancy), genetic information, ancestry, religion, caste, creed, veteran status, disability, military service, sexual orientation, political beliefs.² (Emphasis added.)

Those last two words, political beliefs, struck me as categorically different from the others on the list. Age, race, ancestry, genetics, the country or caste in which you are born—those are all things you can’t change about who you are. That’s less true of things like religion and military status, which might be changeable for some people. But it’s hard to see why a university would have any interest in encouraging such changes or in treating students differently based on these attributes.

Political beliefs are different. Political beliefs are ideas we choose to embrace or reject. Moreover, they are ideas that can, and arguably should, evolve over the course of a lifetime. Perhaps most importantly of all, they are ideas that evolve through the process of education. As William T. Foster, the first president of Reed College, poetically put the point, “It is the primary duty of a teacher to make a student take an honest account of his stock of ideas, throw out the dead matter, place revised price marks on what is left, and try to fill his empty shelves with new goods.”³ Echoing Foster, the American Association of University Professors (AAUP) wrote in its seminal 1915 “Declaration of Principles” on academic freedom and tenure that it is part of “the duty of an academic instructor to give any students old enough to be in college a genuine intellectual awakening.”⁴

Education, in other words, entails in large part the discovery and interrogation of new beliefs. This is true for instruction in the natural and social sciences. And it is true for the study of philosophy, law, ethics, religion, and public morals—all domains that, to varying degrees, are inescapably political in nature. For that reason, political beliefs and ideas, like so many other ideas, can be expected to change as educators build and navigate students through the reflective learning environments that bring such change—such education—about.

For that to happen, educators sometimes need to interact with, act upon, react to, and assess the ideas (including the political ideas) expressed by their students. Those interactions and reactions can be messy. Indeed, the more closely we examine them, the blurrier the boundaries between education, discrimination, and indoctrination become. Nor are those boundaries static. A given pedagogical technique or approach—a given mode of interacting with, reacting to, or assessing a student’s ideas and beliefs—might be appropriately lauded as exemplary education in one pedagogical context and appropriately condemned as discrimination, indoctrination, or both in another. Complicating matters even more, those determinative contexts differ across a curriculum, even for a single professor. In my own case, teaching a mandatory introductory course one semester, an upper-level elective survey course another, and an applied law school clinical course the next, my pedagogical approaches and contexts vary dramatically. And with them so too do the markers of what I would call good—even necessary—teaching.

The pedagogical context and mission of a given course, in other words, are essential components of the analysis when defining prohibited forms of ideological discrimination in the classroom. And as a result, the question of the instructor’s rights and responsibilities when defining that pedagogical context and mission are just as critical to consider.

This is the nuance that I feared was missing from the blunt words of Harvard’s policy, which declare discrimination on the basis of political beliefs “prohibited” whenever it manifests in a student receiving “less favorable treatment” because of those beliefs or ideas.⁵ To teach in the best and most responsible way we know how, is it possible my colleagues and I might sometimes employ pedagogical practices in tension with this policy’s terms and goals?

This essay is an effort to think this question through with a community of readers across the country who I imagine face similar challenges in their own careers, at a time when the intersection between education and political beliefs is perhaps more fraught than ever.

Competing Freedoms

Most discussions of the relationship between teaching and political beliefs take as their touchstone the principle of academic freedom. Foundational texts on the subject, including the AAUP’s seminal 1915 and 1940 statements, have always described academic freedom as entailing “the protection of the rights of the teacher in teaching and of the student to freedom in learning.”⁶ But as Bruce Macfarlane, a professor of higher education, writes, these two freedoms are typically “tagged onto the end of definitions of academic freedom as a largely rhetorical device.” Far more prominent are concerns over the rights of teachers and students to express unpopular or heterodox views inside and outside of the classroom when those rights are “threatened by forces external to the university such as governments and social lobby groups.” Even when speech within the classroom is at issue, the core academic freedom controversies tend to focus on teachers’ right to express their opinions, and less on pedagogical actions they might take that treat one set of students differently than others. The upshot, Macfarlane concludes, “is a comparative dearth of literature about the freedom to teach” as manifested in the interrelationship between teachers and students in a shared pedagogical setting.⁷

Within that relationship, academic freedom is an idea that can carry us only so far. Because unlike threats to a professor’s extramural speech or to a student’s right to protest outside of class, the curricular interactions between teachers and students implicate a set of competing academic freedoms, each with important substantive content: the freedom to learn and the freedom to teach.

The Freedom to Learn

The student’s freedom to learn includes a right not to be discriminated against in the classroom. At a minimum, this entails freedom from discrimination based on immutable characteristics, which is generally unlawful under federal statutes, including Title VI of the Civil Rights Act of 1964, which prohibits discrimination “on the ground of race, color, or national origin” in any “program or activity receiving federal financial assistance” (which virtually all schools and universities do).⁸ Put more generally, a student’s freedom to learn entails the right to be treated as an individual, free from projections or assumptions derived from group affiliations or other attributes. To quote the AAUP’s “Statement of Professional Ethics,” the freedom to learn means that teachers must “demonstrate respect for students as individuals and adhere to their proper roles as intellectual guides and counselors.”⁹

Related to these principles is an important, but complicated, corollary. As law professor David Rabban wrote more than 30 years ago, “Professors violate the norms of academic freedom when they … indoctrinate students.”¹⁰ The reasoning here is straightforward. As Justice Felix Frankfurter (who served on the US Supreme Court from 1939 to 1962 and, before that, taught at Harvard Law School) wrote, we “regard teachers—in our entire educational system, from the primary grades to the university—as the priests of our democracy” because they “foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion.”¹¹ Frankfurter was echoing the AAUP’s 1915 statement, which declares that a professor must, “above all, remember that his business is not to provide his students ready-made conclusions, but to train them to think for themselves.” A teacher must therefore always be on guard, the statement concludes, “against taking unfair advantage of the student’s immaturity by indoctrinating him with the teacher’s own opinions before the student has had an opportunity fairly to examine other opinions upon the matters in question.”¹²

As then–Columbia University President Lee Bollinger would write almost a century later, this professional obligation to avoid indoctrination is sometimes tested:

Within the academy, we always face the impulse to jettison the scholarly ethos and adopt a partisan mentality, which can easily become infectious, especially in times of great controversy…. In the classroom, especially, where we perhaps meet our highest calling, the professor knows the need to resist the allure of certitude, the temptation to use the podium as an ideological platform, to indoctrinate a captive audience, to play favorites with the like-minded and to silence the others.

These temptations, Bollinger concludes, pose “special challenges for those of us who teach subjects of great political controversy.” But the “responsibility to resist belongs to every member of every faculty.”¹³ Indeed, as Stephen Finn (the director of West Point’s Center for Faculty Excellence) concludes, a failure to do so would “deny students their own academic freedom to form, discuss, and defend their own views.”¹⁴

The Freedom to Teach

Much as the freedom to learn entails freedom from indoctrination, the freedom to teach carries an obligation to do so fully and completely, with generosity on the part of academics to share their expertise, including what they know and think on a subject. As sociology professor Frank Hankins wrote in 1937, the professor “is not a mere waiter serving nourishment prepared by others; he is cook as well.” Hankins posited that it is “bad teaching” to offer students “a mere statement of historical events,” facts, or information. Rather, the professor’s obligation to “be objective” is matched by an obligation to “also be thought-provoking.”¹⁵ In the words of history professor Hans Kohn (from 1938),

The teacher is expected to present to his students the whole truth, as he understands it in the light of his research and thought. He should put his whole individuality into his teaching with no other guide but his individual conscience. Only in this way can he present to the student, and make the student share in, the dignity of spiritual and intellectual endeavor and the seriousness which it exacts. The teacher must be free to speak his mind, the student must experience his effort at truth.¹⁶

And here, too, the AAUP’s seminal statement is in accord. No one, it observes, “can be a successful teacher unless he enjoys the respect of his students” and has “their confidence in his intellectual integrity.” This confidence “will be impaired if there is suspicion on the part of the student that the teacher is not expressing himself fully or frankly” or dares “not speak with that candor and courage which youth always demands in those whom it is to esteem.” And so, the AAUP concludes, it is the teacher’s duty to “give the student the best of what he has and what he is.”¹⁷

That duty captures a core component of the teacher’s own academic freedom. As Macfarlane sums it up, a “university teacher who does not enjoy” the opportunity to fully perform their craft as described above “will be operating as a service delivery worker rather than an academic. They will not, in effect, have the freedom to teach.”¹⁸

Paradoxes and Sandboxes

With these working definitions of our two freedoms in hand, we can see how they might at times come into tension. Macfarlane, building on philosopher Karl Popper’s idea of the “paradox of freedom,” summarizes the tension: “When the university teacher exercises their freedom to teach in accordance with their own opinions and beliefs, the freedom of their students, the ‘meek’ with less power and authority than the academic, may be compromised as a result.”¹⁹ The basic fear, as Hankins described it, is that professors will be “dogmatic and intolerant” toward students who do not share their “own type of social idealism” and will ultimately tilt the classroom into a theater of “persistent and overt propaganda.”²⁰ Framed as such, one can see in the paradox of freedom what Macfarlane identified as the foundation of accusations, advanced repeatedly over time and vociferously of late, that “professors holding ‘liberal’ views” will end up “discriminating against conservative students.”²¹

Policies that prohibit discrimination on the basis of political beliefs might seem like welcome guardrails against these concerns. But the paradox cannot tidily be resolved simply by prohibiting ideological discrimination. In order to live up to the duty to teach, to be the student’s intellectual guide, a teacher must engage with and challenge students’ ideas and beliefs—and be challenged by them in return. And that reciprocal challenge must by necessity be bounded.

This is a critical point. Education occurs within the conceptual parameters of a given classroom, which requires some shared starting premises. Borrowing from the philosopher Jürgen Habermas, we might call these shared premises the lifeworld of a classroom, the shared “stock of knowledge” against which the “processes of reaching understanding,” the processes of exploration and education, “get shaped.”²² Without these shared premises, classroom discussions and the mutual understanding they seek to bring about would not be possible—and could quickly become intolerable or incoherent. Every question and exchange would be open to endless contestation, questioning, and unraveling, all in infinite regress.

Put more simply, you can think of a classroom as a sandbox. Within that sandbox, the student enjoys the “academic freedom to form, discuss, and defend their own views,” free from a propagandizing or indoctrinating instructor.²³ But the teacher has the right—and arguably the responsibility—to keep the pedagogical discourse inside the box, and thus to defend the integrity of the box’s conceptual boundaries when students try to move beyond those limits.

And now we can start to see the problem. For as law professor Eugene Volokh writes, a professor who guards these essential boundaries “will inevitably need to” impose some “viewpoint-based restrictions on his students.”²⁴ A biology professor, for example, may well need to insist that students who believe in intelligent design and reject the theory of evolution must nevertheless check those beliefs at the classroom door. So too a professor teaching a seminar titled “Evaluating Solutions to Climate Change” need not permit students who insist that climate change does not exist to turn every class exchange or assignment into a debate over that (politically disputed) premise. Likewise, an introductory microeconomics class need not be overtaken by debates over Marxism as an alternative to capitalism, no matter how committed a Marxist a given student may be. In each instance, students must adopt or at least perform within the class a worldview that they sincerely and perhaps deeply reject, as a condition for entry into and participation within the course.

Note what this means. Students forced to check their worldview, their deeply held political beliefs, at the classroom door may experience intense and distracting cognitive dissonance throughout the semester. It may not be easy to learn while pretending to believe something they do not. A student who considers that cognitive dissonance too much to bear, or who fears (reasonably) that they won’t be able to perform as well on assessments as students who are not so encumbered, may decide not to take the course. Either way, it seems hard to deny that these students will be receiving from the professor “less favorable treatment” compared to students who hold the opposite beliefs—the evolution believer, the climate change believer, the capitalist—and who can take the class without any such burdens or impediments.

And yet, this form of viewpoint discrimination, based on these particular political beliefs, in the context of these particular classroom settings, seems simply unavoidable. Without it, the boundaries and conceptual integrity of the class would teeter or collapse. The biology class would become a theology class where students debate the existence of God and the interrelation of science and religion instead of learning the mechanism of the Krebs cycle or the nature of mitochondrial DNA. The climate change class would become a seminar where students explore how media silos and other structural aspects of modern society cause epistemic ruptures and disinformation instead of studying the comparative advantages of carbon capture, electric vehicles, and renewable energy.

The classes, in short, would become fundamentally different from those the professor set out to teach. And that, in its own way, would violate the freedom of the other students to learn in the classes they signed up to take.

Beyond Biology

What is true for classes in the sciences holds true for other academic domains. Take law school, which I know well. Even within a single subject matter area, like American constitutional law, different classes within a course catalog occupy discrete conceptual and pedagogical zones. A class designed to teach students how to craft effective briefs to the Supreme Court (which my school offers) is not the same as a class designed to explore what contemporary constitutional law says or ought to say on given topics like abortion or affirmative action (a class my school requires). Nor is either class the same as one exploring whether the Supreme Court should have the power to interpret the Constitution in the first place, or whether the Constitution should even exist or be seen as authoritative (two hotly contested questions in today’s leading law schools).²⁵ Given the related but distinct pedagogical missions of these different courses, classroom discussions or pedagogical approaches could be inside the box in one setting but outside of it in another. In the brief-writing class, for example, a student whose deeply held political belief is that the Constitution is an invalid document may appropriately be asked to check that belief at the door, and could be negatively assessed by the professor for turning in assignments that press the anticonstitutionalism argument—even though such “less favorable treatment” is based on the student’s “political beliefs.”

The same dynamic plays out in my own teaching. When I offer our school’s required introductory survey course on American criminal law or our upper-level course on the constitutional law of policing, I present complex and politically contested material. Especially in my required classes, where students don’t get to pick me as their professor, I am sensitive to the fact that the 80 people in the room hold a broad set of views. And so, consistent with the AAUP’s guiding principles, I bring my own research and perspectives into my teaching while also delighting over Socratic exchanges with students who offer views on mass incarceration or police power different than my own. A decade into this work, I routinely see that delight shared by the students on the other end of these authentically educational exchanges—a point confirmed for me this spring when a group of students from the local chapter of our school’s Federalist Society, a national conservative legal organization, told me over breakfast how much they valued and appreciated learning from and with a professor whose perspectives differ from their own.

And yet, when I teach a different class—an experiential elective course that aims to show students how to operate effectively and responsibly as lawyers in solidarity with anticarceral social movements—my pedagogical mission and context change. The point of this class is not to debate whether mass incarceration exists or whether it should end. The goal is to explore the relationship between lawyers and organizers in the effort to bring that end about, and to help students learn how to enter into those relationships and that shared work most effectively. A student who rejects the premise that mass incarceration is a serious problem or who lacks the desire to do something about it will likely struggle to succeed in the course, and ultimately may not be able to do so.

At a conceptual level, these examples strike me as indistinguishable from the biology, climate change, and microeconomics examples. Yet the shift to these transparently more political subject areas surfaces a controversial and perhaps even provocative idea. We are accustomed to using pejoratives like indoctrination and propaganda to describe, in Hankins’s words, “the teacher who presents what is unorthodox” and who acts as a “social evangelist who seeks to convert students to his own type of social idealism.” But if good teaching requires an instructor to hold firm to the shared starting premises of a given class, to guard the boundaries of the box, might it not be the case, as Hankins writes, that “all teaching has in it an element of propaganda”?²⁶

Context and Judgment

Taking together all of the above, the crux of the analysis when assessing the relationship between the freedom to teach and the freedom to learn seems to be twofold.

First, we must ask the essential antecedent question: What is this class about? What is the lifeworld, the sandbox, of the educational endeavor that the teacher and the students are undertaking together? As Finn puts it, we cannot assess whether a professor’s pedagogical approach is appropriate or effective unless we know “the educational goals of the course.”²⁷

And second, we must ask an equally essential and related question: Who gets to decide what the course’s pedagogical context and mission are? Here, I submit, there is no single answer. As Karen Singer-Freeman, Christine Robinson, and Linda Bastone (scholars of teaching and assessment) write, academic freedom typically affords educational institutions, acting through “the faculty, as a group,” the right to restrict the decisions of individual faculty members, including “by requiring uniform syllabi or grading policies” in certain courses.²⁸ Likewise, it is the responsibility of the faculty as a whole to attend to the diversity of perspectives across the broader ecosystem of the curriculum.

But as these authors go on to observe, in the absence of any collective faculty guidance or constraint on a given class, it is a broadly accepted principle of academic freedom that professors have wide “discretion in using the pedagogical approach most appropriate to the academic course being taught” and thus “have the right to make decisions about how they will teach, what they will teach, and how they will assess student learning.”²⁹ Indeed, this “autonomy in the day-to-day business of determining how to teach and assess students,” what Macfarlane calls academic judgment, “is a precondition that lies at the heart of the freedom to teach.”³⁰

Translated into practice, this idea of academic judgment boils down to discretion. As Sir Walter Moberly, a philosophy professor, put the point in 1949, teachers need “plenty of elbow-room” when it comes to deciding “what they are to teach, and how.”³¹ Of course, discretion has its discontents. If I let you choose what to do, I may not like the choices you make. That is the nature of discretionary judgment, a point sociology professor William Pendleton captured well when discussing the risks—and the need to tolerate them—that academic freedom entails. His cautionary and illuminating words, published 30 years ago, offer a helpful coda to our discussion:

Academic freedom does not ensure perfect or even the best possible education in every class. But it is the best means of ensuring that, over the course of a student’s career, he or she receives an education that is broad, flexible, nondoctrinaire, and subject to the self-correction inherent in exposing students to many teachers, all free to pursue the pedagogy and content of their classes as they judge best.

Accepting academic freedom requires accepting that some will not teach … as others think they should….

This system has served higher education well. Efforts to depart from it for religious, political, or social regulatory purposes have been, for the most part, detrimental to excellence; with the passage of time, such efforts have come to be seen as ludicrous by subsequent generations of scholars.…

Yet the temptation remains to make things “better” by imposing controls on the classroom…. Should not universities protect students from improper views, outdated theories, and distorted data? If faculty remain free to teach as they wish, will they not release evils of the worst sort on the impressionable young? These questions are raised repeatedly, as they should be. But the too-frequent answers—add new administrative powers, allow intrusion into the classroom, provide for regulation of faculty by persons little qualified for the task—are supplied because they are easy and they appeal to those who little understand education.³²

Back to Harvard

Let me return to where I started. This essay stems in part from my worry over the language in Harvard’s new nondiscrimination policy. But more concretely than that, it stems from concern over how I have seen my institution react when charges of political discrimination in the classroom have arisen.

In particular, I have in mind the case of my colleague and collaborator, Marshall Ganz, whom our university newsletter recently profiled as “the Rabbi of Organizing.”³³

As our colleague, Theda Skocpol, explains in that profile, Ganz “has helped to train many of the organizers who have worked for some of the major political campaigns” and social movements of our time, teaching “people how to relate to others, how to build organizations,” and “how to harness moral passion for collective purpose.”³⁴ Ganz does this work through a set of classes offered as part of the Practicing Democracy Project that he directs at the Harvard Kennedy School of Government, where he has been on the faculty for decades. His core class on organizing, which regularly enrolls over 100 students from countries around the world, is intensely experiential. The “students work together to form values-based leadership teams, work with a community on behalf of a shared purpose, and strategize how this community can turn its resources into power it needs to achieve goals, aligned with their shared purpose.”³⁵ The ultimate goal is to teach the students how to “practice democracy”³⁶ by organizing others to fulfill “the democratic promise of equity,”³⁷ in which communities come together to help build societies where people have equal rights and opportunities to flourish.

It was against the backdrop of this course that Ganz was charged in the spring of 2023 with discriminating against three of his students. Here is how he describes what took place:

Last April, while classes were still in session, I was suddenly called to an urgent meeting with Dean Doug Elmendorf at the Harvard Kennedy School….

That semester, 127 students from 30 countries had enrolled in my spring “People, Power and Change” class…. One of the teams consisted of three Israeli professionals at midpoints in their careers….

These students stated that their purpose was to organize Israelis “building on a shared ethos of Israel as a liberal-Jewish democracy.” I asked them to consider whether the concept of a “Jewish democracy” is a contradiction in terms and whether this framing of their purpose would be helpful or harmful to the project’s goal of bringing people into an organizing movement. A Jewish state is one thing. A democratic state is another. But a state that limits full citizenship to a specific ethno-religious group, essentially a racial test, denies the excluded from that ethno-religious group the equality of voice that gives democracy its legitimacy….

The students would be wiser, I argued, to reframe their team’s statement of purpose. They rejected my suggestion, keeping their statement as originally drafted. The students were not punished or disciplined in any way for that choice, nor suffered any academic consequences, and the class moved on….

After the course ended, the three students … [filed] a formal claim with the Harvard General Counsel, [in which] their lawyers argued that by having a conversation with them about their work in the class, where I pushed back on their definition of the state of Israel, was to discriminate against them…. The dean acted as grand jury, prosecutor, investigator, and judge. The result was a finding (which I emphatically reject) that I had discriminated against these three Israeli students.³⁸

The school’s formal finding was that Ganz “sought to silence the speech of Jewish Israeli students about a topic that he viewed as illegitimate” and in so doing engaged in teaching practices “inconsistent with the free speech principles set forth” in university policies.³⁹

As Tracey Meares and Benjamin Justice (professors of law and education, respectively) write, “culture wars over the overt content” of educational curricula and classroom instruction “have been an endemic feature” of American education for centuries.⁴⁰ This dynamic has become only more apparent and more troubling in recent years, as captured by a recent joint statement from the AAUP and PEN America condemning “a spate of legislative proposals being introduced across the country that target academic lessons, presentations, and discussions of racism and related issues in American history in schools, colleges and universities.”⁴¹

That was all before October 7, 2023. Since then, as the conflict in Gaza has unfolded, debates over Israel and Palestine have roiled higher education, leading to the discipline and arrest of students, the discipline and arrest of faculty members, and the termination of multiple university presidents, including my own. There are few topics more fraught or divisive at this moment in American public life. It was perhaps inevitable, then, that academic freedom controversies related to this conflict would erupt.

And yet, the principles of academic freedom described throughout this essay should help us more clearly assess the charges leveled at Ganz. As Ganz has said, “the pedagogical mission” of his class “was to enable every student to learn to organize.”⁴² To Ganz, organizing is the practice of democracy. “Democracy,” he says, “is not something you have, but something you do.”⁴³ The mission of this class, plain and simple, was to teach students how to do it. It was not to debate which versions or forms of democracy one ought to pursue. Rather, in this class, the definition of democracy was a starting premise laid out in the first line of the syllabus, which described organizing as a practice aimed at “fulfilling the democratic promise of equity.”⁴⁴

Measured against that starting premise, the students’ project, in Ganz’s view, did not seek to practice democracy. It sought, he believed, to contest the meaning of democracy from which the course’s pedagogical mission proceeded—to contest, as he would later write, “the equality of voice that gives democracy its legitimacy.”⁴⁵ In other words, Ganz believed the students’ project was venturing outside the sandbox. And so, he encouraged them to reconsider, to contemplate the definition of democracy that the class was designed to help them practice.

To be clear, the questions and the project Ganz’s students wished to explore may well have intrinsic merit. In a different class asking what democracy or equality mean, Ganz may well have viewed the questions about religious and national identity implicated by the students’ project as within the box. But that was not the class Ganz set out to teach, nor was it the class the students signed up to take.

Ganz’s students unquestionably had the freedom to learn what he was trying to teach. And he just as clearly had the freedom to teach it. We who are Ganz’s colleagues and fellow educators have the right to question his pedagogical choices—for that too is academic freedom. But if the freedom to teach is to have any real meaning, Ganz must be afforded the elbow room to decide how best to question, coach, direct, and assess the students in his class. Applying these principles, it seems to me straightforward that Ganz’s actions were consistent with his students’ freedom to learn. And that in finding him guilty of discrimination, Harvard did not respect Ganz’s freedom to teach.

That, I fear, was a dreadful mistake. If the essential, fragile principle of academic freedom and the institutions of higher learning it animates are to survive these challenging times, it is a mistake we as educators must better learn to identify, to understand, to grapple with, and ultimately to avoid.

Andrew Manuel Crespo is the Morris Wasserstein Public Interest Professor of Law at Harvard Law School, where he teaches and writes about criminal law and directs the Institute to End Mass Incarceration. Early in his career, he served as a law clerk for US Supreme Court Justices Stephen Breyer and Elena Kagan, then as a staff attorney with the Public Defender Service for the District of Columbia.

Endnotes

1. A. Garber, “University Discrimination and Harassment Policy Review - January 2021,” Office of the Provost, Harvard University, January 2021, provost.harvard.edu/university-discrimination-and-harassment-policy-review-january-2021.

2. Harvard University, “Harvard University Non-Discrimination Policy,” September 1, 2023, provost.harvard.edu/files/provost/files/non-discrimination_and_anti-bullying_policies.pdf.

3. W. Foster, The Nation, November 11, 1915, quoted in American Association of University Professors, “Academic Freedom and Tenure,” Bulletin of the American Association of University Professors 23, no. 6 (October 1937): 431–49.

4. American Association of University Professors, “Academic Freedom and Tenure,” Bulletin of the American Association of University Professors 23, no. 6 (October 1937): 431–49.

5. Harvard University, “Harvard University Non-Discrimination Policy” (noting that “examples include but are not limited to” instances in which a teacher’s “evaluation” of a student’s “performance” in the classroom is “negative”).

6. American Association of University Professors, “Academic Freedom and Tenure,” Bulletin of the American Association of University Professors 28, no. 1 (February 1942): 84–90; see also American Association of University Professors, “Academic Freedom and Tenure,” Bulletin of the American Association of University Professors 23, no. 6.

7. B. Macfarlane, “Reframing the Freedom to Teach,” in Handbook on Academic Freedom, ed. R. Watermeyer, R. Raaper, and M. Olssen (Cheltenham, UK: Edward Elgar, 2022), 146–59.

8. Title VI of the Civil Rights Act of 1964, 42 US Code §2000d (1964).

9. American Association of University Professors, “Statement on Professional Ethics,” 2009, aaup.org/report/statement-professional-ethics.

10. D. Rabban, “Does Academic Freedom Limit Faculty Autonomy,” Texas Law Review 66, no. 7 (June 1988): 1405–30.

11. Wieman v. Updegraff, 344 US 183, 196 (1952) (Frankfurter, J., concurring).

12. American Association of University Professors, “Academic Freedom and Tenure,” Bulletin of the American Association of University Professors 23, no. 6.

13. L. Bollinger, “The Value and Responsibilities of Academic Freedom,” Chronicle of Higher Education 51, no. 31 (April 8, 2005): B20.

14. S. Finn, “Academic Freedom and the Choice of Teaching Methods,” Teaching in Higher Education: Critical Perspectives 25, no. 1 (2020): 116–23.

15. F. Hankins, “Freedom of Speech and Freedom of Teaching,” Bulletin of the American Association of University Professors 24, no. 6 (October 1938): 497–508.

16. H. Kohn, “Academic Freedom in Our Time,” Bulletin of the American Association of University Professors 25, no. 2 (April 1939): 183-87.

17. American Association of University Professors, “Academic Freedom and Tenure,” Bulletin of the American Association of University Professors 23, no. 6.

18. Macfarlane, “Reframing the Freedom to Teach.”

19. Macfarlane, “Reframing the Freedom to Teach.”

20. Hankins, “Freedom of Speech and Freedom of Teaching.”

21. Macfarlane, “Reframing the Freedom to Teach.”

22. J. Habermas, The Theory of Communicative Action: Lifeworld and System: A Critique of Functionalist Reason, vol. 2, trans. T. McCarthy (Boston: Beacon Press, 1981), 124–25.

23. Finn, “Academic Freedom and the Choice of Teaching Methods.”

24. E. Volokh, “Harvard Kennedy School Professor’s Rejecting Students’ Class Project Discussing ‘Jewish Democracy’ in Israel,” Reason, November 6, 2023, reason.com/volokh/2023/11/06/harvard-kennedy-school-professors-rejecting-students-class-project-discussing-jewish-democracy-in-israel.

25. For some examples, see work by my colleagues N. Bowie and D. Renan, “The Supreme Court Is Not Supposed to Have This Much Power,” The Atlantic, June 8, 2022, theatlantic.com/ideas/archive/2022/06/supreme-court-power-overrule-congress/661212; and R. Doerfler and S. Moyn, “The Constitution Is Broken and Should Not Be Reclaimed,” New York Times, August 19, 2022, nytimes.com/2022/08/19/opinion/liberals-constitution.html.

26. Hankins, “Freedom of Speech and Freedom of Teaching.”

27. Finn, “Academic Freedom and the Choice of Teaching Methods.”

28. K. Singer-Freeman, C. Robinson, and L. Bastone, “Balancing the Freedom to Teach with the Freedom to Learn: The Critical Role of Assessment Professionals in Ensuring Educational Equity,” in Teaching and Learning Practices for Academic Freedom: Innovations in Higher Education Teaching and Learning, vol. 34, ed. E. Sengupta and P. Blessinger (Bingley, UK: Emerald Publishing, 2021), 39–51.

29. Singer-Freeman, Robinson, and Bastone, “Balancing the Freedom to Teach.”

30. Macfarlane, “Reframing the Freedom to Teach.”

31. W. Moberly, The Crisis in the University (London: SCM Press, 1949), quoted in Macfarlane, “Reframing the Freedom to Teach.”

32. W. Pendleton, “The Freedom to Teach,” New Directions for Higher Education 1994, no. 88 (1994): 11–19.

33. C. Pazzanese, “‘What Is Compelling to Do Right Now?,’” Harvard Gazette, September 26, 2023, news.harvard.edu/gazette/story/2023/09/how-marshall-ganz-found-his-calling-as-activist-scholar-mentor.

34. Pazzanese, “‘What Is Compelling.’”

35. M. Ganz, “Calling for Respect, Freedom, and Security for All Is Not Antisemitic,” The Nation, February 1, 2024, thenation.com/article/world/israel-palestine-antisemitic.

36. Harvard Kennedy School, MLD-377M, “Organizing: People, Power, Change,” M. Ganz, hks.harvard.edu/courses/organizing-people-power-change.

37. Harvard University, “Organizing: People, Power, Change (MLD-377),” M. Ganz, scholar.harvard.edu/marshallganz/organizing-people-power-change-mld-377.

38. Ganz, “Calling for Respect.”

39. A. Kurker, Investigative Report: Preliminary Findings and Preliminary Recommendations (Waltham, MA: Kurker Paget, June 14, 2023), brandeiscenter.com/wp-content/uploads/2023/10/Harvard-Kennedy-inspector-report.pdf. Based on the same course of conduct, Ganz was separately found by the school to have “denigrated the Students’ identities as Israelis and Jews,” in effect, of being antisemitic. Id. p. 22. As Eugene Volokh explains at length, this aspect of the school’s conclusion is logically unsound. See E. Volokh, “Is Restricting Pro-Israel-as-Jewish-Democracy Speech National Origin/Ethnicity Discrimination or Harassment?,” Reason, November 6, 2023, reason.com/volokh/2023/11/06/is-restricting-pro-israel-as-jewish-democracy-speech-national-origin-ethnicity-discrimination-or-harassment. For Ganz’s own account of how his approach to teaching organizing is “deeply rooted in Jewish values and traditions,” tied in part to his father’s rabbinical training, see Ganz, “Calling for Respect.”

40. B. Justice and T. Meares, “How the Criminal Justice System Educates Citizens,” Annals of the American Academy of Political and Social Science 651, no. 1 (January 2014): 159–77.

41. American Association of University Professors, “Joint Statement on Efforts to Restrict Education About Racism,” June 16, 2021, aaup.org/news/joint-statement-efforts-restrict-education-about-racism#.YPnfOFNKg6g.

42. Ganz, “Calling for Respect.”

43. Center for Public Leadership, “Practicing Democracy Project,” Harvard Kennedy School, hks.harvard.edu/centers/cpl/faculty/practicing-democracy-project.

44. Harvard University, “Organizing: People, Power, Change (MLD-377).”

45. Ganz, “Calling for Respect.”

[Illustrations by Taylor Callery]