Which way to the School of Social Work?

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Missouri's Next Free-Speech Fight

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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As if the University of Missouri didn't already have enough problems, State Senator Kurt Schaefer is trying to block a research study by a graduate student in the School of Social Work. The senator, who’s a one-man scourge of Planned Parenthood, is claiming that the study violates a Missouri law that bars spending state funds to encourage abortion.

Schaefer’s effort blatantly violates academic freedom. If it succeeds, it might possibly violate the First Amendment.

But the constitutional point isn't a slam-dunk. As interpreted by the U.S. Supreme Court, the First Amendment allows a state, when it’s doing the talking, to promote only the views and values that it likes. In theory, a state could conceivably demand that its universities and their employees take a one-sided view and promote only those ideas the legislature and the public prefer.

With free speech issues being discussed on campuses from Missouri to Yale, it’s worth asking a crucial question about this strange legal dynamic: Is free speech on a university campus an inherent right? Or is it just a good idea, subject to dispute and disagreement?

To begin with, consider the Missouri law Schaefer is invoking. It says, “It shall be unlawful for any public funds to be expended … for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life.” The law has an interesting history. In litigation that ended up in the Supreme Court, Missouri claimed it wasn’t aimed at banning doctors from giving medical advice, only at prohibiting state officials from funding abortion counseling. The court accepted Missouri's stipulation, and so declined to consider its constitutionality further.

The reason Missouri was on safe ground in saying that it didn’t want to pay for abortion counseling is a 1991 case, Rust v. Sullivan. The court then said that the government could prohibit recipients of federal funds from referring women for abortion or encouraging abortion. Its logic was that the government can choose to fund one program rather than another. Thus, the court said, there was no viewpoint discrimination against abortion, which would’ve violated the First Amendment.

Since then, the court has further developed what's known as the “government speech” doctrine. The basic idea is that, when the government is clearly doing the talking, the constitutional right to free speech doesn't apply. The government can say whatever it wants, and promote whatever views it likes -- provided it isn't prohibiting any private individual from speaking freely.

Now apply these principles to the study by the Missouri social-work student. Its purpose is to understand the abortion decision-making process in the light of a state law requiring a 72-hour waiting period. It'll be conducted at the Planned Parenthood clinic in St. Louis, and staff from the facility will assist in the collection of the data. The advisor, director of the School of Social Work, is on the board of the Planned Parenthood chapter for Missouri and Kansas. One goal of the study is to help Planned Parenthood “improve its services to better meet the needs of women seeking abortions.”

From an academic perspective, the study and its goals are plausible. Sure, the research seems likely to shed doubt on the value of the 72-hour waiting period. But there’s nothing wrong in principle with scholarship that's simultaneously engaged in the promotion of a particular perspective on social justice or rights. If a law student of mine is writing about torture and human-rights law, I don’t presume in advance that she must consider torture as a legitimate means of government investigation.

Good social science should try to answer questions with as much objectivity as possible, and shouldn't preconceive the answers. But in medicine as in social work, it’s common for researchers to stipulate an objective, like patient welfare, that’s actually incoherent without some substantive moral beliefs about what's good for people.

Could Missouri constitutionally specify that state funds can’t be used for research that encourages abortions? Professors at the University of Missouri are state employees, acting in the furtherance of their official responsibilities. Ordinarily, the government speech doctrine would apply to them. If the state wanted to prohibit them from advocating certain views in the classroom, it might well be constitutionally permitted. (Students are a trickier case, because they are not state employees, but the law could reach the professor’s supervision and still effectively shut down the student’s research.)

There's something shocking about what I’ve just said: The state of Missouri could probably tell professors what perspective to advance in their classrooms, and protect itself by saying that the state is talking to its employees.

What's shocking, of course, is that academic freedom runs in the opposite direction from government speech doctrine. Scholars should be empowered to express whatever viewpoints they wish -- intellectually, ideologically, morally and politically -- without intervention from the university's administration.

As it turns out, at a state school, academic freedom is a wise policy decision, but not a constitutional requirement. At a private institution, the government can’t prohibit professors’ speech; the university's trustees could, as indeed they do at some religious universities where faculty must adhere to doctrinal orthodoxy.

It would be nice to think that professors at a state university have free-speech rights against the government, like their students. But that's not the way constitutional law has developed.

The upshot is that we need to be especially vigilant about potential violations of academic freedom at state universities. The argument against them, though, isn't that they violate the First Amendment. It's that they are a terrible idea that will distort scholarship, and through it the unfettered search for truth.

Right now, conservatives are focused on campus free speech, because they're worried about growing political correctness. They should therefore join in condemning Schaefer’s efforts to intimidate the University of Missouri. After all, the whole point of free speech is to allow it for everyone -- regardless of viewpoint.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net