Unbounded Thought: A Conversation with Janet Halley about Academic Freedom
Conducted and edited by Howard Muncy
Janet Halley is the Eli Goldsten Professor of Law at Harvard Law School. Halley received a bachelor’s degree in English literature from Princeton University, a PhD in English literature from UCLA, and a J.D. from Yale University. At Harvard Law she teaches such courses as Family Law, Feminist Legal Theory, and Political Economy of the Family. Halley is also a founding member of the Academic Freedom Alliance, she serves on the AFA’s Academic Committee, and she held the position of chair for the same for over a year starting in 2022 and concluding in 2023. I was able to interview the esteemed law professor to get her reflections on the origins of the AFA, her thoughts about new challenges to academic freedom, as well as a variety of other topics.
Howard Muncy: You were part of the Academic Freedom Alliance’s founding membership and one of the original nine members who served on the Academic Committee for the 2021 launch. Thinking about that period before the AFA became public, can you tell our readers about your experience in helping to pull the organization together as well as what you hoped the group would accomplish?
Janet Halley: I think the Princeton-based originators of the AFA reached out to Jeannie Suk Gersen and me in search of ideological diversity. I won’t speak for Jeannie, but I lean left. I remember a moment when the originators asked us why in the world did we want to promote academic freedom, when it was conservatives who were in the cross-hairs of so much of the left/progressive effort to sanitize teaching, pedagogy, public morals. I think what we said surprised them a lot. I’ll just speak for myself – I said I felt that, teaching on the issues we do (gender, the family, sexuality in the law, from criminal law to constitutional law to private law; feminist legal theory; the arts and the law), and trying to open up real critical inquiry with my students and in my scholarship, for me with the vitality of left thought as a major goal, I was constantly at risk of coming within the blame game of progressive thought normalization. Of course, through all my career I’ve parried conservative thought policing: no side in this is above censorship as a tactic. But for years, Jeannie and I had been defending left and progressive, as well as conservative, colleagues, who fell under the scythe of left/progressive “you can’t say that” politics, often coming in the form of disciplinary accusations and investigation. Administrators felt so cowed that they threw academic values and due process out the window. I was so grateful to be able to join an ideologically diverse organization committed to pushing back against this, whether the awful events were spurred by the left or the right, and whether they were facilitated by administrator bias or by administrator cowardice.
I just loved the group. It was so refreshing. Its dedication to the idea that a threat to academic freedom for anyone is a threat to academic freedom for everyone was so clean and clear.
Jeannie and I are lawyers. I think the only other lawyer in the group was Robby George, but he is really a natural lawyer. I’m a legal realist and a crit, meaning I draw a lot of my hypotheses from the legal realist movement of the early 20th century and from the critical legal studies movement of the 70’s and forward. Almost the opposite of a natural lawyer. I also like to think about institutions. We had something to contribute, I think. It was super fun helping figure out how to build and launch this organization.
One of the most important things was the idea that you can commit crimes, torts, discrimination, and other legal and moral wrongs with your speech. I found clarity in the effort to explain this that I had not really had before. Academic freedom and free speech were precious values – but not without limit. Where was the line? For me, it was in the narrow, legal definition of harassment: unwanted conduct or speech that is, to a reasonable person, sufficiently severe or pervasive to interfere with educational or employment opportunity. Mere offense is not enough. Mere intimidation that is real, subjectively real, but is not reasonable – is not enough. Outrage is not enough. Having a lot of allies who are outraged with you is not enough.
All of this became much more important and came under new and extreme stress after October 7, 2023. I am so glad we had the AFA well on its way when that calamity, and its associated calamities, hit.
HM: Returning to your role as an AFA Academic Committee member, can you elaborate on how the committee works, describe its strengths, and reflect on what has now been nearly five years of activity?
JH: The AFA is the only national organization solely committed to defending academic freedom that is run by academics. The Academic Committee, which handles decisions about how the AFA can help people in trouble for exercising their academic freedom rights, is made up entirely of professors. We have members – Donald Downs, Keith Whittington, David Rabban – who have nationally recognized expertise in academic freedom. Robby George exemplifies it in the entire conduct of his career. We have real experience on the committee. But my basic point is simpler: we are all academics.
So, we are not primarily press-oriented. This means we are much slower than FIRE, for instance, to issue public statements or comments. Sometimes it’s best for us to work behind the scenes, getting relief for a professor without calling for any press attention at all. But even if we do go public, it’s after we’ve researched the matter and satisfied ourselves that academic freedom and/or free speech values are at stake and that our remedial approach can possibly benefit the professor in distress.
Another point. Like the Membership Committee and our Legal Advisory Council, the Academic Committee is deliberately assembled to have people with a range of political, disciplinary, generational, and analytical profiles. The Membership Committee is also careful to keep various kinds of diversity alive in the membership rolls. This sometimes makes it challenging for some of us to see the value in a case that others perceive as obvious. What we are striving for is the protection of academic freedom even when some of us find the particular instance of its exercise politically or even morally repellant. That’s how you get the entire Academic Committee supporting the academic freedom of Amy Wax in her statements on her political views and Jody Dean in her statement on Hamas’s invasion of Israel on October 7. It was not easy to do these cases, but I think in both instances we did the right thing and showed that we are committed to keeping academic freedom from being a stalking horse for left or right politics.
HM: There have been several new groups committed to protecting academic freedom that emerged during the last four to five years. What are the central issues and concerns that continue to drive this movement? Do you recognize any fundamental changes in the perception and overall environment of academic freedom over the last five years?
JH: I started warning that sexual harassment law could be used to squelch politically sensitive speech around 2000, when I found the EEOC including simple offensiveness as a form of harassment. This was considerably before the left became populated by so many movements and coalitions dedicated to the purification of public discourse. When I first joined the AFA and the Academic Committee, this was my primary concern. But it quickly became clear that the right was just as dedicated to its own version of purification: it tended to use government, as in book bans, bans on drag shows, and bans on the teaching of entire topics of historical inquiry, rather than personal hazing of individual speakers.
Things got much much worse in the rise of Title IX enforcement of sexual harassment law, the #MeToo movement, and the consolidation of post-George Floyd allyship on the left. It was sometimes as though being on the left meant holding certain credos up for veneration. The opposite of critical thought!
The Israel/Palestine conflict post-October-7 has rearranged the left and brought new players to the game of suppressing ideas as a political tactic. Protecting academic freedom on campus has become much much more challenging in this context. For one thing, defense of Israel and Zionism are in some quarters complete anathema. While there have been horrible instances of anti-Semitism, I think most of the controversies in this space are a continuation, in new terms, of a left politics of “you can’t say that.” For another, many people who found the campus protests of the2023-24 academic year objectionable turned academic freedom into a cudgel, calling for punishment of protesters to “show where academic freedom runs out.” A lot of ostensible academic freedom energy now is actually the opposite: an attempt to push the genie of pro-Palestinian student opinion back into the bottle.
HM: Is there one specific issue, moment, or case that stands out as a moment where you personally felt proud to be an AFA member and that the organization had just made a successful and important impact?
JH: I’ve already mentioned that I’m proud that we managed to support both Amy Wax and Jody Dean even though many on the Academic Committee had intense negative moral assessments of their statements. I’d also like to mention the many cases in which we have sent confidential letters to administrators on behalf of beleaguered faculty and got relief for them, sometimes in the form of a silent cessation of vexatious proceedings and investigations. We work closely with these colleagues to find a minimal effective result; we are not trying to create poster children for academic freedom.
HM: What is your outlook for the future of academic freedom, and do you foresee any new challenges on the horizon?
JH: I’d like to go back to the nuts and bolts of fair procedures. As single-investigator becomes the modal form of procedure for academic discipline, for faculty as well as for students, and as career professionals take over the investigatory and disciplinary process, displacing faculty – a process that is so well underway that I deem it unstoppable – these procedures are going to be handled by people with zip, zero, nada exposure to academic freedom values. I think it should be a centerpiece issue of academic freedom organizations to confront institutions of higher education with this issue and find effective strategies for addressing it.
And I’d like to point to the vital threats to academic freedom coming from D.C. right now, in the form of federal funding cuts for academic institutions that do not tow the line on Israel/Palestine favored by the incumbents. A torrent of individual cases taking surprising new forms – shutting down entire departments, deporting dissident students and faculty, syllabus review panels — coming our way from that quarter. One of the ironies of this, for me, is that some of the very people who terrified me into seeking out institutions like the AFA – what I’ve been calling the left/progressive proponents of pure public discourse – are suddenly feeling the pinch. To put it another way, for them, the worm has turned. How can academic freedom institutions be there to help them in their time of need?
HM: In closing, is there anything else that you would like to add about the history of the organization or your thoughts about the AFA going forward?
JH: I think it’s important to remind ourselves, individually and collectively, why we are doing this in the first place. Academic life is about the search for knowledge. We can’t search for knowledge without disagreement, trial and error, and space for speculative, unbounded thought. We all need to up our skills for protecting robust inquiry, hard questions, surprising discoveries. We need to learn to trust that people whom we disagree with can be in good faith.
Academic freedom is just one tool we as academics have in the pursuit of those important modes of human interaction. But it is a crucial one.