Author, Safe Spaces, Brave Spaces

Head of School at Phillips Academy, Andover

American Educator, Scholar, Professor of Law

You really can trace the free expression to that very, very strong liberty value, and you can trace diversity to that very strongly expressed equality value. We haven't done either one of them particularly fairly or right in this country, but it is part of the goal.

By Heidi Legg

As Americans loudly hammer out partisan views on the world stage these days, colleges and universities have been drawn into the fray as campuses, with speakers and their mobile-enabled audiences, become venues for audio and video that has a propensity to go viral. What was once considered healthy student debate can easily become a political inferno with a viral international following. Factions have formed, aligning people into either diversity or free speech advocates.

This bifurcation is something John Palfrey sees as mistaken. In his new book, Safe Spaces, Brave Spaces published by MIT Press, Palfrey says diversity and free speech share much more than not and argues both are imperative for a modern education and the promise of educating our youth in the American ideal. The former Henry N. Ess III Professor of Law and Vice Dean for Library and Information Resources at Harvard Law School offers clear examples of where the Supreme Court has ruled in favor of both diversity and free expression and he breaks down the trajectory of the past few decades that led to the fanning of these flames by provocateurs and by the emergence of a highly-interconnected world of viral platforms like Snapchat, Twitter and Facebook.

Safe Spaces and Brave Spaces arrives in a heated moment for America and American campuses, not in a reflection. You focus on two elements of modern democracy: diversity and the right to free speech and argue that the overlap between the two is being lost in the polarization. What do you see?

I'll start with the problematic framing of today: we are so often put into two camps. On campuses today, you are presumed to be for diversity, which often stands for the Left, or you are someone who stands for free expression, and that often stands for the Right. This framing, which comes of a culture war, is actually problematic. It doesn't ultimately support a long, true and strong community development project in which I think we should be engaged.

I much prefer to see these two values, wherever possible, as reinforcing one another. I actually think the idea of having a diverse group of people from a truly broad range of backgrounds coming together in a community is very consistent with having free expression as a value of that community and I much prefer that we not pull those apart and make them antithetical to one another.

Where is the natural overlap between diversity and free expression?

In my mind, both are about getting at the truth and understanding the world in all its complexity and both are elements of a necessary democracy.

Bringing multiple perspectives into a conversation actually helps us be smarter and takes skill. We want our young people to be able to thrive in a more diverse environment, to be able to listen to one another, be empathetic, and so forth. You could also see it from the other perspective: if in a democracy we only have one point of view and we don't bring in other political points of view and, historical perspectives, and so forth, we're probably not going to get to great answers from a policy-making or decision-making perspective. I think they are often more alike than they are distinct and it's much better to try to find that overlap.

As the head of Philips Academy in Andover, you've had a front row seat to witness how diversity and free speech play out on campus. In the book, you continually refer to the vitality of getting to truth. Would you explain how we discover truth through diversity? And then how do we discover truth through free expression?

I would say truth is one part of the answer. It's not the only answer. Community and other values are important, but let's start with truth, as an example.

In the last few centuries, history has been written only by white men whose books have tended to tell a very heroic version of a white male history – which is Christopher Columbus comes and discovers the New World and many of the men written about are in classic political or military roles. It's not that this is unimportant – of course, these people changed the course of history and they are part of the spine of that story – but it's not the entire story. I think if you talk to historians today, they would say that the experience of women, of people of color, that of enslaved people, or of the Native Americans who lived on this land before Columbus arrived, are all equally important narratives to understand when thinking about United States history.

The common perspective comes from these historically white male institutions – Andover is one, along with many others, particularly in the elite educational sector. I think it is very important that, in terms of the truth, we seek different perspectives and try to understand how it was for somebody who came at it from a different perspective or didn't have as much power in the environment and so forth. I think that's an essential element of understanding our history.

On the other hand, the notion of free expression has been contested throughout our history. One of the interesting things is the people who have sought the right to free expression have changed over the course of American history. It’s often been people on the far left who have sought it and who are seeking progressive reform. In many respects, Frederick Douglass, who made the case to end slavery, made the most important statement about free speech in the 19th Century. He gave a speech called A Plea For Free Speech in Boston, which I think remains as one of the most important speeches of the 19th Century, particularly on this topic.

He made the argument that we needed free expression because voices critiquing the setup, which at that time involved slavery, were not able to break through because those voices were suppressed. Free expression allowed them to say these things that felt subversive at that time to those in power that wanted to squelch those voices. Frederick Douglass made a really, really powerful speech that carries through to this day. In fact, you can trace the argument from Frederick Douglass through to today, but it's important to realize free expression is not the province of the right.

Free expression is not naturally a politicized issue. It's actually one that I think can absolutely join people who are seeking the truth and seeking to reform the society as well.

In your book, you outline three-steps that led to this campus inferno around free speech over the past decade: first, many began to see that racism and sexism were pervasive throughout colleges in both admission and faculty positions. Then a number of high profile colleges began to fund diversity-measures. You explain how the free speech movement became the reaction to these new measures, and then social media fanned the flames. Was this a perfect storm?

It’s a very complicated and still emergent picture of this particular debate, as it changes over time, but I would say that up until relatively recently most of these very elite educational institutions and mainstream big universities with very strong histories, have been sites of structural and systemic racism and sexism. There's no two ways about it. It’s a fact.

Over time, those elements of racism and sexism have broken down to some degree, but they're still experienced by people who come on these campuses who are not white or male or heterosexual and so forth. So, there still is a degree of marginalization that people feel on these campuses that is based on that structural racism.

In the last couple of years, many institutions have become much more serious about trying to create meaningful diversity, meaningful equity, and meaningful inclusion on our campuses. Sometimes they have big price tags associated with them (Yale spends $50 million on diversity measures, Brown spends $100 million); many schools have made meaningful and important changes in policy, changes in faculty hiring, or in programmatic support for students. I think there has been a backlash against those ideas becoming seen as the mainstream or the norm, and that backlash is certainly from some people who disagree with them. Those who disagree think that it’s overwrought, it's not the right way to go, or they disagree with the arguments around structural or systemic racism. Some people make the argument that there is such a thing as reverse racism, but I think the Fisher case in particular brings into relief where people are challenging Affirmative Action.

There is Fisher I and Fisher II and this is a case that basically challenges the right of a university to use race as one of the criteria in an Affirmative Action strategy, which so far has been upheld as lawful. A backlash against that in part has been to say that there need to be some countermeasures to those measures on campuses, some of which has played out in speakers who have come on campus. In those cases, I think it has been tied up with social media and other strategies that ultimately take up the arguments that are against this diversity and this equity and inclusion, and then the response is, ‘Wait, you are squelching free speech.’

Do you think the intent for these provocateurs, as you refer to them in your book, is to create media attention?

Yes, some of them certainly have that intent. Milo Yiannopoulos would be an example of someone where I don't think there's any argument that he's a provocateur when he comes on a campus. I think it is less about the substance of what they’re arguing and more about trying to tweak a group of people and provoke them, whether it's Berkeley or elsewhere, into a reaction and to have an effect, rather than being necessarily a serious intellectual interlocutor. I think that is the distinction.

That's not to say, by any means, that everybody on the right and all the people who are presenting a conservative point of view are trying to provoke in that way but there is a subset that is related often to the Alt Right with very sophisticated use of social media. It is often related to a variety of fairly well-coordinated political voices, and that is where a lot of this noise has come in. There are also a lot of people who believe in something different than the arguments I've been making about progressive change on campuses who come and speak very respectfully and are not seeking to have that provocation.

Do you seek out opposing voices today on campus to have those discussions?

I think you should and must. One of the things that I'm critical of in this book is I don't think we, as schools and as universities, are doing a good enough job of having the honest and serious conversations because I think in some ways we're afraid of the provocateur conversation, which doesn't belong, frankly, in a serious academic environment.

Campus conversations used to be a way to build your case or thesis as an academic. With social media, have campuses become brand-building venues for those with other aspirations? Are some now wanting to speak on campus simply because they are in front of an audience where things are more apt to go viral to boost their personal brand?

I think that the brand a university brings can make some of these arguments go one level higher and get more traction. And then you layer in what is different in each case: whether or not you are a big time academic who's trying to show up on the campus or an academic on the make or another student where even that interaction can then go viral. That's where the network effect of social media comes into play where it could be anybody, not only somebody who is trying to make their name academically. It could be somebody who is trying to make their name politically or trying to make a firestorm on a campus, which is not to say it couldn't have happened 50 or 100 years ago but it was much less likely.

Do you think institutions like yours and colleges could have somehow tempered this backlash against diversity-measures? Is their hindsight?

That's interesting. It's a good question. Nothing leaps to mind that would necessarily have affected this. I'm not a technological determinist. I do not think the technology is definitely driving everything and changing it in a particular direction but I do think that these things have come upon us very, very quickly in terms of how young people use the technology and how active the technology is used in a political discourse. I think it also intersected with a variety of other things I describe in the book. I think the Black Lives Matter movement is very important to it. I think the events that led up to that, the police brutality against young men of color, in particular, and, to some extent, young women of color as well, is a part of it. The Trump campaign absolutely had a huge part of it, which obviously riled up a large number of things.

It is all coming so fast.

All these things came very quickly. I don't write this book in a way that is critical of my fellow administrators. I do think we can get smarter about where we are now and run our campuses better to vindicate these various rights and these various interests, but I don't look back and say there was that one moment in 2014 where we all blew it. Maybe somebody smarter than I could figure out what that was.

You highlight the clause 'time, manner, and place' written in the First Amendment throughout your book. How does it inform your argument for both diversity and free speech?

I make a conventional argument in the book and then I make an unconventional argument. Let me start with the conventional: the First Amendment does not say that you can say anything, anytime, or in any place. That is a misconception. It is important to say there are constraints on what you can say, and there are constraints on the right to free expression. I've used a number of them in the book and some of them are very, very important in that they apply on every campus, whether it's a state school or it's a private institution.

The First Amendment – to the extent it's in place – does allow for some constraints on speech. One would be certain speech that incites violence and I think this is one of those lines that are important to draw and it has obviously come up in some of the more outrageous of the incidents around speakers. You're not allowed to have speech that incites somebody to violence nor are you allowed to use violence to squelch some speech and I think we have to draw that line and cling to it.

The field of sexual assault is another one that gets highly politicized in this way. It is true that there are certain things that you cannot say in the context of sexual assault. There are certain things in the case of bullying that you cannot say to other people. As a school under the First Amendment, you can tell somebody, ‘you can't say those things that are harmful to somebody else,’ particularly if they meet a standard in Massachusetts around harassment and bullying. There are constraints on speech in that way and in this book I say that's appropriate. I actually think the First Amendment gets it right in those ways. There is very, very, very broad latitude for speech and then there are some obvious constraints.

The unconventional argument and the place where I do push back somewhat – and I recognize that what I'm arguing for is not constant with the First Amendment – is that on campuses I think the administrators should have the right to bar certain forms of hate speech that are permissible under the First Amendment but which are not, academically, responsible. I run a private school so I can do this and the example that I use is if there were a neo-Nazi group that wished to have a rally in the middle of the campus here at Phillips Academy, I believe it is entirely in my right to bar them and say, ‘this is not helpful. It is not productive. It is hateful speech and I don't want it on my campus.’ That same group might be able to have that rally one mile away in downtown Andover perfectly lawfully under the Constitution.

Is this because it would be in a public space in the town?

It's a public space and if they go through the right steps, they can. There's a case called Skokie that lays this out: it involved a similar scenario and that speech could happen in the town square but, in this case, I would be allowed to bar it at this private school. The unconventional argument I make is that a college president or administrator of a state school should be able to bar that same hateful speech.

The University of Wisconsin approved expulsion for students disrupting free speech on campus as a public university. How does that work?

Well, many are trying. The issue is that the codes that have allowed for this have been, one by one, struck down under the First Amendment as they have applied in a state school and there is debate on exactly that topic.

Some believe our national leadership is using hate speech. Then the media covers it all because that is their job and the press fears any curtailment of free speech. If inside schools we see administrators draw the line over what is free speech, what if the leadership at the school is not benevolent or is biased?

I think that is the hard problem. At no point in this book do I say this is simple and I think the hardest place is exactly where we've gotten to – this tricky problem of hate speech on a campus and who determines what is hate speech.

One thing I would say is anyone who's been to law school knows that there's always a line drawing exercise. You are always trying to find the line between what's permissible and what's not. Somebody has to make that judgment based on a set of principles, and my argument is that we should have very wide latitude for speech, but we should not allow people to use an institution nor spend huge amounts of money of an institution in order to do something that is truly hateful. Trying to find that line is actually a really tricky thing to do.

Doesn’t that leave space for a university to call something hate speech that another may call free speech?

You do have to accept that. If you allow for any line drawing, then you have to allow that line to be drawn by a different place, particularly private universities, and I think there's some degree to which that's okay. Examples I use in the book are to say, ‘if you're a Catholic university and there are certain things that are against your religious values and you don't want them on that campus, I think it's okay.’

This could lead to no debate or speakers around Planned Parenthood or women’s rights to their bodies?

They might. Right? And I might not like that but I think so long as somebody is upfront about what might happen in terms of when you come on campus as a student, I think that's possible. Now, that example might be one that is particularly hard for some people to appreciate but I think it is constant with the idea that you're going to shape a conversation within a private institution.

Are you in regular contact right now with your peers at other schools?

Of course. These topics are very, very complicated and I think that particularly college university presidents are talking about them constantly. It's a little bit less acute at the high school level where I work but it certainly is a constant conversation for the higher level.

If private institutions don't have to abide by all free expression, is there a governing body in place that guides academic institutions on such matters?

There are institutions that help to bring conversations together. I chair the board of the Knight Foundation and they've been funding a group of college presidents who've been getting together around this. I would say, for instance, the University of Chicago has issued many statements over history but one recently around free expression that a number of other universities have joined. I think there are naturally forming groups. I don't think there's really a governing body that would properly make these decisions but I suppose one might emerge.

Critics of increased diversity on campus talk about triggers and safe rooms as measures affecting free speech. In your book you say that 'trigger warnings' should not be mandated. Would you define how you differentiate brave spaces from safe spaces?

Let’s take the topic of Safe Spaces, Brave Spaces, the title of the book, and work back to trigger warnings. I think the answer for us is ultimately to have a blend of spaces for our students. I think there is a time and a place for safe spaces and I think most of the experiences students should have on a campus should be in brave spaces. I think it's important to distinguish between the two.

A safe space to my mind is a place that's akin to our kitchen, or our hearth, in our home. Everybody has a place where you can go around where it's only you and your mom, or you and a grandparent, or you and your best friends and you can say stupid stuff and you can try stuff out and say what is exactly on your mind and you know it's not going out anywhere. No one's recording it. Nobody is trying to trick you. You might try on ideas. You might relax in a different way. Everybody needs that and you need that at a college, university or high school and it is okay to have some of those spaces.

The classic ones on many campuses are to have a Hillel for Jewish students or an LGBTQ space where kids who are either out or coming out or thinking about it can come and know that there are not going to be slurs against Jews or against LGBTQ kids. It is a space where it is not going to be recorded and I think that is actually really important. So, when people make fun of safe spaces, I think they need to think through what they are actually critiquing, because I think those are totally legitimate educational spaces.

It sounds like you are suggesting something analogous to the family kitchen?

Yes. And I think you need that when you're at college: you're still eighteen to twenty-two, and when you're still in adolescence. That space is so crucial.

I also think that we're making a mistake if we don't ensure that students also have brave spaces in their experience in school: they need to be presented with ideas different than their own. Students need to be open to and able to respectfully hear other perspectives. I think most of the classrooms, forums, and public spaces that they walk through on campuses should have this brave quality where the student will know to some extent that there are different ground rules in these different spaces, and I think it's okay to have both of those kinds of experiences.

Along with the differentiation between brave and safe spaces, trigger warnings are one of the examples that have consistently come into the press. To my mind, trigger warnings are often good teaching and good manners. As a teacher, if you have something coming up in a book and you know that there's a student who has suffered from sexual assault and you let that student know that there might be a trigger in this, you figure out a way to support that student. It's not political. That’s simply being a good educator. It's being a sound human being.

I don't think that mandating trigger warnings for every book or movie or experience in a classroom is constructive. I think we should support teachers in doing it as needed, but I don't think a mandate works particularly well in the context of academic freedom.

We know in physics that every action has an equal or opposite reaction. When the reactions today are so strong, where does that leave us?

I appreciate that. I think that one way to see it is to say that we should limit the extremes of these reactions and that the idea of a pendulum swinging back and forth is really not the model we want for a long running institution. This high school where we're sitting today, Andover, is 240 years old and it has survived a whole lot of changes in politics and it has some really strong values. I keep saying, ‘come back to the founding values of the institution. What is it that really, really matters?’ and I believe that in the founding values of this school we look at this idea of youth from every quarter and I think that means diversity. Right from the start, this is a school that has sought kids from all over who come from different backgrounds and we ought to have faculty from lots of different backgrounds. I also think it's a place where we are seeking knowledge and we are seeking the truth from a variety of different perspectives and we need to honor both of those things. I very much hope that we can find balance as opposed to a seesaw swinging back and forth.

Is your goal with this book to temper the pendulum swing?

I think so. If you press hard on what American democracy is really about, it is actually having liberty and equality and balance with one another. You really can trace the free expression to that very, very strong liberty value, and you can trace diversity to that very strongly expressed equality value. We haven't done either one of them particularly fairly or right in this country, but it is part of the goal that we have and I think these schools relate to the rest of society and to our democracy as a whole.

You write that historically free speech has been afforded to the group with the most power – white, heterosexual, educated men, like yourself. How do we ensure that one group is not afforded more speech than others going forward? Do historically oppressed groups such as women, people of color, the LGBTQ community need to have more free speech for a while? Or should equal balance be the goal?

I think there's a reasonable argument there. I would seek a balance we've never sought before, and I understand that those who have had less voice in the past might like for me to have less voice. I understand and I think we should aim for everybody having, in fact, the same set of values. I think that to swing the pendulum in such a way that there is a payback, in a certain way, is not productive. Politically, that’s not going to work and I also think that from a fairness perspective we should be aiming toward a place where in fact it's that proper end state.

I acknowledge, as one of the counterarguments to my argument in the book, that one could say we need an Affirmative Action for speech for a period of time in order to level the playing field as we have affirmative action for admissions. But, I think that is very, very difficult to define and I think it would be very difficult to carry out and I would much rather see us have true diversity, equity and inclusion and true free expression that in fact is open to all in an equivalent way.

While you may want to have everybody at the table, some today still believe white men know best. It is hard to deny this public opinion exists when we look at today's US Cabinet. One may even be able to argue that many progressives still rally around the white male hero. How do you think we should think about this?

I understand. Obviously I think it's wrong to say that white men know best. I think that seems like a viewpoint that on its face is just inaccurate.

How do you see us moving past this deeply ingrained bias?

I think we have to keep making the case as forcefully as we can. I don't have the special answer to this that nobody else has come up with, but I do think there are very deep instrumental reasons for this progressive reform. There are very deep philosophical reasons for it. There are moral and ethical arguments, and I think we have to make those cases and, in political terms, we have to do a better job of voting out people who do have that perspective. For those who believe in that, we have quite a challenge.

What is the role of student press in this discussion?

I have a chapter in the book about the role of the free press, which I think is obviously an essential element to the First Amendment. It's also an essential element of what happens on campuses. At this high school, we have a truly independent student-run newspaper, which for a high school is unusual. We have a process where there is an adult advisor to the paper and an outside editor who has been helpful as a sounding board but The Phillipian is a truly independent paper. This means placing an enormous amount of trust in high school students to tell the story in a truthful way, but I think it's the right answer. That's not to say there haven't been hard days when certain things have been reported in a way that has been harmful to people on campus. I hope that we do have for a long time to come on these campuses a meaningful free press run by students.

What is the American ideal to you?

I think the American ideal is actually a composite of ideals. Two of those ideals are to have diversity and free expression as part of what Americans experience. I believe we are a nation entirely of immigrants – of people who have, over whatever period of time, come to inhabit this land and have come to be part of this republic and I think that is an essential part of our story and we need to do better at having it be in fact equitable and inclusive.

At the same time, we have serious freedoms that we have believed in, from the start, as being essential to thriving in this republic and that has to do with religion, it has to do with the free press, and it has to do with what you can express of your ideas. We've done a better job on that score than we have on the diversity side but now I think we're getting a little confused about what that actually means.

One of the things I argue in this book is that many of the critics of this generation are getting it wrong. When you look at the actual data, many, many of our students actually understand quite well the First Amendment. The Knight Foundation has funded a number of studies, along with others, that show many students believe in free speech. Perhaps only a fifth of students believe that free speech ought to be curtailed in certain ways. In most of the studies, you find that young people are even more supportive of the free expression rights than adults are in this country. It's not a generational thing. In the most recent studies, student support for the First Amendment has actually gone up, not down, in this so-called ‘crisis.’ I see the positive in those 80 percent of kids believe in this right to free speech.

I do not think we're at a crisis in our democracy, in this way. We do need to teach more about free expression. We do need to be devoted to understanding what citizenship means. We absolutely need to be talking about the First Amendment and how it works but, ultimately, this is a generation that will lead us to a good place on both of these scores, diversity and free expression, and that will accomplish the American ideal better than we ever have.

Where do you go to unwind?

Like many people, running is a way to escape, for sure. Time with my family that is outside of the context of running a school is hugely important too. Those are definitely my two refuges.

Are there any venues where you go to take time?

It is a very historic part of the world. I am a devoted New Englander and there are many open spaces around Boston. Sometimes when I want to sneak off of campus, I'll go to Fresh Pond in Cambridge and walk around there with our dog. That is the favorite. There are many Trustees of the Reservations trails around and in the summertime Maine and Cape Cod are two nice places to go. I'm probably pretty old school New England-y in that way.

Your book reads as more thoughtful than panicked. What gives you this perspective?

I guess I don't get panicked in part because I've looked really carefully at the data, I’ve sat down with a lot of kids, and I've had a lot of conversations around this. I believe in the hope and the promise of our youth and that they do want to have the kind of great American republic that we've always dreamed of having, but have never quite had. It's mostly born of hope.