The Shadow University: The Betrayal of Liberty on America’s Campuses, by Alan Charles Kors and Harvey A. Silverglate.
The Free Press (1230 Avenue of the Americas, New York, NY 10020), 415 pp., $27.50 cloth, 1998.

TEACHING AT THE COLLEGE LEVEL today frequently requires a remediation of the souls of students. Before true education is possible, as St. Augustine and the ancients understood, a process of unlearning is required. This preparation of the soul for the proper pursuit of wisdom is not even sought in most American colleges and universities now, for a new sort of unlearning has been unleashed in higher education.

Dediscere today has taken on an insidious meaning, as students are subjected from their first day on campus to an unlearning that seeks to sever them from all things traditional. Beginning with the freshman orientation sessions designed for disorienting, students are given over to the authority of the educrats, the class of administrators, multiculturalists, and diversity deans who have redefined the university’s role in loco parentis. Amassing power through control of residential programming, campus life, speech codes, and the administration of their brand of justice, the educratic elite have successfully established what Alan Charles Kors and Harvey Silverglate call “the shadow university.” Because it evades accountability, they argue, the shadow university presents a greater danger than more overt efforts to stifle free thought on campus. The threat that lurks in the shadows is, according to Kors and Silverglate, “a tyranny that seeks to assert absolute control over the souls, the consciences, and the individuality of our students—inshort, a tyranny over the essence of liberty itself.”

“The assault on liberty” is the first of the five parts into which The Shadow University is divided. The assaults against free speech, the individual, and due process are addressed in the middle sections, and the final section offers advice on how the assailants and their multi-pronged ideological attack may be effectively combated. For Kors and Silverglate, “The debate over freedom of speech is a constitutional, political, and moral contest of profound dimensions.” Both authors have been on the front lines of the battle: Kors as a history professor at the University of Pennsylvania, and Silverglate as an ACLU activist and litigant in free speech issues. Their collaboration is scholarly, but also acts as ammunition dispensed for the defense of “students threatened with the new tyrannies.”

Documentation of the tactics employed by the academic tyrants is an important part of the book, and the co-authors draw deftly upon their own experiences in relating anecdotal evidence in support of their case. The much-ballyhooed water buffalo incident at Penn, in which Kors was involved as an advisor to the accused student, is re-examined, and used as a point of departure for analysis of similar cases that abound at colleges around the country. Much more than a tale of persecuted students and professors, however, the book offers a philosophic and constitutional framework in which, according to the authors, the evidence of systemic—but surreptitious—abuses in higher education should be considered.

In the authors’ view, “Universities have become the enemy of a free society.” A free society is founded upon the right to free speech; any abridgment of this absolute right ushers a university—and society as a whole—down the path to tyranny. Absolutists, then, in their view of the First Amendment, the authors consider any attempt to restrict freedom of expression the summum malum of society. This right should not be shed upon entering the groves of academe. In defense of unfettered expression and a free society, John Stuart Mill “said it best,” the authors insist. Colleges and universities, whether public or private, have a moral responsibility—following Millian arguments for liberty—to pursue an “education in freedom.”

Suppression of free speech is more often the case today, Kors and Silverglate conclude from their comprehensive survey of hundreds of campus speech codes. Implemented with the ostensible aim of protecting favored groups from “hate speech,” these codes end up “teaching the values of censorship, self-censorship, and self-righteous abuse of power.” The chilling effect of codes is especially abhorrent to the authors, for progress in education, they believe, is staked upon unrestricted expression of all opinions and ideas.

Speech codes are only part of the efforts to indoctrinate students in what the authors call “Oppression Studies.” Collectivism masked as multiculturalism is one of the primary components of this course of study, and it is reinforced in the dormitories and campus life as much as in the curriculum. Any student brazen enough to offend one of the protected groups can expect to be hauled before a campus tribunal, and stripped of due process rights in the ensuing search for “justice.”

Allegations of a non-neutral system of justice in American higher education are not by now surprising. Indeed, as the authors explain, those responsible for speech codes are operating in accord with their underlying ideological principles. Inspired by the Marxist Herbert Marcuse, the Leftist elite hold that societal inequalities, ensconced over time, make conditions skewed in favor of the establishment. Rejecting “indiscriminate tolerance” or “repressive tolerance,” Marcuse and his followers desired a “liberating tolerance” to correct the imbalance: the Right must be stymied, and the Left empowered. Speech codes and all other means necessary must be deployed. Students will be forced to be free.

The struggle over free speech on campus, in the authors’ formulation, is a battle between Mill and Marcuse. Supporting this simple formulation is a constitutional, moral, and metaphysical foundation the authors construct with care throughout the book. The construction of their critique is quite sturdy, but the constitutional case they offer in its place, and its moral and metaphysical moorings, however, is not so solid. An absolutist reading of the First Amendment’s free speech guarantee, founded upon a moral and metaphysical argument that is more like the Supreme Court’s “mystery clause” than a defense of freedom and order, is ultimately not the case for liberty conservatives should embrace.

The brief constitutional history of free speech offered by Kors and Silverglate reads like an ACLU brief. In the chapter entitled “Free Speech in a Free Society,” the authors discuss favorably the 1971 Supreme Court case of Cohen v. California, in which the Court ruled that a vulgar expression worn on a jacket was not “obscene,” or unconstitutional. To draw a principled distinction between “offensive” and acceptable language was impossible, the Court stated, because it is “often true that one man’s vulgarity is another’s lyric.” In a later chapter, Kors and Silverglate echo the Court and argue that Internet “censorship” practiced at a private college in South Carolina was wrong “because one person’s vulgarity is another person’s protest or art.” Indignant over efforts to impose what they consider to be moral absolutes, the authors maintain that “Much harm begins by going after nudes.”

Discerning the difference between unconstitutional speech codes and constitutionally appropriate limitations on expression is a difficult, but necessary task. The conflation of the orthodox and the outlandish was not a requirement of the First Amendment, but rather an innovation of the courts within the last forty years. Referring to substantive due process rights as “what Professor Laurence Tribe has aptly summed up as ‘rights of privacy and personhood,’” the authors rely upon invented “rights” instead of constitutional duties. Among the most important constitutional and political duties is the maintenance of public order and decency. Ignoring this imperative, the position taken by Kors and Silverglate implicitly concedes the triumph of the sexual revolution, and explicitly extols the absolutist elements of Supreme Court jurisprudence. Thus in the name of liberty the authors defend the “right” of a student to show a pornographic film on the campus of the Massachusetts Institute of Technology. 

Confusion of liberty and license was foreseen—and greatly feared—by the framers of the federal and state constitutions. In early America, education at all levels was designed in part to guard against this confusion. The stated goal of the College of New Jersey (later Princeton University), presided over by the great teacher of statesmen and ministers, the Rev. Dr. John Witherspoon, adhered to a mission statement that in the late eighteenth century read in part: “In the instruction of the youth, care is taken to cherish a spirit of liberty, and free enquiry; and not only to permit, but even encourage their right of private judgment, without presuming to dictate with an air of infallibility, or demanding an implicit assent to the decisions of the preceptor.” A fine argument against the current kind of false unity—which amounts to uniformity—effected through speech codes, the philosophy animating this statement also allows for restrictions on speech that does not contribute to freedom rooted in the transcendent order of truth.

The unrestricted “right” of free speech support by the authors is not tied to anything transcendent. “Freedom of conscience…is an essential legal and moral value, and it begins with the recognition that we are a nation of free individuals who may define for ourselves the deepest part of our being,” they write. Coupled with their statement that “the only authentic meaning of liberation” is “the right to be an individual by one’s own choices, free of external coercions and impositions,” the formula for freedom endorsed by the authors is strikingly similar to Supreme Court Justice Anthony Kennedy’s now-infamous “mystery clause” in Casey: “At the heart of liberty is the right to define one’s own concept of existence, of the universe, and of the mystery of life.” The moral and metaphysical foundation shared by the authors’ position and the Court’s ruling is inadequate for sustaining either republican government or a truly liberating education. In their effort to avoid Marcuse’s “liberating tolerance” and the “repressive intolerance” that has resulted, Kors and Silverglate advocate an alternative that amounts to what Edmund Burke called “licentious toleration.” 

The expansion of freedom urged by the authors ends up constricting liberty. Kors and Silverglate do not deny the existence of duties, but their metaphysical and moral position, however, will not over the long term contribute to the fulfillment of those duties. As Aleksandr Solzhenitsyn asked in his 1983 Templeton Address, “When external rights are completely unrestricted, why should one make an inner effort to restrain oneself from ignoble acts?”

In their conclusion, Kors and Silverglate call for the shadow university to be held accountable for its crimes. The indictment here, as elsewhere in the book, is generally sound. The same cannot be said of the moral and metaphysical foundation on which their replacement rests. Because it is not dug into anything deeper than “individuation” and unlimited liberty, a libertarian foundation for freedom will ultimately crumble. Shadows are engulfing the university, Kors and Silverglate argue, and might soon be cast only on the ruins of what once existed. Their warning, and the inadequate libertarian foundation that is suggested as a substitute, serve as reminders to conservatives that the responsibility for rebuilding American colleges and universities is urgent.

David J. Bobb is a Ph.D. candidate in political science at Boston College.