[Eugene Volokh] Silencing professor speech to prevent students from being offended — or from fearing discrimination by the professors

People often support disciplining and even firing professors who say things that are perceived as racist on the grounds that 1) those professors can’t be trusted to evaluate minority students fairly, 2) students will be afraid that they won’t be judged fairly, or 3) students will more broadly lose confidence in the professors (or just couldn’t stand to be in the room with them) or even in the institution, and won’t learn as effectively. I’ve seen these arguments made often, most recently as to the University of Oregon controversy. One response to my Oregon post, for instance — a tweet by @TimothyWright3, “What does the institution say to students of color by allowing [Prof. Nancy] Shurtz back into a classroom?” — seems to be implicitly making these arguments (though it seems to focus most clearly on No. 3. But, again, this is just one example among many.

I appreciate the force of these arguments, and indeed, if all you care about is maximum teaching effectiveness and reliability, you might take such a view. But, if accepted, these arguments really will be the end of freedom of expression — both casual and more formally academic — on university professors’ part, because they reach far beyond black makeup in Halloween costumes.

Imagine, for instance, a professor who says — at a party, in an op-ed, at a debate, in a scholarly article, or wherever — that she thinks that Catholicism is a foolish and evil religion, because it oppresses women and gays.

Presumably many devoutly Catholic students will be quite upset about that statement, which expressly derogates the faith that is such an important part of their identity. Indeed, they may worry that a professor who is militantly anti-Catholicism might discriminate against students who are known to be Catholic. (Many students might publicly self-identify as Catholic, for instance by prominently participating in Catholic campus programs, or mentioning their Catholicism when relevant to in-class discussions. They may also wear broader Christian symbols, such as crosses on chains or ashes on their foreheads on Ash Wednesday; if the students’ last names or accents also identify them as people likely to come from a Catholic culture, some observers might infer that the students are likely practicing Catholics.) They may lose respect for the professor, because they feel the professor lacks respect for them.

True, anti-Catholicism doesn’t always mean hostility to all individual Catholics; but wearing black makeup doesn’t always mean hostility to blacks. The argument against Shurtz is that wearing black makeup was offensive even if it wasn’t motivated by hostility to people — likewise, sharply anti-Catholicism statements can be offensive to Catholics, too, even if they are motivated by disapproval of the religion and not specifically of the religious. People might well ask, “What does the institution say to [Catholic students] by allowing [the professor] back into a classroom?” Is such a question then reason to suspend or even dismiss professors who condemn Catholicism?

Or say a professor says that President-elect Donald Trump is a charlatan and a bigot and that Trump voters were therefore either fools or bigots themselves. Again, this could be in a conversation at a party where students may be present, or in an op-ed, or in a scholarly article.

Many Trump supporters might be upset at the statement, which directly insults them. And they may worry that the professor might discriminate (deliberately or unconsciously) against students who have publicly expressed their support for Trump. (Federal and state statutes generally don’t ban discrimination against students based on their votes or political party membership, but the First Amendment does ban such discrimination by public universities, and certainly university rules and ethical principles ban professors from grading students worse just because of whom the students voted for.) People might well ask, “What does the institution say to [pro-Trump students] by allowing [the professor] back into a classroom?” Is such a question then reason to suspend or even dismiss professors who condemn Trump voters?

Likewise, say a professor sharply condemns certain streams of Islam (e.g., Wahhabism), or for that matter just posts the Muhammad cartoons when writing about them on his blog. Some Wahhabi students may be offended by the former. Many Muslim students of various denominations may be offended by the latter. All might worry that the professor may discriminate against them. “What does the institution say to [Muslim students] by allowing [professors who post the Muhammad cartoons] back into a classroom?”

Or say a professor publicly identifies as a hard-line Marxist, who thinks that the capitalist class has blood on its hands from its oppression of the workers. The professor might have praised Marxist