Vicki McKenna

Vicki McKenna

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EVERYTHING depends on FREE SPEECH: Dr Duke Pesta's testimony to WI Assembly

Below is a transcript of Dr. Duke Pesta's statement to the Wisconsin State Assembly Committee on Colleges and Universities.

I thank the Committee for allowing us to address you here today—and for convening these hearings across the state—about this critically important issue. Protecting and promoting intellectual diversity on campus is the only way to guarantee diversity in all of its important forms. And the only way to secure intellectual diversity is an uncompromising commitment to freedom of speech and expression. Achieving real diversity—whether racial, gender, cultural or, especially, diversity of worldview—is not possible when certain kinds of speech are inhibited or prohibited, and other forms of speech are compelled. By definition, freedom of worldview and expression cannot be separated from education. Divorcing freedom of expression from diversity inevitably leads to less diversity, less debate, less critical-thinking, less discussion, and results in more intolerance, more censorship, more group-think, and more coercion and repression, all in the name of education.

For the last twenty years, the first thing I do when meeting a new class at the beginning of a semester is to ask them directly: raise your hands if you have ever had to write a paper that didn’t reflect your real opinion or speak in class in ways that defied your true feelings because you feared reprisals from professors or other students. In every single instance, the number of students who raise their hands is alarmingly high. Just this semester, in a class of 26 students, everyone raised their hands.

Chairman Murphy, you were here on campus with me just a few years ago. As you recall, I simply suggested to my classes that we were hosting an impromptu event where students could speak out freely about the state of free speech and expression on campus. I invited you to join us, along with Assemblyman Michael Schraa and U.S. Congressman Glenn Grothman. There were no formal announcements, no flyers distributed, no mass emails, and no university coordination: just word of mouth to my two classes that semester. In less than 48 hours, the meeting was held and more than 175 students attended, many standing in the back and crowded in the aisles. We even had students attend from other Wisconsin system schools. For more than two hours, the three of you heard student after student share chilling experiences about their perceptions of bias, censorship, and intolerance visited upon them for daring to have ideas and beliefs that challenged institutional orthodoxies. These students spanned the political spectrum, including large numbers of self-defined “apolitical” students, and many conservative, libertarian, and liberal students, all identifying pressure from progressive administrators and faculty. At the end of the event, I noted that it was the first time in my experience of being in a room with three politicians, all of whom were rendered speechless.

The bipartisan Foundation for Individual Rights and Expression, or FIRE, is the nation’s premier organization dedicated to defending freedom of speech and worldview on college campuses. A representative of FIRE addressed this very Committee earlier in the process. In May 2021, the University of Wisconsin Oshkosh made national news, receiving FIRE’s Speech Code Violation of the Month. According to UWO’s “Shared Principles to Guide Interactions Among Members of the University Community”:

[Quote] All members of the University have a responsibility to promote and a right to expect … an environment … free of insulting and demeaning comments and epithets based on race, ethnicity, gender, religion, sexual orientation, age, disability, military status, socioeconomic status, family status, or political views; and consistent enforcement of federal, state, and university protections against discriminatory treatment yet is free from any official speech codes. [UnQuote]

While most state universities in Wisconsin, including UW Madison, have earned FIRE’s yellow rating—a warning that the institution has at least one policy that can be used to restrict protected expression or speech—UWO’s policy goes much further, seeking to provide an environment free from “insulting” comments, while purporting to offer protection from official and un-Constitutional speech codes. Of course, the prohibition of “insulting comments” is arbitrary and completely subjective, a dangerously broad policy that allows the administration wide discretion in punishing faculty or students who simply hurt someone’s feelings. This embarrassing and contradictory policy earns UWO FIRE’s worst “red light” rating. Comments that individuals find insulting or demeaning on the basis of particular characteristics are typically protected by the First Amendment, as the Supreme Court has made clear, speech can’t be restricted on that sole basis. Yet UWO’s policy goes even further still, stating: “Upon observing discriminatory behaviors or hearing offensive comments, every reasonable effort is made to protect the victim(s) and witness(es) from further harassment.” Notice how so-called “insulting comments” have magically morphed into “harassment.”

I have personally experienced the consequences of such Orwellian polices. A few years ago a student was taking my upper-level English course on the writings of C.S. Lewis and J.R.R. Tolkien. This class was not required for any student for any reason. It was an elective. The worldview of these authors are what we used to refer to as “classical liberalism,” a broad-minded commitment to democratic forms of government, including robust protections for free speech, religious liberty, and individual rights. The student in question skipped 10 of the first 15 classes, before I finally notified her that her absences had made it impossible for her to pass the class. Her response was to file a Title IX grievance against me, asserting that by forcing her to read such conservative authors, I had offended her politics as a member of the Democrat party.

This was not my first free-expression rodeo, so to speak, and I immediately contacted my lawyer. I have him on speed dial for a reason. He understood right away, as did I, that there are no protections related to a person’s politics at the levels of local, state, or federal government. We both also realized that a little thing like the law was not likely to matter much when dealing with a university. Nevertheless, we sent a letter, pointing out the fact, and insisting that an investigation of a professor cannot be launched simply because a student feels insulted by the political views of long dead authors. Predictably, an investigation was inaugurated and someone in the administration (not the student) changed the title of the complaint from “political harassment” to “gender discrimination,” without bothering to let us know about the change. The investigation wore on and on, exceeding the time allotted for such procedures by months. I was never interviewed or even asked about the case. The only person consulted was my Department Chair, who had no direct knowledge of the situation, but who did point out that my classes were popular with male students, which was ominous, and that I waved my hands a lot when I taught, which is evidently proof of aggression. Thousands of dollars in legal fees and countless wasted hours later, I received a note saying that it was very “likely” that I said hateful things, but that it could not be proven definitively. Multiple times, we urged the university to simply ask the other students in the class if such behavior occurred. But they adamantly refused to do so, because complete exoneration would not send the necessary warning about the limits of speech in the classroom. Of course, if the incident had ever ended up in a court of law, it would have been dismissed with prejudice. But as always, the process is the punishment.

I could spend hours explaining my many other unpleasant interactions with universities and colleges in support of free speech and worldview diversity. Over the last 23 years, I have spent the equivalent of a year’s salary defending myself from frivolous attempts to punish speech that “hurt someone’s feelings.” At a small liberal arts college of 900 students in Pennsylvania, for instance, I was hired to teach literature in an English Department. After two years, my student evaluations were among the highest on campus. In the middle of the following semester, I was called into the Chancellor’s office. I was told—and this is a direct quote—that my worldview was different from that of my colleagues, and they don’t like it. So, I was to be terminated at the end of the semester. My lawyer was banned from campus as well, so that he could not interview students and faculty about the situation. The students found this arrangement unacceptable, and they organized a caravan to transport students five miles down the road to a hotel ballroom just to speak my lawyer. Over 700 hundred students came to the hotel to protest the college’s decision, and more than 850 students signed a petition asking the college to reconsider.

For twenty years now, I have asked students on the first day of class to read with me and sign an agreement that affirms their right to free speech in my classes, and offer them my pledge to never lower their grades because of their opinions and worldviews. The document, entitled a Statement of Class Understanding and the Rights and Responsibilities of Students, contains in part the follow statements:

1) I understand this class prioritizes free speech and worldview applied equally to all, and that all may express themselves without fear of reprisal or censorship.

2) I understand in this class that my freedom of speech and worldview depend on my willingness to allow the same for others, even those with whom I strongly disagree.

3) I understand in this class that the enjoyment of free speech and worldview does not extend to threats of physical violence, real or implied.

Over the years, two students have walked out and dropped the class rather than agree. Once, a student ripped-up the statement, threw it at my feet, then walked out and dropped the class. And then there are, of course, students who have never taken my classes who are vehemently opposed to the idea of treating differing worldviews with respect. About a year ago, I was walking out of a classroom after finishing a lecture. A polite young man who was a bit upset approached and asked if I was Dr. Pesta. He told me that he was with a group of English majors at some meeting or other, and they had obtained a copy of my statement. He informed me that they burned it as an act of protest. Beyond that, the rest of my students have signed on to the statement, recognizing the inherent equality encompassed therein. Ironically, if the protesting students had actually attended one of my classes, they would have heard from me directly that burning my statement—done in a safe environment—was a valid act of free expression, at least from my perspective.

What these experiences demonstrate is twofold. First, it shows that students, even very political ones, are generally ok with free speech once they understand how it works and why it matters. I am endlessly surprised and disappointed about the large number of college students who do not understand the basic principles of speech rights and are largely ignorant of their Constitutional protections.

And secondly, my experiences help explain why civil discourse and respect for diverse worldviews are under assault. There are significant elements in universities, and the broader culture, who are manipulating students into believing that they have absolute free speech rights when protesting ideas they don’t like, and that justifies censoring and cancelling the speech of others violently, if necessary. The list documenting such hypocritical, contradictory, anti-social, and anarchistic behavior is long and growing rapidly. In the last month or so, U.S. Circuit judge Stuart Kyle Duncan was shouted down at Stanford University after being invited to speak to law students. Most alarmingly, the school’s associate dean for diversity, equity, and inclusion hijacked the event, and conspired with the protestors to make it impossible for the judge to speak. Stanford administrators offered an apology, but tellingly, there were no consequences for those who undermined free speech rights. At San Francisco State University, activist Riley Gaines was driven from the podium under police protection by protesters who threatened physical violence and mobbed the room. The school’s administrators tacitly condoned the behavior. Recently, when Matt Walsh was invited to speak at UW Madison, protestors tried to block access and vandalized school buildings in an attempt to stifle lawful speech, also with no consequences. The pattern is clear: Cancel the speech of others, then claim that the act of cancellation is protected speech, and then be heralded by university administrators as victims, not perpetrators. Wash, rinse, repeat.

Meanwhile, like the state of Wisconsin, the state of North Carolina has attempted to address this anti-educational behavior on college campuses. North Carolina Bill 96 would require students to take a 3 credit-hour course covering America’s founding and history. Required reading for the course would include the U.S. Constitution, the Declaration of Independence, the Emancipation Proclamation, at least five essays from the Federalist Papers, Dr. Martin Luther King Jr.’s Letter from a Birmingham Jail, and the Gettysburg Address. Nearly 700 UNC professors signed a petition arguing that the course would constitute an infringement of “academic freedom,” arguing that the legislation “substitutes ideological force-feeding for the intellectual expertise of faculty.” While I completely support the right of professors to protest anything and everything, it is absurd to argue that studying the founding documents from which our rights derive is some kind of ideological bullying. Nothing is stopping those professors from teaching these documents from any perspective they wish. If they want to adopt the demonstrably inaccurate 1619 Project approach, for instance, or argue that the First Amendment is a racist, white supremacist dog-whistle, they are not only free to do so, but they would most likely be praised for doing so on most university campuses.

It is clear to me that actually requiring all students to engage with those critical documents is an unqualified good, even if your intention is to overthrow our current system of government and replace it with another form of government as far removed as possible from the one conceived by the Founders. But for those who seek such revolutionary changes, requiring students to study the documents is dangerous. As I find in my own classes, once students understand how our Constitution and founding documents were uniquely conceived, how imperfectly they were implemented, and yet how much consideration they gave to protecting minority opinions under the law, they are much less likely to engage in the kinds of destructive behavior that is now being condoned, if not abetted, at universities across the country.

In summation, those arguing to suppress or cancel unpopular speech are on the wrong side of history. The historical record is clear: the more cultures engage in such behavior, the more intolerant and repressive they become. The stakes are much more serious when we consider free speech and worldview diversity in a university setting. As I observed at the beginning of this statement, diversity itself—of any kind—cannot exist without these freedoms. Forced tolerance is not tolerance. Compelled conformity is not unity. Censorship in the service of social justice is unjust. Those who insist that the only way to protect people from conflicting ideas is to silence those ideas are infantilizing students, not empowering them. It was speech—talking, preaching, praying, teaching, singing speech—not censorship or repression—that made civil rights, women’s rights, and gay rights a reality. Indeed it is nothing but speech—more and more daring, troubling, uncomfortable speech—that has been the most powerful weapon against intolerance and brutality that the world has ever witnessed. Universities must expend as much—nay, much, much more—moral, intellectual, and material capital on this idea than any other idea rattling around the halls of academia. Because without free speech and worldview diversity, education morphs quickly into something resembling ignorance and reeking of tyranny.

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