[The Montana Professor 17.1, Fall 2006 <http://mtprof.msun.edu>]
Roger W. Bowen
General Secretary of the American Association of University Professors (AAUP)
"How Many Ward Churchills?" is the title of the most recent report by the American Council of Trustees and Alumni (ACTA), a conservative advocacy group of non-academics that has insinuated itself into the affairs of the academy over the past ten years. Since its founding ACTA has repeatedly charged that the professoriate is too liberal, especially in the social sciences and humanities, that faculty preach rather than teach, and that radical faculty are abusing their rights of academic freedom. A similar charge has been leveled by cultural conservative David Horowitz, the onetime leftist who now champions legislation for states to impose "an academic bill of rights" that would force ideological balance in the classroom.
Both ACTA and Horowitz claim that they adhere to "The 1940 Statement of Principles on Academic Freedom and Tenure" that the AAUP and the AAC&U created and that has been endorsed by more than 200 learned societies. Yet both ACTA and Horowitz charge that the AAUP has not "enforced" these same principles. The AAUP's failure, they claim, has prompted their intervention. Had the AAUP placed as much emphasis on academic responsibility as it has on academic freedom, ACTA argues, then today there would be fewer "Ward Churchills," faculty who teach from an ideological agenda, who utilize "a kind of scholarly agitprop," whose primary message is that the status quo is, to quote ACTA's report, "patriarchal, racist, hegemonic, and capitalist"; and there would be fewer colleges and universities having curricula that promote such purportedly biased views. ACTA and Horowitz aim to expose the radical agenda and in this way publicly shame the AAUP and colleges and universities that subscribe to "The 1940 Principles" to compel the enforcing of academic responsibility.
While it is clear that ACTA's agenda and Horowitz's campaign are unabashedly conservative and in that respect are poorly disguised attempts to promote greater representation of conservative views in the social sciences and humanities in higher education, it appears that the modest success of their campaigns, coupled with embarrassing allegations of inappropriate professional behavior by Ward Churchill, may be giving the arguments of the conservatives some traction with the public.
ACTA/Horowitz must be resisted, but not because they support conservative principles. Rather, they must be resisted because they do not understand or appreciate the tradition of institutional autonomy, nor do they understand or appreciate the classic meaning of academic freedom, nor do they understand or appreciate the relationship between these two grand institutions. Nor, arguably, and this is more debatable, do they understand the meaning of academic responsibility. ACTA may be correct about Ward Churchill himself, but not in claiming that, "Ward Churchill is not only not alone--he is quite common." That extremist allegation is akin to arguing that ENRON's Ken Lay is quite common in the corporate world. Hyperbole of such ilk is irresponsible and reflects ignorance of the institution they are criticizing.
In January 2005, the first "Global Colloquium of University Presidents" was held at Columbia University in New York. Forty research university presidents and faculty from every continent assembled; Secretary General of the United Nations, Kofi Annan, chaired the plenary session. The colloquium focused on two issues: international migration and academic freedom. In May 2005 the Global Colloquium issued its statement on academic freedom which in all important respects resembles classic AAUP statements. Academic freedom was defined: "At its simplest, academic freedom [is] the freedom to conduct research, teach, speak, and publish, subject to the norms and standards of scholarly inquiry, without interference or penalty, wherever the search for truth and understanding may lead." Prefatory to offering this definition, and key to parsing the definition's meaning, is a statement calling on all national "societies to respect the autonomy of universities, of the scholars who research and teach in them, and of the students who come to them to prepare for lives as knowledgeable citizens and capable leaders. The autonomy of universities is the guarantor of academic freedom in the performance of scholars' professional duties."
Not explicit but nonetheless critical in making the case for institutional autonomy is the notion that only in an atmosphere where the pursuit of truth is untainted by external influence--political pressure, partisan politics, "moral values," corporate interests, and so on--can the truth be discovered. If scholarly independence is compromised by, say, corporate funding of a particular experiment predicated on producing a particular finding, then the integrity of the scholarly findings will be called into question in the short term and, in the long term, will likely be discredited. A scientific discovery that turns out to be no discovery at all, but instead is the result of bias, disinformation, faulty methodology, or outright fabrication of data, serves not the scientist, not the university, not the society, and certainly not the truth. Such "science" neither has integrity nor is it useful.
Hence, there exists, at the least, a purely practical reason for ensuring the autonomy of higher educational institutions: finding truth depends on the independence of scholars and universities. Truth or discovery tainted by external interests produces neither genuine truth nor genuine discovery. This is the reason many educators call for more federal and state funding--the people's money--as antidote for the growing reliance on "entrepreneurialism" that leads to a number of maladies that compromise the independence of the researcher, among them: reliance on corporate sponsorships and funding, reliance on wealthy corporate leaders to serve on governing boards, the "CEO-ization" of campus presidents, and a culture that sees nothing wrong with the payer calling the piper's tune. Otherwise put, public funding in support of the university should be viewpoint neutral and disinterested in the scholarly findings that emerge from the research and teaching.
Just as institutional autonomy has practical value, so too does academic freedom. The Colloquium of University Presidents states, "Above all, by facilitating critical thinking and open discourse, academic freedom provides the foundation for the continued intellectual and social value of the university as a place of unfettered debate and the free exchange of ideas. It thereby enables universities to produce citizens equipped to thrive in and sustain free and open societies." Otherwise put, academic freedom is a precondition for democracy, besides serving as a necessary condition for expounding new ideas, new theories, and new discoveries, many of which produce additional means for people to fully realize their own humanity. Academic freedom, then, has practical, utilitarian value.
Utility may have constructed right--I leave that to historians and political philosophers to debate--but I tend to believe that "the right thing is usually the smart (or useful) thing." It is useful for society to respect the autonomy of universities because to do otherwise only corrupts universities' nature and perverts their mission. An example: if it is true, as the vast majority of biologists claim, that evolution is the only useful theory for explaining the human genome, then a multimillion dollar endowment gift by a wealthy fundamentalist Christian to a university to build an institute--in HIS name of course--to "prove" the validity of "intelligent design" not only wastefully moves scholarly creativity away from scientific pursuits but undermines the mission of biologists to better understand the secrets of life. The same "gift," but now in the form of a refereed grant, without strings attached because it ideally comes from a viewpoint neutral government agency, gives these same scientists the freedom to pursue truth as they understand it. Science is done, mission is reaffirmed.
The Global Colloquium has it correct again in referencing a landmark U.S. Supreme Court case, Sweezy v. New Hampshire (1957): "Academic freedom requires the institutional autonomy of universities.... This autonomy includes the right of the university to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study."
Agreement with that postulate helps explain why so many scholars object to David Horowitz's "Academic Bill of Rights." Claiming that the academy--especially in the social sciences and the humanities--has been overtaken by a leftist professoriate, Horowitz sees the solution to such alleged ideological imbalance to be the limiting of institutional autonomy, and hence academic freedom, by legislative or university administrative intervention. Horowitz wants laws that force the university to impose ideological "balance" in deciding who may teach, what may be taught, and how it will be taught. Legislators and administration officials would be authorized under Horowitz's legislation to enforce ideological balance, taking from scholars the right to choose who may teach and what may be taught. "Historically," the Global Colloquium reminds us, "the most fundamental threats to academic freedom have come from the state, whose political power and disposition to regulate often stand in opposition to the university's needs for institutional autonomy."
Sixty years ago, during the Cold War battle against communism, the American state imposed loyalty tests on scholars, and the state, sadly, was too often assisted by university administrators; today's loyalty test rests on "party identification" on the presumption, a la Horowitz, that faculty who vote for Democratic Party candidates are too liberal, too inclined to disrespect conservative students and to brainwash the others. That certain legislators in some 20 states have endorsed Horowitz's views is proof enough that the state can threaten academic freedom by disrespecting the university's autonomy to hire competent scholars and teachers without regard for their party identification or ideology. To state the obvious: if the state views the academy--and especially its public universities--as mere "state agencies" because they are funded by public monies, then university autonomy is imperiled. If the democratic state is captured by aggressively partisan politicians who use the law to compel faculty to propagate a particular ideology, then academic freedom is imperiled.
An instance where state interference has jeopardized academic freedom is the Solomon Amendment, first passed in 1995 and revised three times since, most recently in 2005, each time with greater intent to deny federal funding to any university that limits the access of the military to recruit on campus. In its 2005 iteration the Solomon Amendment requires the military to be granted "equal access" to the university's students and permits the withdrawal of funding if any of the university's subdivisions, such as a law school, bars military recruiters. Along with a number of other civil liberties and university groups, including Harvard's Law School, the AAUP filed an amicus brief before the Supreme Court of the United States, denouncing the Solomon amendment for violating both institutional autonomy and academic freedom. My comments here are based largely on our brief which, despite the Court's decision to uphold the Solomon Amendment in a unanimous decision in 2006, powerfully defends academic freedom.
Our brief challenges the Solomon Amendment for intruding "upon vital freedoms of faculty expression and university self-governance," that is, academic freedom and institutional autonomy. We point out that faculties "have adopted academic nondiscrimination policies that deem students' sexual orientation irrelevant to their merit or fitness for postgraduate study." Congress on the other hand, enacted the Solomon Amendment, in the words of one Congressman who is quoted in the brief, "to send a message over the wall of the ivory tower of higher education" to "colleges and universities...that their starry-eyed idealism comes with a price." Bar military recruiters who violate the nondiscrimination policies of faculty and universities, and your university forfeits all federal funds. The threat is real, punitive, and undemocratic: it says endorse the values of the conservative majority in Congress, or operate your universities without benefit of the people's money. As phrased in the amicus, "The government claims...that universities are always free to give up nearly $35 billion they now receive annually in federal funding." At that point, the people's money ceases being used in a viewpoint-neutral manner.
Extorting universities to accept so-called moral values that are blatantly discriminatory and that violate the nondiscrimination policies endorsed by both the university and its faculty is an egregious assault on institutional autonomy and academic freedom and, in fact, demonstrates most clearly the relationship between university autonomy and academic freedom. Use of "funding leverage" to "coerce universities" is "quintessential viewpoint discrimination in violation of the First Amendment," says the brief.
The Solomon Amendment's perniciousness does not stop there. The lawsuit in question focuses exclusively on the right of law schools to deny military recruiters equal access to students, but the Amendment in its 2005 iteration states that any subunit of the university that denies access results in all federal support being denied to the entire university. The effect, as summarized in our brief: "By pitting sub elements within the university against each other, it intrudes into university self-governance protected by academic freedom."
Besides the Solomon Amendment, there are other dangerous affronts to institutional autonomy and academic freedom that help us to see the connection between the two notions. In Florida, Colorado, New York, and elsewhere no doubt, in recent years a trend has emerged--the practice of appointing nonacademic political cronies to high university administrative positions--including presidencies and chancellorships--within the academy. Several apparent reasons for this trend include the higher salaries being paid to university presidents and university system chancellors, making these positions excellent golden parachutes (or as the French call the phenomenon pantoflage) for former politicians and bureaucrats who leave office. It's not what you know but who you know that figures into these appointments, which are often made without any faculty input or search committee involvement. Too, some university communities are making less fuss over this practice than they should because their members want to assume that in times of reduced state and federal appropriations for higher education, formerly connected politicians and bureaucrats will be able to use connections to deliver more pork to the university.
The effect, however, is to demean the autonomy of the institution and the academy more broadly by treating it as simply one of several possible ways either to pay off a political debt or to ensure loyal compliance to particular political agendas of the party in power. Often the faculty at the affected institutions learns that the new president knows next to nothing about academic freedom, shared governance, or academic due process; and that these presidents operate more like business managers or CEOs or politically partisan loyalists than stewards of the academy who are respectful of its values.
I personally recall a university presidents' meeting in Albany shortly after the appointment of the governor's friend, Bob King, to serve as SUNY's chancellor. King, a former legislator and state budget director, told the presidents that while he may not have an academic background, he would use his connections with the Governor and Republican Party to deliver generous appropriations to the campuses. Like the other presidents, I wanted to believe he could deliver more financial support to my campus, but unlike the other presidents, I soon learned that Mr. King lacked any appreciation for the meaning of academic freedom, and that he did not respect the autonomy of the university that I served. King once ordered me to his office in Albany, where he lambasted me for "permitting" the School of Fine and Performing Arts to stage "The Vagina Monologues."
Another of my most painful confrontations with the SUNY chancellor concerned one of my faculty members, a specialist on Native American history, who had been testifying on behalf of Indian land claims against the State of New York. When King heard this, he ordered SUNY legal counsel to send this faculty member a warning to the effect that as an employee of the State, he should not be testifying for the plaintiffs in this case. King scoffed at my defense of the faculty member's academic freedom, especially my stress on the faculty member's academic responsibility to testify or profess what he understood as the truth. My take-home lesson in interacting with Mr. King: educating non-educators who are put in charge of educators is a forbidding task that the academy, were its institutional autonomy respected and were it not treated as merely another "state agency" ripe for patronage politics, now must confront directly and prevent from happening whenever possible.
Whether the "Academic Bill of Rights," the Solomon Amendment, or the growing practice of cronyism in the academy, the result of such intrusions by outside political forces is the "displacing [of] faculty judgment in core areas of academic expertise" and having "the impermissible purpose of suppressing faculties' viewpoint," to cite words from the AAUP's Solomon brief. With Solomon the penalty for disobedience is the withdrawal of federal funding; with cronyism the penalty is damage to the faculty's right and responsibility to profess truthfully.
In a 1985 U.S. Supreme Court case (Piarowski v. Illinois Community College) the court stated that academic freedom "is used to denote both the freedom of the academy to pursue its ends without interference from the government...and the freedom of the individual teacher...to pursue his ends without interference from the academy." A 1989 6th Circuit ruling (Parate v. Isibor) offered the related notion, namely, that, "Academic freedom thrives not only on the robust and uninhibited exchange of ideas between the individual professor and his students, but also on the autonomous decision making [of]...the academy itself."
These rulings, and the intrusions I have described, suggest that there exist two forms of academic freedom: institutional, by which I mean institutional autonomy, and "individual," by which I mean the faculty's academic freedom. It has been pointed out that the founding 1915 AAUP statement on academic freedom largely supports the institutional autonomy basis of academic freedom while the 1940 statement supports the individual professor's academic freedom. As David Rabban (1990) has pointed out, the first Supreme Court brief filed by the AAUP, in 1959 (Arenblatt v. United States), "stressed that university autonomy from the state is a necessary condition for the academic freedom of professors."
In that era--some 50 years ago--conditions within the university were such that tenure was generally respected and firmly planted (notwithstanding membership in the communist party or advocacy of Marxist interpretations), use of contingent faculty was minimal, presidents tended to be academicians, and trustees were drawn largely from outside the corporate world. Universities tended to be "faculty-friendly," but the state was another matter--and most especially during the McCarthy era. As McCarthyism resulted in summary dismissals of "left-wing faculty," most constituencies within the university community eventually united in trying to prevent the state from mounting further assaults on the educational sanctuary.
Something happened after the 1950s, however. The faculty's academic freedom was less likely to be infringed as a result of political interference by the state and more likely to suffer because of attacks from within. Since the 1960s, as Rabban points out, there has occurred "dramatic growth of litigation by students and professors against universities" themselves, for reasons I discuss below. But in general, this trend noted by Rabban suggests that the barbarians are well inside the gates and are in many instances issuing orders from a position of command As a result, the AAUP has had to focus its energies both on buttressing institutional autonomy/institutional academic freedom from external threats, and on battling on behalf of the academic freedom for members of the profession threatened by hostile university administrations.
The AAUP's preference is that both institutional and individual academic freedom should be of a whole, inseparable and inviolate. Institutional autonomy should serve as guarantor of the profession's academic freedom. But that autonomy is in peril and has been for some time. Robert Bellah makes the point that because higher education has become "simply a sector in the market economy, the higher education 'industry' [has become] subject to all the strictures that apply to any other part of the economy," and, I would add, has become vulnerable to all the problems plaguing the market economy, some of which are divisive and inimical to a community intent on preserving its autonomy.
Some of the "strictures" referenced by Bellah come from outside the academy still and include laws and regulations that threaten autonomy, such as federal oversight over accreditation, federal law requiring oversight boards in international and especially Middle East studies, and federal and state resolutions urging or requiring ideological balance. Problems plaguing the wider market economy that are manifested in internal university policy and that harm academic freedom include inadequate funding for institutions serving the common good, exploitation of contingent faculty "labor," lack of protection for university employees against an immoral and inadequate health care system, censorship of outside speakers having controversial ideas, mindless adoration of and inappropriate fiscal support for competitive sports and their coaches, extravagant salaries for presidents, and the capture of governing boards by corporate managers who bring the values of the marketplace to university governance while disdaining the marketplace of ideas. Faculty in this scheme are treated as self-serving labor, students as exploitable consumers, staff as expendable human resources, and the university as an "engine of economic growth" for local development projects that invariably are launched with fawning legislators posing for photographs next to contractors who won the bid because they are friendly with someone in the governor's party.
All this has happened, as we know, and the cumulative result is, as Bellah makes clear, "the tyranny of the bottom line [that] drives academic decision making in several ways. When the university is seen simply as part of the economy, then normal market pressures for market efficiency set in, and the consequences are nowhere more ominous than in the sphere of personnel decisions." "Down-sizing" and "right-sizing" emerge from "strategic planning" or tight finances; then economic rationality takes over and fine notions like institutional autonomy melt away. Curricular decisions are made based on fluctuating market and financial conditions rather than on the faculty's judgment of what students need to learn and what they need to teach effectively. The public good--the historic purpose as universities and colleges--is replaced by the demands of private interests; and with this unfortunate development, faculty lawsuits alleging violation of academic freedom are more often filed against their employers instead of against the state.
Newer, external critics of the academy like ACTA and David Horowitz have shown by their reports and their actions that they do not respect the autonomy of higher education institutions. To them the academy is, to repeat Bellah, "simply a sector in the market economy" and as such, ACTA and Horowitz believe, conservative principles notwithstanding, the academy needs to be regulated. If faculty cannot be trusted to "teach both sides of the story," then either enact laws that will compel faculty to teach the "theory of intelligent design" alongside evolution as Horowitz's legislation could, or shame institutions into redesigning course descriptions (and content I must imagine) on the assumption that students "are being exploited by professors who claim to be teaching them but who are in reality promoting their own agendas," in the words of ACTA's screed about Ward Churchill. Like Horowitz, ACTA also threatens to intrude, declaring it has a right to "raise questions, demand answers, and compel action" when faculty allegedly abuse their academic freedom by turning the classroom into a forum for "political advocacy, activism, sensitivity training, and social change...."
Academic freedom principles give faculty the right to research and publish the results, to discuss their subjects in the classroom, and to speak out as citizens. It no doubt happens sometimes that faculty may exercise their First Amendment right as a citizen in the classroom, advocating for this or that candidate, this or that public policy, rather than exercising their academic freedom responsibility, according to the 1940 Statement, to "not introduce into their teaching controversial matter which has no relation to their subject." But in areas such as political science, sociology, anthropology, literary criticism, area studies, ethnic studies, and so on--areas that deal with sensitive political or cultural issues--what is and is not controversial becomes less clear and therefore subject to greater debate. How best to deal with the controversial, however, is a faculty academic freedom right, and contrary to what the ACTA report suggests, not necessarily a violation of the student's academic freedom. ACTA states that it objects to the many course syllabi focusing on "justice" as in "social justice," "environmental justice," "racial justice," and so on. For ACTA "justice" is a code word for criticism of extant policies in these areas and therefore reflects a liberal or leftist bias by the professor. What ACTA does not acknowledge, or appreciate apparently, is that under academic freedom guidelines, the professor has not only a right to set the curriculum but a duty to provide students with the most current and respected thinking in their field of study. How to present the discipline's discourse is a faculty responsibility and a faculty right.
If academic freedom cannot stand atop the protections afforded by institutional autonomy, it must perforce rest atop the principles of the past, the professional comparisons of the present, and the promise of future discoveries that can come only from a guaranteed freedom to pursue new knowledge. Foremost among past principles is shared governance, a model for distributing authority according to area of primary responsibility which strikes any reasonable person as smart organization. By professional comparisons of the present I mean that we need to remind the public, relentlessly, that professors are like doctors, lawyers, and architects. Louis Menand in his prize-winning The Metaphysical Club said it best: "No professional, no doctor, or lawyer or architect, wants to have the terms of his or her practice dictated by someone other than his or her peers, people who have the interests of the profession...at heart. Doctors don't want insurance companies to decide what constitutes good medical practice; architects don't want developers to determine who is qualified to practice architecture; lawyers don't want politicians to define legal ethics." And, I will add, faculty don't want ideologically tainted advocacy groups, politicians, CEOs, or "non traditional presidents" telling us what we can study and teach. We are highly trained professionals whose conduct, performance, and duties can only be judged fairly by peers. We need to make this point again and again.
And educators must claim that civilization in the future depends on giving the intellectuals of today unfettered access to information, the right to think critically and to experiment, the right to convey our ideas to future generations of intellectual doers, and the right not to have anyone outside the discipline be able to dictate a teaching or research or writing agenda. Trot out our Nobel and Pulitzer winners, let them state the ideal conditions for producing work, and this will show that thinking freely has, as the Global Colloquium stated, practical value. If we do not help the public understand that its members benefit from our scholarly production which happens because we enjoy academic freedom, then we will have erred and erred badly.
If institutional autonomy has been compromised, and the profession's interests are not now being respected by the very institutions where they work, where can we get protection for academic freedom?
I suggested earlier that institutional autonomy is a necessary but not a sufficient condition for academic freedom. The good news is that Supreme Court cases like the Solomon Amendment, despite a negative ruling, are mechanisms for us to re-assert the importance of institutional autonomy and to make the point that academic freedom, which is a special concern of the First Amendment, cannot be enjoyed in the face of external intrusions into the academy that have the chilling effect of undermining the autonomy necessary to support academic freedom.
That is a legal strategy, but a political one as well is needed and it should draw upon the nearly 100 year old American tradition of academic freedom. Every faculty member in every classroom should begin every semester by reminding students of the tenets of academic freedom. Educators have four (or five or six!) years to educate society's future leaders about the centrality of academic freedom to fostering a vibrant democracy. Our message to our students can be as simple as that made by University of Pennsylvania president Amy Guttman; viz., universities serve democracy as institutional sanctuaries against repression of unpopular ideas; or our message can take the form of asking students to read "The 1915 Statement" that says perceptive students can tell when a faculty member is self-censoring and thereby cheating them of a quality education; or faculty might distribute "The 1940 Statement" that makes clear that the institution of tenure secures academic freedom. Not to provide a fifteen-minute overview in the classroom at the outset of each semester is an opportunity missed to educate the next generation of voters and legislators and journalists and scientists about academic freedom's contributions to sustaining an open society. The professoriate must grasp this opportunity and see it for both the right and the responsibility it is.
It should be evident that the sufficient condition for securing the academic freedom of our profession is the profession itself: an activist faculty that sets aside disciplinary concerns, political differences, cultural conflicts, and the like and unites in making the case for academic freedom, by their deeds in the classroom, by their words in writings, by their collective action before university administrators and legislators who dare to dismiss us as representing something other than a learned profession. Activist faculty will include both conservatives and progressives, for both have an equal stake in defending academic freedom.
And finally, academic freedom protects our extramural utterances when we write or speak as citizens. Faculty must exercise their rights of citizenship, they should be engaged civically, they should speak and write as educators who believe that public spending on education is more (or less) important than spending money warring against nations, more (or less) important than tax breaks for the rich, more (or less) important than an oversized military budget, more (or less) important than extravagant spending on political campaigns, and more (or less) important than building new prisons or gas-guzzling automobiles. Such debates are needed, indeed, required, in fostering a vibrant higher educational system that all Americans, hopefully, will rank near the top of the hierarchy of social needs for promoting the common good.
[The Montana Professor 17.1, Fall 2006 <http://mtprof.msun.edu>]