[The Montana Professor 1.2, Spring 1991 <http://mtprof.msun.edu>]

Faculty Evaluations and Academic Freedom

Marie Wirsing
Educational Foundations
University of Colorado-Denver

[Editor's note: Recently the editors became aware of an ominous and distressing situation involving Professor Marie Wirsing of the University of Colorado-Denver. After talking with her and reading both her speech on the matter (printed below) and a number of related legal documents, we were convinced that what is happening to Professor Wirsing in Colorado is of vital importance to all professors in higher education. The faculty members of the Montana University System are fortunate that the state of Colorado is further along than Montana in this matter, thus offering us the opportunity to be forewarned. It behooves us to lend all possible support to Professor Wirsing in her important battle. It seems evident she fights not just for herself but for all faculty members. The Montana Professor would be interested in hearing from faculty members who would be willing to do something to support Marie Wirsing and her/our cause!

This address was prepared for the University of Kentucky, University of cincinnati, Youngstown State University, and John Carroll University, 15-18 March 1991. Part of the address originally was presented before the American Educational Studies Association, Orlando, Florida, 31 October 1990, and was subsequently published in Educational Foundations, Winter 1991.]

Near the end of his magnificent journey across America by way of Blue Highways, William Least Heat Moon introduced his reader to Alice Venable Middleton of Smith Island, Maryland. An octogenarian, Miz Alice had spent much of her life teaching the children of that Chesapeake Bay community. Sharing her outlook with her visitor, Miz Alice explained:

A teacher should carry a theme--a refrain to sing ideas from. Mine was what they called "ecology" now. I taught children first the system of things. Later we went to grammar and sums. Always time for that. I wanted to show them there's only one place they can get an education--in the school of thought. Learning rules is useful but it isn't education. Education is thinking, and thinking is looking for yourself and seeing what's there, not what you got told was there. Then you put what you see together./1/

When asked what the most difficult aspect of her long life had been, Miz Alice responded: "Having the gumption to live different and the sense to let everybody else live different. That's the hardest thing, hands down."/2/ Without the trappings of high scholarship, she eloquently conveyed the essence of what educational excellence always has involved.

Joseph Epstein revealed the same thing in his collection of Masters: Portraits of Great Teachers./3/ Epstein invited sixteen distinguished scholars to write their recollections of the college and university professors who had had the most profound effect on the shaping of their own minds and work. One comes away from this collection of essays reminded that teaching at its best is an activity "at once splendid and mysterious, and of inexhaustible fascination." Most significantly, a reader is struck with the absence of any common characteristics among these great educators. Their only shared quality was a strong sense of self-respect and a deep love and commitment for whatever, as individuals, they were teaching. In short, what Miz Alice referred to as "a refrain to sing ideas from."

If there is one unmistakable fact about instructional methods that is illustrated by educational history, it is that splendid teaching is not fostered by conditions which breed conformity. Quite the contrary. All the really great teachers have been their own persons. Not infrequently, their methods have defied conventional pedagogical wisdom.

The second chapter of Epstein's Masters: Portraits of Great Teachers is devoted to Professor Morris Cohen of the College of the City of New York. Cohen taught courses in philosophy from 1912 to 1938. In his classroom and in his private encounters with students, Cohen regularly made use of sarcasm. Sharp, biting sarcasm, and a propensity to talk perpetually--often rudely shutting off a student or colleague in mid-idea. These were Cohen's trademarks. They are not the kinds of teaching behaviors recommended in methods textbooks, nor do they appear on faculty evaluation rating forms. Nonetheless, these are precisely the strategies that flowed from Cohen's powerful sense of himself and the mission which propelled him into the classroom. Fifty years later, Sidney Hook, in a touching memoir, looked back on Morris Cohen as the most influential teacher in his life.

The destructive influence of "accountability"

Such a view of teaching is being systematically destroyed in America--at all levels of our educational institutions. Beginning in the early 1970s, "accountability" legislation initiated a massive redesign of the nation's elementary and secondary schools. The rhetoric of accountability has changed, but the ideology of instructional control has increased steadily. "Minimum competencies," "measurable performance objectives," "outcome-based education," "management-by-objectives," and "value-added assessment" have sparked different reform movements. But all of these formulas reflect the assumptions of positivist-realist philosophy and behaviorist psychology. And all have shared the belief that a classroom teacher is properly subordinated to external and more intelligent authority.

Rather than recognizing the critical factor of self-respect among individual teachers, the distorting focus of accountability has been on uniform evaluation of the educational process. Thus, the complete act of teaching has been subverted. The traditional view--that is, that evaluation techniques sequentially follow from the teacher's philosophically-determined goals, curriculum substance, teaching role, and instructional methods--has been reversed. Measurable evaluation results invariably are the paramount demand of accountability disciples, and quantifiable assessment now shapes all other teaching components.

At first, accountability legislation concentrated on curriculum reform in the public schools. Ultimately targeted were prescribed teaching behaviors. By the mid-1980s, South Carolina and North Carolina had moved to place public school faculties under the prescriptive "7 essential elements" invented by Madeline Hunter as the heart of her "mastery teaching" theory./4/ By 1989, Robert Slavin estimated that teachers trained by local school districts around the country in Hunter's instructional formula numbered "in the hundreds of thousands."/5/ The "7 essential elements" currently are serving as a convenient rating instrument in the hands of many public school administrators.

Similar policies controlling the classroom teacher were recently adopted in Texas and Louisiana. In 1988, the Texas legislature mandated the Teacher Appraisal System, under which Texas public school educators now are observed and evaluated four times each year against 64 uniform performance indicators. Their resulting scores, on a statewide basis, determine their annual merit pay. Louisiana legislated a comparable process in 1989. The major difference in the Louisiana Teacher Evaluation Program is that it specifies over 100 instructional behaviors and requires assessment at five-year intervals. The periodic evaluations determine whether Louisiana teachers keep their jobs.

These policies have mushroomed in the wake of the 1983 National Commission Report, A Nation at Risk. That highly-publicized report convinced the general public, along with many educators, that America's schools were being engulfed by "a rising tide of mediocrity," and that this condition required a host of reforms, including better classroom teachers. The Jeffersonian Compact, signed by the members of the National Governors Conference in 1990, is rapidly advancing educational reforms of a compatible nature, including the idea of a "national report card."

The Holmes Group Report/6/ and the Carnegie Task Force Report on Teaching,/7/ both released in spring 1986, took the position that improvement of America's elementary and secondary teaching force necessitated reforms at the college and university level. Both Holmes and Carnegie endorsed top-down controls not only of the country's teacher-education faculties, but also of faculties in the liberal arts and sciences./8/ Embedded in both influential reports was the desirability of externally-imposed norms and directives, and the assumption that these would be passively accepted by all American educators. Among the recommended controls advocated by Holmes and Carnegie was the codification, objectification, and centralization of a national knowledge base.

The Society of Professors of Education, in a 1988 publication, Accountability and Assessment in Higher Education, reported that assessment procedures were "being discussed on three-fourths of the nation's campuses," that "approximately half" were in the process of developing assessment procedures, and that eighty percent "expected to introduce some form of assessment in the next few years."/9/ The newly-adopted assessment procedures are tending to take the form of student outcome-based education. "OBE" is being implemented in concert with the uniform student rating instruments for faculty which had become widespread on university campuses by the early 1980s./10/

It is important to note that educational accountability policies have been advanced and defended at all levels under at least four fallacious claims:

  1. That "experts" are in agreement about what constitutes the criteria for good teaching.

  2. That "experts" now view teaching as a science that has evolved from older and obsolete notions that teaching was an art.

  3. That "experts" know precisely how students best learn. And

  4. That "experts" are in agreement that the best way to assess teaching is through the use of either uniform observation forms responded to by external observers, or uniform rating forms filled out by students on their respective teachers.

There is no credible research that supports any of these popular accountability claims. To pretend otherwise is to ignore the question of the child in the immortal fairy tale, The Emperor's New Clothes.

Educational research parallels the climate of research in physics, chemistry, and biology. Modern science is characterized by intellectual ferment, debate, and conflict. For every declared scientific theory, for every model or paradigm utilized to interpret reality and knowledge claims, there are alternative points of view. In short, modern scientists perpetually struggle with ambiguities, contradictions, paradox, and imprecise knowledge. This is also demonstrably true for those of us in teacher education who deal with research in instructional theories, learning theories, and assessment theories.

It must also be noted that educational accountability policies have been politically advanced despite the existence of much scholarly research that argues against such practices. Educational researchers and historians have known since the famous Eight Year Study, conducted between 1932-1940, that research findings simply do not support a single comprehensive theory of teaching, nor provide a set of generally accepted criteria for judging teacher effectiveness.

Michael Scriven, writing in the 1981 The Handbook of Teacher Evaluation, called attention to "the enormous number of studies on [instructional] style research that have been done," all of which

result in the conclusion that no style indicators can be said to correlate reliably with short- or long-term learning by the students across the whole range of subjects, levels, students, and circumstances./11/

Robert Slavin, Director of Research on Elementary and Middle Schools at Johns Hopkins University, recently blasted the blind adoption of Madeline Hunter's mastery teaching criteria in the years following its 1969 introduction. It was nineteen years after the Hunter-bandwagon began that the first high-quality, large-scale evaluation of her theory finally appeared. That 1988 report, out of South Carolina, found no significant differences in student achievement between students of Hunter-trained teachers and students of other teachers. In fact, the evidence indicated that students taught by Hunter-trained teachers did slightly worse.

Richard Renner has published important research concerning the nature and use of student ratings of university professors. In one of Renner's studies, 36 experts in the field of instructional evaluation provided a narrative interpretation of the cumulative scores elicited from students on a mandated rating form used by a faculty colleague. Although they confined their assessments to the rating scores of a single professor, the evaluators revealed a very wide divergence of interpretations, thereby demonstrating that not even sophisticated scholars in the field interpret "objective" evaluations in the same way./12/

In another study, Renner pointed out that when faculty committees or faculty-student committees assume responsibility for defining good-teaching criteria, they necessarily favor low-level teacher qualities that "enable them to reach a consensus and de-emphasize those that are controversial." Renner reported that "professors emphasize at their peril qualities the rating form omits." He further noted that uniform ratings scales not only are influenced by the arbitrary criteria chosen for the instrument, but by factors extraneous to the teacher's performance: the nature of the subject matter, and the characteristics of student clientele./13/

Thomas Good and Catherine Mulryan, contributing to the 1990 The New Handbook of Teacher Evaluation, pointed out that the research, "inadequate" to date, has not produced agreed-upon procedures for evaluating teachers:

Rating systems were developed for reasons external to teachers, that is, to demonstrate to the public that students were receiving appropriate instruction or that teachers were competent, rather than to provide teachers with information that they might use to improve instruction./14/

The Good-Mulryan research is particularly important because--unlike many other scholarly critics--they are supportive of descriptive teacher rating scales. However, Good and Mulryan argue that such information is valuable only if it encourages self-reflection and growth among individual teachers.

Rating instruments--and how they are used--should be largely controlled by teachers.... There is no descriptive scale that is most appropriate. What is appropriate or important depends on the instructional goals and the reason that a teacher wants information. ...[T]eachers can control their own scales./15/

Such research underscores the deceptiveness of implementing a presumably "common data base," and the utter nonsense of eliminating diversity among faculty.

I share this information with you because it provides a larger perspective from which to grasp the nature and importance of my own test case.

Wirsing v. The Board of Regents of the University of Colorado, et al.

In 1985, the Colorado General Assembly passed House Bill 1187, Concerning the Reorganization of Higher Education. Its provisions are illustrative of the extent to which the state has assumed decision-making authority over matters long deemed the responsibility of the Academy. Under its provisions the state granted sweeping new powers to the Colorado Commission on Higher Education to eliminate "needless duplication of facilities and programs" and "to effect the best utilization of available resources [in order] to achieve an adequate level of higher education in the most economic manner./16/ House Bill 1187 also enacted a "higher education accountability program," which stipulated "that institutions of higher education be held accountable for demonstrable improvements in student knowledge, capacities, and skills between entrance and graduation."/17/

By statute, the Colorado Commission on Higher Education--a politically appointed body--has authority over all the governing boards and institutions of higher education in the state. Commencing July 1, 1990, the CCHE was authorized, under House Bill 1187, to impose a 2% funding penalty on any state college or university found to be in non-compliance with the accountability law.

The Board of Regents of the University of Colorado responded to House Bill 1187 in three successive stages. In 1985, it adopted a slash and burn policy with respect to academic and professional programs, leaving faculty reeling from program termination or threatened termination.

In spring 1986, the Regents followed up with a resolution regarding faculty-course evaluation:

Faculty-Course Evaluation shall be implemented at the University of Colorado for all courses and their sections offered by any of the University of Colorado campuses. Each campus shall design an evaluation form that meets that individual campus' specific needs so long as such forms are uniform for that campus...and are adaptable to...the individual campus' research and testing services.... The evaluation system shall be designed to provide published information to students, faculty, departmental administration, and the University's administration./18/

The faculty evaluation mandate was accompanied by a Regent policy that placed all faculty under a 100% merit pay system. This meant that factors like earned professorial rank and inflation no longer were considered in the annual faculty assessment process or in salary determinations. The new faculty evaluation system replaced the 1976 Regents' ruling under which faculty had to provide students with the opportunity to assess courses on a regular basis. Importantly, the 1976 ruling did not compel faculty to use an institutionally-designed assessment instrument. Thus the 1986 Regents' mandate represented a fundamental relocation of academic decision-making--a usurpation of individual faculty judgment in determining the connections between philosophic orientation, instructional style, and evaluation procedures.

The third stage of the Regents' response to House Bill 1187 occurred in February 1988, wherein the entire University of Colorado system was ordered to place all undergraduate programs on a student outcome-based mode of operation./19/ This third mandate was implemented throughout academic year 1989-1990. At a departmental level, a student outcomes curriculum typically meant the adoption of standardized pre- and post-program testing instruments, with results to be reported to the Colorado Commission on Higher Education. The underlying assumption was that all University professors within an academic department could and would agree on educational purposes, curriculum substance, and learning results.

The School of Education on the CU-Denver Campus is a graduate department. Therefore, it was directly impacted by the first two stages of the Regents' actions, that is, by external directives to economically redesign curriculum, and the adoption of a standardized faculty evaluation form. The "Procedures for Administering the Faculty Course Evaluations at CU-Denver" stipulated that the standardized form, known as the Faculty Course Questionnaire, or "FCQ," had to include twelve questions common to all the campuses, and provided an option of developing another eight questions that would uniformly apply to all Denver Campus faculty. The purpose of this, according to the official "Procedures," was to ensure "continuity as individual teaching performance is tracked over time." Each faculty member had the option of identifying up to five additional questions that would apply to individual courses. The FCQ also allotted limited space and very limited time for open-ended comments by students. The Faculty Course Questionnaire was to be administered sometime during the last three weeks of the semester by having students take the first 15 minutes of a class to fill out the evaluation and return it to a designated student who, in turn was to deliver the completed forms in a sealed envelope to the Dean's office.

The policy was in sharp conflict with the assessment procedure I had used since 1966, namely, a take-home form with four open-ended questions, accompanied by an invitation from me for a thoughtful, anonymous, and critical response from students. Over the years, many of my students spent a great deal of time and effort in completing the form, often turning in additional pages typed with their thoughts about the course and my teaching methods. School of Education Faculty Evaluation Committees never expressed any difficulty in interpreting my student evaluations nor in discerning the quality of my teaching. It was always my custom, and remains so, to advise students that all my assessment procedures--including the open-ended course questionnaire--were a carefully considered aspect of my entire teaching philosophy.

The newly-mandated Faculty Course Questionnaire not only had the effect of undermining my authority in determining what was truly important in connection with my instructional practices, but also conveyed philosophic assumptions that were alien to my own. The FCQ items were presented as generic, observable, and measurable instructional behaviors. The substance of many of the questions was ideologically biased. For example, students were asked to score such items as:

Item 1
"Presentation of course material was: N E D C B A." This item presumes the universalized desirability of didactic teaching methods--ignoring heuristic, philetic, facilitative, or other methods.

Item 2
"Explanation of complex material was: N E D C B A." This item presumes the universalized desirability of viewing the teaching role as one of authority over a given body of knowledge with respect to the student, ignoring problem-solving, problem-posing, provocation, or other instructional roles.

Item 3
"Instructor's motivation of students to explore subject further was: N E D C B A." This item presumes that the universal task of the teacher is the extrinsic motivation of students, in contrast with those educational philosophies and learning theories that view motivation as an intrinsic phenomenon.

In short, the University of Colorado FCQ is an excellent illustration of the positivist-realist-behaviorist tendency to operationalize and trivialize the whole of the educational process, and all of human experience.

On November 1, 1986, I wrote a letter to the Board of Regents urging that they reconsider their resolution calling for a standardization of faculty course evaluation. I took an educative approach and tried to illuminate the ideological implications of the policy. I called attention to Article X of the Regents' own Laws, which is a magnificent statement of academic freedom. It emphasizes that faculty have an obligation to practice "with integrity and in accordance with the highest standards of their profession," and that "while they fulfill this responsibility, their efforts should not be subjected to direct or indirect pressures or interference from within the University, and the University will resist to the utmost such pressures or interference when exerted from without."/20/

In my letter to the Regents, I also cited from the Standards for Academic and Professional Instruction, which serve as the scholarly guidelines on the North American Continent for professors in my own field of expertise, Foundations of Education. The Standards, published by the Council of Learned Societies in Education, are clear in terms of sustaining academic authority in assessment procedures:

the formulation of program objectives for Foundations of Education, Educational Studies, and Educational Policy Studies, and the means of assessing them [are] matters that are properly reserved to the professional and scholarly judgments of qualified faculty members operating within the settings of their respective colleagues and universities, utilizing the Standards./21/

The Regents did not respond to my letter. However, I had sent a copy to the leadership of the Colorado Commission on Higher Education. I did receive a reply from the Executive Director, who informed me that the CCHE did not intend to trivialize post-secondary education; instead, they hoped to encourage "quite creative, institutionally-designed assessment processes."/22/ The CCHE response, of course, entirely missed the point of my critique.

I also had sent copies of my letter to various faculty leaders and selected administrators. The president of CU's chapter of the American Federation of Teachers replied by inviting me to speak on the main campus in Boulder in February 1987./23/ My speech received considerable publicity in the University newspaper, and this in turn provoked written communication from President Gordon Gee. President Gee expressed interest in my remarks, conveyed his own deep reservations about student evaluations, and advised me that the Regents had approved the policy over the objections of his administration. "I spoke strongly against it," Gee wrote to me in April 1987, "alas, to no avail." That communication was the first and last official acknowledgment by the University Administration that serious issues surrounded the Regents' faculty accountability policy./24/ By that time I was deeply involved in a personal grievance effort.

Eighteen months earlier, in fall 1985, William Grady had become the Dean of the CU-Denver School of Education. For reasons of his own, Dean Grady determined on an ex post facto basis that teaching merit for 1985 and subsequently for 1986 would be considered only if he possessed a "common data base" from a standardized assessment instrument. He took this position two years before the Regents' mandate was to be effective on the Denver campus.

I had continued to use my open-ended forms, and my Faculty Evaluation Committee peers continued to respect these student responses in the annual assessment process. The Dean, however, arbitrarily lowered my teaching rating to zero--an action he was to take in all ensuing years. The Dean's punitive zero rating for my refusal to use the FCQ also obliterated my performance in the areas of research and service.

By fall 1986, I had filed a grievance with the University of Colorado Faculty Senate Committee on Privilege and Tenure. Following a personally expensive and lengthy two-year review and then a hearing in fall 1988, the Privilege and Tenure Committee ruled in my behalf and recommended that salary adjustments be made for 1985, 1986, and by that time, 1987. After still another year of maneuvering and delay by the Central Administration, salary adjustments finally were made, on my terms, for two years only, 1985 and 1986. Because the Regents' mandate was in force by 1987, the Regents and Central Administration refused to alter the Dean's assessment for that year. Of no small irony was my selection in 1987 by faculty peers to receive the Colorado State Board of Education's award for "excellence and dedication to teaching." My salary has been frozen since that year.

After four years and after having exhausted all avenues within the University, I determined to bring legal action against the Board of Regents and Administration. In January 1990, I filed a lawsuit in the Federal District Court of Colorado. As a test case, my attorneys and I felt that a federal court ruling on the principle of academic freedom would be more significant and carry much more weight on a national basis than a ruling from the state courts.

In the Brief/25/ submitted to Judge Lewis Babcock, who presided over the Federal District Court of Colorado, my attorneys pointed out that my objections to the standardized student evaluation form were based on scholarly judgments as a tenured Professor of Foundations of Education. First, that as an educational historian, I regularly taught my students that there is no historical evidence that supports any one particular set of good teaching characteristics. Second, that Foundations of Education also concerns a study of different philosophic approaches to teaching, which in turn have different pedagogical implications, including different approaches to student and instructor evaluations. Our Brief explained the philosophical and psychological premises implicit in the Faculty Course Questionnaire, pointed up that it conveyed ideas directly contrary to what I teach, and that for me to comply with its usage would undermine my professional integrity and credibility with students. Our Brief highlighted that my position was fully justified under both the assessment clause of the Council of Learned Societies' Standards, and the academic freedom statement of the University of Colorado's Laws of the Regents.

The heart of our argument was that the University's standardized faculty evaluation policy interfered with my academic freedom. And we brought to bear solid legal precedents from a long series of academic freedom cases. Our citations included the January 1990 U.S. Supreme Court ruling in University of Pennsylvania v. EEOC, which upheld the landmark academic freedom cases as those involving attempts "to control or direct the content of the speech engaged in by the University or those affiliated with it."/26/

We also provided the Court with considerable evidence which pointed up that the standardized evaluation form was applied unfairly in administrative salary decisions and that the policy was, indeed, a smokescreen for an arbitrary and retaliatory administrative use of power.

The University attorney, in her Brief on behalf of the CU Board of Regents and Administration,/27/ argued that the guarantee of academic freedom arising from rights enunciated in the First Amendment "does not encompass the right to refuse to follow University regulations," and that academic freedom is "a protection provided to teaching institutions" as well as to teaching faculty. Relying on several lower court decisions concerning public school teachers and untenured faculty, the University attorney further argued that the First Amendment does not require that a teacher be made "a sovereign to himself," and that the University--not the individual faculty member--had the right to set policy on such matters as course content, teaching techniques, homework load, and grading policy.

The Board of Regents' case also rested on Dean Grady's offer to me that had been presented as a means of "alleviating" my philosophical disagreement with the standardized evaluation instrument. That is, I was free to openly criticize the form before my students, and free to administer an additional form of my own choice. But neither academic freedom nor any First Amendment right provided me with immunity from complying with the "reasonable rules" of the University to accomplish its evaluation of teaching.

Since I was declared to be insubordinate in my refusal to provide the required evaluation data, the University attorney argued that the institution, through its Board of Regents, was fully justified in imposing salary sanctions.

It is important to grasp that the issue before the Court was narrow and concise. The continuing excellence of my teaching over a 24-year period was not challenged. The Regents and administrators acknowledged in their Brief and in oral testimony before the Court that I am a superior teacher. The University attorney also testified, on behalf of the Board of Regents, that I continue to be a "valued member of the faculty." The single issue was my steadfast refusal, on grounds of conscience, to administer the standardized form.

The Federal District Court entered its judgment in favor of the University Board of Trustees on June 28, 1990, denying trial. In a terse opinion,/28/ Judge Babcock completely ignored the academic freedom statement of the Laws of the Regents and the professional Standards which guide Foundations of Education faculty. He saw the case as one in which the academic freedom rights of the University, as an academy, were in conflict with the rights of an individual professor. As a result, the Court viewed the dispute as one wherein the Court, itself, was the government potentially interfering with the University's own academic freedom--and he refused to interfere.

In Judge Babcock's reading of the situation, I was not denied merit salary increases because of my teaching methods or presentation of opinions "contrary to those of the University." Instead, I was denied merit increments, he stated, because of my refusal to comply with the University's reasonable teacher evaluation requirements. Babcock cited the Stastny case:

Academic freedom is not a license for activity at variance with job related procedures and requirements, nor does it encompass activities which are internally destructive of the proper function of the University or disruptive of the education process./29/

It should be borne in mind that the Board of Regents at no time placed evidence before the Court that my behavior was "internally destructive" or "disruptive of the education process."

In a strange piece of reasoning, Judge Babcock ruled that the standardized form represents a University policy and procedure "unrelated to course content that in no way interferes with Dr. Wirsing's academic freedom." He based his judgment on the fact that I was free to openly criticize the form and the University policy, and that the forms were not distributed until the course had been "completed substantially." The fact that I was required to leave my classroom during the 15 minutes when students completed the form meant, to him, that I thereby was "not communicating an idea" to students.

The Court held, moreover, that the evaluation forms per se are not expressive of content-based regulation, since each form "invites written comments and has a choice selection 'not applicable' that...students may select";/30/ and that, in any event, the Regents' policy was "a condition of employment."/31/

We filed before the U.S. Tenth Circuit court of Appeals on September 11, 1990./32/ Our appeal is based on three major arguments:

First, the trial court was in error in characterizing this dispute as between the professor and The Academy. The courts have recognized that the right to pursue academic ends without government interference extends not only to the teacher as an individual but to the university as an academy. However, First Amendment issues become more complicated when there is government regulation which implicates academic freedom in a public educational institution, because the government is both regulator and speaker. This distinction was made by the U.S. Supreme Court in the 1990 decision, University of Pennsylvania v. EEOC./33/ In my case, the trial court failed to recognize the distinction between the University as regulator (the Regents and administrators), and the University as a speaker (that is, The Academy) which is endowed with rights of academic freedom. We are arguing that the Regents and administrators represent not the University but rather the state interfering with the University's academic freedom as well as mine. In short, it is I who represent The Academy, not the Board of Regents.

Second, the trial court was in error in holding that the Regents' mandate does not interfere with my academic freedom, that the conduct required of me is not compelled speech, and that my refusal to administer the form is not constitutionally-protected expressive conduct. Conduct of similar kinds in public schools and universities has long been a subject for First Amendment protection. Moreover, the burden of proof was on the Regents to show that conduct which their mandate requires is not expressive of any idea./34/ This the Regents did not do. Instead, they simply argued that I was free to rebut any implicit communication by criticizing the form or by administering it in conjunction with my own. The fallacy of the Court ruling is apparent when applied to the facts in any of the compelled speech cases. For example, in Keyishian, the loyalty oath could lawfully be a precondition to public employment if individuals required to take the oath are allowed to criticize it or give additional sworn statements. In Barnette, students could be compelled to recite the pledge of allegiance in school if they are also allowed to criticize the pledge or recite additional pledges. Very clearly, "the opportunity to criticize or supplement the compelled speech does not avoid the chilling effect on First Amendment rights caused by the government compelling citizens to express a certain idea."/35/

Since I had been a tenured professor for many years when the Regents adopted the evaluation policy in 1986, and since there never had been any such policy stipulated in the University Faculty Handbook, there is no basis for the trial court to have concluded that the mandate was "a condition of employment" that legally should sustain penalties for noncompliance. I am challenging the constitutionality of the mandate itself.

Third, the trial court also was in error in concluding that the Regents' mandate does not regulate the content of my classes. The U.S. Supreme Court ruled in the 1984 Clark case/36/ that the court must look carefully to determine whether a regulation touches even incidentally on academic freedom rights. Significantly, because my students directly engage in the study of evaluation practices in terms of philosophical premises and historical factors, the Regents' mandate has, in fact, an inhibiting effect on the content of ideas expressed in my classroom. Furthermore, it is axiomatic that a teacher instructs by precept and example. That I am compelled to perform certain acts, including leaving my classroom, constitutes instructional affirmation of certain specific ideas that undermine my curriculum content.

Fundamentally, what we are testing in the courts is whether the statutory powers of supervision by the CU Board of Regents--and, by implication, the authority of the state, itself--can preempt a First Amendment claim to academic freedom by a member of The Academy.

The Board of Regents responded to our Appellant Brief on October 15, 1990./37/ Their arguments and citations were essentially the same as those that had been upheld by the Federal District Court. The University attorney again declared that the Faculty Course Questionnaire regulation is content-neutral, not content-based as we are claiming, and therefore does not rise to a First Amendment issue. Not surprisingly, the University attorney scoffed at our view of The Academy as excluding the University dean, chancellor, president, and Board of Regents, asserting instead that

there is absolutely no question that the University administration is equally entitled to academic freedom in determining whether and how the student body shall participate in evaluation of teaching./38/

At the present, we are waiting for the Tenth Circuit Court of Appeals to set a date for oral hearing--a verbal battle between attorneys for both sides. If we prevail at that level, the Tenth Circuit will remand our case back to Federal District Court for trial before Judge Babcock. Whatever the outcome, our expectation is that appeals, on either side, will proceed to the U.S. Supreme court.


By way of bringing this address to a conclusion, I would call your attention to Perry Zirkel's De Jure column in the February 1991 issue of Phi Delta Kappan. Zirkel briefly but accurately highlighted the general circumstances of my lawsuit. But he then expressed the opinion that the trial court's decision reinforces "the lesson that the teacher's rallying cry of 'academic freedom' is--in court, if not on campus--often a voice crying in the wilderness." Zirkel went on to argue that

as a constitutional matter, the cry of academic freedom is inapplicable in private education (basic and higher), and its application is diluted in public elementary and secondary education. Even at public colleges and universities, where the concept is constitutionally strongest, it does not extend further than protection from clear interference with the expression of controversial ideas and opinions--and even that protection can be overridden by the institution's own academic freedom. [emphasis mine]/39/

In my judgment, Zirkel's analysis of my case lacks a grasp of the historic evolution of academic freedom in European and American universities. Zirkel appears to be unaware that claims of institutional academic freedom represent a new and radical redefinition of academic freedom.

Nineteenth century Germany developed the ideal of academic freedom around the concepts of Lehrfreiheit (the freedom of the professor to teach, inquire, and publish) and Lernfreiheit (the freedom of the student in the learning process). These ideas were transplanted, with modification, to American shores.

When American scholars sought to introduce the German ideal, they confronted a different legal structure. Unlike German universities, which tended to be self-governing academic bodies, American institutions quickly came under the control of lay governing boards and presidents chosen by lay boards. Thus, the freedom sought by American academics "was not a collective freedom of the institution from external control, but an individual scholar's freedom from the institution's legally constituted governing authority."/40/

The American Association of University Professors was the major force in advancing academic freedom within our national context. By 1930, the distinguished philosopher, Arthur Lovejoy, who had been a foremost leader within the AAUP, wrote an authoritative essay defining academic freedom as the

freedom of the teacher or research worker in higher institutions of learning to investigate and discuss the problems of his science and to express his conclusions, whether through publication or in the instruction of students, without interference from political or ecclesiastical authority, or from the administrative officials of the institution in which he is employed, unless his methods are found by qualified bodies of his own profession to be clearly incompetent or contrary to professional ethics. [emphasis mine]/41/

Lovejoy went on to point out that although the teacher is in his economic status "a salaried employee," the principle of academic freedom "implies a denial of the right of those who provide or administer the funds from which he is paid, to control the content of his teaching."/42/ It is important to recognize that in the American context, as in Europe, the traditional view of academic freedom has applied to teachers and researchers, not to administrators.

Supreme Court Justice Felix Frankfurter reflected this AAUP definition of academic freedom--linking academic freedom with the First Amendment--in the 1957 case of Sweezy v. New Hampshire:

A University ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates--"to follow the argument where it leads".... The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself./43/

It was Nicholas Katzenbach, in 1980, who put forth the novel idea of "institutional academic freedom" before the U.S. Supreme Court. Speaking on behalf of the Board of Trustees of Princeton University, on its right to prohibit the distribution of leaflets on its campus, Katzenbach argued that academic freedom "did not so much apply to faculty and students as it did to institutions, that the university is best conceived as property whose owners [trustees] hire employees [administrators and faculty] to inculcate specific views into the minds of the consumers [students]." Succinctly stated, Katzenbach shifted the focus of academic freedom from individual faculty and students to the rulers of the university as a corporate whole. Under this view, "Princeton University" was presented not as a community of distinguished scholars and their students devoted to unfettered critical inquiry. Instead, Princeton was depicted as "a nonprofit corporation organized for educational purposes and under the legal control of its Board of Trustees, who hire a broad range of employees, including professors, to carry out their wishes."/44/

In the Brief submitted by Princeton University to the U.S. Supreme Court, the argument was made that private universities had a First Amendment right to exercise "unconstrained philosophical and curricular choices," even if such choices meant limiting the free inquiry of faculty or students. "Thus," wrote Katzenbach, "a private university may choose an educational philosophy which seeks to expose students to widely differing viewpoints, as does Princeton, or it may choose to indoctrinate students to a particular ideology or set of beliefs."/45/ Under this view, academic freedom thus becomes a protection of a corporate entity to promote its preferred view of the world. Expressed another way, the traditional defense of individual autonomy was reshaped for the protection of corporate autonomy. As observed by the political scientist, Amy Gutmann, the

Princeton argument is an example of "corporate pluralist" theory, wherein diversity is entertained as between but not within universities./46/

In a friend of the court brief, the American Association of University Professors attacked the extraordinary Princeton arguments. The AAUP's team of attorneys and scholars pointed out that an individual scholar's academic freedom and an institution's administrative autonomy were related but essentially different concepts, and that in the American setting, institutional autonomy, "when rightly invoked," has been thought of as a necessary, but distinctly ancillary support for the scholar's academic freedom./47/

As is also true of the Board of Regents of the University of Colorado in my case, Princeton University's Board of Trustees did not invoke its autonomy in defense of the freedom of the faculty to teach or do research in the face of some impermissible governmental intervention. Nor did it invoke institutional autonomy, "as a derivative of the faculty's academic freedom to insulate curricular choice or the selection of faculty from impermissible external constraint." The Princeton Board of Trustees' assertion, instead, was that it had the right, under "academic freedom," to indoctrinate students to a particular ideology or set of beliefs, and the corresponding right to coerce its faculty under a given ideology./48/

The AAUP Brief was very precise in its opposing view that institutional autonomy invoked for such a purpose--as a countermine to academic freedom--cannot rightly be claimed, as Princeton does, under the head of academic freedom./49/

The AAUP Brief pointed out that Princeton's position sought to elevate "an institution's purely administrative interests into a special category of First Amendment rights. There is no justification," concluded the AAUP Brief, "for a constitutional doctrine so indiscriminate in its sweep and pernicious in its effect."/50/

The U.S. Supreme Court, in 1980, dismissed this case as moot because Princeton had altered its policies permitting freer campus access to leafleteers. Therefore, Katzenbach's attempt to redefine academic freedom was not addressed by the Court at that time.

It is my contention that the Katzenbach thesis, in more recent years, has become operational on a de facto basis in American institutions of higher education, particularly institutions within the public sector. I believe that this has been accomplished incrementally and covertly chiefly through mandated accountability and assessment policies, and the subsequent yielding of The Academy to those policies. To the letter, the University of Colorado's Board of Regents has adopted the Katzenbach doctrine. Its mandate forcing the use of a standardized teaching evaluation instrument is not a "reasonable" administrative rule. It imposes an institutional ideology, and blatantly intrudes into matters that require academic and pedagogical judgment.

I urge you to consider the unwarranted, anti-intellectual, and doctrinaire nature of the prevailing accountability policies in general--at all levels of American schooling. In particular, I urge you to consider the political implications of such educational practices in a society that proclaims itself to be free. Unless successfully challenged, institutional imposition of accountability formulas will sanction American educators as tools of the State. To actively critique--academically, politically, and legally--mindless and dangerous behavior is a responsibility that properly accompanies the traditional privilege of academic freedom.


  1. William Least Heat Moon, Blue Highways, A Journey into America (Boston: Little, Brown and Company, 1982), 389-90.[Back]

  2. Ibid., 397.[Back]

  3. Joseph Epstein, editor, Masters: Portraits of Great Teachers. New York: Basic Books, 1981.[Back]

  4. Madeline Hunter, Teach More--Faster. El Segundo, CA: TIP Publications, 1969; and Madeline Hunter, Mastery Teaching. El Segundo, CA: TIP Publications, 1982.[Back]

  5. Robert E. Slavin, "PET and the Pendulum: Faddism in Education and How to Stop It," Phi Delta Kappan (June 1989): 752-58.[Back]

  6. Holmes Group, Tomorrow's Teachers: A Report of the Holmes Group, excerpted in The Chronicle of Higher Education, 9 April 1986, 27-37.[Back]

  7. Carnegie Task Force on Teaching as a Profession, A Nation Prepared: Teachers for the 21st Century, excerpted in The Chronicle of Higher Education, 21 May 1986, 43-54.[Back]

  8. Marie E. Wirsing, "Holmes and Carnegie: The Myth of Bold New Reform," Teacher Education Quarterly (Winter 1987): 40-51.[Back]

  9. Erwin V. Johanningmeier, "Assessing Assessment: An Introduction," Accountability and Assessment in Higher Education (Tampa, FL: The Society of Professors of Education, 1988), 2; and Trudy W. Banta and Homer S. Fisher, "Tennessee's Performance Funding Policy: L'Enfant Terrible of Assessment at Age Eight," in Erwin V. Johanningmeier, editor, op. cit., 28.[Back]

  10. Richard R. Renner, "Comparing Professors: How Student Ratings Contribute to the Decline in Quality of Higher Education," Phi Delta Kappan (October 1991): 128.[Back]

  11. Michael Scriven, "Summative Teacher Evaluation," in Jason Millman, editor, The Handbook of Teacher Evaluation (Beverly Hills, CA: Sage Publications, 1981), 251.[Back]

  12. Richard R. Renner, "Professor X: How Experts Rated His Student Ratings," Assessment and Evaluation in Higher Education 10.3 (Autumn 1985): 203-12.[Back]

  13. Richard R. Renner, "Comparing Professors: How Student Ratings Contribute to the Decline in Quality of Higher Education," op. cit., 754-55.[Back]

  14. Thomas L. Good and Catherine Mulryan, "Teacher Ratings: A Call for Teacher Control and Self-Evaluation," in Jason Millman and Linda Darling-Hammond, editors, The New Handbook of Teacher Evaluation: Assessing Elementary and Secondary School Teachers (Newbury Park, CA: Sage Publications, 1990), 200.[Back]

  15. Ibid., 191, 211.[Back]

  16. Colorado House Bill No. 1187, Concerning the Reorganization of Higher Education, 7 May 1985.[Back]

  17. Ibid., 15-16.[Back]

  18. John S. Haller, Vice-chancellor for Academic Affairs, Regent Resolution on Faculty-Course Evaluation, University of Colorado at Denver, memorandum of 6 October 1986.[Back]

  19. John Ostheimer, Chair, Task Force on Student Outcomes, Outcomes Assessment at CU-Denver, memorandum of 5 February 1988.[Back]

  20. Article X, Laws of the Regents, as published in the University of Colorado Faculty Handbook, 1983 edition, 79.[Back]

  21. Council of Learned Societies in Education, Standards for Academic and Professional Instruction in Foundations of Education, Educational Studies, and Educational Policy Studies (Ann Arbor, MI: Prakken Publications, 1986), 6.[Back]

  22. Letter from Blenda J. Wilson, Executive Director, Colorado Commission on Higher Education, 19 November 1986.[Back]

  23. Marie E. Wirsing, "The Centralization of Academic Authority," Educational Foundations (Spring 1987), 87-106.[Back]

  24. Letters from President Gordon Gee, 3 March 1987 and 13 April 1987.[Back]

  25. Brief submitted by Plaintiff to the U.S. District Court of Colorado in the case of Marie E. Wirsing v. The Board of Regents of the University of Colorado, et al., No. 90-B-38, 17 May 1990.[Back]

  26. University of Pennsylvania v. EEOC, 58 USLW 4093, 110 S. Ct. 577, 107 L. Ed. 2d 571 (1990), at 4097.[Back]

  27. Brief submitted by Defendants to the U.S. District court of Colorado in the case of Marie E. Wirsing v. The Board of Regents of the University of Colorado, et al., No. 90-B-38, 16 March 1990.[Back]

  28. Judge Lewis Babcock, Memorandum Opinion and Order, U.S. District Court of Colorado, Marie E. Wirsing v. The Board of Regents of the University of Colorado, et al., No. 90-B-38, 28 June 1990.[Back]

  29. Ibid., 4.[Back]

  30. Ibid., 6.[Back]

  31. Ibid., 5.[Back]

  32. Brief submitted by Appellant to U.S. Court of Appeals for the Tenth Circuit in the case of Marie E. Wirsing v. The Board of Regents of the University of Colorado, et al., No. 90-1215, 11 September 1990.[Back]

  33. University of Pennsylvania v. EEOC, op. cit.[Back]

  34. United States v. Dellinger, 472 F. 2d 340 (th Cir. 1972), cert. den. 410 U.S. 970, 35 L. Ed. 2d 706, 93 S. Ct. 1443 (1973).[Back]

  35. Brief submitted by appellant, op. cit., 17.[Back]

  36. Clark v. Community for Creative Non-violence, 468 U.S. 288, 293-4, 82 L. Ed. 2d 221, 227, 104 S. Ct. 3065 (1984).[Back]

  37. Answer Brief submitted by Appellees to U.S. Court of Appeals for the Tenth Circuit in the case of Marie E. Wirsing v. The Board of Regents of the University of Colorado, et al., No. 90-1215, 15 October 1990.[Back]

  38. Ibid., 25.[Back]

  39. Perry A. Zirkel, "Another Lesson in Academic Freedom," Phi Delta Kappan (February 1991): 480.[Back]

  40. Brief amicus curiae of the American Association of University Professors submitted to the U.S. Supreme Court in the case of Princeton University v. Chris Schmid, No. 80-1576 (1980), 7.[Back]

  41. Arthur O. Lovejoy, "Academic Freedom," in Edwin R.A. Seligman and Alvin Johnson, editors, Encyclopedia of the Social Sciences, Volume 1 (New York: Macmillan, 1930), 387.[Back]

  42. Ibid.[Back]

  43. Brief amicus curiae of the AAUP, op. cit., 8.[Back]

  44. Sanford Levinson, "Princeton Versus Free Speech: A Post Mortem," in Craig Kaplan and Ellen Schrecker, editors, Regulating the Intellectuals: Perspectives on Academic Freedom in the 1980s (New York: Praeger Publishers, 1983), 194.[Back]

  45. Ibid., 197.[Back]

  46. Ibid.[Back]

  47. Brief amicus curiae of the AAUP, op. cit., 5, 9.[Back]

  48. Ibid., 10.[Back]

  49. Ibid.[Back]

  50. Ibid., 30.[Back]

[The Montana Professor 1.2, Spring 1991 <http://mtprof.msun.edu>]

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