Joan DelFattore is a professor of English and legal studies at the University of Delaware and the author of Knowledge in the Making: Academic Freedom and Free Speech in America’s Schools and Universities. You can read DelFattore’s essay on Garcetti earlier this year in Academe, and John Elmore’s review of her book in Academe.

I asked her a few questions about her book via email:

1. One of the major debates shaping your book is the question of who “owns” academic freedom, is it an individual right vs. a collective right held by the faculty vs. an institutional right held by the university. Where do you come down on that question?

To echo a memorable statement by a former U.S. president, that depends in part on what “is” means. If we’re talking about what academic freedom “is” in terms of its existence as a legal right defined and enforced by the courts, then for the reasons explained in my book, it is likely to be considered an institutional right held by the university (meaning the administration). That is why I argue in favor of protecting academic freedom through institutional policies, as private universities do, thus allowing academics rather than courts to determine what academic freedom “is.” Such policies are enforceable in their own right, particularly if they are embodied in collective bargaining agreements or the equivalent, without reference to constitutional law.

The last sentence of the question asks whether I think that academic freedom is, or should be, an individual right, a collective right of the faculty, or a right held by the university. The short answer is “All of the above, each in its proper place.” Properly delineated, those three understandings of academic freedom are, ideally, symbiotic rather than mutually exclusive. Federal courts have repeatedly declared, quite rightly, that the university as an institution has the right to determine such things as what shall be taught, by whom, and to whom. That right is enforceable against, for instance, a state legislature that seeks to limit a sex education curriculum or a former or would-be student who challenges the university’s standards for academic success. The problem with that understanding of academic freedom lies not in its essence but in its overapplication, particularly with respect to the courts’ tendency to define “the university” as if it were synonymous with the administration. If, within the institution, shared governance gives the faculty a substantial, and sometimes determinative, role in setting academic policies and standards, then the problem of courts upholding the administration against the faculty in such matters would be far less likely to arise.

The same reasoning applies to the definition of academic freedom as a right of the faculty as a whole or as a right of individual faculty members. The answer, as I see it, is not either/or, but both. The faculty as a whole has the right to determine curriculum and to make judgments about such matters as admitting and retaining students and hiring, retaining, and promoting faculty. If, for instance, the appropriate faculty committees recommend terminating a faculty member who has committed plagiarism, no reasonable understanding of academic freedom would allow the individual to use it as the basis for claiming the right to violate established professional standards with impunity. Similarly, suppose that the faculty in a mathematics department vote to establish a common examination for students completing the entry-level course in order to ensure that all students share a common core of knowledge when they advance into the upper-level courses. A faculty member who prefers to continue teaching as he/she has done in the past would not have an academic-freedom right to exempt his/her students from that common examination. Academic freedom does not give each faculty member carte blanche to do precisely as he or she pleases in all matters respecting teaching and scholarship regardless of professional standards or the welfare of students — matters that are determined by the faculty as a body, whether in a specific department or institution, in a particular field of study, or in the profession as a whole.

Within the scope of the academic freedom of the faculty lies the right and duty to protect decision-making by individual faculty members in matters that are not appropriately governed by group decisions. Foremost among these is the right of the individual faculty member to express his or her candid opinions, in scholarship or in teaching, even when these run contrary to the views expressed by the university as an institution or by other scholars in the field. Similarly, the individual faculty member has an academic-freedom right to speak freely when engaging in shared governance, such as participating in discussions of hiring, promotion and tenure, peer evaluation, the appointment and evaluation of academic administrators, and curriculum. The individual faculty member also has the academic-freedom right to express his or her views regarding the policies of the institution and the performance of administrators. Faculty who have any sense at all — admittedly not 100% of us — will use our collective power to protect these individual rights even when they are exercised by colleagues with whom we disagree. As I observed in my book, the line between the cutting edge and the lunatic fringe is a fine one, and intellectual freedom is as ill served by a majoritarian orthodoxy as it is by administrative fiat.

2) In the 1986 creationism case Edwards v. Aguillard, the AAUP intervened and wrote a brief fearing that this K-12 case would affect higher education as well.(142) Yet you also refuse to grant K-12 teachers the phrase “academic freedom,” preferring the far less liberating term “professional discretion.” Do you think that higher education needs to separate itself from K-12 teachers to avoid having academic freedom dragged down to the low levels of liberty granted to schoolteachers? Or do you think academia needs to embrace a common cause with K-12 teachers for all professional educators because professors will fall into the same situation as courts and administrators increasingly reject the K-12/Higher ed divide?

The AAUP had good cause to be concerned about the extension of the Balanced Treatment Act to universities, as earlier anti-evolution laws had done. Even if that were not the case, the AAUP might nonetheless intervene in a lawsuit in which elementary and secondary school teachers were being subjected to unreasonable — and, in this case, unconstitutional — restrictions. Moreover, in some of the evolution/creation controversies discussed in my book, requirements placed on K-12 science teachers were seen as a violation of the academic-freedom right of the scientific community to define what science is.

It is also correct — unfortunately — that many courts have applied precedents set by K-12 cases to lawsuits involving universities as if there were no difference between the two. I do not agree, however, that the solution to this problem is for university faculty to demand equal academic freedom for K-12 teachers out of a concern that if they do not have it, neither will professors. The fundamental error, as I see it, lies in the courts’ failure to recognize the difference between the two, and we will not remedy that error by embracing it.

As I indicated in my book, I realize that the assertion that university faculty enjoy academic freedom while K-12 teachers have a right to something different, less extensive, and differently enforced — what I called “professional discretion” — is open to the charge of academic snobbery. Nonetheless, I think that the distinction is a real one. Unlike K-12 schools, which focus largely on the transmission of well-known information, universities exist in part to expand the bounds of knowledge and to educate future generations of experts in their fields. Even at the undergraduate level, the various disciplines are taught at a generally higher level than in K-12 schools, and more intense treatment of controversial topics is or should be expected. University students are adults, are not required to attend college at all, and are free to select any major for which they are qualified in any institution that will admit them and that they can afford financially. Most significantly, the governance structure of K-12 education in this country is based on the premise that the public, through elected or politically appointed boards of education and education officials, is empowered to decide what is taught in K-12 public schools. For better or worse, a K-12 board of education has the authority to decide such matters as whether a particular teaching method may or must be used in the schools it governs and whether a particular subject is to be covered in statewide testing. There is no basis for asserting that each individual teacher in the K-12 schools has, by right, the same level of autonomy that university professors require as they conduct their research and/or teach their specialty fields to a different audience under different governance principles and, in many instances, at a much higher level of complexity.

Although it is tempting to frame this difference in egalitarian terms — if a professor teaching a graduate course has academic freedom, should a first-grade teacher not have it as well? After all, they are both teachers. The error in that formulation, I believe, lies in the unstated assumption that academic freedom is a privilege granted to an individual for his or her benefit. Suppose that a firefighter complained that since police officers have the privilege of carrying guns, it is an insult to firefighters — who are also municipal first-responder employees — not to allow them to do so. There, it is clear that the issue is not whether carrying a weapon confers prestige, but its relevance to the requirements and expectations of the assigned job.

The question asks whether I would try to separate K-12 teachers from university professors lest “academic freedom [be] dragged down to the low levels of liberty granted to schoolteachers” or whether I would promote academic freedom for K-12 teachers lest “professors will fall into the same situation as courts and administrators increasingly reject the K-12/Higher ed divide.” My response is that I distinguish between K-12 and university education not as a means of bringing about any specific practical result, but because they are in fact different. As I observed earlier, K-12 teachers accept positions in which the governance system of American public education gives the right to determine instruction to administrators and boards that are directly or indirectly subject to the will of the public. Whether that is a good idea may be debated — in fact, I took issue with certain aspects of it in my book. What is clear is that the scholarship and teaching of university professors have not generally been governed by a similarly populist model, nor would such a model be consistent with the maintenance of a world-class higher education system.

3) In your discussion of David Horowitz, you note how the critics of academia have evolved their approach, comparing William F. Buckley’s 1951 attack in God and Man at Yale on the “superstitions” of academic freedom with Horowitz’s embrace of the term in creating Students for Academic Freedom. Is this a valuable advance, that almost everyone today calls “academic freedom” a good thing? Or is it just a dangerous PR tactic because they redefine and undermine the meaning of “academic freedom” to suit the same repressive goals as before?

I agree that Buckley openly opposed giving professors control over the viewpoints taught in their classes, at least in certain politically sensitive areas, whereas Horowitz seeks to bring about the same result while claiming to be doing the opposite. As you well know, there is a significant difference between what the Academic Bill of Rights says on its face and what its proponents claim that it will do. Unlike Buckley, who did not hesitate to state that his goal was to deprive professors of authority over scholarship and teaching, Horowitz purports to uphold academic freedom while embracing measures that would dramatically limit the rights of professors with whose political views he disagrees. This tactic confuses the issue by blurring the meaning of its core concept, thus undermining serious discussion of the professorial bias that undoubtedly does exist and replacing it with a verbal sleight-of-hand intended to bring about the same result that Buckley openly sought: the dominance of conservative ideas in the university.

I would add that Horowitz and his supporters are far from being the only people who are expanding the term “academic freedom” to the point of meaninglessness. Although I disagree with applying it to K-12 teachers, at least the discussion makes sense in that context. In the media and in general conversation, however, “academic freedom” is applied to everyone, including parents, taxpayers, and students. It has, in effect, become synonymous with any claim of free speech or freedom to receive information that takes place in an educational setting or involves an education-related topic.

4) At your own institution, the University of Delaware, you argue that the infamous Residence Life program “impinged on academic freedom by confusing the roles of faculty and staff.”(207) What I’ve argued is that it is the role of everyone on campus to educate, and within that role everyone has a right of academic freedom. Do you think that academic staff have academic freedom, and should they be allowed to organize voluntary educational programs without faculty control?

Ah, now here we are going to disagree. If someone who holds a primary appointment as a staff member teaches a course, then in that context, he or she is functioning as faculty and has the same academic-freedom rights. I do not agree, however, that it is generally the role of everyone on campus to educate in any sense of that term that is sufficiently specific to implicate academic freedom. I would strongly support policies that give staff the right to express their views about their jobs, to speak freely in meetings in which they are involved, to express their opinions about university policy, and so forth — but I would not call it academic freedom because I think that broadening the understanding of that term for the sake of perceived egalitarianism is likely to make it more difficult to define and to defend in its core and essential applications.

The question about staff organizing “voluntary educational programs without faculty control” is a complicated one, since it could apply to anything from bringing in an outside speaker to the kind of indoctrination that occurred in the Residence Life program. In my view, one issue is whether a particular staff member’s job description includes the organization of educational programs, and if so, how much autonomy that staff person has or should have in shaping the program. Suppose, for instance, that someone in the international relations office is responsible for organizing informational sessions for students interested in participating in semesters abroad. Does that person have an academic-freedom right to use such a forum as an opportunity to speak at length about his or her political views on the relevant destinations? Does he or she have the right to do so if instructed otherwise by his or her supervisors? In that situation, I think that the majority decision in Garcetti would rightly apply: that person is hired to run the university’s semesters abroad as the university wishes them to be run. He or she does not have the right, the basis, or the need to raise political issues in this context in the same way that a political science professor might appropriately do in a scholarly or class-related discussion of the same country.

Different issues arise if the educational program is not related to the individual’s job: if, for instance, someone in the financial aid office wants to use the university’s facilities and his/her university employment status to offer a voluntary, not-for-credit series of lectures promoting a particular political view. It seems to me that the university has the right to control the use of its facilities, to make such decisions on an ad hoc basis, and to demand, at a minimum, that such an employee clarify that this program is in no way related to his or her university employment.

5) You conclude the book by writing, “I do not believe that academic control has been wrenched from the bleeding hands of a desperately struggling faculty. Too many of us have been unwilling to do what it takes to hold on to it.”(271) What do faculty need to do to hold onto academic control, especially since they’ve already lost some of it to administrative growth and a decline in tenure-track faculty?

Now you’re into my next project, and I hope to have a more comprehensive answer — in fact, a book-length answer — in the not-too-distant future.

In more than three decades as an academic, I have seen the faculty express unwillingness to deal with pain-in-the-neck academic activities, such as repetitive low-level advising, course scheduling, fund-raising, alumni services, the running of some programs, and the preparation of dossiers and other reports. Over time, staff were hired to fill these roles, and — surprise! — started to make decisions and generally to run the place. A good example is my own institution’s winter graduation, which takes place during the hiatus between fall and spring terms. It is organized entirely by staff, with no faculty input, and staff people wearing the university’s academic regalia act as ushers and form most of the academic “visual.” Those staff members who do not hold advanced degrees do not wear hoods, but that distinction is likely to be lost on most spectators. They look, and are clearly intended to look, like faculty. The role of faculty marshal, carrying the mace, is filled by a non-academic vice-president in academic regalia. The handful of faculty who attend graduation sit in the second section back, behind the graduating graduate students and their advisors. Only the president of the faculty senate has a place on the podium, which is otherwise filled with administrators and trustees. Occasionally, a faculty member huffs about this arrangement, but in reality it came about because faculty simply would not show up for winter graduation. Someone had to act as ushers, etc., and the administration gathered up staff from various offices, measured them for regalia, and got on with it.

You mentioned the growth of administrations and the decline in tenure-track faculty as factors that militate against reversing this trend, and I agree that those factors are relevant and that at least some aspects of the situation may be irretrievable. Another factor (among many) is increasing pressure on faculty to focus on meeting increasing expectations and challenges in scholarship (e.g., fewer grants, more demand to bring in grants, increasing competition for publication in a shrinking number of academic outlets) and in teaching (e.g., larger classes, increased teaching loads, paperwork associated with “accountability”). The eagerness of some faculty to define their dedication to scholarship as incompatible with, and superior to, any significant participation in shared governance is of long standing. That tendency is becoming institutionalized and almost universalized by administrations that use the financial crisis as a justification (or a mask) for filling faculty time with activities that increase the university’s income without affecting its governance.

I am genuinely not sure whether faculty, even now, have the will to do what it would take to assert control. When I was president of my institution’s AAUP chapter, I sometimes felt dismayed by the unwillingness of faculty bodies to exercise the authority that the collective bargaining agreement and the faculty handbook give them. On several occasions, members of academic units approached the AAUP officers after they had already voted to accept a particular appointment or a particular measure. They protested (whined?) that they had not wanted to do this but had felt forced into it. They seemed to expect the union to find a way to undo what they had done without requiring them to appear in the matter. The same was true of some faculty disputes with administrators, which the union was somehow supposed to fix without implicating the faculty member. One such faculty member, a senior, tenured full professor, sought intervention with the department chair on the ground that she was “afraid” of him. I barely refrained from pointing out that he was simply a department chair in a medium-sized state university, not the curse of the freaking Pharoahs. It is said that citizens get the government they deserve, and apparently that is true of university faculty as well.

On a more positive note, a formidable weapon in our arsenal when it comes to scholarship, teaching, and some aspects of shared governance is the need for faculty initiative if an institution seeks to gain or to maintain a high level of academic credibility. Even in public universities, constitutional law provides little protection for faculty speech, and it does not apply at all to private institutions. Nonetheless, prestigious private universities pride themselves on fostering academic freedom because it is an essential element of that prestige. The complexity of contemporary academic disciplines makes it impossible for non-experts, regardless of their administrative titles, to micromanage top-level scholarship and teaching even if they wished to do so. The same is true of some governance activities, such as evaluating the credentials of potential students, job applicants, and candidates for promotion. As mid-level universities vie for prominence and top universities strive to maintain it, they must depend on faculty who are, if not exactly entrepreneurs, at least self-starters and respected experts in their fields. Of course, this imperative does not apply to all institutions of higher education or to all faculty within an institution, particularly as more non-tenure-track people are hired to do nothing but teach lower-level courses. It is difficult, although not impossible, to protect the rights of the faculty in general when those in the strongest positions cut sweetheart deals for themselves and never look beyond that.

I will be in a better position to discuss this topic in more depth as I get further into the research for the new book, but in general, I think that some aspects of academic freedom are still salvageable if faculties exercise the strength we still possess. In this respect, I think that attacks on public-employee unions may have a silver lining in the form of a newly energized pushback. Not being in possession of a working crystal ball, however, I can only wait and see.