This morning the Chronicle of Higher Education published an excellent and important article by Beth McMurtrie entitled, “Nearly a Year Later, Fallout From Salaita Case Lingers on Campuses.” It is definitely worth reading, and not just because I’m quoted in it several times. The article also provides an opportunity for some further reflection on the impact of this important case.
McMurtrie quotes me as saying that in the wake of the Salaita case “[a]dministrations will be far more hesitant to move in the way the University of Illinois did, with no attempt at due process.” Claire Potter apparently disagrees, arguing to McMurtrie that the case has “emboldened universities to eliminate voices that they see as disruptive to their branding, to their political agendas, to their trustees.” We both may be right. In fact, I share Potter’s concern that pressures, external and internal, on universities to remove, marginalize, or silence dissenting or “disruptive” faculty members are likely to increase. Certainly, the response to UIUC’s clumsy handling of the Salaita case has not discouraged the Wisconsin Legislature from seeking to facilitate such efforts. But I do think the swift and extensive reaction to Salaita’s dismissal across academia, culminating in the AAUP censure, has sent a powerful message to college and university administrators that such efforts will meet with stiff faculty resistance and that due process protections cannot be ignored so blithely. Surely the Ward Churchill and Norman Finkelstein cases a few years ago suggest that such protections are far from fool-proof, nevertheless they do provide important obstacles to the corporatizing agenda that administrators should now know may be ignored at their peril.
The Salaita case has, of course, raised many important and difficult questions about faculty use of social media. As McMurtrie’s article mentions, I recently participated in a panel (sponsored by the Association of College and Research Libraries at the American Library Association Convention in San Francisco) entitled “Should I Tweet That?” The question, as I noted at the panel, must be distinguished from a related question that I previously examined at some length in a talk in April: “Can I Tweet That?” What you should, under the principles of academic freedom, be permitted to say, I told the ALA panel, may not always be so wise to actually say. In other words, when the question is “Can I” (in the sense of “is it permitted”) the answer is likely to be “yes,” but when the question is “Should I” the answer may well be “probably not,” at least in those words. Potter’s statement that “The Salaita affair should have signaled to all of us that if you’re going to put speech out there, you better be ready for someone to try and hurt you for it,” is certainly true.
In 2013, the AAUP released a revised and greatly expanded version of our 2004 report on Academic Freedom and Electronic Communications. That report noted:
Social-media sites blur the distinction between private and public communications in new ways. Unlike blogs or websites, which are generally accessible to anyone with Internet access who goes in search of the site, social-media sites offer the appearance of a space that is simultaneously private and public, one that is on a public medium (the Internet) and yet defined by the user through invitation-only entry points, such as Facebook “friend” requests, and a range of user-controlled privacy settings.
The report concluded:
Most colleges and universities have yet to formulate policies regarding social-media usage by faculty members. At institutions where such policies exist, the focus is frequently on the university’s reputation and not on the faculty’s academic freedom. . . .
This report recommends that each institution work with its faculty to develop policies governing the use of social media. Any such policy must recognize that social media can be used to make extramural utterances and thus their use is subject to Association-supported principles of academic freedom, which encompass extramural utterances. As Committee A previously noted regarding extramural utterances. [Italics in original] As Committee A previously noted regarding extramural utterances, “Professors should also have the freedom to address the larger community with regard to any matter of social, political, economic, or other interest, without institutional discipline or restraint, save in response to fundamental violations of professional ethics or statements that suggest disciplinary incompetence.”
Obviously, the literal distinction between “extramural” and “intramural” speech—speech outside or inside the university’s walls—has little meaning in the world of cyberspace. But the fundamental meaning of extramural speech, as a shorthand for speech in the public sphere and not in one’s area of academic expertise, fully applies in the realm of electronic communications, including social media.
This principle — that extramural speech on social media should be entitled to the same protection as such speech in traditional formats — still holds. However, in the less than two years since that report was approved it has become clear that college and university social media policies should do more than only reaffirm the applicability of academic freedom to Facebook, Twitter, etc. Tressie McMillan Cottom, whose blog McMurtrie cites, is surely correct that colleges and universities are “woefully underprepared” to deal with matters of public scholarship and public engagement. “In this moment,” Cottom writes, “we should call for institutions to state explicitly what they owe those who venture into public waters. Because public scholarship means pissing people off. You think it does not or that it can be done without doing that. You are wrong.”
Cottom’s blog post is worth reading in full, but her recommendations provide, I think, a useful supplement to the AAUP’s call for institutions to develop social media policies attentive to academic freedom concerns. She writes:
If you are investing in public scholars and public scholarship (and I hope you are, with a few caveats) then you should ask yourself if:
1. Your institution has a first line of defense for email and phone call onslaughts.
2. Your institution has a protocol for threats against researchers/professors/teachers
3. Your faculty governance has any awareness at all of what social media means to public scholarship
4. Your faculty governance has a clear policy of representing faculty against media/social media attacks
5. Your professional organization provides resources for besieged members, i.e. legal resources, mental health counseling, etc.
6. Your union has a policy on academic freedom that accounts for how new media blurs the lines between professional and personal selves across various mediums
I will stop at six because that seems like a good place to stop.
According to McMurtrie, Michael H. LeRoy, a professor of labor and employment law at Urbana-Champaign, is convinced that “the First Amendment offers far fewer protections than most professors probably think it does. Such protections, instead, should be spelled out by the university and written into employment contracts.” Indeed, this is a point made by others as well and it is one reason why the AAUP eventually came to endorse collective bargaining as perhaps the most effective mechanism, where available, to defend academic freedom principles. [In the next issue of the Journal of Academic Freedom, to be published in September, I have an article documenting the long and sometimes painful history of AAUP’s move toward collective bargaining as a mechanism to defend the Association’s fundamental principles.] In fact, Professor Salaita’s lawsuit against UIUC is more a suit about breach of contract as it is about any Constitutional right. As Robert Post and Matthew Finkin have argued, academic freedom as championed by the AAUP is fundamentally a professional as opposed to a legal principle, while so-called “First Amendment academic freedom” is only partially derived from it and remains much more restrictive (and somewhat muddled).
At the AAUP’s Annual Conference in Washington last month, Philip Lee, Assistant Professor of Law at the University of the District of Columbia, presented a paper arguing for “A Contract Theory of Academic Freedom,” based on his recent book, Academic Freedom at American Universities, and summarizing a useful article he published under that title in the St. Louis University Law Journal, Vol. 59, which offers a very informative survey of academic freedom and the law. In that article Lee proposes “[a]s an alternative to an exclusively First Amendment foundation” for academic freedom
a contract law-based conception specifically for professors. Contract law allows courts to protect the rights of professors at both public and private universities. It also allows for the recognition of professional norms and academic custom in interpreting the rights and duties of professors and their universities. Finally, contract law also allows courts to structure remedies that take into account the specific campus contexts that give rise to various disputes. Therefore, in order to create more consistency in the law and an alignment between institutional and professorial protections at both public and private universities, I argue that while constitutional law is still the proper mechanism for defending institutional rights from government interference, contract law should be the primary mechanism for protecting professorial academic freedom.
Whether or not one accepts Lee’s position, it should be clear that, rather than relying solely on the courts, faculty members are well advised to initiate efforts to strengthen protections for academic freedom in union contracts, where these exist, or in faculty handbooks and similar university policy statements that may have contractual standing. In many places, organizing an AAUP chapter may be the critical first step in such efforts.
Because I chair AAUP’s Committee A and also chaired the subcommittee that investigated the Salaita case, I have until now been reluctant to make any public statements regarding either the case itself or the AAUP’s role. But with the vote to place the UIUC administration on our censure list now past, I want to take this opportunity to respond to a number of questions raised on this blog and elsewhere about the AAUP’s investigation of this case.
For one thing, I shouldn’t have to reiterate yet again, but, alas, I must, that this case, insofar as the AAUP is concerned, was not about Israel, Palestine, or Gaza. Charges voiced in communications to the AAUP in the wake of both our report and our censure resolution and sadly repeated as well on the floor of the annual meeting that we were motivated at least in part by “anti-Israel” or even anti-Semitic prejudices are completely and totally unfounded. The AAUP takes no position at all on the content of Professor Salaita’s tweets; we defend only his freedom to make such statements without retribution, and protest only the blatant denial of due process in his treatment. As I recently explained on this blog, were a pro-Israel faculty member placed in a comparable position, we would likely have acted similarly. And we continue to oppose in principle academic boycotts, including the academic boycott of Israel advocated by many of Professor Salaita’s supporters.
Second, charges made on this blog and echoed elsewhere, including on the floor of the annual meeting, that our report involved a “rush to judgment” are, frankly, ridiculous. To be sure, Professor Salaita’s legal case is far from resolved and is likely to continue for some time, but surely that should not prevent the AAUP from reaching its own conclusions. Indeed, it can well be argued that AAUP’s processes move too slowly; after all, it took others only a few weeks to initiate a boycott of UIUC. Only in academia could a deliberative process lasting nearly a year be deemed “rushed.”
To be sure, as our report and prior communications with UIUC administrators indicated, we might well have begun our investigation earlier had it not been for our commitment to wait for the results of the University’s own internal faculty investigation, conducted by the Academic Senate’s Committee on Academic Freedom and Tenure (CAFT), which ultimately provided important material for our own report, although we disagreed with some of their conclusions. Once that campus report was published, however, we moved swiftly to appoint an investigating subcommittee composed of three members of Committee A (an unusual step in itself, reflecting our recognition of this case’s notoriety and importance), who visited the campus for two days in late February and interviewed a large number of faculty members of varied opinions and status, as well as administrators, including Chancellor Phyllis Wise and her attorney. The wild claim of one commenter to this blog that the AAUP “abandoned its traditional external review procedures to instead essentially adopt the vast majority of the findings of a local group, the CAFT — sacrificing a large part of its credibility in the process” is simply nonsense, as even a superficial reading of the two reports quickly reveals.
Indeed, our investigation was as thorough as any in AAUP’s history. To be sure, we did not independently file FOIA requests for materials, nor did we wait to learn the results of such requests made by Professor Salaita’s attorneys and others, in good measure since such delay would surely have pushed a censure vote back until June 2016, in which case we might well have rightly been accused not of rushing but of interminably postponing judgment. And here I’d like to comment on the extensive efforts by Andrew Scheinman to examine via FOIA requests the motivations and actions of UIUC administrators in this case. Scheinman is surely to be applauded for his work, but his occasional comments on this blog to the effect that the AAUP’s efforts are flawed because we did not pursue the case in the way that he has done misconstrues the nature and purpose of AAUP academic freedom investigations. Our concern in these investigations is not to uncover all relevant information or to determine the “truth” of what occurred, but simply to determine whether or not there were violations of AAUP principles and whether or not such violations merit placement of the investigated administration on our censure list.
Hence, in the Salaita case while more detailed information about the role played in the University’s decision by various supporters, donors, and individual pro-Salaita faculty members — information revealed by Scheinman after the completion of our investigation on the basis of his FOIA requests — is undeniably pertinent, especially to Professor Salaita’s lawsuit — it is not directly relevant to the concerns of the AAUP’s investigation. A complete and accurate account of the “true” motives driving Chancellor Wise and the UI trustees is surely worth seeking, but such an account is hardly essential to determining whether or not UIUC violated Professor Salaita’s academic freedom and whether or not the University’s actions had an impact on the climate for academic freedom more generally at UIUC and, by extension, in American higher education as a whole. Sad to say, that was fairly evident from the start and, as McMurtrie’s article and UIUC’s placement on the AAUP’s censure list attest, remains obvious today.