Academic Freedom: Challenges and Opportunities

BY HANK REICHMAN

The following is the text of my keynote address at the annual plenary of the University Senate at the University of Pittsburgh on March 30, 2016.  Some passages in the text are taken from my essay, “Does Academic Freedom Have a Future?,”  published in the November-December 2015 issue of Academe. I am grateful to the senate, faculty and administration of the University of Pittsburgh for inviting me and for their gracious welcome.

Last year marked the centennial of the AAUP’s founding in 1915.  In the course of its initial century the AAUP has accomplished much, but we have also made our fair share of mistakes.  Today the Association is a professional membership organization of over 40,000 faculty members, about 3/4 of whom are also members of union chapters that are part of AAUP’s union arm, the AAUP-Collective Bargaining Congress.  In addition, since 2013 we have a new AAUP Foundation, dedicated to supporting both individuals threatened with academic freedom violations and the academic freedom and governance work of the AAUP itself.

Since its founding in 1915 the AAUP has sought to both define and defend the basic precepts of academic freedom, perhaps the most fundamental principle of our profession.  That principle has faced many challenges over the years, but in some respects the challenges we face today may be the most daunting.  If there is any lesson to be learned from the AAUP’s first century, it is that academic freedom can never be taken for granted.  While academic freedom is one of the foundations of greatness in our higher education system, it has always been—and always will be—challenged, contested and vulnerable.

Yet, at the same time, as the title of this meeting suggests, with challenges come opportunities.  Today I will try to address some of these challenges and accompanying opportunities and pose the question, “Does academic freedom have a future?”  But first let me briefly review a few fundamentals from academic freedom’s past.

I’ll begin with 1915, the year of the AAUP’s creation.  In that year the founders of the  AAUP issued the now classic Declaration of Principles on Academic Freedom and Academic Tenure.  That declaration defined the three now-standard elements that comprise the concept of academic freedom.  These are:

1)  Full freedom in research and in the publication of the results, which includes the rights of faculty members to pursue their own research agendas, ask their own questions, formulate their own hypotheses and conclusions, subject only to the informed peer review of their disciplinary colleagues.  It includes as well the right of faculty members to decide if, when, how, and where those results are to be made public and to profit appropriately from any discoveries their research may produce.

2) Freedom in the classroom in discussing their subject, which includes the right of faculty members to address controversial ideas and to encourage free-wheeling discussion and debate among their students, as well as the right to select educational materials (consistent with the approved aims of the course), to determine the approach to the subject, to design and make assignments, and to assess student performance.  The original 1915 Declaration cautioned teachers to “be careful not to introduce into their teaching controversial matter which has no relation to their subject,” but in subsequent years this has been understood to be more hortatory than obligatory and aimed mainly at ensuring that teachers stick to the assigned curriculum as determined by their colleagues rather than on avoiding controversy.

3) Freedom from institutional censorship or discipline when faculty members speak or write as citizens, including as citizens of the university, what the AAUP has come to call “freedom of extramural expression.”  In 1915 this freedom too was limited by calls for accuracy, restraint, and respect, but such restrictions have also come to be seen as mainly hortatory.  In addition, since 2004 the AAUP has insisted that such freedom – indeed, academic freedom as a whole – can be no more restricted in electronic formats such as email or social media like Twitter than in traditional modes of expression.

As the best defense of such academic freedom the 1915 Declaration proposed a system of permanent or continuous tenure, under which, after a suitable probationary period (later determined to be no more than seven years) service should be terminated only for adequate cause, except under extraordinary circumstances because of financial exigencies or program elimination, and then only under policies and procedures guaranteeing due process and faculty decision-making.

These principles were later modified somewhat but in no way abandoned in the 1940 Joint Statement on Academic Freedom and Tenure, formulated by the AAUP in cooperation with the Association of American Colleges (now the Association of American Colleges and Universities, which also celebrated its centennial last year).  This statement has since been adopted by nearly 250 American scholarly organizations and societies and enshrined in hundreds, perhaps thousands, of college and university collective bargaining agreements and faculty handbooks.

Today, few colleges or universities fail to claim to embrace some version of academic freedom, albeit not always in the manner that the AAUP has defined and defended for a century.  Even the enemies of academic freedom are often compelled to disguise their assaults on it by employing the language of academic freedom itself.  Nevertheless, as we look back on a century of progress and accomplishment, it is difficult not to recognize how, in key respects, our present situation is painfully reminiscent of that faced a century ago by our founders.

In 1915, only a handful of prominent full professors at elite institutions held an appointment carrying indefinite tenure.  In 1940, tenure policies at most institutions were inadequate, if they existed at all.  By the 1960s and 1970s, however—thanks in good measure to the efforts of the AAUP—tenure had become an established norm in American higher education, and today only a small minority of American four-year colleges and universities fail to recognize the need for some sort of tenure system linked to the protection of academic freedom.

But if most colleges and universities now provide tenure protections, they provide them for an ever-shrinking segment of the faculty.  At present, only about a fourth of all those who teach in higher education are included in the tenure system—certainly more than were in that position at our founding or even, perhaps, as late as 1940, but a much smaller percentage than a few decades ago.  If, as the AAUP has argued, the tenure system provides the most reliable protection for academic freedom—especially if that system can be supported by the provisions of a collective bargaining agreement—then academic freedom today may be as endangered as it has been at almost any moment since the AAUP’s inception.

The AAUP was created in the context of the widening economic and social inequality and growing concentration of corporate power associated with the Gilded Age.  Conditions today are eerily similar.  Economic inequality has reached levels not seen since the 1920s or earlier.  Indeed, if we are to believe the French economist Thomas Piketty, increasing inequality and greater concentration of wealth are actually the norm in capitalist systems, and the relative egalitarianism of the mid-20th century, which may have helped sustain tenure’s success, was anomalous.

Today the expanding influence of wealth—of the “1 percent”—on politics, society, and culture can hardly be ignored.  Moreover, if our founders were justly concerned, as are we, about the untoward influence of corporate and business interests on higher learning, today’s universities—and many smaller colleges, too—now function increasingly as corporate businesses themselves.  Governance at these institutions is progressively more hierarchical, and the principal focus is more and more on “the bottom line.”  The great philosopher and AAUP founding president John Dewey and his colleagues might have found much in our current system of higher education that is new and improved, especially with respect to its greater accessibility, but they would surely recognize the profound dangers posed by corporatization.

In important respects, then, the challenges we confront are fundamentally similar to those faced by our predecessors. First and foremost among those challenges is the search for ways to protect academic freedom in a world where a growing majority of teachers are employed in what are in the last analysis “at-will” positions. The solution forged by our founders was the tenure system.  While some claim that system is outdated, we at the AAUP insist that tenure remains critical to our efforts.

The point, however, is not simply to “defend” tenure, especially if such defense is understood as limited to those already blessed with this increasingly infrequent status. The challenge posed by the expansion of academic “contingency” is also an opportunity to commit ourselves anew to a revitalized tenure system.  Our goal must be to expand considerably the reach of tenure, much as our founders did successfully a century ago.

And their success should encourage us.  Can we convert non-tenure-track positions to tenure-track ones?  Of course we can; our predecessors did it.  To be sure, there is a rightful place for some temporary part-time appointments, but compelling allegedly “adjunct” faculty to cobble together the semblance of a career from a series of part-time jobs is not only an unconscionable abuse of those colleagues, but also an ominous threat to the academic freedom of all faculty members.  So, let me stress:  There is no more critical task in the defense of academic freedom today than a renewed fight to make the overwhelming majority of faculty appointments once again full-time and probationary for tenure.

Tenure, I should add, was never defined in AAUP policy documents as a protection only for research, as some now claim.  As the AAUP’s Committee on Contingency and the Profession insisted in its 2010 report Tenure and Teaching-Intensive Appointments, “Tenure was not designed as a merit badge for research-intensive faculty or as a fence to exclude those with teaching-intensive commitments.”  Hence, proposals for a “teaching-intensive” tenure track, such as that offered in an excellent recent book by Michael Bérubé of Penn State and Jennifer Ruth of Portland State, two AAUP activists, are not so much innovations as reaffirmations of tenure’s fundamental premises, and they could provide one possible route for reversing the baleful trend toward contingency of the past few decades.

In other words, even as we champion as aggressively as we can the academic freedom rights of all faculty, including part-time “adjuncts,” we must continue to insist, in the words of the 1940 Statement, that “after the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their service should be terminated only for adequate cause, except . . . under extraordinary circumstances because of financial exigencies.”

These principles remain central to the AAUP’s continuing efforts to address individual violations of our principles and recommended policies.  Last June, our annual membership meeting placed four institutions on our list of administrations censured for violations of academic freedom.  The most celebrated of these cases was at the University of Illinois at Urbana-Champaign and involved the summary dismissal of professor of American Indian Studies Steven Salaita.  In case there are some in the audience who have not heard of the Salaita case, let me very quickly summarize the basics.  Professor Salaita was hired to a tenured position and was set to begin his employment in August 2014 when the administration and trustees became aware of a series of highly controversial “tweets” he had produced concerning the Israeli-Palestinian conflict.  Because his appointment was still formally subject to trustee approval, it was withdrawn at the last minute.  From the beginning the AAUP treated this as a case of “summary dismissal” and denial of appropriate due process.  For us the issue was never the content of Salaita’s message.  One may, I must emphasize, consider the contents of his tweets to be juvenile, irresponsible, or repulsive and still defend Salaita’s right as a faculty member to produce them.

In a remarkable statement defending the decision to dismiss Salaita, the then-UIUC Chancellor declared: “What we cannot and will not tolerate at the University of Illinois are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.”  The university’s trustees further claimed that disrespectful speech “is not an acceptable form of civil argument” and that “it has no place . . . in our democracy.”

These remarks have been subject to such withering criticism that I need not repeat most of it here.  For now, however, let me make three fundamental points. First, while “civility” may be an admirable and desirable value to encourage, its use as a criterion for disciplinary action is necessarily vague and ill-defined.  It is not a transparent or self-evident concept, and it does not provide an objective standard for judgment.  Second, the standard of “civility” inevitably conflates the tone of a statement with its content.  In many cases that the AAUP has investigated over the years unacceptable emotive qualities have been ascribed to ideas a teacher has endorsed and then employed to discredit those ideas themselves or to discipline the instructor who advocated them.  Third, and perhaps most important, whether it is a matter of First Amendment rights or of the principles of academic freedom, the dangers to democracy of attempting to outlaw emotionally provocative speech should be obvious.

Tweets, I should add, may be reminiscent of slogans, chants and agitational speeches that in previous times might get a faculty member in trouble.  Take, for example, the 1970 case of Angela Davis, then a philosophy instructor at UCLA, whose contract was not renewed by the University of California Board of Regents because of the allegedly “unscholarly” and “irresponsible” content of her political speeches off campus.  In that case, UC Regent William Coblentz dissented from the board’s decision, noting that “in this day and age when the decibel level of political debate . . . has reached the heights it has, it is unrealistic and disingenuous to demand as a condition of employment that the professor address political rallies in the muted cadences of scholarly exchanges.  Professors are products of their times even as the rest of us.”  Twitter too is a product of our time and when professors “tweet” they also do not necessarily communicate in “the muted cadences of scholarly exchanges.”

Professor Salaita has reached a settlement of his lawsuit with the University of Illinois and a new administration has reached out to the AAUP and begun to discuss with us how the institution might be removed from our censure list.  I am cautiously hopeful that we may reach an agreement in the not-too-distant future, but this will require at minimum some sort of assurance that such an abuse will not likely occur again.  In that light, the ball remains in the UIUC administration’s court.

In its first hundred years, the AAUP became justly renowned for its defense of individual faculty members, like Steven Salaita, whose academic freedom was violated, an activity that we are committed to continue and, where feasible, to expand.  But as University of Chicago legal scholar Geoffrey Stone points out in a recent essay, “The real threat to academic freedom comes not from the isolated incident that arises out of a highly particularized dispute, but from efforts to impose a pall of orthodoxy that would broadly silence all dissent.”

From where might future efforts to impose orthodoxy emerge? What broad challenges to academic freedom can be seen on the horizon?

First, and most visible, is, once again, the expanding and corrupting influence of money.  The need for resources has always posed challenges to the principles of academic freedom.  How much sway should donors, granting agencies, and governments have in how colleges and universities employ the resources they provide?  How much say might these funders reasonably demand over faculty scholarship and public expression?  When must an institution and its faculty simply say “no” to offers of money that carry constraining conditions?  These questions are at least as old as the AAUP itself.  But as colleges and universities grow ever more dependent on outside largesse, concerns over the abuse of external influence are expanding dramatically.

The recent proliferation of externally funded “centers” catering to the needs of business or other outside forces is an especially troubling illustration.  On Friday, I will participate in a panel at the American Federation of Teachers higher education conference in Las Vegas on the influence of the infamous Koch brothers on higher education.  In her widely praised book, Dark Money, Jane Mayer reports how at George Mason University a Koch-funded center runs faculty job applicants’ essays through computers in order to count the number of times they mention the free-market icons Ayn Rand and Milton Friedman.  The Charles Koch Foundation even requires professors to share student contact information with the foundation in order to qualify for future Koch grants, a practice that sparked student privacy concerns at the College of Charleston.  One outraged George Mason professor concluded that the Koch institute was really just “a lobbying group disguised as a disinterested academic program.”

Now, let me be clear: donors have every right to request that their donations be used for goals they support.  That’s fine.  It is the responsibility of the university, however, to ensure those goals do not conflict with the basic principles of university autonomy, academic freedom, and shared governance.  The AAUP’s position is that academic institutions should not “relinquish autonomy and the primary authority of their faculty over the curriculum” when they accept outside donations.  But this is not only the AAUP’s position, nor is it anything new.  In 1914, Abbot Lawrence Lowell, then-President of Harvard, turned down a $10,000,000 bequest that was conditioned on the firing of a professor.  Indeed, on the issue of outside interference in the university–whether from government or private interests—the AAUP’s view is essentially that accepted since 1957 by the U.S. Supreme Court.  In that year Justice Felix Frankfurter identified “four essential freedoms of a university – to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

But it is not just outside funders.  Colleges and universities, too, may limit academic freedom and institutional independence for financial reasons.  Research universities not only seek arrangements with private interests to fund activities once supported by government, but may themselves seek to become more “entrepreneurial,” claiming the right to control what has historically been the faculty’s intellectual property, hence restricting the faculty’s academic freedom to control the results of research.  In its landmark 2011 decision in the case of Stanford v. Roche, the U.S. Supreme Court ruled that a faculty member’s rights to patents and other intellectual property belong to that faculty member unless specifically signed over to the university.  In response, many research universities — the University of California and the University of Chicago are just two examples that come to mind — now compel faculty members to sign over these rights in advance, as either a condition of university support for research or a condition of employment itself.  And sometimes they even falsely claim that Stanford v. Roche requires them to do so!  In short, they have begun to act as if they were corporate businesses whose employees produce works made for hire.

Even before the 2008 economic crisis, public colleges and universities faced strained financial conditions stemming from a now decades-old trend of disinvestment in public higher education.  But in a disturbing number of cases, difficult financial straits have provided college and university administrators with specious justifications for assaulting the academic freedom and shared governance rights of their faculties.  In a disquieting number of instances, some administrators and trustees (and some legislators) have sought to justify faculty layoffs and the discontinuance of controversial programs not by claiming exigency but simply by making ill-defined assertions of “distress” or program “redirection”— sometimes on grounds that are unproven, if not patently bogus.

In recent years, the AAUP has censured a number of institutions, including the University of Southern Maine, Felician College in New Jersey, and National Louis University in Chicago, for such actions.  At the latter school, the administration, via layoffs and program closures, almost overnight transformed the school’s once-vibrant faculty from a group dominated by tenured and tenure-track professors to one consisting overwhelmingly of part-time, underpaid and, by this point, terribly frightened “adjuncts.”  At present we are preparing a report on similar actions at the College of St. Rose in New York.

Perhaps the most dramatic example of how financial conditions may negatively affect the academic freedom of faculty can be found in what has transpired in the state of Wisconsin, where legislators cut funding for the University of Wisconsin system by $250 million over two years.  In addition to this draconian cut, the state also approved Act 55, which contained provisions to remove longstanding protections of tenure from Wisconsin law, increase the power of administrators, degrade the long-standing university system of shared governance, and authorize the board of regents to terminate faculty appointments for reasons of “program discontinuance, curtailment, modification, or redirection.”

This move marked a profound departure from the former policy, which allowed termination of faculty appointments only for just cause after due notice and hearing or in the event of a fiscal emergency.   Although, at first the system’s regents promised they would incorporate principles of tenure that were removed from law into university regulations, the policy they approved earlier this month falls far short of AAUP standards and has been justly labeled by faculty as “fake tenure.”  But challenges create opportunities, and the good news here is that the controversy has given birth to vibrant, active, and growing AAUP chapters at UW Madison, UW Milwaukee, and UW Whitewater, with others organizing as I speak.

The Wisconsin situation speaks as well to another ongoing challenge to academic freedom, the increasing tendency of legislatures and governing boards to interfere in decisions more appropriately made at the campus level, including ones that should normally be the responsibility of the faculty.  The 1966 Statement on Government of Colleges and Universities, jointly formulated by the AAUP, the American Council on Education, and the Association of Governing Boards of Universities and Colleges, declares: “The governing board of an institution of higher education, while maintaining a general overview, entrusts the conduct of administration to the administrative officers—the president and the deans—and the conduct of teaching and research to the faculty.  The board should undertake appropriate self-limitation.”  The statement also affirms that “When ignorance or ill will threatens the institution or any part of it, the governing board must be available for support.”

Unfortunately, too many boards, legislative bodies, and governors are ignoring this wise guidance.  At the University of Iowa a search for a new president was hijacked by a group of trustees beholden to the governor, who rigged the search to hire a largely unqualified businessman with no experience in higher education, much to the dismay of both faculty and lower-level administrators.  The Board of Curators of the University of Missouri similarly hired businessman Tim Wolfe to run the Missouri system, despite his lack of higher education credentials, with disastrous results.  Wolfe was forced to resign last November amidst not only widely publicized racial unrest but pervasive dissatisfaction among faculty members, deans, and students.

Speaking of Missouri, I was there just last week looking into the latest troubling example of external interference.  Because I am currently preparing a report that will be considered by our annual meeting in June, I’m not free to go into much detail, but here are the basics.  Last fall assistant professor of Communication Melissa Click was videoed attempting to block a student photojournalist from entering a public space where protesting black students were preparing to meet with media.  The highly edited video “went viral” and has now been viewed on YouTube nearly 3 million times.  Click quickly acknowledged her mistake and apologized publicly.  But she was — and still is — subject to vicious hate mail and other abuse, including threats of rape and murder.  As a result, few faculty believed she deserved more than the letter of reprimand that was placed in her file by the provost in December.

But by January over 100 Republican legislators had written the administration demanding that Click be fired — not only for her actions but also because they disapproved of her scholarship, which focuses on the reception of popular culture phenomena like Lady Gaga and Fifty Shades of Grey.  In response, the Board of Curators ignored long-standing and detailed campus policy and procedure on faculty discipline and took the matter into their own hands.  Acting as prosecutor, judge, and jury the board hired an outside law firm to conduct an “investigation” and behind closed doors last month announced Click’s immediate dismissal.  Ironically, the campus policy they so brazenly ignored and violated was adopted back in 1980 when the university accepted reforms consistent with AAUP standards in order to gain removal from our censure list, where they had been placed seven years earlier for actions very similar to those now taken against Click.  The AAUP will have much more to say about this case when our report on the investigation that I led last week is published in May.

What are some of the other challenges that could threaten to cast a “pall of orthodoxy” over academic life?  Our era is one in which it has become increasingly difficult to take certain positions without becoming subject to a flood of abuse.  Controversies about race, Israel-Palestine relations, gender, sexual orientation, religion, or terrorism may roil campus conversations in ways that lead to efforts that chill freedom.  Ironically, one such effort has been the spread of calls for “civility,” as happened in the Salaita case.

In that case, as in others, the rapidly expanding use of social media has seemingly intensified controversy.  In a growing and distressing trend, some college and university administrators, as well as politicians and journalists, may treat faculty e-mails, Facebook posts, and Twitter messages as somehow exempt from the full protections of academic freedom and, arguably, even the First Amendment.

In September 2013, at the University of Kansas, journalism professor David Guth, responding to a shooting incident at the Washington Navy Yard, tweeted a comment about gun control that many gun advocates found offensive, even threatening.  He was barraged with hate messages and death threats, and several legislators called for his dismissal.  Although the university publicly reaffirmed its commitment to his freedom of speech, he was suspended from teaching, allegedly to “avoid disruption.”  This incident then prompted the Kansas Board of Regents in December 2013 to adopt new rules under which faculty members and other employees may be suspended or dismissed for “improper use of social media.”  The new policy defined social media as “any facility for online publication and commentary,” a definition that covered but was “not limited to blogs, wikis, and social networking sites such as Facebook, LinkedIn, Twitter, Flickr, and YouTube.”

This definition could arguably also include any message that appears electronically, including email messages and even online periodicals and books.  The policy defined “improper use of social media” in extremely broad terms, including communications made “pursuant to . . . official duties” that are “contrary to the best interest of the university” (determined by whom, was, of course, not stated), as well as communication that “impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the university, or otherwise adversely affects the university’s ability to efficiently provide services.”

The AAUP, the ACLU and faculty leaders in Kansas quickly condemned the new policy as “a gross violation of the fundamental principles of academic freedom.”  In the face of widespread criticism, the regents agreed to work with campus leaders to revise the policy, but when a faculty-administration task force recommended an entirely different approach, the idea was rejected and the policy remains largely intact, even if most Kansas administrators have privately pledged to their faculty leaders that it won’t be enforced.

Sometimes would-be censors of electronic communications have couched their actions in rhetoric about combating cyberbullying, which undoubtedly is a genuine problem among some students but hardly one that justifies the broad surveillance and censorship of faculty and student expression.  Of course, there needs to be a distinction between emotional expression and threats of violence.  On this let me be clear: nothing in either U.S. First Amendment jurisprudence or in AAUP case history prevents a university administration from responding to genuine threats of violence or true harassment – against individuals or groups – including threats made via social media.  It is one thing for a disgruntled colleague to say, “I am fed up with things here; everyone’s an incompetent fool,” but quite another to say, “I’m fed up with things here and I’m bringing my Uzi to campus to give the incompetent fools what they deserve.”

The very nature of social media may facilitate troubling patterns of behavior.  An individual who becomes a target of multiple insults and derogatory comments on social media – sometimes numbering in the thousands – may legitimately feel threatened even if any individual comment may lie well within the realm of the acceptable.  Threats, however, still must be genuine, and even then those who make them are entitled to legitimate due process protections.  And while the language of Salaita’s tweets, for example, sometimes evoked violence, none of it amounted to a true threat to any identifiable individual or group, at least any group accessible to Salaita.

Impassioned, even violent language or vivid metaphors are not enough to constitute a genuine threat.  As the AAUP stated initially in 2004 and has repeated frequently ever since, “Academic freedom, free inquiry, and freedom of expression within the academic community may be limited to no greater extent in electronic format than they are in print.”

Today the words of the AAUP’s 1994 report On Freedom of Expression and Campus Speech Codes are more pertinent than ever:

On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed. . . . An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas—and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.

Connected to censorship through the banning of allegedly offensive utterances is the mounting invocation of so-called “hostile learning environments.”  Such environments may be defined not just by disrespect or abuse but by the mere creation of discomfort.  Colleges and universities have traditionally been places designed to make people uncomfortable.  Education can and should be joyful, but it should also be challenging, difficult, and sometimes unsettling.  Yet increasingly we hear that the faculty’s right to academic freedom must be limited by the supposed “right” of students not to be “offended” or even disturbed by material or ideas they encounter in and out of class.  To be sure, colleges and universities must protect their students from genuine threats or harassment, and the freedom of students to question and to dissent is just as important as their instructors’ freedom to do so, about which I shall say a bit more shortly.  But demands that syllabi include mandatory “trigger warnings” and that the university community adhere to some arbitrary standard of “civil” discourse—products, I would argue, of the consumerist culture of the market—are out of place in higher education and threaten not only academic freedom but also the academy’s fundamental purpose and mission. As the AAUP declared in our statement last year On Trigger Warnings, “The presumption that students need to be protected rather than challenged in a classroom is at once infantilizing and anti-intellectual.”

Another related concern has been the recent employment of overly broad harassment policies, and in particular the apparent misuse of Title IX, which guarantees equal rights to education for women and men and has been employed successfully to combat sexual harassment and other sex crimes.  But speech on its own is not harassment, and there is evidence suggesting that this legislation may be misused to silence legitimate expression.  Last year law professor Jamin Raskin, now running for Congress in Maryland, told a congressional subcommittee that “the overwhelming number of public universities and colleges know the difference between a serious intellectual debate and a relentless campaign of personal harassment.”  I hope he is correct, but surely the much-publicized experience of Northwestern University professor Laura Kipnis, investigated for alleged harassment under Title IX merely for an essay she published in the Chronicle of Higher Education, should give us pause.  So too should the case of Teresa Buchanan, a professor of education at Louisiana State University who was dismissed for “sexual harassment” — against the judgment of a faculty committee and over the near-unanimous protest of the faculty senate — owing to her use of allegedly “vulgar” language in her teaching.

In response to growing concerns about this issue, the AAUP just last week issued a major draft report on The History, Uses, and Abuses of Title IX.  The report identifies tensions between current interpretations of Title IX and the academic freedom essential for campus life to thrive.  It finds that questions of free speech and academic freedom have been ignored in recent positions taken by the Office of Civil Rights of the Department of Education, charged with implementing Title IX, as well as by many university administrators who are expected to oversee compliance measures. The report identifies a number of specific areas that pose threats to the academic freedom essential to teaching and research, extramural speech, and robust faculty governance and makes concrete recommendations to the Office of Civil Rights, university administrations, and faculty.  I urge you to read this draft report, available on our website, and, if so inclined, to submit comments for improvement by April 15.

Concerns about hostile learning environments and allegations of harassment lead me to my final topic of the evening: student academic freedom.  The past year has seen an upsurge in student activism, especially among minority students, many of whom seek “safe spaces” free of racist and other forms of abuse, and who sometimes have tried to silence those – administrators, faculty or fellow students — who they perceive as threats to their safety and even their comfort, or whose response to their demands they deem inadequate.  Many in the media and even in the civil liberties community have derided these efforts as evidence of over-sensitivity and even intolerance.  The Wall Street Journal, whose editorial page has never been known for its own tolerance or moderation, condemned the protesters as “little Robespierres.”

I have a different view.   It is certainly true that student rights include the right to upset other students, perhaps by wearing offensive costumes on Halloween, which became an issue at Yale last fall.  But in many ways more important is the right of the offended students to express their grievances as forcefully as they can without undue disruption of the institution’s mission.  As Geoffrey Stone recently put it, “Toleration does not imply acceptance or agreement.  The freedom to speak does not give one the right not to be condemned and despised for one’s speech.”

In this light, despite all the hubbub, it is difficult to identify even a handful of instances where recent student protests have truly violated the rights and expressive freedoms of anyone, including faculty members and other students.  Moreover, as Stone also suggests, protesting students are well within their rights even to demand that the institution take disciplinary action against other students, faculty or administrators who engage in odious behavior.

The real question is whether and how to act on such demands.  As Bruce Shapiro has written, “leadership matters—not just on the substance of legislation, hiring or executive orders, but leadership in the face of emotionally evocative symbolic and narrative disputes.”  Let’s take the incident at Yale that has aroused so much heat, in which a faculty residence adviser sent an email to a restricted list of students criticizing a message sent earlier by minority affairs counselors advising against offensive Halloween costumes.  The adviser’s email spurred an angry response from minority students, some of whom demanded the adviser’s dismissal.  This, I would argue, was well within those students’ rights.  But were the Yale administration to accede to such a demand, it would be a different matter.

Indeed, the issue at Yale, Missouri and other institutions is largely not one of free expression but of communication, environment and values.  Shapiro puts it well: “at a time of unprecedented economic inequality, students of color, immigrants, and students from low-income background—at rich, elite universities, and state schools alike—are painfully aware that the experiences they bring to campus are ill-appreciated by many classmates, teachers, and administrators, who come overwhelmingly from a culture of middle-class safety nets and an economy that rewards those who already have.  That’s the issue.”

Here it’s essential to credit the student protesters for their courage and determination in addressing the sometimes unconscious but nonetheless real and persistent racism that infects our society and our campuses.  In doing so, they have made and will again make mistakes.  They will offend others even as they respond to deeply felt offenses to their own dignity.  They may demonstrate indifference to the rights of others, as protestors everywhere always have.  But in doing so they will learn.  And that, it seems to me, is the essential point.  Student academic freedom, in the final analysis, is about the freedom to learn.  And learning is impossible without error.

What is therefore most remarkable about today’s student movements is not their alleged intolerance or immaturity.  It is not their intemperance or supposed oversensitivity to insult and indifference.  It is that they have begun to address issues that their elders have for too long resisted addressing.  Stone is right that “a university can legitimately educate students about the harms caused by the use of offensive, insulting, degrading, and hurtful language and behavior and encourage them to express their views, however offensive or hurtful they might be, in ways that are not unnecessarily disrespectful or uncivil.”

But the university, and especially its faculty, must also be willing to learn from protesting students.  Faculty members should welcome the challenges they pose.  Student movements offer countless opportunities for students — as well as for their teachers — to learn.  To approach them in this way is simply to fulfill our responsibility as educators.

Let me conclude these remarks, then, with a call to action:  Challenges are opportunities.  The founders of the AAUP, largely privileged and from elite institutions, took on the challenges of their time and created an opportunity to define for themselves and future generations the principles of academic freedom and the fundamental interests and standards of our profession.  They understood viscerally that in uniting to express and advocate these principles there is strength.  It is a tribute to our profession that the organization they founded has survived, albeit not without challenges and failures.

Today, however, too many faculty members take the AAUP and, more important, the very existence of academic freedom for granted.  Too often they regard academic freedom more as an inviolable inheritance than as an imperiled gain that must always be won anew.  Powerful forces in our society today would not only restrict our academic freedom but would also transform our institutions of higher education into engines of profit instead of sources of enlightenment.  But these forces pale before the challenge of our own apathy and indifference.  Yes, faculty are overworked.  But service to the profession cannot be neglected. Yes, union activism, participation in faculty governance bodies, and simple involvement can be time-consuming and tiresome.  But it can also be rewarding and enjoyable.  Yes, we have our divisions: humanists versus scientists, business versus education faculty, part-time versus full-time, young versus old.  But if we do not transcend these differences, if more of us do not become active, all of us will suffer the consequences.

A century ago, the AAUP issued the 1915 Declaration of Principles on Academic Freedom and Academic Tenure.  These principles helped build what became the largest and most successful system of higher education in the world.  One hundred years later, U.S. institutions of higher learning desperately need a renewed commitment from faculty, students, administrators, and community allies to reclaim the possibilities threatened by corporatization.  I therefore call on you to get involved. If you think you are too busy, find the time.  If you are demoralized, get over it.  If you are indifferent, wake up.

Earlier in this talk and in a recent issue of the AAUP magazine, Academe, I posed the question, “Does Academic Freedom Have a Future?”  I think the answer is quite simple: “It is up to us.”

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