BY HANK REICHMAN

This week’s controversy over Drexel University professor George Ciccariello-Maher’s tweet about “white genocide” has once again raised the perpetually thorny issue of academic freedom’s claim to protect the “extramural utterances” of faculty members who speak as private citizens.  As of this writing it appears that Drexel administrators have disavowed any intent to take disciplinary action in the matter and have pledged to defend the faculty’s freedom of expression, a welcome outcome if confirmed.  But the underlying debate over when expression by faculty members as private citizens does merit institutional sanction remains unresolved.

That debate is central to the recent case of Joy Karega, an assistant professor of rhetoric and composition at Oberlin College, who in November was dismissed from her position by the college’s board on the recommendation of a faculty review body.  Karega had posted on Facebook demonstrably anti-Semitic messages, which have been roundly condemned.  Last week Jonathan Helwink, an attorney and history professor in Illinois, published a piece, “Oberlin College Did the Right Thing By Firing Joy Karega for Anti-Semitism,” in The Federalist, which specifically criticizes the AAUP, arguing that its “conflicting guidance leads up to events at Oberlin College.”  Helwink contends that in cases involving extramural expression “the AAUP’s guidance . . . has been contradictory.”  Specifically, he charges that “the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure and the 1970 ‘Interpretive Comments’ [on that statement] contain conflicting positions as to what protections and duties professors possess.”  According to Helwink, the 1940 Statement “argues that the professor’s unique position in the community imposes special obligations” but the 1970 comment clarifying the meaning of those obligations “creates an additional, hard-to-satisfy standard for judging whether such speech impacts a faculty member’s fitness for employment. This newer standard gobbles up the obligations in the 1940 Statement.”

In fact, there is no real contradiction here.  The 1940 Statement was issued jointly by the AAUP and the Association of American Colleges, now the Association of American Colleges and Universities (AAC&U).  Both organizations also approved the 1970 comments.  However, as early as November 1940 the two groups had already issued a clarifying statement concerning extramural expression.  Acknowledging that the Statement issued earlier that year calls attention to “the special obligations of faculty members arising from their position in the community: to be accurate, to exercise appropriate restraint, to show respect for the opinions of others, and to make every effort to indicate that they are not speaking for the institution,” the November 1940 joint interpretation added the following important caveat:

If the administration of a college or university feels that a teacher has not observed the admonitions of paragraph 3 of the section on Academic Freedom and believes that the extramural utterances of the teacher have been such as to raise grave doubts concerning the teacher’s fitness for his or her position, it may proceed to file charges under paragraph 4 of the section on Academic Tenure. In pressing such charges, the administration should remember that teachers are citizens and should be accorded the freedom of citizens. In such cases the administration must assume full responsibility, and the American Association of University Professors and the Association of American Colleges are free to make an investigation.

Hence, almost immediately after adoption of the 1940 Statement, the two organizations were already indicating what is now commonly accepted: that the fundamental issue is “fitness for position,” that “teachers are citizens” with “the freedom of citizens,” and that the AAUP is free to investigate and ultimately, if deemed appropriate, censure institutions that violate such freedoms.

The link drawn here between academic freedom and the “freedom of citizens” is relevant in another way.  Like the First Amendment to the U.S. Constitution, which guarantees the freedoms of citizens, the 1940 Statement can only be understood properly in the context of subsequent interpretation and jurisprudence, in the case of the Statement the various investigative reports and interpretive statements issued over the years by the AAUP.  Here a brief historical digression will be helpful.

In 1960, Leo Koch, a young untenured biology professor at the University of Illinois at Urbana-Champaign, published a letter to the editor in the university newspaper that readers interpreted as an endorsement of premarital sex.  The Koch case has been ably chronicled by John Wilson in a recent issue of the Journal of Academic Freedom.  While today few, if any, would even raise an eyebrow over the totally tame and by today’s standards uncontroversial content of Koch’s letter, at the time and under pressure from a local cleric, the UIUC administration and much of the university’s faculty were outraged.  A Senate committee wrote, “In his role as citizen, the faculty member has the same freedoms as other citizens, without institutional censorship or discipline, although he should be mindful that accuracy, forthrightness, and dignity befit his association with the University and his position as a man of learning.”  The committee concluded, however, that “Professor Koch’s letter did constitute a breach of academic and professional responsibility. The letter is not a reasoned, detached document marshaling evidence or reason in support of a view held by the writer.  It is rather an impassioned message.”  Koch was fired.

Despite this faculty endorsement of Koch’s dismissal, the AAUP investigated.  As Wilson puts it, the question facing the AAUP “was not whether Koch would be condemned for his impassioned views but whether he deserved to be punished with the loss of his job.  The question was whether the ‘dignity’ required by the gentleman scientist model was merely a moral guide for faculty, or an enforceable job requirement.”  The AAUP investigation was led by the esteemed Yale Law School First Amendment scholar Thomas Emerson.  Under Emerson’s leadership, the investigating committee concluded that “the notion of academic responsibility, when the faculty member is speaking as a citizen, is intended to be an admonition rather than a standard for the application of discipline.”  This view did not, however, win the support of the majority of Committee A, which nonetheless still condemned the Koch dismissal as “outrageously severe and completely unwarranted” and criticized violations of due process in the case.

Nevertheless, not long after this Committee A came around to Emerson’s view.  In October 1964, the Committee issued its Statement on Extramural Utterances, which to this day remains the foundation of the organization’s position.  That Statement declared:

The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve. Extramural utterances rarely bear upon the faculty member’s fitness for continuing service. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar. In the absence of weighty evidence of unfitness, the administration should not prefer charges; and if it is not clearly proved in the hearing that the faculty member is unfit to continue, the faculty committee should make a finding in favor of the faculty member concerned.

Finally, in 1970 both the AAUP and AAC&U agreed to enshrine this essential principle into the interpretive comments offered to the 1940 Statement.  Since then the AAUP has consistently held to this principle in its conduct of investigations and its decisions on censure, and has considered the 1940 “special obligations” as largely hortatory, although consistent violation of these obligations may still lead to a judgment of unfitness.

How does this relate to the Karega case?  It should be noted at the start that in October Committee A did place that case on its agenda, but in the end neither the Committee nor the AAUP Executive Director decided to take action.  Why?  Here it may be useful to compare the Karega case with another case in which charges of anti-Semitism played a critical part, the celebrated case of Steven Salaita at the University of Illinois at Urbana-Champaign. That case resulted in the placement of the UIUC administration on the AAUP’s censured list as well as in an $875,000 settlement for Professor Salaita.  But before doing so, I should add one additional note.  Faculty members who speak as citizens often speak about topics far from their academic specialty.  Physicists or engineers, for examples, may express controversial views on political or social issues that have no bearing at all on their fitness to teach or conduct research in physics or engineering.  In such cases, it would be extremely rare for anyone to question a teacher’s fitness on the simple grounds of their private views.  Indeed, I can think offhand of two cases — at Northwestern University and at California State University, Long Beach — where engineering professors publicly advocated Holocaust denial but retained their positions without challenge so long as they did not inject those views into the classroom.

Things are often quite different in the social sciences, however.  In Salaita’s case his academic study of indigenous peoples can be said to be at least indirectly related to his views on the Israel-Palestine conflict expressed so boldly in his tweets.  Karega was hired to teach “social justice writing” and her posts clearly concern that subject.  Salaita, however, was tenured.  Karega was still in a probationary position.  (It may also be argued that Karega’s Facebook posts were more demonstrably anti-Semitic and offensive than Salaita’s tweets, but the issue we’re addressing here is not content. Indeed, I am happy to stipulate that in both cases the remarks were offensive precisely because I don’t think this really matters.)  As a tenured faculty member, Salaita was entitled to much more generous consideration than Karega, whose academic fitness for permanent employment was still to be determined.

Still, a strong case can be made that Karega did not deserve to be dismissed.  Steven Lubet, Williams Memorial Professor of Law at Northwestern University, who has written often about issues of anti-Semitism, argued in a post to The Faculty Lounge, later reposted by me on this blog, that “suspending Karega is wrong, or at least ill-advised.”  He added:

I am wary of disciplining any professor for extra-academic writing or social media posts, no matter how obnoxious, so long as they are not reflected in her teaching or interactions with students.  I work at a university where Arthur Butz – one of the nation’s premier Holocaust deniers – has been teaching electrical engineering for decades.  As far as anyone can tell, he respects the line between his deeply offensive prejudices, which he does not express on campus, and his teaching assignments. Perhaps Karega could do the same (although perhaps not).

Writing in Commentary, Jonathan Marks of Ursinus College, who writes frequently for conservative publications and with whom I have productively debated on this blog, agrees.  He writes:

I oppose firing academics over constitutionally protected hate speech, whether it is directed against blacks, Muslims, women, homosexuals, or Jews. I share the view of old fashioned liberals that, at least at colleges and universities, we run little risk in giving wide latitude to rotten and even unhinged ideas. If we limit ourselves to firing only people whose terrible ideas undermine their ability to teach, conduct research, and serve on committees, we will probably be rid of most Karegas anyhow. To do more, in the hope of firing every last one of them, is the equivalent of demolishing student speech protections in order to catch the last racist bathroom graffiti artist. Disgusting and unhinged views will always be with us. Our dedication to the protection of speech and academic freedom cannot be contingent on the elimination of such views.

Echoing the AAUP’s position, Marks adds, “people can hold absurd views in one area and be capable of Nobel-caliber work in another. We should be very reluctant to fire teachers over offenses that have not somehow manifested themselves in scholarship, teaching, or service, or that do not directly implicate their fitness.”

Why then did the AAUP not investigate Karega’s dismissal?  The 1970 interpretive comments notwithstanding, did we, in effect, adopt Helwink’s view that “Professors would do well to acknowledge that the privileges of academic freedom they enjoy do not grant them unregulated speech protections, but instead are combined with the duties to be accurate, respectful, and restrained?”  The answer lies in a final distinction between the Salaita case and that of Karega.  Steven Salaita was provided with no due process.  Although he should have enjoyed the protections of tenure, the UIUC administration at the time used the flimsy excuse that his appointment had yet to be approved by the trustees to summarily dismiss him without any faculty input and without a hearing.  They undoubtedly did so, of course, because had they waited to begin formal disciplinary procedures the overwhelming likelihood is that Salaita would still be a member of the UIUC faculty.

In the case of Karega, however, while the Oberlin administration’s initial response was somewhat muddled and confused, in the end, as Marks writes, her case “was reviewed by an elected faculty committee, a plurality of which voted for dismissal. She was represented by counsel and permitted to present evidence in her favor.”

It is not the AAUP’s role to function as some sort of court of appeal to review the substance of all faculty decisions.  While there may be faculty members who would not have recommended her dismissal, the fact that a duly constituted faculty committee did so recommend suggests that the AAUP’s procedural standards were essentially followed.  It is not up to the AAUP to decide which faculty members should be granted tenure, which should be dismissed, and which should be disciplined.  That is the responsibility of the faculty and administration at the institution concerned, acting within the broad parameters defined by the 1940 Statement.  Therefore our decision not to investigate this dismissal should not be construed as implying endorsement of Oberlin’s decision or certainly of Helwink’s cramped reading of the 1940 Statement.

To be sure, however, not all faculty committees are truly representative and not all disciplinary proceedings are fair.  The case of Ward Churchill in Colorado some years ago is one example of how a hand-picked and biased “faculty committee” can serve as a useful tool for the violation of genuine due process rights.  (On the Churchill case, see the lengthy report prepared by the AAUP’s Colorado Conference and published in the Journal of Academic Freedom.)  And it is certainly conceivable that even an appropriately constituted faculty review body can be swayed by political or other passions to render decisions that amount to genuine violations of academic freedom.  That was certainly an issue in the Leo Koch case discussed above and was also sadly the case in more than a few instances during the Red Scare of the 1950s.  In that light the AAUP and faculty in general must remain vigilant and resist the temptation to, as Marks writes, dismiss colleagues “merely for [their] loathsome opinions.”