BY HANK REICHMAN
On Tuesday of this week the national AAUP delivered a letter to the leaders of the Rutgers University AAUP-AFT chapter expressing concern that any discipline stemming from a report by that university’s Office of Employment Equity, which concluded that history professor James Livingston’s Facebook posts on gentrification “were not protected by the First Amendment and furthermore violated the university’s policy on discrimination and harassment,” would violate longstanding principles of academic freedom embraced in Rutgers’s own policies and collective bargaining agreement. Later that day the letter was given to Rutgers President Robert Barchi.
The next day Barchi ordered another review of the professor’s social media posts, calling for a more rigorous assessment of free speech implications. In a letter to the executive dean of the School of Arts and Sciences, Barchi — who said he was not aware of the report before its release — wrote that “few values are as important to the University as the protection of our First Amendment rights.” Barchi said the ruling must be analyzed “more rigorously” and said he would convene a special advisory group, including Rutgers’ attorneys, faculty and First Amendment experts, to help guide the Office of Employment Equity. Barchi ordered the review “in light of the complexities of this matter and the importance of our considering these matters with exceptional diligence.”
I would have preferred Barchi simply to have rejected the report, noting its deeply problematic failure to acknowledge the university’s own policies on academic freedom and the correlative provisions of its collective bargaining agreement with faculty. However, in such cases it is important to afford administrators a path to a graceful exit from their mistakes and hopefully that is what Barchi has taken here. It is possible that Livingston is not out of the woods yet, as the new review could conceivably revive the charges, nonetheless it is difficult not to recognize Barchi’s move as a significant victory. And it is a victory for which both the national AAUP and the Rutgers AAUP-AFT can claim more than a little credit.
That said, there remain troubling aspects to Barchi’s approach. As reported in the press, his letter took the opportunity to argue that Livingston had demonstrated exceptionally poor judgment and that his words were offensive, “and despite the professor’s claims of satire, were not at all funny.” Barchi is, of course, entitled to his opinions and his own free speech, but he and other college and university leaders would be well advised to think carefully about the slippery slope such judgmental comments place them on. For if a university president weighs in publicly on the satirical value of one faculty member’s extramural comments, doesn’t that imply that he may be obliged in future to pass judgment on other, perhaps all, such comments that may attract the ire of one interest group or another?
In general, there should be an understanding that faculty members never speak on behalf of the institution, so there should be no strong compulsion to criticize their words beyond a blanket disassociation from them. I wish Barchi had acted more like Kent Syverud, Chancellor of Syracuse University, when one of his faculty members was harassed for a controversial tweet. “No,” he responded, declining either to condemn or applaud the professor’s remarks. “We are and will remain a university. Free speech is and will remain one of our key values. I can’t imagine academic freedom or the genuine search for truth thriving here without free speech. Our faculty must be able to say and write things — including things that provoke some or make others uncomfortable — up to the very limits of the law.”
Perhaps more problematic is that Barchi’s letter apparently based its argument solely on the university’s alleged obligation to balance First Amendment rights against the need for an inclusive and tolerant community and made no mention of academic freedom, and specifically its claim to protect the extramural expression of all faculty members regardless of their Constitutional status. The First Amendment, of course, applies only to public institutions and even there, according to the U.S. Supreme Court’s 2006 ruling in Garcetti v. Ceballos, the free speech rights of public employees are limited. But academic freedom makes no such distinctions and imposes no such limits. Moreover, Barchi apparently failed to acknowledge, as the AAUP’s letter pointed out, that Rutgers’s “own institutional regulations—section 60.5.1: ‘Academic Freedom’—recognize freedom of extramural utterance as a constitutive element of academic freedom” and that such freedom is also directly referenced in the university’s collective bargaining agreement with Rutgers AAUP-AFT. I hope that in convening his proposed advisory group President Barchi will include in its ranks experts not only on First Amendment law but also authorities on the professional principles of academic freedom first enunciated by the AAUP in 1915, codified by the AAUP and the Association of American Colleges in 1940, and embraced by hundreds of professional associations, unions, colleges, and universities, including Rutgers.
Still, Barchi’s move, while perhaps not finally laying this case to rest, marks a major win nonetheless. And one can only imagine how Professor Livingston might have fared had the Rutgers AAUP-AFT and the national AAUP not been there to defend his academic freedom right to extramural expression. In that light I will close this post with an appeal: If you are a faculty member and not yet a member of the AAUP, please consider joining now. You can do so here. After all, the next time it might be your rights that are under attack. And if you are already a member, or just want to help the cause, please consider making a generous donation to the AAUP Foundation, which you can do here.
