BY HANK REICHMAN
On Friday, September 28, about 100 California community college faculty members gathered at Berkeley City College for a day-long conference on academic freedom co-sponsored by the Faculty Association of the California Community Colleges Educational Institute (FACCC-EI) and the AAUP Foundation. The conference highlighted the growing importance of academic freedom in community colleges and higher education more generally.
After a brief welcome by FACCC President Adam Wetsman and a member of the hosting Peralta Community Colleges Board of Trustees, the conference opened with a panel on “Defining Academic Freedom: History, Policies and Trends,” with Julie Bruno of Sierra College, past president of the Academic Senate for the California Community Colleges; Mónica Henstroza, special assistant on higher education to California Assembly Speaker Anthony Rendon; and me.
I spoke first, summarizing how the AAUP defines and defends academic freedom and explaining how academic freedom differs from, but is related to, freedom of speech. Julie Bruno spoke about how academic senates can and must defend academic freedom, noting that at one time at her college inappropriate trustee interference in academic affairs was “so bad that our deans became teamsters!” Fortunately, the senate was able to work with the administration to adopt a strong academic freedom policy based on the 1940 Statement, which was then codified in the union contract. Bruno went on to discuss the community college system’s recent adoption of “performance-based funding,” over the objections of faculty, noting the threat this poses not only to shared governance but academic freedom as well. Mónica Henestroza noted that the majority Democratic caucus had rejected performance funding, but ultimately was forced to compromise because it had been pushed by the community college board of governors. She added that, unlike in other areas, higher ed policy in the state is not mainly shaped by legislation but by the budget, although sometimes individual academic freedom cases do come to the attention of legislators. She agreed that legislators could benefit from more education on academic freedom and its importance to higher education.
The opening plenary was followed by three workshops: “Defending Academic Freedom: A Union Perspective,” “Maintaining Academic Freedom in Light of National and Statewide Policies,” and “Part-Time Faculty Won’t Be Denied,” offered by Colorado AAUP activists Suzanne Hudson and Caprice Lawless, which I attended. The session provided opportunities for part-time faculty members to exchange organizing ideas. Moreover, accounts of the difficult conditions faced by our Colorado colleagues were eye-opening for the Californians, all of whom benefit from union representation. A clear message of the session: we’re all in a battle for our profession, but those of us better situated need to support those less fortunately placed.
After lunch, the keynote address was delivered by Erwin Chemerinsky, Dean of the U.C. Berkeley School of Law and a prominent First Amendment scholar. The speech was terrific, and well-received by everyone despite the fact that Chemerinsky inevitably had to convey some bad news about the legal environment for academic freedom and free speech. He opened his remarks by declaring that “we need academic freedom now more than any other time in U.S. history” and that “we need professors at all levels to speak out, but that society is so divided that too many fear to speak out.” (I think I transcribed these quotes precisely, but perhaps not.)
Dean Erwin Chemerinsky
Chemerinsky spent a significant portion of his talk distinguishing between academic freedom and freedom of speech. In doing so he suggested a theory of academic freedom a bit different from that advocated by the AAUP, although my sense is that the distinction has little practical significance. This is not the place to go into the difference in detail, but as I understood him, Chemerinsky distinguishes two spheres of expression, the professional and non-professional. In the professional sphere, academic freedom is defined by the same professional standards the AAUP would apply. In the non-professional sphere, however, the standards of free speech (the marketplace of ideas) applies. It wasn’t clear to me whether by this he means that academic freedom is limited to teaching and research and that outside of those spheres freedom of speech applies or whether he is essentially reformulating the AAUP’s principle that academic freedom itself extends beyond the professional realm to protect the “extramural expression” of professors speaking as citizens. But, again, judging from his remarks on Friday this may be a distinction with minimal practical difference. Or not.
By far the most illuminating — and, alas, most sobering — section of Chemerinsky’s keynote was his discussion of several U.S. Supreme Court cases and their implications for the future. First among these was the 2006 decision in Garcetti v. Ceballos. Like the AAUP, which in 2009 produced an extensive report on the troubling implications of that ruling, Chemerinsky fears the possible impact of the case on academic freedom. And while some recent court decisions have declared the case inapplicable to higher education settings, most notably in the U.S. Court of Appeals for the Ninth Circuit (Demers v. Austin), which includes California, he is concerned that conflicts between the circuits may lead to the Supreme Court weighing in — and not unlikely in a manner unfavorable to academic freedom.
Chemerinsky then discussed three decisions from the high court’s last term, all of which, he suggested, may “weaponize the First Amendment” in the manner highlighted by Justice Elena Kagan in her powerful dissent in the case of Janus v. AFSCME Council 31. That case is well known to readers of this blog. But Chermerinsky added to the bleak picture by pointing to the danger that the decision could also undermine government-sanctioned collection of other mandatory fees, including student activity fees and bar dues. (John Wilson has already called attention to the danger posed by Janus to the 2000 decision Board of Regents of University of Wisconsin System v. Southworth. As Wilson argued, “If Southworth is overturned in the wake of the Janus ruling for freeloaders, it would mean the end of student fees supporting student organizations or any controversial speech at public colleges.”)
The second decision highlighted by Chemerinsky was National Institute of Family Rights Advocates v. Becerra. In this case, the Supreme Court, in a 5-4 decision written by Justice Clarence Thomas, ruled that the State of California may not require religiously oriented “crisis pregnancy centers” to supply women with information about how to end their pregnancies. “Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” Thomas wrote. “Freedom of speech secures freedom of thought and belief. This law imperils those liberties.” He added, ““No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion.” As Chemerinsky pointed out, although the case was about abortion, it could imperil all sorts of laws that mandate public disclosure of information — warning labels on medicines, food, and alcoholic beverages, for example. “Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech,” Justice Stephen Breyer wrote in dissent.
The third decision was Masterpiece Cakeshop v. Colorado Civil Rights Commission, the gay wedding cake case. Although decided 7-2 on narrow grounds, Chemerinsky argued that the decision nonetheless could threaten a broad range of civil rights laws. If the ruling did not go so far as to confirm that “bakers can be choosers,” to borrow a Chermerinsky joke from a previous talk, it did leave open the possibility that a future court could rule that all sorts of commercial activities involve free expression and hence are protected from anti-discrimination statutes by the First Amendment.
And with regard to a future court, Chemerinsky was pessimistic. “It’s gonna get worse,” he said in response to an audience question. “I think the Supreme Court will overturn Roe v. Wade, and sooner rather than later,” he subsequently added. Academic freedom, he concluded, “may very well be in danger.” But, nonetheless, Chemerinsky declared his optimism that faculty members and our allies will be able to “organize and unionize,” no matter what challenges the legal environment may bring. He reminded those attending that the Court is, after all, also a political institution. But, of course, as Dean Chemerinsky will surely agree, the situation demands a lot of hard work by a lot of people.
It was a great conference, and my thanks to Jonathan Lightman, Evan Hawkins, and Lidia Stoian of FACCC for making it possible. Now it’s time to translate words into deeds.
If you’re not yet a member of the AAUP you can join here. If you are already a member, or not a faculty member but want to help, please consider donating to the AAUP Foundation so that we can support more events like this one. And if you’re a California community college faculty member, you can join FACCC here.
