BY JOHN K. WILSON

I interviewed Henry Reichman, chair of the AAUP’s Committee A on Academic Freedom and Tenure, about his new book, The Future of Academic Freedom (Johns Hopkins University Press). Reichman will discuss his book on a panel at the AAUP’s Annual Conference on June 13, 2019 in Arlington, Virginia and other future events. You can also read interviews with him on Democracy Now! and Inside Higher Ed.

John Wilson: I’m a little disturbed when you praise (albeit with very strong reservations) Stanley Fish and say “he has a point when he argues that ‘free speech is not an academic value.’”(175) Why do we have to choose between free speech and academic freedom when they are such close cousins? Why can’t we describe universities as having free speech plus academic freedom, where in certain areas (like hiring, tenure, teaching, and research) academic freedom is the prevailing value, while in others (outside speakers, media, student rights, public expression), free speech is the dominant idea?

Henry Reichman: I hardly think that a fair reading of my extensive critiques of Fish (in chapters 2 and 8) would characterize my treatment of him as praise with reservations. More accurate, perhaps, would be to say that I am quite critical, while recognizing some positive points. Specifically, I think his statement that “free speech is not an academic value” is essentially true, in the sense that it does not derive from the academic mission. As I put it in citing this statement, this is “a valid point: academic freedom and freedom of speech are founded on differing justifications and should not be confused.” (175) Free speech is, however, as I argue extensively, a democratic value that is also highly critical to the university. Hence I don’t really disagree with your description of the relationship between academic freedom and free speech. I simply phrase it somewhat differently. For example, in chapter 1 I wrote, “The atmosphere for academic freedom on a given campus is inextricably linked to the broader atmosphere for freedom of expression.” (23) Or, as I wrote in chapter 2, “insofar as university administrations have abandoned the defense of academic freedom—or simply pay lip service to the principle—faculty members who wish to defend their own freedom as scholars will need to join with students in opposing restrictions on their freedom to speak.” (49) And, of course, chapters 7 and 8, on student academic freedom and the rights of invited speakers, are almost entirely dedicated to elaborating on the interdependence of faculty academic freedom and broader campus free expression rights.

JW: The AAUP was founded in 1915, when the legal protections for free speech were almost nonexistent, the idea of unionizing college faculty was often seen as abhorrent, academic freedom did not protect political speech in the classroom or criticism of the government during wartime, tenure was more of a hope than a reality, and many other limitations on academic freedom existed. Why should we be tethered to archaic notions of academic freedom rather than seeking to leave behind these old limitations, as the AAUP did with unionization?

HR: I don’t understand what archaic notions you are referring to. Tenure today is once again, certainly for the majority of those who teach in higher education, more a hope than a reality, but just as the AAUP fought for the principle anyway—and won real gains, many of which are sadly being eroded—I argue we can and must do so again. I no more see tenure as “archaic” than the AAUP’s founders saw it as an unattainable pipe dream, which is what many at the time thought. As for unionization, I devote an entire chapter (based on a Journal of Academic Freedom article) to how the AAUP over decades moved gradually to embrace the concept. But it did so not in lieu of its traditional principles but as a mechanism for better enforcing those. Moreover, as the book suggests in several places, the AAUP’s interpretation of its 1915 principles has also evolved through various interpretive documents and investigation reports. Perhaps the best example is the AAUP’s expanded understanding of the faculty’s right to extramural speech, which I chronicle in chapter 3 of the book. Finally, with respect to legal protections for free speech these are undoubtedly stronger today than in 1915, but one should not ignore the troubling tendency of conservative justices, who now hold a majority on the Supreme Court, to interpret the First Amendment in ways much closer to the Lochner propertarian view of the early 20th century than to the tradition of Justices Douglas, Brennan, and Marshall. Certainly, the judicial understanding of academic freedom, which privileges the institutional autonomy of the university over the professional rights of individual faculty members, is hardly a dependable defense. As I point out in chapter 2, a study by one scholar of some 339 decisions involving faculty claims of academic freedom brought on First Amendment grounds, revealed that 73% were unsuccessful (45). Hence, I am convinced, despite today’s more robust understanding of free speech, the AAUP’s longstanding approach of pushing for the establishment of professional norms via university policies and, where possible, collective bargaining agreements remains effective—providing faculty organize and speak out in support.

JW: One issue you raise in the book is the idea of using union contracts to enforce academic freedom. Although it’s a good idea, shouldn’t that always be considered less valuable than changing campus policies? Policy change works at all colleges (not just the rare ones with AAUP unions), it applies to the whole campus rather than the unionized group (which sometimes doesn’t include all instructors), and union contracts are compromises. If we can enact policies that protect academic freedom, then the union doesn’t need to give up something else or accept compromises in contract provisions. Shouldn’t policy change rather than contracts be the focus of the AAUP on academic freedom?

HR: I don’t really see the contradiction here. Contracts are themselves policies, which have the advantage of being enforceable by law. The AAUP has long advocated and still does—as do I in this book—the adoption of policies designed to protect academic freedom and shared governance. Our Recommended Institutional Regulations on Academic Freedom and Tenure provide one model. We also urge, where possible, that these policies be incorporated in union contracts so they can be enforced more effectively. To be sure, contracts are the result of compromise, but so too are policy changes. A faculty that is unable to win strong protections for academic freedom in its union contract is unlikely to be able to win administrative approval for institutional policies that do so. Moreover, it is inaccurate to say that all campus policies apply to all groups. Take the University of California, for example. Many of its policies are quite excellent, but apply only to what they call “Senate faculty,” by which is meant only the tenured and tenure-track faculty, who comprise less than half of all those who teach. Ideally all colleges and universities would adopt policies with contractual status that incorporate AAUP standards for all who teach and conduct research. That is the goal. Attaining that goal, however, is quite another matter and for that unionization is a powerful weapon.

JW: One critique I would make of your book is that you fall into what I consider the “small number” trap: You downplay attacks on campus free speech as “much less severe than [FIRE] claims” by pointing out that there are only a relatively small number of disinvitations and speakers being shouted down. But can’t that argument be turned against you? After all, there are only a small number of cases of unethical donor control or AAUP Committee A investigations each year, but surely that doesn’t mean corporatization isn’t a problem in academia or that academic freedom is secure. Shouldn’t we be facing all the problems of academia, even if we reject the exaggerated and one-sided ideological assessments of them, and recognize that even relatively rare abuses can have terrible effects and need to be condemned?

HR: Well, I do think that attacks on outside speakers are far less extensive than FIRE claims and, more important, less of a threat to academic freedom and freedom of expression than other threats that both FIRE and, to a great extent, the media underplay. I am arguing against the position, articulated for instance by Stephen Carter, that these are “everyday events.” They are not. But that hardly means I think they are not a threat at all. That’s one reason why I devote five pages (175-179) to chronicling (and approving) the AAUP’s longstanding defense of the rights of controversial speakers. Of course we should address “all the problems of academia,” although all those problems do not always even involve academic freedom or free expression. My book, for example, says little about student debt or sexual harassment, but clearly these are major problems, more critical for many than challenges to professors’ classroom speech or to outside speakers. But that’s not what the book is about.

Moreover, all problems, including all academic freedom problems, are not equivalent in scope or danger. Nor have all problems received equivalent treatment in public discussion. As I wrote in chapter 8, “The point is not to dismiss the significance of those incidents in which speakers have been truly ‘disinvited’ or even silenced, in a few instances violently. The issue, however, is not the legitimacy of the problem but how extensive it is . . . and, in addition, where the problem ranks among the full panoply of threats to free expression and academic freedom on college and university campuses.” (198)

JW: When we look at the future of academic freedom, for the first time in the history of American higher education, there is a big push among conservatives to have strong protections for free speech on campus. Why shouldn’t we be saying “yes, thank you” to these conservative campaigns, no matter how hypocritical they are, and demand that universities adopt good policies that protect academic freedom and free expression? Why is the left now so suspicious of free speech simply because their opponents are arguing for it? Why isn’t the AAUP leaping at the opportunity to join with the conservatives and convince colleges to adopt strong protections for freedom on campus?

HR: It’s not just that this push is hypocritical. In many cases it is itself an attack on free speech. I am totally unconvinced that most proposed free speech legislation aims at protecting everyone’s free speech. I think it is mainly aimed at policing speech, especially the speech of students, but also of professors in the classroom. I offer considerable evidence for this in my book. And I think experience bears me out. To be sure, there are many principled libertarian conservatives who truly defend both free speech and academic freedom, and I positively cite several of them in my book. Most of them, by the way, are themselves academics. And the AAUP has and will again in future, I’m sure, defend the rights of conservative professors should their opinions and expression endanger their employment status.

But the conservative political movement for campus “free speech” is aimed mainly at the freedom only of certain speakers. When have we seen these conservatives speak out for the speech rights of their opponents? Hardly ever. Conservatives defend the rights of Koch-funded “free enterprise” centers, but if they do not join in the assault they remain silent when “liberal” centers, as at the University of North Carolina, are shut down for political reasons. Too often many of those politicians and campus/media “watchdogs” who trumpet the rights of the Milos and the Coulters are not only hypocritically silent when leftists are assaulted; they participate in the assault.

So, for instance, as Canadian political scientist Jeffrey Sachs has pointed out, when a conservative student dug up an old tweet by U.C. Davis professor Joshua Clover that attacked police, Campus Reform, RedState, Daily Wire, Breitbart, and Fox all denounced him; none defended his free speech. Then a Republican state assemblyman launched a petition demanding that Clover be fired, which in less than a week attracts over 10,000 signatures. As Sachs wrote on Twitter, “A state senator joins in as well, along with the California Republican Party, the local chief of police, and the National Fraternal Order of Police. These demands are echoed by law enforcement organizations, gun rights groups, and conservative figures across the country.” Soon there is a bill in the California Legislature calling for Clover’s firing. But has there been even a hint of outrage from the conservative “free speech” champions? No. As Sachs—who has in past come to the defense of some “free speech warriors” of the Right—concluded, “A massive, coordinated assault on campus free speech is unfolding as we speak and none of the Free Speech Brigade have seen fit to utter a word. I don’t know what’s worse: that they all know and are staying mum, or that they’re only now learning about it.”