BY HANK REICHMAN
Yesterday two new comments were posted to my piece of a week ago, “On Indiana University’s Response to Professor Rasmusen,” one by someone identified as “M,” who is apparently a sociologist, and the other by Professor Rasmusen himself. These, I believe, merit a response beyond what is available in the comments section, especially since many readers of the original post will not be returning to follow the discussion.
Here, first, is what “M” wrote:
I appreciate this post, but I confess that I wonder if AAUP members and university administrators would take the same position on a professor with radical or progressive views, instead of conservative ones. Prof. Rasmusen’s Provost stated that, “…students who are women, gay, or of color could reasonably be concerned that someone with Professor Rasmusen’s expressed prejudices and biases would not give them a fair shake in his classes, and that his expressed biases would infect his perceptions of their work. Given the strength and longstanding nature of his views, these concerns are reasonable.” Doesn’t that give a green light to conservative groups, who complain that the vast majority of professors in the U.S. are more liberal than the average citizen, to claim their liberal professor can’t possibly be grading conservative students fairly and, then, to put them on a Professor Watch List? To give an example, would people say it’s reasonable for male students, heterosexual students, mothers, and/or married students to be concerned that the feminist professor who has criticized as patriarchal the institution of marriage, motherhood, and sexual intercourse would not give them a fair shake in her classes, that her expressed biases would infect her perceptions of the work of these more traditional and less radical students? As a feminist I always resisted such a narrative, and I resist it with regard to Prof. Rasmusen for the same reason.
And here is Professor Rasmusen’s comment:
It’s important to know that the Provost slandered me. I’m not referring to calling me “racist” and so forth; such insults are matters of opinion, one might say. Rather, she attributed to me specific opinions I do not hold and never have held. She told me she has screenshots, but they weren’t linked, and tho I asked for them, I haven’t seen them yet. So I think it can fairly be said that she lied. For my side of the story— which *does* include the links that one would hope for from a university person, see:
My controversy website: http://www.rasmusen.org/special/20 inkerfuffle/
Warhorn Media defense of me: https://warhornmedia.com/2019/11/25/my-friend-prof-eric-rasmusen/?fbclid=IwAR3YopUyTZoLlqqhvSdpqWlZQYIOrJbklsczeoV1ERIZv6ewtYMjBWlkzhM
My counterattack: http://www.unz.com/article/fire-professor-eric-rasmusen-or-fire-provost-lauren-robel-instead/
My fisking reply to the Provost: http://www.rasmusen.org/special/2019kerfuffle/provost1.htm
Volokh Conspiracy legal analysis: https://reason.com/2019/11/24/what-is-the-difference-between-firing-tenured-professors-and-removing-them-from-required-classes/
https://pjmedia.com/instapundit/349947/#respond
First, I should say that I share M’s concern that the logic of the provost’s statement could readily be applied to faculty members with views quite different from those of Professor Rasmusen, views that are generally more popular in the academy than those of the Indiana professor. However, I do believe that context matters. Having gone to all of the links that Prof. Rasmusen provided (the first link, however, yielded only the dread “404 not found” message), I cannot offer any independent assessment of the veracity of the provost’s claims or of Rasmusen’s impassioned demurrals. But even Rasmusen’s own defense provides evidence of views that could arguably suggest the possibility of prejudicial judgment of students, which is the apparent rationale for the provost’s actions. But M is correct that this could easily be turned against, say, a feminist who voiced hostility to men or a black scholar who appears to condemn all whites. This is why I stressed that as a general rule administrators should be defending the rights of their faculty members, not joining in criticism of their comments, even when those comments are foolish or prejudiced. But I think there are occasions — rare, to be sure, but I find this to be one — where the faculty member’s comments are so offensive to the university’s commonly accepted values and so often repeated (I do not accept Professor Rasmusen’s claim that this is all about a single tweet) that a statement of disassociation or condemnation may be appropriate.
And, frankly, I can imagine instances where a feminist or black nationalist scholar might also be subject to a similar administrative disavowal. But recent experience suggests that far too many university administrators are eager not only to condemn but even to take disciplinary action against left-leaning, feminist and minority scholars, while white racist, misogynistic, and homophobic speech has seldom received equivalent treatment. In The Future of Academic Freedom I document scores of cases where leftists, especially minority and women scholars, were harassed and their institutions not only did not provide a defense but instead took disciplinary action against them. For just one small example, Lars Maischak, a non-tenure-track lecturer at California State University, Fresno, who tweeted that “Trump must hang,” has been confined — over his objections — to teaching solely online for nearly two years, even though the administration ostensibly defended his academic freedom, treatment arguably analogous to that of Rasmusen. But I can’t think of any case other than those of Rasmusen, Amy Wax, and Marquette’s John McAdams (which I discuss at length in my book) of a right-wing faculty member so treated. And I found it more than ironic that among Professor Rasmusen’s suggested links one led to a defense of him on “The College Fix,” a site notorious for fomenting vile harassment of faculty members — including calls for their dismissal — whose extramural or classroom speech runs afoul of the site’s extreme right-wing agenda.
But the real issue here is one that was the intended focus of my post: Do the measures taken against Professor Rasmusen constitute a “severe sanction?” Or are they legitimate uses of institutional authority? I opined that it’s the latter, but acknowledged that others may differ, adding in conclusion, “that’s why a due process procedure before a duly constituted faculty hearing committee akin to that defined by the AAUP could be in order.”
Rasmusen’s defenders have argued that the moves against him do indeed constitute a disciplinary sanction and, legally, amount to a violation of the very First Amendment that Provost Robel ostensibly defended. In the Volokh conspiracy post by Josh Blackman, a conservative constitutional law professor, to which Rasmusen provided a link, the case is discussed in the context of the Supreme Court’s Pickering test for the limits of public employee free speech. Blackman doubts the relevance of this standard to tenured faculty members, and I fully agree, but argues that if it were applied Provost Robel’s actions would fail the test. “The selected punishment is not tailored to address the purported problem,” he writes. “The proposed blanket policy is overly broad, and fails to remedy the problem the university identifies.”
In an addendum prompted by a comment to his post Blackman cites a different, seemingly more relevant, 1992 case: “A professor at the City University of New York . . . published ‘denigrating comments concerning the intelligence and social characteristics of blacks.’ In response, CUNY ‘created an ‘alternative’ section of Philosophy 101 for those of Levin’s students who might want to transfer out of his class.’ Both the District Court, and the Second Circuit, found that the creation of the ‘shadow’ class violated the First Amendment.” Blackman quotes from the appellate opinion:
Formation of the alternative sections would not be unlawful if done to further a legitimate educational interest that outweighed the infringement on Professor Levin’s First Amendment rights. . . . However, although appellants contended below that they created the alternative sections because Professor Levin’s expression of his theories outside the classroom harmed the students and the educational process within the classroom, the district court saw no evidence that this was a factually valid concern. Given the complete lack of evidence to support appellants’ claim of a legitimate educational interest, we are unable to say that the district court erred.
Appellants contend that “[s]ince, by definition, alternative class sections presuppose that Professor Levin will continue to teach a class section, the creation of such sections cannot, as a matter of law, constitute an infringement of Professor Levin’s First Amendment rights.” vWe disagree. Appellants’ encouragement of the continued erosion in the size of Professor Levin’s class if he does not mend his extracurricular ways is the antithesis of freedom of expression.
The potential application of this case to that of Professor Rasmusen is, I think, obvious and he might well have a legal complaint to pursue. That’s not for me to say.
But this brings me to another concern of mine, voiced only, I now regret, in passing in my original post: is the First Amendment the most appropriate framing for this controversy, or should we instead focus on academic freedom? After all, the First Amendment only applies here because Indiana University is a public institution. Were Rasmusen at a private school, the administration would be legally entitled not only to limit his class assignments but even to summarily dismiss him — unless such actions were restricted by the institution’s own contractually enforceable policies on academic freedom.
Academic freedom is not the same as free speech, as those of us in the AAUP have had much occasion to emphasize recently. Not only does it apply to private as well as public institutions, it does not provide blanket protection for all extramural expression. Here is how Committee A’s 1964 Statement on Extramural Utterances put it:
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.
In 1970, an AAUP investigating committee looking into the case of Angela Davis’s summary dismissal from the faculty at UCLA (see “Academic Freedom and Tenure: The University of California at Los Angeles,” AAUP Bulletin 57 (1971): 382–420) added this:
To meet the AAUP’s standard of unfitness, then, the faculty member’s shortcoming must be shown to bear some identified relation to his capacity or willingness to perform the responsibilities, broadly conceived, to his students, to his colleagues, to his discipline, or to the functions of his institution, that pertain to his assignment. Thus, under the quoted principles, institutional sanctions imposed for extramural utterances can be a violation of academic freedom even when the utterances themselves fall short of the standards of the profession; for it is central to that freedom that the faculty member, when speaking as a citizen, “should be free from institutional censorship or discipline” except insofar as his behavior is shown, on the whole record, to be incompatible with fitness for his position. . . .
At some stage in a contested argument over academic responsibility and fitness to teach, appeal must be made to someone’s judgment in applying what are necessarily somewhat imprecise standards for the
limits of propriety of extramural controversy. The judgment to be made is how far the condemned polemics fall below a professionally tolerable norm, and about the gravity, the frequency, and other circumstances of the incidents along with other evidence bearing on the speaker’s overall academic responsibility. It is entirely possible, even likely, that the balance might be struck differently on the same evidence by leaders of the academic community and by members of a governing board, especially where political and other public controversy is involved. . . . In the light of these considerations, the wisdom of the AAUP procedural standards—which require careful exchange of views between faculty committees, administrations, and governing boards in disciplinary actions of the present kind—is apparent.
We are not here discussing dismissal, but what about lesser disciplinary measures? As my original post suggested, it may well be that remarks that effectively denigrate whole classes of students could be understood to have an impact on a professor’s “fitness” to teach, at least at an institution formally committed to diversity and tolerance. But that should be up to a duly constituted representative faculty body to decide.
To be frank, I am not at all certain that comments like those made by Wax and Rasmusen are sufficiently related to “fitness” in this way to constitute grounds for discipline. And, also to be frank, given the current polarized political environment I worry that a faculty committee might not address this issue without bias. But what is the alternative?
In this light, should Professor Rasmusen believe that the actions taken by Provost Robel amount to a severe sanction, he might well demand a disciplinary hearing. Should he do so, I hope the AAUP will work to ensure that its standards are met in whatever process may ensue.
Reichman asks, “what is the alternative?” to considering punishments for faculty who make controversial statements about categories of people. I think the alternative is to not punish those faculty based on their extramural utterances, and to require that actual evidence of prohibited discrimination in teaching be required to punish faculty on the basis of the claim that they might discriminate against certain students. If someone is unfit to teach because of their bias, there should be some sign of that bias in their teaching, and not merely a speculative fear that it might happen. And I think that 1970 investigative committee’s standards are far too vague and restrictive, and should not be considered the guiding philosophy of the AAUP, which has had half a century to improve upon this approach.
I used to know, just slightly, a professor who is now just recently out of jail for distributing child porn. Nobody ever accused him of anything untoward in the classroom, yet he will never teach again. What I am asking is this: Are you saying there should be no correlation made in hiring/re-hiring, etc. between what one does outside of the classroom and what one does inside? Or just what one says? Let’s go to extremes: “We” (whoever we are) would not want to put in the classroom someone who has participated in genocide. But would we be willing to have an agitator for genocide there as long as the subject wasn’t broached? This is a difficult topic but it is also one we need to explore more fully.
Thanks for posting the links I put in the comments. That was fair of you. Sorry about the typo in the first link, to my controversy website. It collects links, and at the bottom I’ve added encouraging emails I’ve gotten from an amazing variety of people— students, professors, alumni, evangelical Christians, atheists, homosexuals, someone with a trans daughter, and my own daughter. http://www.rasmusen.org/special/2019kerfuffle/.
(1) “I cannot offer any independent assessment of the veracity of the provost’s claims or of Rasmusen’s impassioned demurrals.”
Well, if Rasmusen denies Rasmusen ever held these views, and Robel offers no evidence Rasmusen ever held them, what are you to conclude? I can’t prove a negative; if Robel proclaims that Rasmusen once said somewhere that he loves Nazis, how can I disprove that? All I can do is ask for her evidence.
(2) “(I do not accept Professor Rasmusen’s claim that this is all about a single tweet)”
One of the frustrating things about this is that it isn’t clear what this is all about. Provost Robel, for example, didn’t quote anything specific, nor did my business school dean. If I’m told that the problem is that I said X, I can confirm whether I said it or not, what I meant by it, and I can defend X. If I’m just told the problem is that I’m a racist misogynistic homophobe, it’s hard for me to know how to reply. They might as well say the problem is simply that I’m Evil.
(3) You should have provided links to the Lars Maischak Cal State Fresno story. I was skeptical that a Cal State would punish a teacher for an anti-Trump remark. But you’re right. That episode rivals mine in stupidity. Maischak made some short, obviously hyperbolic statements about killing Trump, and the Administration took widely publicized measures against him. I agree it was outrageous. Pro-Maischak and anti-Maischak links:
https://www.fresnobee.com/opinion/readers-opinion/article209363934.html
http://www.fresnostatenews.com/2017/04/11/statement-regarding-lecturers-social-media-posts/
(4) You gave enough info so your readers can see this, but your explanation of the law was misleading. The caselaw is absolutely against my Administration, as a public university. If I wanted to litigate on having to do blind grading, I’d win.
(5) This morning, an emissary of the Dean came to tell me they’d like to videtape my classes to “monitor” me. My first reaction was No Way, I’ll fight you on this. I changed my mind, though. It actually can be good for both of us, in case my class is disrupted or I am falsely accused of saying something I didn’t really say. Also, it will be evidence that this is a reasonably happy and relaxed group of students, even though I use cold calling. The class went very well, I think.
One of the things that has often bugged me is accusation about what goes on in the classroom, people saying we professors are “indoctrinating” students rather than teaching them. As a result, I have an “open door” policy: Anyone can come in as long as they do not disrupt the students. The same goes for taping–I don’t like it, but allow it.
The question for me, though, extends beyond the classroom to “Who should be enabled to instruct?” I do believe one’s actions, and even words, should have an impact on the answer. The questions remain though, “Who should decide?” and “On what basis?” Right now, I would rather read your defense of your fitness to teach in light of your beliefs rather than a back-and-forth about those assuming their power to make the decision. If, for example, you believe that women are not as able (and that would need defining) as men, could you judge them on an equal basis? Could you do so AND be true to your beliefs?
I am “M”. (Sorry for the temporary change in settings on my WordPress account- I have posted comments to the Academe blog many times under my real name and am happy to do so again). I appreciate this post and, as I mentioned in my comment on Aaron Barlow’s post about Prof. Rasmusen, I think we need to be careful about our extramural utterances in the digital age (ie, be careful to distinguish them as such, rather than mix them up with our tweets about, and based in, our scholarship). Also, I am glad the Provost did not defend Rasmusen on academic freedom grounds. Robert O’Neil used to tell the story about the professor who was, in his spare time, a Holocaust denier. That this professor was in engineering or some such field that would not have any expertise on the Holocaust made it obvious that this professor was not speaking as a scholar or expert but speaking as someone who–however horrible you or I think it is–made a hobby of denying the Holocaust. (Were that professor in a department of history he would never make tenure.) Were I to make remarks in my spare time (as I’ve heard some people do) that “all corporations are evil” or “free markets will never solve our environmental crisis” I would be doing so not as anyone with expertise in economics but as someone making an extramural utterance who is free to voice my simplistic opinion. Academic freedom protects a professor who makes statements that are rooted in her scholarly expertise and related to what she is teaching or writing about. Free speech protects our ability to make pronouncements as private citizens when we represent our universities or speak as a scholarly expert. I did read Prof. Rasmusen’s tweet comparing women’s studies to home economics, and while some might not like his view of the field of women’s studies, and might also consider it rather naive, Rasmusen is certainly free to hold and voice such a view. And, let’s face it, it’s not that different from the disparaging comments that I’ve heard plenty of scholars say about academic fields they don’t like, including environmental studies, evolutionary psychology, college student development, leadership studies, and even economics.
PS, sorry can’t figure out how to edit my post. I meant to type: free speech protects our ability to make pronouncements as private citizens, _not_ when we are representing our universities or speaking as a scholarly expert.
Thank you for this comment, Martha. Ever since 1915 the AAUP has defined academic freedom to include the right to extramural expression. Here is how the 1915 Declaration of Principles on Academic Freedom and Academic Tenure put it: “it is not, in this committee’s opinion, desirable that scholars should be debarred from giving expression to their judgments upon controversial questions, or that their freedom of speech, outside the university, should be limited to questions falling within their own specialties.”
And here is how it is phrased in the 1940 joint Statement on Academic Freedom and Tenure, issued by the AAUP and the Association of American Colleges and Universities and subsequently endorsed by over 250 scholarly organizations:
“College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.” In 1970, this was modified by an interpretive comment to reflect the position taken by Committee A in the 1964 statement that I quoted in my post (see https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure#6).
Free speech is a cherished value, but its definition has always been amorphous and it has been used and, especially recently, abused in many ways. It is worth noting that the statement by Provost Robel — who is a law professor — did not appeal to the abstract value of “free speech” but to the First Amendment, which enforces that value with respect to government action. Indiana is a public institution hence subject to the strictures of that amendment, but, as I pointed out, were it a private school it would be free to fire Professor Rasmusen for his speech, unless that was protected by some enforceable contractual principle, which in most cases stems from the institution’s endorsement of academic freedom, usually as defined by the 1940 Statement.
Further, free speech, as defined in the First Amendment, does not protect employees in the private sphere from being dismissed or sanctioned for comments they make as citizens and even in the public sector its application is limited by the Pickering-Garcetti line of case law. But academic freedom claims this right for all faculty members in both public and private institutions on the basis of its necessity for the fulfillment of higher education’s role in advancing the common good. (The 1915 Declaration laid this out remarkably well, I think.) This doesn’t mean we think we’re special people, nor does it mean that we think it’s fine for non-academic employers to be able to fire employees for their personal utterances, of course.
I’ve written more on this in my book, The Future of Academic Freedom (https://pwb02mw.press.jhu.edu/content/future-academic-freedom), especially chapter 3, an earlier version of which appeared on this blog at https://academeblog.org/2016/12/28/on-extramural-expression-a-response-to-jonathan-helwink/.
As for the Holocaust denier, you are thinking of Arthur Butz, who still teaches (although he may be partially retired) at Northwestern University. I have often used his case as an example of how extramural expression must be relevant to “fitness” for position if it is to justify dismissal or discipline. As an engineer, his views on the Holocaust have no relevance to his fitness. But were he an historian of 20th century Europe, as I am, it would be a very different matter. Of course, were he simply a citizen and not a professor he could freely espouse his views, including in books and articles on history. Interestingly, I recently learned that Northwestern has barred Butz from teaching required classes, much as Penn did with Amy Wax and Indiana is now doing with Rasmusen, in Butz’s case out of concern that Jewish students could fear that they would not be fairly treated by him.
Yes, I have read those documents and I apologize if I did not explain myself well enough in my quick comment. Indeed, “[scholars] should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.” One of my points is that I’m not so sure scholars are always making such effort, especially on Twitter and other social media today. Also, academics have the right to extramural utterances, but does that mean that when we spout off on whatever we feel like in those extramural utterances we are exercising our academic freedom, or does academic freedom more specifically protect us to be able to follow an argument in our area of scholarly expertise where it leads, share our research findings, and the like? In any case, I agree that the meaning of “free speech” is contested, and so, too, is the meaning of “academic freedom”, as many have documented, including in Louis Menand’s volume, The Future of Academic Freedom. Today I returned to Robert O’Neil’s 2004 piece in the Chronicle of Higher Education, in which he wrote of both Dr. Rasmusen and Dr. Butz. I appreciate the point O’Neil made there about not sending a message that someone’s views have “no place” on one’s campus. I have seen some on this Academic blog make comments along those lines, and I’m with O’Neil on that– such statements imply a threat to excise controversial views.