POSTED BY CAPRICE LAWLESS

The statement was written by Don Eron, a retired Senior Instructor at the University of Colorado Boulder and former member of the AAUP Committee A on Academic Freedom and Tenure. It was approved by the Executive Committee of the Colorado Conference on February 8, 2021.

On January 22, 2021, the University of Colorado Boulder announced the partial suspension of Professor John Eastman, the Visiting Scholar of Conservative Thought at the Benson Center for the Study of Western Civilization:

“Effective Jan. 21, the University of Colorado Boulder relieved John Eastman of duties related to outreach and speaking as a representative of the Benson Center for the Study of Western Civilization. University officials determined Eastman’s continued pursuit of these duties would likely be disruptive and damage the interests of the campus and the Benson Center.”

 The Colorado Conference of the American Association of University Professors (AAUP) urges CU Boulder to rescind its summary suspension of Professor Eastman. The long-term damage to the reputation of the University, in suspending Professor Eastman for his political activities, and doing so without recourse to the due process protections to which he is entitled, will be far greater than any short-term damage to the University that might accrue from his political activities.

We do not dispute that Professor Eastman has played a central role in a political drama that many in the University community find abhorrent. He published a constitutional interpretation that would have disqualified then-Vice Presidential candidate Kamala Harris from assuming office. He represented President Trump in a lawsuit that, if successful, would have disenfranchised millions of voters. He persuaded President Trump that Vice President Pence had the constitutional authority to usurp the Electoral College process. With visible passion and fury, he spoke at the January 6 rally in Washington, D.C., railing that the future of the Republic was at stake because some elected officials (presumably Vice President Pence) were too cowardly to enforce his constitutional interpretation. When, shortly thereafter, the angry mob occupied the Capitol in an attempt to overthrow our democracy, Professor Eastman defied anyone to prove that any of the attendees at the rally were involved. At the least, many of his constitutional and legal interpretations fall outside of the mainstream, and some of his opinions appear self-serving and nonsensical.

Nor do we dismiss the concerns of CU Boulder that his continued pursuit of these political activities, while a member of the University, might damage the interests (broadly defined) of the Benson Center. We do not believe there is a sentient being who would conflate the activities and opinions of Professor Eastman with the official position of CU Boulder, but there can be little doubt that his affiliation has already damaged the reputation of the Benson Center as a platform for principled conservative political thought, at least in the view of many.

Unfortunately, punishing professors for their political activities in nothing new in academia. Indeed, one of the founding myths of the AAUP centers on the forced resignation of the eugenicist (and progressive sociologist) Edward Ross from Stanford, in 1900, after a speech in which he urged authorities to use violence, if necessary, to halt Japanese immigration. By today’s standards, the political opinions for which Professor Ross was punished are reactionary. However, most academics persecuted for their political beliefs have been on the political left. According to the 2011 AAUP statement Ensuring Academic Freedom in Politically Controversial Academic Personnel Decisions:

 “Beginning with professional economists who ran afoul of the conservative business community in the Association’s early days, the individuals who lost their positions for political reasons have been involved with some of the most controversial issues of their time. Whether by deviating from the hyperpatriotism of World War I, or refusing to answer questions about communism during the McCarthy era, or taking an unpopular stance toward the current conflict in the Middle East, the protagonists in these academic-freedom struggles have tested the limits of permissible dissent within the academic, as well as the broader, community….”

From this perspective, the history of the academic profession is a history of institutions punishing leftist professors for fear that their unpopular political activities (and the resulting negative publicity) might provoke institutional damage. The classic cycle goes as such: The professor, in pursuit of her professional obligation to contribute to the common good, lends her expertise to addressing a public controversy. The institution, pressured by incensed oppositional factions within or outside the University community, seeks to limit reputational damage by disciplining (and publicly humiliating) the professor. The 2011 AAUP statement elaborates upon the essential social obligation of Universities when confronted with political controversy:

“The freedom that the common good requires…can be hard to maintain, as we have learned from such prior experiences as the dismissals of controversial professors and subsequent constraints on academic discourse during and after the two world wars. These events teach us that political restrictions on academic expression must not be countenanced— even when most faculty members support or at least acquiesce in them. To avoid a recurrence of such situations, the contemporary political pressures on the academic community must be countered by emphasizing how free universities contribute to the common good even as they create political tensions between the academy and society that require the protection of academic freedom.”

Since influential stakeholders outside of the University—whether state legislators, alumni, donors, trustees, newspaper editorialists, radio shock jocks, or concerned members of the tax paying public—have often been more politically conservative than the typical professor (especially in the Humanities and Social Sciences), the historical targeting of professors on the political left is unlikely to change and may only be intensified by the intolerance of many in the CU Boulder community toward Professor Eastman for testing, from an unpopular reactionary perspective, the limits of permissible dissent. The 2011 AAUP statement depicts a troubling circumstance that has only magnified over the subsequent decade:

“Current political threats to academic freedom have intensified with the rapid growth of the Internet and new media that have made it possible for talk-show hosts, bloggers, and well-funded interest groups to supplement the trustees, politicians, corporate and religious groups, and journalists who previously put untoward pressure on the university. At the same time, the need for faculty members to contribute their expertise to public discourse and policy debates has increased. The protection of their unfettered expression, including the ability to espouse highly controversial and unpopular views, is an essential social responsibility of universities and colleges.”

Regardless of the short-term inconvenience or other potential consequences to the University (short of imminent physical harm or preventing the University from conducting business), the long-term pursuit of the common good obligates the University to protect, rather than repress, the unfettered expression of unpopular views. The actions of CU Boulder in restricting Professor Eastman are anathema to the academic values that the University purports to represent.

The Partial Suspension

CU Boulder, in relieving Professor Eastman of his speaking and outreach responsibilities, does not refer to the punishment as a suspension. As a University spokesperson clarified, CU Boulder has not banned Professor Eastman from performing all of his professional responsibilities: He will be permitted by the University to perform scholarship and he will continue to receive his salary. The 2008 AAUP statement On the Use and Abuse of Faculty Suspensions, discusses the increasingly common practice of universities, when suspending professors from performing some (but not all) of their professional responsibilities, classifying the punishment as something other than a suspension:

“Resistance to calling the action a suspension can be particularly prevalent in cases that involve continued payment of salary to the faculty member during the period of suspension, as if the mere fact of pay were sufficient to absolve the administration of impropriety… Although the suspension of a faculty member from some or all duties is not a new phenomenon, it has been increasingly common… Sometimes, as we will show, administrators decline to use the term and claim that in fact what they are imposing is not a suspension at all… Whether a suspension is partial or total… in many cases administrations, often acting on advice of their legal counsel, do not seem, or care, to grasp the severe effects that suspension can have.…”

The classic AAUP description of the damaging impact of a summary suspension, to both the professor and the institution that administers the punishment without giving the professor a chance to defend himself, appears in Committee A’s 1966 investigative report of St. John’s University:

“The profession’s entire case for academic freedom and its attendant standards is predicated upon the basic right to employ one’s professional skills in practice…. To deny a faculty member this opportunity without adequate cause, regardless of monetary compensation, is to deny him his basic professional rights…. To inflict such injury without due process and therefore, without demonstrated reason, destroys the academic character of the University.”

Recognizing the pervasive damage that may occur when an institution, possibly acting out of concern for its reputation, denies an unpopular professor access to basic professional rights, the AAUP requires that any professor facing suspension be afforded due process protections identical to those granted in termination proceedings. As stipulated in Section 7a of the Recommended Institutional Regulations on Academic Freedom and Tenure (RIR):

“If the administration believes that the conduct of a faculty member, although not constituting adequate cause for dismissal, is sufficiently grave to justify imposition of a severe sanction such as suspension from service for a stated period, the administration may institute a proceeding to impose such a severe sanction; the procedures outlined in Regulation 5 will govern such a proceeding.”

Regarding the suspension of Professor Eastman, these procedures would involve numerous levels of due process, culminating (if necessary) in a full hearing before a duly elected faculty committee, with the burden of proof on the administration to present clear and convincing evidence that his conduct (e.g., his recent political activities), when weighed against the entirety of his professional record, renders Professor Eastman unfit to pursue his speaking and outreach obligations.

Due Process for Professor Eastman?

While we urge CU Boulder to rescind its summary suspension of Professor Eastman and afford him the opportunity to defend his reputation in accordance with Regulation 5 of the RIR, recent commentary suggests the University may lack the resolve, if not the capability, to conduct a faculty hearing that is consistent with AAUP standards.

The 2011 AAUP statement, Ensuring Academic Freedom in Politically Controversial Academic Personnel Decisions, recognizes that merely following procedures does not guarantee legitimacy in a politically charged faculty hearing:

“[E]ven in cases where politically controversial individuals receive the full complement of AAUP-recommended procedural guarantees, there is increasing concern that mere adherence to due process or weak or substantively biased faculty committees may provide politicized decision making with a veneer of legitimacy. As the past century of political threats to academic freedom has revealed, although procedural protections—such as providing adequate notice, a statement of specific charges, and a hearing before one’s peers—are crucial to the defense of academic freedom, they may not be sufficient in themselves, especially in cases where the dissenting faculty member confronts a strong mainstream consensus in support of repression.”

As addressed in numerous AAUP documents, the faculty hearing committee must be composed of members who are objective, competent to evaluate the issues under examination, and of sufficient professional standing to validate the proceedings. Furthermore, according to the 2011 Statement:

“In politically controversial cases, the need for specific charges narrowly formulated with ‘reasonable particularity’ does not relieve the committee… of the responsibility to weigh these charges in the light of the faculty member’s ‘entire record as a teacher and scholar’ (1970 Interpretive Comment 4 on the 1940 Statement of Principles).”

A January 13 article in Boulder, Colorado’s Daily Camera raises alarming questions about the objectivity of many on the faculty toward Professor Eastman, or the prospects of the University appointing a faculty hearing committee with the ability to weigh visceral disapproval of his recent political activities against the entirety of his professional record:

“A letter signed by more than 700 CU Boulder students, faculty and staff called for system President Mark Kennedy and the Board of Regents to dismiss Eastman, alleging that he ‘egregiously violated the Faculty Pledge of the University of Colorado to uphold the Constitution of the United States…. In appearing as a prop in this grotesque play, John Eastman weaponized his academic credentials, given to him in part by this university, to solicit a seditious act against the United States that led to the invasion of the United States Capitol Building and the death of five people,’ the letter stated. ‘We demand that he be dismissed from his position immediately, and we want a rigorous academic investigation into his scholarly conduct and work.’ ”

That these faculty signatories demand that Professor Eastman be dismissed before a rigorous hearing, while presumably understanding that punishment before trial is an inversion of justice, speaks to the cognitive dissonance of many CU Boulder faculty in reaction to Professor Eastman and his political activities. In this they are consistent with Chancellor Phil DiStefano—who one week proclaims CU Boulder’s commitment to the “free exchange of ideas and the pursuit of knowledge” while explaining that Regent policy prohibits him from punishing Professor Eastman for his “shameful” and “repugnant” political expression, then the next week summarily suspends Professor Eastman from his speaking and outreach obligations.

The ‘I believe in academic freedom, except…’ philosophy advanced by these faculty signatories and Chancellor DiStefano is not unique to faculty members and administrators at CU Boulder. Indeed, it is a commonplace reaction to ideas that fire political passion, even among professors who in other professional contexts routinely accommodate ideas with which they disagree. The AAUP philosophy of academic freedom stems from the belief that nobody possesses absolute knowledge —not the faculty signatories who assert that on July 6 Professor Eastman egregiously violated the US Constitution, not Chancellor DiStefano, and not Professor Eastman, whose view on the permissibility of his recent political activities differs radically from that of the faculty signatories and Chancellor DiStefano. In this context, the necessity of weighing a single offensive act, or a particular set of acts, against the entirety of a professor’s professional record, acts as a safeguard against the vulnerabilities of human judgment.

Professor Eastman served for 14 years as the dean of a highly reputable law school. He is a recognized, if at times controversial, constitutional scholar. According to the Claremont Institute (where he was the founding director of the Center for Constitutional Jurisprudence) web page, at Chapman University he won awards as Professor of the Year and for Faculty Excellence and Creative Activity. He has represented 17 parties and over 75 amici briefs before the U.S. Supreme Court, often in politically charged cases. He has testified numerous times before Congress and has appeared as an expert legal commentator on C-SPAN, Fox, and PBS, among other venues, including the O’Reilly Factor. He has a Ph.D. in government from Claremont and a J.D. from the University of Chicago. He served as a clerk for Clarence Thomas in the U.S. Supreme Court, and was Chair of the Federalist Society’s Federalism and Separation of Powers Practice Group. And so on. Some of these credentials are significant by any standard, and most bespeak a conservative perspective. According to the Benson Center web site, for the position of Visiting Scholar for Conservative Thought they seek “senior-level, highly visible scholars who are deeply engaged in either the analytical scholarship or practice of conservative thinking and policymaking or both.” At first blush, it’s hard to imagine a better fit than Professor Eastman.

If it were possible for CU Boulder to field a disciplinary hearing committee of faculty members who are objective, competent to evaluate the constitutional issues, and of sufficient academic stature to legitimize the proceedings, these faculty members might find that, despite their personal distaste for Professor Eastman’s political activities, judging him unfit to participate in the academic profession, when taking into consideration the entirety of his professional record, is a high bar.

From the perspective of AAUP philosophy, that is as it should be. The alternative is a rabbit hole.

What’s the Point Now?

When CU Boulder announced the suspension of Professor Eastman from his speaking and outreach duties, he was reportedly under consideration to serve as President Trump’s attorney in the Senate impeachment trial. Under the terms imposed by his suspension, he would need to resign from CU-Boulder in order to accept the high profile assignment, presumably saving the University and the Benson Center from the ongoing embarrassment and humiliation of an affiliation. As it stands, Professor Eastman is expected to testify at the trial. We assume he’ll be (or would have been) in demand to offer expert legal commentary, especially to conservative media outlets.

According to the University’s web page dedicated to faculty outreach and community engagement, outreach activities comprise an “integral part of the university’s mission.”  Faculty participation is an “important and valued” aspect of a professor’s professional responsibilities. Listed among the various forms that a professor’s outreach activity might take is “applying professional expertise in volunteer situations.” The web page mentions that this expertise should be “rooted in scholarship,” but does not state that the scholarship must reach conclusions with which the Chancellor agrees, or be congenial to large segments of the faculty, including (presumably) many unaccustomed to the occasionally disputatious nature of constitutional debate.

Professors are not automatons. Sometimes, in their obligation to pursue the common good, they might test the limits of permissible speech and say things that others find stupid and embarrassing. For most professors, their academic expertise lies far afield from their daily political passions, although some may believe (or not deny) that political passion motivates their academic inquiry. When these professors offer professional opinions on contentious issues within their field, it never occurs to the Chancellor to condemn their speech, or to wide swaths of the faculty to demand their immediate dismissals. That is why university administrators are especially obliged to countenance political speech, to take the good with the bad or at least not privilege their own emotions, or the opinions of their legal staff, over the professional rights of their professors.

If CU Boulder’s oft-expressed commitment to academic freedom is to stand as anything but a lie or platitude that completely (and cynically) misunderstands the concept, the Colorado Conference of the AAUP urges it immediately to rescind Professor Eastman’s partial suspension. If the University chooses, it might then provide Professor Eastman with a list of specific charges and the opportunity to defend his political activities before a faculty disciplinary committee, in scrupulous accordance with AAUP regulations.

That Professor Eastman’s term as Visiting Scholar ends in May does not excuse the University from reversing course and doing the right thing. The viability of academic freedom at CU Boulder depends on it.