BY HANK REICHMAN

The headline on Inside Higher Ed was provocative, if not downright inflammatory: “AAUP vs. FIRE.”  But rather than the knockdown drag-out contest between two national organizations celebrated for their defense of intellectual freedom implied by the headline, the article that followed offered something much more modest. The AAUP chapter at the University of Oklahoma (UO) had responded negatively to a sensationalist expose by the Foundation for Individual Rights in Education (FIRE), which contended that a faculty development seminar at UO was training instructors how to censor and indoctrinate their students.

Professor Julie Ward, vice-president of the UO AAUP chapter, replied effectively on this blog to that charge, as has Professor Michael Givel, the chapter president.  Kelli Pyron Alvarez, one of the instructors of the session, has also posted a thoughtful explanation of the seminar’s background and on the genuine problems its instructors sought to address.  It is not my intention here to recapitulate their arguments or mainly to offer additional ones of my own. Suffice it to say that I am not unalert to the potential problems that such trainings may occasionally pose for individual expression and minority viewpoints—and, I might add, this may be a concern with just about any training exercise designed to improve teaching and not just ones promoting antiracist pedagogies. However, FIRE’s response was a major overreaction and entirely insensitive to the totally admirable purpose of the session, which, as Givel and Alvarez explained, was to assist instructors in implementing the university’s rules on intimidation and harassment in the classroom.  There is also not the slightest hint that any of the allegedly problematic suggestions offered in the workshop have in fact been implemented, much less employed to silence or intimidate dissenting students.  Even FIRE’s own account acknowledges that session attendees were free to raise questions and disagree, which several did.  Moreover, FIRE’s decision to publish online a video of the event without the permission of those attending; to release the names of the untenured instructors, leading, Alvarez reports, to hate mail and threats of violence; and to provide a form by which readers could express their outrage “with just two clicks” actually replicated some of the very tactics of intimidation that have become hallmarks of recent assaults on educators and which FIRE itself has elsewhere decried.

In this post, however, I want to explore more deeply how a conflict like this could emerge and how and why the AAUP’s definition and defense of academic freedom may sometimes clash with FIRE’s defense of “individual rights.”  In doing so, let me stress in advance that I write only for myself; this post should not be taken as any sort of official position of the AAUP or any of its committees, conferences, or chapters.  Let me also acknowledge that FIRE has done much excellent and important work in defense of both student and faculty rights and that in more than a few cases they have worked well with AAUP staff, chapters, and members.  FIRE provided legal assistance and support for Professor Teresa Buchanan’s ultimately unsuccessful effort to regain her position at LSU, a case in which the AAUP filed an amicus brief and was otherwise closely involved.  More recently, FIRE intervened on behalf of a Collin College faculty member attacked for her expression on social media and two others dismissed for their union activism, a case that the AAUP is currently investigating. There are other positive examples.

It is sometimes charged that FIRE is more eager to defend conservative students and faculty members than it is to come to the defense of those on the other side of the ideological spectrum. That, however, was probably more true in the group’s initial years as FIRE seemed to perceive that the liberal tilt of most higher education faculties and many administrations posed a greater danger to conservatives than to leftists, especially among students.  Whether or not that is a valid view, in my experience FIRE has not generally applied political litmus tests to the cases that they take up.  As assaults on the rights of left-leaning faculty members have increased, so too has FIRE’s attention to that problem.

Similarly, I am not persuaded by arguments that distinguish FIRE’s approach from that of the AAUP on the basis of FIRE’s alleged “free speech absolutism.”  I understand what people are trying to get at with this label, but the concept of “absolutism” on free speech—or academic freedom, for that matter—is essentially meaningless.  No one—absolutely no one—argues that anybody can say whatever they want at any time, anywhere, or in any manner. The actual debates are always about where to set limits or draw lines and who is entitled to do the limit-setting and line-drawing. And this is more often than not a matter more of nuance than of strict and clear definition. Indeed, otherwise there would be no basis for the mammoth scholarly and legal literature on free speech and academic freedom.

I think the explanation can be better found by starting with FIRE’s own self-definition as expressed, first and foremost, in its name. FIRE does not defend academic freedom or any other collective rights (e.g., the right to organize a union), but is dedicated instead to promoting “individual rights.” But in higher education there are various categories of “individuals:” faculty members, professional staff, nonprofessional staff like janitors or groundskeepers, donors, and, of course, not least of all students. Individuals in each of these groups occupy different places in the institution, play different roles, and, therefore, can claim different rights, both as groups and as individuals. All may be protected by the First Amendment, for instance, but no reasonable person would claim that all may speak in the same ways in the same spaces, including the classroom. How best to define both the collective rights of each group and those of individuals within each group is not always easy and may frequently depend on context.

Moreover, the rights of members of one group may at times conflict with the rights of another. Clearly the rights enjoyed by students in class are not only not the same as but may at times clash with the rights of the class’s instructor.  Moreover, the right of an individual student to speak in class, may, if abused in its frequency or content, silence other students, a situation that instructors are obligated to appropriately manage.  And conflicts may emerge quite starkly when students engage in nonviolent protected protest activities that may nonetheless impact the ability of faculty members (and other campus workers!) to do their jobs. [This is not the place to consider, as much recent literature has, whether the prism of “rights” or “rights-talk” is always the most appropriate way to address political and social tensions in the first place.]

FIRE claims that its mission is “to defend and sustain the individual rights of students and faculty members.” But it seems that the organization has not given a lot of thought to the potential for those rights to conflict both with each other and with the collective rights of each group. Both collectively and individually students and faculty do not always have common interests or common rights. My sense is that where student and faculty “rights” conflict, FIRE tends to side with the student(s). And, in fact, it might help resolve the issue were the group to rename and repurpose itself as the Foundation for Student Rights in Education, although that would mean not only abandoning the faculty but giving up the flashy acronym.

The AAUP, on the other hand, does not claim to represent students, except insofar as graduate students may take on research and instructional duties commonly given to faculty. To be sure, the AAUP has since 1967 championed the Joint Statement on Rights and Freedoms of Students, which it helped write. But as a 1929 AAUP investigation concluded, the Association “cannot concern itself in a case of student discipline as such, even though such discipline may be unjust and excessive,” adding that the university’s discretion to punish “is not subject to review on the ground of academic freedom,” although the faculty should be consulted in such matters. More important, the AAUP’s mission statement makes no mention of “individual rights” but instead focuses on principles and policy, pledging the organization to “advance academic freedom and shared governance, . . . ensure higher education’s contribution to the common good,” and develop “standards and procedures that maintain quality in education and academic freedom.”

Over the past century the AAUP has spent considerable energy in theorizing both the collective rights of the faculty vis-a-vis the administration, trustees, legislators, donors, and even students and also in thinking about how the individual rights of faculty members vis-a-vis each other fit in with the collective right of the faculty to govern itself. That hasn’t always been easy, and disagreement—mostly constructive, I think—inevitably remains, as contexts and challenges are always changing. The approach developed by the AAUP may frequently align with FIRE’s more crudely defined commitment to individual rights, but where conflicts and complications arise, I would suggest that FIRE is less well-equipped to mediate these, falling back, as it often does, on a largely unfocused libertarian sensibility as well as First Amendment law (applicable mainly to public institutions and, as Robert Post and others have demonstrated, almost hopelessly conflicted on academic freedom).

One other point is essential. The AAUP is a professional membership organization. While it has paid staff, it is directed by elected members of the teaching profession, who in significant numbers participate in the organization’s work at the campus, state, and national levels. FIRE, on the other hand, is an independent non-profit advocacy organization funded by donations. While a few professors serve on its Board of Directors and Advisory Council, they are not a majority and the staff is dominated by non-educators; many are attorneys. The FIRE staff members credited with authoring the piece on UO have, it seems, no teaching experience at all.  Daniel Burnett, is the organization’s Director of Communications and has a bachelor’s in journalism. Sabrina Conza, a program analyst, is a 2020 graduate in journalism. It should hardly surprise, therefore, that they would not react as I and no doubt thousands of other faculty members did in recognizing that what is said in a faculty development workshop is not at all what might happen in an actual class.

To be sure, noneducators are not only entitled to comment on and offer ideas about higher education; their insights and perspectives might at times be more penetrating and useful than those of insiders.  Nevertheless, some humility would be helpful. People who have not had the experience of actually trying to teach a class, work with diverse and sometimes troublesome students, collaborate with colleagues (also troublesome at times), and comply with campus rules and regulations (often conflicting, even arbitrary) would be well advised not to jump to conclusions. It would be a shame if FIRE ended up as yet another outside force, alongside meddling politicians, uninformed trustees, arrogant donors, and distant judges, who, however well-intentioned, are nonetheless confident that they know better than the faculty how we should do our jobs.

Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and president of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019.  His Understanding Academic Freedom will be published in October.