BY HANK REICHMAN

Last week historian Garrett Felber reached a confidential settlement with the University of Mississippi, where in December 2020 his appointment as a tenure-track assistant professor was not renewed under abrupt and alarming circumstances.  “I was terminated because of my public statements, including legitimate criticisms of the University.  Rather than go to court and seek reinstatement, I have chosen to move on and continue my work from a position outside this University,” Professor Felber declared.

The case attracted considerable attention, including an open letter to the administration protesting his termination, which attracted over 5,400 signatures, as well as statements from the American Historical Association, PEN America, FIRE, United Campus Workers of Mississippi, and the Organization of American Historians.  At the time, as chair of the AAUP’s Committee A on Academic Freedom and Tenure, I issued a statement in response to the university’s claim that its actions were “consistent with AAUP standards,” noting that while it would be improper for me to offer any sort of judgment at that stage, I did have serious “concerns about both the process that reportedly has been followed and the stated grounds for termination.”

As my third and final term as Committee A chair has now expired and the case has settled, I can be less circumspect.  John Wilson put it well in two posts on this blog (here and here): Felber’s termination was “one of the most remarkable attacks on academic freedom in recent memory.”  Put briefly, his nonrenewal did not follow any normal review procedure but was implemented unilaterally by his department chair, either at the behest of or with the support of the provost.  The stated grounds for termination — failing to communicate sufficiently with his department chair while on research leave — were not only, as I noted back in December, “grossly inadequate” but seemed obviously pretextual.  I won’t rehash the case here (in addition to the links above there was coverage by Inside Higher Ed and in the Mississippi Free Press).  Suffice it to say that Felber’s boldly anti-racist politics and work on prisoner rights offended powerful donors, alums and campus administrators.  Moreover, the latter, it has now been revealed, appear to have been “monitoring” Felber’s activities at least since December 2019, when he offered public criticism of a major donor to the school’s journalism program (himself a “free speech” advocate) with financial ties to the private prison industry.

My concern in this post, however, is with what happened between last December and now.  Professor Felber’s attorneys seem to believe that he would have had a strong First Amendment case.  Perhaps, but I’m skeptical.  For one thing, as I explain in the chapter on law in my forthcoming Understanding Academic Freedom, the academic freedom of individual faculty members unfortunately can claim somewhat limited Constitutional standing, Justice Brennan’s famous declaration that it is a “special concern of the First Amendment” notwithstanding.  For another, the courts have regularly — and often appropriately — exercised quite a bit of deference to the independence and autonomy of a college or university’s own internal processes of self-governance and review.

How did those processes function at the University of Mississippi?  That is a critical question and the answer, I’m afraid, is disheartening.

As I wrote in December, “thanks to previous cases that led to AAUP censure at UM, the university, in order to remove that censure, adopted policies,” consistent with AAUP recommendations, “that provide for appeals . . . to a faculty review body that can adjudicate whether a professor’s academic freedom has been violated.”  To be frank, I at the time rather naively assumed that, if Professor Felber made use of those policies, such a faculty review body could not help but conclude that his termination was in violation of his (and the entire faculty’s!) academic freedom.  Perhaps the administration would ignore or overrule such a verdict — in which case an AAUP investigation and likely censure would be all but inevitable — but it was hard to imagine, if what had come out about the case was not effectively rebutted, that a properly constituted faculty review would conclude otherwise.  Sadly, I was wrong.

Initially, Professor Felber appealed to the university’s Promotion and Tenure Committee, which declined to review the decision — according to some faculty members under pressure — declaring that it was not within the committee’s purview.  So the case went to the Academic Freedom and Faculty Responsibility Committee.  This was, however, the first case ever to come before that body and there were no guidelines.  Moreover, the committee’s chair, Associate Professor of Sociology James Thomas, had to recuse himself due to a potential conflict of interest.  Professor Thomas is himself a figure of public controversy on campus for his own anti-racist activities, with a state legislator having demanded his dismissal.  (Thomas is tenured.)

Professor Thomas was replaced by Professor Stuart Haines from the School of Pharmacy, which is not irrelevant, given that Provost Noel Wilkin is also a pharmacist.  At the committee’s hearing, held on February 2, I’m told that Haines was “unsure in his role as chair of the hearing, and, as a result, sometimes explicitly asked the Provost what the committee should be doing or how the hearing should be conducted and, in so doing, allowed the Provost to dictate far too much of what transpired.”

Be that as it may, the committee’s charge was to make a ruling about whether or not Professor Felber’s academic freedom had been violated.  Instead, it released a “statement” — labeled as such, not a “ruling” or “decision” — that, for all intents and purposes, ducked the issue.  While the statement was supposed to be public, I am told it has not been made available to reporters.  I have, however, read it and, to be honest, it is an exasperating document.  In a mere two-and-a-half pages (much of which is devoted to excerpts from university policy) it purports to summarize the positions of both sides, posing four questions the committee considered.  Two of those questions addressed whether Felber’s freedom in research or in classroom teaching had been violated.  Since these were never issues that had been raised, it is unsurprising that the conclusion in both instances was negative.  Then, of the two relevant questions the committee said it considered — Felber’s right of “free speech” and his “fitness” — it simply noted in two brief paragraphs that it could not reach a “unanimous decision,” offering no vote count indicating a majority and minority (much less spelling out majority and minority views) and adding, oddly I think, that “all votes on these questions were anonymous.”  [I cannot help but call attention here to the contrast between this flimsy “statement” and the carefully crafted and admirably thorough 164-page report of the Marquette University Faculty Hearing Committee in the John McAdams case, which I discuss on pages 90-102 of The Future of Academic Freedom.]

In short, the faculty academic freedom committee, created years ago in response to AAUP censure, did not do its job.  In effect, Professor Felber’s appeal, which I had thought to be all but a “no-brainer” for any self-respecting faculty body, was denied.

Why?  Obviously, I don’t know the members of the committee* but its feeble statement suggests, at minimum, an inadequate grasp of basic principles of academic freedom.  I suspect, however, that some mixture of cowardice and complicity must also have played a role.  Moreover, some members of Felber’s own department might also take some responsibility.  I’ve been told that no one in the department would voice support for the chair’s decision in this case, but only a minority were willing to publicly call for its reversal.  A motion of no-confidence in the chair ultimately failed, albeit narrowly.

This is a huge problem and I fear that it is hardly confined to the University of Mississippi.  Academic freedom should be understood as a freedom belonging to the academic profession as a whole to pursue inquiry and teach freely, limited and guided by the principles of that profession.  It functions ultimately as the collective freedom of the scholarly community to govern itself in the interest of serving the common good in a democratic society.  If that is the case, then a faculty’s failure to take responsibility for defending academic freedom, for enforcing the most fundamental principles of our profession, will always pose the greatest single danger to that freedom.  This is why tenure is so important and why it is not designed solely, even mainly, to provide protection to individual scholars.  As I put it in Understanding Academic Freedom,

Tenure protects academic freedom by ensuring that scholars may be uninhibited in criticizing and  advocating controversial changes in accepted theories, widely held beliefs, existing institutions, as well as the policies, programs, and leadership of their own institutions.  But perhaps most important, the existence of a sufficiently large group of tenured faculty can ensure that dissenters and gadflies can have a community of supporters able to advocate on their behalf.

But in times of polarization and controversy, such as that in which we now live, such a community is especially important, since it is almost always the case that only a minority will have the courage to stand on principle.  With the erosion of tenure that minority is rapidly becoming endangered as a minority within a rapidly shrinking minority of those even positioned to stand up.

The 2011 AAUP statement, Ensuring Academic Freedom in Politically Controversial Academic Personnel Decisions, acknowledged that “mere adherence to due process or weak or substantively biased faculty committees may provide politicized decision making with a veneer of legitimacy. . . . [A]lthough procedural protections . . . 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.”

In her classic study of the academy’s response to McCarthyism in the 1950s, historian Ellen Schrecker wrote, “it is hard to escape the conclusion that the failure to protect academic freedom eroded the academy’s moral integrity.  Professors and administrators ignored the stated ideals of their calling and overrode the civil liberties of their colleagues and employees.”  In those years processes and institutions, including the AAUP, created to protect academic freedom were ignored, misused, or systematically undermined in ways frighteningly evoked by the failure of such processes in Mississippi today.

Asked by Inside Higher Ed about the atmosphere for academic freedom today at Mississippi, Professor Thomas, the chair of the academic freedom committee who had to recuse himself, responded, “It sucks.  I think your typical faculty member wants to feel that they can go to work and do their job and that they don’t have to worry about somebody from state government, and they don’t have to worry about an appointed official, and they don’t have to worry about private donors interfering in their jobs.”  Now, of course, they have to worry about whether their colleagues will, so to speak, have their backs, at least in sufficient number to matter.

Have we faculty members, in Walt Kelly’s famous phrase, “met the enemy and he is us?”  I hope not, but the Felber case does not encourage optimism.

*Other members of the committee included two from the college of liberal arts, one from the school of accountancy; one from the school of education, one from the school of business administration, one from the school of engineering, and one from the university library.

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.