Tag Archives: AAUP

Who is Responsible for Keeping Christian Colleges Christian? (Part One)

1 Reply

Today I continue my series on the contemporary challenges to the viability of the Christian college. In past essays I’ve focused on academic freedom. In this essay I want to explore the concept of “shared governance,” that is, faculty participation in the decisions that determine the academic quality and educational effectiveness of the college. In the literature I’ve read, academic freedom, tenure, and shared governance are held to be the mutually entailed rights that transform college teachers from employees into professionals. Apologists for the profession justify granting professional status and bestowing these three privileges on professors by appealing to their disciplinary expertise and their unique contributions to democratic society.

It should come as no surprise that even professors in Christian colleges desire such privileges. But will giving them such powers tend to preserve or erode the Christian character of the Christian college? I am a professor and have never served as an administrator or on the board of trustees of a college. I am content in my role as a thinker, teacher, and researcher. For many reasons and much bitter experience, I am very clear that the faculty is not a reliable guardian of the Christianity of a Christian college. Boards of Trustees and administrators—especially presidents—must serve as the guardians of the Christian mission of Christian colleges. That is where I am headed, but first we need to get clear on the history of the concept of “shared faculty governance.”

I will get us into this subject by reviewing, analyzing, and applying Larry G. Gerber’s The Rise & Decline of Faculty Governance: Professionalization and the Modern American University (Johns Hopkins, 2014). Gerber is a historian of twentieth-century America with a long-term interest in faculty governance and a career of involvement with the American Association of University Professors. The book contains an introduction, five core chapters, and a conclusion. Typical of history books, each chapter covers a time span marked off from the preceding and the following by a turning point of some kind. The periods are; before 1876, 1870-1920, 1920-1940, 1940-1975, and 1975 to the present.

College Governance Before 1876

In the Colonial era and beyond, American colleges were organized under governing boards of trustees and “strong presidents” (p. 15), a pattern that continues to exert strong influence today. Education at these colleges focused on character formation rather than “on intellectual inquiry and discovery” (p. 16). The faculty were usually younger, recent graduates headed for the ministry or another profession with no plans for a lifetime career as a professor. In 1817, Yale president Jeremiah Day took a significant step toward shared governance by inviting the Yale faculty to participate in the appointment of new faculty (p. 17). As more and more faculty studied abroad and came to see themselves as subject area experts, they began to expect more respect from administrators and boards of trustees. Under the influence of the German model of higher education, Henry P. Tappan, president of the University of Michigan, speaking before the university senate in 1861, urge that “no laws or regulations should be made without the concurrence of the faculties; and the appointive power should rest with the University Senate” (p. 21). Even into the 1870s, however, “the idea of a formal academic career was still in its infancy” (p. 25).

The Emergence of a Professional Faculty, 1870-1920

Between 1870 and 1920 several factors contributed to the growing professionalization of the professorate and the corresponding demand for greater faculty control over the academic aspects of the university. Over 5,000 American scholars studied in Germany between 1870 and 1900, and they returned intent on implementing the German model in American universities. Founded in 1876, Johns Hopkins University patterned itself on German educational principles to a great extent. The newly founded universities of Cornell and the University of Chicago as well as the older universities, Harvard, Columbia and the University of Michigan, competed for faculty from the best scholars available. Because of their growth in size and increasing specialization, the university department became the center of day-to-day academic life. Professors began to root their identity more in nation-wide specialty areas of study and professional organizations than in their local college or university. It was in this era that the PhD became the required credential for teaching at elite universities. Under pressure from these forces, boards of trustees and administrators began to acquiesce to professionalized faculty demands for more shared governance, academic freedom, and tenure. Gerber summarizes these changes in words that focus on academic freedom but apply to faculty shared governance:

The more rigorous and specialized postgraduate training required to become a faculty member at American’s emerging universities provided a basis for claiming both the right to, and the need for, a more robust form of academic freedom than had been known in America’s antebellum colleges. Expertise was thus a crucial component of the emerging concept of academic freedom (p. 46; emphasis added).

This era saw the founding of the American Association of University Professors, about which I have written in previous essays.

The Development of Faculty Governance 1920-1940

In this chapter and in the rest of the book the newly founded AAUP takes center stage. Gerber recounts the three stories of what he and the AAUP consider arbitrary and authoritarian conduct by university presidents and boards. These episodes take place at Washburn College, Clark University, and the University of California (pp. 61-65). In 1940, the AAUP’s Committee T on Place and Function of Faculties in College and University Government report highlighted four areas of concern voiced by faculty nationwide:

(1) opportunities for direct faculty communication with trustees; (2) faculty involvement in the selection of administrators (president, dean, department chair or head); faculty exercise of primary responsibility for appointing and promoting colleagues; (4) meaningful faculty participation in the budgetary process (pp. 75-76).

According to Gerber, in 1940 very few faculty in American colleges enjoyed these rights, which are clearly aspirational for the AAUP.

Developing Consensus on Shared Governance, 1940-1975

The AAUP’s 1966 Statement

The years between 1940 and 1975 saw unprecedented growth in student population, public financing, and world-wide prestige in American colleges and universities. Demand for qualified professors outstripped supply. By 1973, a “consensus” had developed within higher education of “the advisability of granting faculty primary responsibility for making most academic decisions” (p. 82). One of the most significant landmarks of this era was the publication of the 1966 Statement on Government of Colleges and Universities, a joint statement of the AAUP, the ACE (the American Council on Education, and the AGB (the Association of Governing Boards).

Section 1 introduces the document. Section 2 deals with the “joint Effort” in which the trustees, administration, and the faculty participate jointly. These include general education policy, internal operations, and external relations. Sections 3 and 4 deal with the duties of the governing board and the president respectively. Section five lays out the scope of faculty duties and privileges:

The faculty has primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction, research, faculty status, and those aspects of student life which relate to the educational process…

The faculty sets the requirements for the degrees offered in course, determines when the requirements have been met, and authorizes the president and board to grant the degrees thus achieved…

Faculty status and related matters are primarily a faculty responsibility; this area includes appointments, reappointments, decisions not to reappoint, promotions, the granting of tenure, and dismissal. The primary responsibility of the faculty for such matters is based upon the fact that its judgment is central to general educational policy. Furthermore, scholars in a particular field or activity have the chief competence for judging the work of their colleagues; in such competence it is implicit that responsibility exists for both adverse and favorable judgments.

The chair or head of a department, who serves as the chief representative of the department within an institution, should be selected either by departmental election or by appointment following consultation with members of the department and of related departments; appointments should normally be in conformity with department members’ judgment.

Agencies for faculty participation in the government of the college or university should be established at each level where faculty responsibility is present. An agency should exist for the presentation of the views of the whole faculty.

Professional Association or Trade Union?

For most of its existence the AAUP stood firmly against faculty unionization. Indeed, most faculty at elite research universities shared this rejection, because the notion of professional expertise and faculty shared governance, which focus on quality of education and the common good, seems incompatible with the self-interested goals and adversarial methods of trade unions. In 1971, however, the AAUP relented and accepted collective bargaining as one way to achieve its goals. The debate about the compatibility of the two approaches still rages within higher education.

This era saw the high watermark of faculty shared governance. But by 1975 storm clouds began to darken the horizon: the dramatic rise in the use of “contingent faculty,” the advent of the “for profit” university, and the influence of the market, consumer, and corporate model on higher education.

Corporatization and the Challenges to Shared Governance, 1975-Present

Changing Social Conditions

By the mid-1970s, the flood of students from the baby boom generation slowed to a trickle. Just as the undergraduate student population declined, a glut of new job-seeking Ph.Ds. entered the job market. States like California and Michigan that had poured money into their systems of higher education in the booming post-World War Two era reduced their support by a third. At the same time, states and the federal government imposed a huge number of new regulations, which diverted funds from professors to the ranks of new administrators, compliance officers, and support staff (p. 155).

Responses to the Challenges

Responses to these challenges were predictable. Cost-cutting, reorganization, competing for students by appealing to their and their parents’ immediate wants, and turning to lower-paid graduate students and other contingent faculty to teach courses. By the 2010s, when you include graduate students, 60% of teaching was done by part-time faculty (p. 147). Currently, less than one third of faculty in American colleges and universities serve in tenured or tenure-track positions (p. 9). According to Gerber, this shift amounts to the “deprofessionalization” of the faculty (pp. 146-147). Contingent faculty do not have the benefits of tenure, full academic freedom, or participation in faculty governance.

The Management Revolution

In his highly influential book, [Academic Strategy: The Management Revolution in American Higher Education (Johns Hopkins University Press, 1983], George Keller argued that American colleges and universities faced “the specter of decline and bankruptcy” (p. 123). This crisis was brought on by a “leadership crisis,” a “breakdown of leadership” (p. 123). Governance must not be divorced from “concerns about an institution’s financial condition and future economic viability” (p. 123). Keller “criticized the effectiveness of faculty senates and the increasing tendency of faculty members to focus on their own individual interests rather than the collective well-being of the institutions in which they worked” (p. 123). According to Keller, the AAUP’s view of faculty governance was “stuck in a historical freezer” (p. 123). Every organization needs “a single authority, someone or some body of people authorized to initiate, plan, decide, manage, monitor, and punish its members” (p. 123). For colleges and universities, this authority naturally falls to the president and the board.

Limits on Unionization

As we discussed above, drives to unionize college faculty seemed to many professors to be at odds with the push toward greater faculty participation in governance. This tension factored heavily in the Supreme Court case NLRB v. Yeshiva University (1980). The Yeshiva University Faculty Association appealed to the National Labor Relations Board (NLRB) for the right to represent the Yeshiva faculty in collective bargaining. Yeshiva University argued that the faculty already enjoyed a share in the governance of the University and therefore it should be considered management instead of labor. The Court agreed with Yeshiva. Private college faculty members are not eligible for collective bargaining under the rules of the NLRB; they are “managerial employees” “involved in developing and enforcing employer policy” (p. 132). This case effectively ended efforts to establish collective bargaining at private colleges and universities in America.

Other Responses

The rise of for-profit colleges and universities (e.g. University of Phoenix), which hire mostly part-time faculty to teach administratively designed curricula, is a huge thread to shared governance and to the ideal of a liberal arts university, which views education to be a service to the common good (pp. 145-146).

To make adapting to changing economic circumstances easier, some administrators wish to shift tenure from being a university-wide status to applying only to a department (p. 153). Should a department prove economically unviable and become subject to reduction or closure, tenure will not protect a faculty member from being released. In another development weakening tenure, and consequently academic freedom, most universities now require tenured faculty to undergo periodic post-tenure reviews.

Recently, the Association of Governing Boards, which joined the AAUP and the American Council on Education in the 1966 Statement on Government of Colleges and Universities, retreated from full-throated support of faculty shared governance (pp. 155-156 ff). The AGB’s 1998 Statement on Board Responsibility for Institutional Governance, lamented “academia’s appetite for the kind of excessive consultation that can bring the institution to a standstill” (p. 156). The Statement calls for giving greater authority to the president to reshape the university in situations wherein changes must be made rapidly.

Shared Governance and the Future of Liberal Education

In his conclusion Gerber again laments the “commercialization” of higher education and the threat it poses to “the validity of ideal professionalism—and ideal premised on the possibility of individuals using their expertise in a disinterested way to advance the common good” (p. 165-166). In a final call to action, Gerber urges

If any group is to take the lead in standing up for academic values and the importance of a liberal education and trying to prevent the further degradation of the quality and narrowing of purpose of our colleges and universities, it must be the faculty, who must reassert their commitment to a broad conception of their professional rights and responsibilities…The practice of shared governance that developed in American colleges and universities were thus not simply a privilege and perquisite of the professorate; they were a necessary condition for the development of a system of education that became the envy of the rest of the world. Reinvigorating the practices of shared governance on American college and university campuses will be critical if the United States is to maintain its position of global leadership in higher education (pp. 169-170).

Next Time: How does the concept of “shared governance” apply to Christian colleges?

Can Christian Colleges Survive if “Academic Freedom” becomes a First Amendment Right?

Leave a reply

This post consists of a review and response to David M. Rabban, Academic Freedom: From Professional Norm to First Amendment Right (Harvard University Press, 2024). PP. 369.

Introduction

From the founding of Harvard College in 1636 to today, higher education has been of huge concern to American society. And until a hundred and twenty-five years ago, most colleges were connected to the church and in one way or another promoted Christianity. Over the course of the past century, however, colleges and universities have disengaged first from orthodox Christianity to adopt liberal Christianity, then on to promoting rationalistic secularity. Now the postmodern university as an institution no longer pursues truth, quests for knowledge, believes in humanity, or possesses a vision of the good. It’s about the quest for power through ideology and social activism. As I said in a previous post, a university that no longer believes in truth no longer believes in itself. It is lost. Students leave knowing less than when they arrived.

In my view, now more than ever, from a social point of view as well as a religious point of view, we need Christian colleges and universities. These institutions may be, along with the church, among the last refuges of belief in the objective reality of the good, true, and beautiful. Now is not the time for Christian colleges to give up their faith and assimilate to the already lost cause of the secular/postmodern university. And this is the reason I have written so much about academic freedom and other higher education topics on this blog.

This “review and response” is longer than my usual posts, and not everyone will wish to work through it in one sitting. But if you are interested in the future of the Christian college, I hope you will read it and pass it on to other interested parties…especially trustees, administrators, and faculty in Christian colleges.

Review

Summary of the Book’s Argument

Rabban traces the transformation of academic freedom from a generally accepted professional norm without a special legal grounding to a First Amendment right. In its 1819 decision in Trustees of Dartmouth College v. Woodward, the Supreme Court adjudicated the case through the “impairments of contracts” clause of the US Constitution (Art. I. 10. 1). In the late nineteenth century, the Court used the “due process” clause of the Fourteenth Amendment as a doctrinal basis in some cases, but from 1957 onward it has increasingly used the First Amendment (Sweezy v. New Hampshire). Though in the 1960s, the Supreme Court identified academic freedom as “a special concern of the First Amendment” (Justice Brennen in Keyishian v. Board of Regents), Rabban notes that the Supreme Court has yet to clarify and elaborate its meaning. Because of its unsettled status, “judges sometimes refer to the First Amendment right of academic freedom, sometimes to the First Amendment generally, sometimes to employee-speech jurisprudence, and sometimes to all three simultaneously without differentiating them” (p. 301). Rabban writes this book to clarify this confusion and establish academic freedom as a special First Amendment right.

Chapter-by-Chapter Summary

Chapter 1 Defining Academic Freedom in the AAUP’s 1915 Declaration

The AAUP’s 1915 “Declaration of Principles of Academic Freedom and Academic Tenure” set forth a definition of “academic freedom” that is still used today. Academic freedom concerns the professional necessity for professors to research, write, and teach within their academic expertise (and only that expertise) without hindrance from within or without the university. This special freedom given to professors is justified, the Declaration contended, because it serves the advancement of knowledge and the common good of society. The question of what qualifies as “academic speech” must be settled by one’s peers, not administrators, board members, or judges.

Chapter 2 Initial Applications of the Constitution to the University

The most famous case dealing with higher education is that of Trustees of Dartmouth College v. Woodward (1819). This case established the distinction between public and private corporations, limiting state actions in relation to the latter. In Berea College v. Kentucky (1908), the Supreme Court of the United States upheld the Kentucky state supreme court’s decision affirming the state’s right to forbid Berea College from conducting classes with blacks and whites together. Though the Court dealt with the case under the “impairments of contract” clause of the US Constitution, it denied that Kentucky had in fact violated that clause. Justice Harlan’s dissent, in contrast, relied on the Fourteenth Amendment’s due process clause.

Chapter 3 The Emergence of Academic Freedom as a First Amendment Right

Rabban introduces the chapter with these words, noting a decisive shift in the jurisprudence of academic freedom from conflicts between state and the trustees to the relationship between the state and professors.

Whereas the 1915 Declaration focused on the relationship of professors to trustees, and the earlier application of the Constitution to the university under the impairment of contracts clause focused on the relationship of the state to the trustees, these cases focused on the relationship of the state to professors (p. 52).

Many of the cases of the 1950s and 1960s dealt with the perceived threat of communist infiltration of American universities.

The first mention of “academic freedom” in a Supreme Court case was a dissent by Justice Douglas in Adler v. Board of Education (1952). The first Supreme Court decision in which the majority opinion included academic freedom within First Amendment rights was Sweezy v. New Hampshire, 1957. Chief Justice Warren wrote for the majority. Justice Frankfurter wrote a concurring opinion that speaks of “the dependence of a free society on free universities” (p. 69). Frankfurter (quoting a document written by a South African group of scholars in protest of apartheid) lists four freedoms essential to a university: “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study” (p. 69). This list of freedoms was quoted many times in the subsequent history of Supreme Court and lower court academic freedom cases. In Keyishian v. Board of Regents (1967), Justice Brennan “identified academic freedom as a First Amendment right more clearly than had any previous opinion” (p. 76). “Sweezy and Keyishian soon became the starting point for judicial analysis of academic freedom as a First Amendment right” (p. 80).

Chapter 4 The Development of Academic Freedom as a First Amendment Right

Rabban puts his finger on the most serious difficulty that arises with giving academic freedom First Amendment status:

Differentiation [between academic freedom as a special and others as general First Amendment rights] would require confronting the argument that a distinctive First Amendment right of academic freedom protects professors more than general First Amendment rights protect everybody else and more than employee-speech jurisprudence protects other public employees (p. 99).

Indeed, this argument was raised as an objection to a special right of academic freedom in a fourth circuit court case, Urofsky v. Gilmore (2000).

In every area of professorial expression (teaching research, publication, intramural speech, etc.), the decisive question about the applicability of academic freedom is whether or not such expression is “academic” and falls within the professional expertise of the professor. Of course, as Rabban discusses later, universities have the institutional academic freedom to determine the curriculum, areas of study, majors offered, budgets, and many other academic aspects of the university. Disputes about extramural speech do not usually fall under academic freedom; they are usually dealt with under general First Amendment jurisprudence.

In his conclusion to this chapter Rabban summarizes the status of the First Amendment right to academic freedom:

As in the cases through Keyishian, the Supreme Court continued to base its decisions on other doctrines even when it recognized and extolled the First Amendment right of academic freedom. But many lower-court decisions relied on this right as the doctrinal vehicle for analyzing and resolving concrete disputes…they generally agreed that the First Amendment right of academic freedom protects the academic content of scholarship and teaching (p. 111).

Chapter 5 The Limited Application of Academic Freedom as a First Amendment Right

As we noted in the above quote, even though the courts recognize a First Amendment right of academic freedom, they have not used this doctrine as the basis of their decisions. Instead, they use general First Amendment principles or employee-speech jurisprudence as the doctrinal basis for deciding cases that could have been treated under the First Amendment right of academic freedom.

In cases applying employee-speech jurisprudence, which protects speech by public employees only if it is about a matter of public concern and is not made pursuant to official duties, judges have evaluated whether speech fits within these categories (p. 113).

Pickering v. Board of Education (1968) differentiated for the first time the distinction between the government’s regulation of speech as an employer over employees from its regulation of the speech of citizens in general. It differentiates between “a citizen in commenting upon matters of public concern and the interest of the State, as an employer in promoting the efficiency of the public services it performs through its employees” (p. 120). Connick v. Meyers (1983) “narrowed the concept of public concern” to avoid a proliferation of constitutional cases. In Garcetti v. Ceballos (2006), the Supreme Court limited protections for government-employee speech by excluding speech that pertains to their “official duties” (p. 121).

Highfield Observation: clearly employee-speech jurisprudence does not conform to the professional norm of academic freedom, because academic freedom must cover speech delivered in the course of carrying out the professor’s official duty.

Chapter 6 A Theory of Academic Freedom as a Distinctive First Amendment Right of Professors

In this chapter, Rabban attempts to show that the only way to do justice to academic freedom is to differentiate it from the general First Amendment right to citizen free speech and employee-speech jurisprudence. The general First Amendment right of free speech is too broad to do justice to the special circumstances of the professorate; it is “egalitarian and individualistic” whereas academic speech is “meritocratic and communitarian” (p. 139). Employee-speech rights are limited at the very place where academic freedom is needed most. Rabban draws on the 1915 AAUP Declaration in crafting his justification for giving professorial academic speech a special status: (1) Professors cannot perform their socially important function, at the heart of their duties, without freedom to teach and write their academic discoveries and theories without hindrance. 2. Academic peers and co-experts alone should determine whether a disputed instance of professor speech is indeed “academic.”

Rabban summarizes crisply:

The distinctive First Amendment theory of academic freedom I propose is justified by the societal value of protecting the expert academic speech of professors whose boundaries are determined through peer review (p. 168).

Highfield Observation: Here we encounter the decisive issues in dealing with academic freedom questions. What counts as “academic” and who decides? Answer: “Academic” is whatever peer professors decide it is. Question: who are these peers? And what academic community are we speaking of and who selects them? These issues become decisive when dealing with academic freedom in Christian higher education. And combined with the institutional side of the equation (institutional academic freedom, the established distinction between private and public, the First Amendment rights of association and religion, institutional autonomy, etc.), it is central to defining academic freedom in a Christian school.

Chapter 7 The Development of Institutional Academic Freedom as a First Amendment Right of Universities

In the 1970s, the Supreme Court extended First Amendment protection of academic freedom to universities as institutions. This extension was anticipated by Justice Frankfurter’s enumeration in Sweeezy (1957) of the right of the university “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study” (p. 171). This list of institutional academic freedom rights forms the basis of the Court’s recent thinking on institutional academic freedom.

In this chapter, Rabban reviews cases in which universities “have asserted their institutional academic freedom to evaluate students and faculty, to regulate scholarship and teaching, and to resist interference from the state” (p. 172). In the famous University of California v. Bakke case (1978), the Court invalidated (by a 5 to 4 margin) the university’s affirmative action program at its medical school. Justice Powell provided the 5th vote for the majority but disagreed with the reasoning of both parties (14th Amendment versus statutory law). Powell recognized [drawing on Frankfurter in Sweezy: “who may be admitted to study”] that a “First Amendment right of institutional academic freedom was the only legal basis for his support of affirmative action for universities” (p. 174).

In Grutter v. Bollinger (2003), Justice O’Connor drew on Powell’s brief in Bakke to justify the use of race as a factor in college admissions at the University of Michigan. However, O’Conner used the term “educational autonomy” instead of institutional academic freedom. In his dissent, Justice Thomas argued that the First Amendment does not “authorize a university to do what would otherwise violate the Equal Protection Clause.” (p. 178). In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023), the Supreme Court invalidated Harvard’s use of race as a factor in student admissions on Fourteenth Amendment grounds, a belated victory for Justice Thomas.

As the cases within the last half century demonstrate, institutional academic freedom (or educational autonomy) and professor academic freedom can conflict; and those conflicts are not easily resolved. In truly academic matters universities may assert many rights against state encroachment and in the broad academic policies (qualities required for appointment and tenure, courses of study, etc.), individual professors do not have an unlimited academic right to do whatever they like, even if it could be construed as an academic judgment.

Chapter 8 A Theory of Academic Freedom as a Distinctive First Amendment Right of Universities

After examining cases wherein institutional academic freedom came under scrutiny, Rabban concludes,

Through numerous decisions about educational issues as well as by protecting the academic freedom of their faculties, universities foster the production and dissemination of knowledge and the education in democratic citizenship that justify First Amendment protection for academic freedom. To qualify for the protection of institutional academic freedom, universities must demonstrate that they have based a decision on educational considerations related to these First Amendment interests. This demonstration depends on convincing evidence that the person or group assessing educational considerations on behalf of the university has sufficient expertise to do so. Assessment of academic quality is the primary responsibility of the faculty, whereas the administration and governing board have a major role in the development of general educational policies…the state may have more legitimate interests in regulating public universities than private ones. To this extent, public universities have less institutional academic freedom (p. 230).

Highfield Observation: Rabban focuses almost totally on public universities. He admits that private universities have more institutional academic freedom (or institutional autonomy) than public ones. He does not attempt to delineate how that greater freedom may be exercised in contrast to state-established universities. Also, he focuses on “academic” institutional freedom and the procedural limits this focus places on universities. But “institutional autonomy,” which includes, but is a broader concept than, institutional academic freedom, may be a better category to protect private, and especially religious colleges, from state encroachment and assertions of professorial academic freedom against the general aims and philosophy of the institution. The reason for this preference is simple. According to Rabban, all things “academic” must be judged so by the faculty. Within this theory, universities possess “institutional academic freedom” only insofar as it facilitates and protects faculty academic freedom. There are no theoretical grounds for the university administration, board, or the state legislature to challenge the faculty’s “academic” judgments.

Chapter 9 Can Institutional Academic Freedom Limit Free Speech?

This chapter focuses on recent controversies over offensive speech on college campuses. May universities create and enforce speech codes censuring hate speech and other forms of offensive expression? Generally, the courts have not upheld university speech codes unless they track with general First Amendment free speech jurisprudence, that is, they limit only speech that fails the “imminent lawless action” test: threats of violence, “fighting words,” etc. And yet, the context of a university as an educational institution places additional restraints on speech. Some speech that would be lawful to utter in the public square would not be appropriate in the classroom. According to Rabban, however, even “offensive” speech should be allowed if it serves a bona fides educational purpose. As an example, a classroom reading from The Adventures of Huckelberry Finn might include the word “nigger.” Rabban argues that teachers should not be compelled to substitute “N-word” for nigger. Institutional academic freedom allows universities more regulation of speech than the government can impose in the public sphere, but it must serve an academic and educational purpose. As one can imagine, there is much danger of subjectivity in defining what speech serves an educational purpose and what speech serves no educational purpose.

Chapter 10 Judicial Review of Conflicting Academic Freedom Claims Between Professors and Universities

The academic freedom claims of individual professors may conflict with academic freedom (or institutional autonomy) claims of universities. These cases often turn on the academic merit of a professor’s research or teaching. The institution’s educational policies outweigh a professor’s academic freedom claims. Abusive, disruptive or “vitriolic attacks” of professors against the administration, for example, are not covered by academic freedom (See Johnson v. Lincoln University 1985). Rabban continues,

Several [cases] concluded that a university cannot balance the loss of funding or other support from a state legislature, alumni, or the public against a professor’s controversial expression on matters of public concern (p. 253; for a list of cases, see fn. 16, p. 353).

Most judges are rightly hesitant to weigh in on the academic or educational merit of an academic freedom claim. But they are free to examine whether or not the parties adhered to the proper procedures or acted in good faith. Judges should rely on peer review for judging academic merit.

Chapter 11 Student Academic Freedom

With reference to the justification of student academic freedom, Rabban argues,

The societal value of the student interest in learning provides a plausible justification for a distinctive theory of student academic freedom. The student interest in learning, while different from the general rights of free speech, promotes the broadly recognized First Amendment values of disseminating knowledge and promoting democratic citizenship (p. 282).

Student academic freedom differs from professorial academic freedom:

Whereas the protection of expert speech that justified academic freedom for faculty does not extend to political expression beyond this expertise, the exercise of political speech by students in extracurricular activities contributes to the learning process that justifies their academic freedom (p. 283).

Student academic freedom covers “student interests in access to knowledge, in disagreeing with the views of their professors, and in fair evaluation” (p. 297).

Response

Thoughts on the Theory of Academic Freedom as a First Amendment Right

What is the distinction between a theory of academic freedom as a First Amendment right and academic freedom as a professional norm? As a professional norm, the academic freedom of professors, colleges, and students is justified the same way other professional norms are justified, that is, the norm inheres in the definition and practice of the profession. The essence of the profession of professor is to think, research, teach, and disseminate knowledge. Subservience to alien authorities within or without the university would redefine the nature of the professorate as a mere mouthpiece of these other parties.

But why define the professorate in a way that includes this type of academic freedom within its definition? According to Rabban, in reliance on the AAUP’s 1915 Declaration, the professorate performs an important service to democratic and progressive society. It serves to advance scientific knowledge and create an informed and critical citizenry. That is to say, its function is to challenge the status quo with a view to progress in all areas of life. To do this effectively, the professorate and the university must be protected from reactionary and conservative forces invested in maintaining the status quo.

However, as a professional norm, an assertion of academic freedom possesses no legal force. It depends on persuasion and soft coercion for its enforcement. It persuades by appealing to the nature of the profession and its service to society. It coerces through mechanisms of inclusion and exclusion and rewards and punishments that operate under the control of the profession as represented by the most prestigious universities and the most celebrated professors. This professional elite institutionalizes itself in learned societies, journals, publishers, accrediting bodies, and such advocacy groups as the AAUP and the American Association of Colleges and Universities.  Still, academic freedom as a professional norm possesses no legal force, and as we saw in Rabban, most court cases involving censorship or punishment of professorial expression were adjudicated on other grounds, the “impairment of contracts” clause, the “equal protection” clause, or general First Amendment rights.

Rabban, the AAUP, and other legal scholars want the Supreme Court to recognize and clarify a special First Amendment right of academic freedom. This change would add constitutional force to the profession’s methods of enforcement, which at present are limited to persuasion and soft-coercion. It would give the professorate and individual professors the constitutional right to speak freely in the course of performing their professional duties, without censorship, threats or punishments on all academic matters within their expertise. Clearly, making academic freedom a constitutional right would provide more protection for the professorate than other legal doctrines. Within the narrow sphere of their role as professor and within their expertise, it would allow the courts to treat the activities of professors not merely as those of citizens or employees but as those of professors. Within this sphere, the work of professors would be constitutionally protected from censorship, punishment, or threats of the same from within or without the university.

As the above analysis demonstrates treating academic freedom as a special First Amendment right would give professors more protection than would other legal doctrines. But unlike other legal doctrines that have been applied to disputes about academic freedom, this doctrine focuses only on actions that qualify as “academic” and fall within the expertise of the professor. Who decides what speech qualifies as “academic” and falls within the expertise of a professor? Judges cannot make this determination. According to Rabban, this question must be decided by the professor’s peers. In effect, “academic” means whatever a group of peer professors say it means. That is to say, Rabban provides no substantive definition of “academic” speech. To complicate matters even more, we must also ask who qualifies as a peer and who selects this group of peers?

One has to ask why our society would tolerate a profession that demands freedom to exercise its “academic” expertise as it pleases and to be recognized as the sole arbiter of what counts as academic? Isn’t that rather circular? Must society simply trust that the profession as a whole will disregard its narrow self-interests and do the right thing? Moreover, the profession now wishes to have its demands declared special constitutional rights designed just for it. Why would citizens, state legislators, alumni, and donors continue to support such a profession and the institutions within which they work? Will they not demand some say about what counts as worthy of the designation “academic”? Who, then, will guard the guardians?

The demand that academic freedom be treated as a First Amendment right becomes exponentially troubling from the perspective of the Christian college. In fact, it spells the end of Christian colleges. For, if professors who teach in Christian colleges possess the constitutionally guaranteed freedom to teach and write whatever their disciplinary peers judge to be “academic” and within the expertise of the professors in question, the college’s freedom to carry out its Christian educational mission will be trumped by the consensus of the profession and the courts. Professors in Christian colleges would be free to deny and refute cardinal Christian doctrines and basic Christian moral teaching. Indeed, no one could hinder them from teaching atheism, agnosticism, moral relativism or any other view that peers in their discipline considered of “academic” merit. The Christian college’s legitimacy is denied not only by imposition of elite professional norms but also as a matter of constitutional law!

Hence, I reject Rabban’s conclusion on both social/political and Christian grounds.

Disputed Concepts

The plausibility of the theory of academic freedom articulated in the AAUP Declaration, defended and expanded by Rabban depends on accepting its interpretation of three foundational concepts. And these interpretations, I shall argue, are tendentious and disputable.

1. The Profession. The definition of the profession of professor in the AAUP Declaration omits the socially important task of explaining and defending the wisdom of the past in favor of criticism and discovery of new knowledge. The “professional” college teacher must teach students to be critical of the status quo and become more progressive in their thinking. Apparently, there is no place in the profession for conservatives and traditionalists. This is a narrow and elitest view of the profession borrowed in the late nineteenth century from German universities, which focused almost totally on graduate education and research. But there is no rational ground to exclude from the profession college teachers whose main goal is explaining and defending the wisdom of the past to undergraduates. The job of traditioning its young is a necessary educational task of any society, certainly equal in importance and prior in developmental order to developing researchers and critical thinkers. Critical thinking by those who have no foundations and accepted verities and values leads to nihilism in philosophy and radicalism in politics. No society can long exist without shared values, stories, and traditions.

2. The Academic. As we saw above, Rabban argues that “academic” means whatever the profession says it means. And yet, a profession defined as the AAUP Declaration defines it will always view itself as the only authority that understands the true art and science of the profession. If what you say is not progressive and critical of conservative culture and if you don’t adhere to the dominant methods and conclusions of the “academic” disciplines, your work will not be judged as academic. We need a substantive definition of what counts as academic. I propose that teaching and research that occurs in a school, begins with clear axioms, intuitions, or facts and argues logically for its conclusions should count as academic. In this way, what counts as academic does not depend on inbred group thinking.

3. Peer Review. Peer review is central to the modern theory of academic freedom. If the nature of the profession and the concept of the academic are defined as Rabban defines them, then peer review is essential to proper adjudication of any academic freedom claim. However, if in the review process only members of the profession as it is defined by the AAUP Declaration and Rabban qualify as peers, then the outcome is predetermined: the academic nature of a professor’s work will be judged by the elite standards or prejudices or ideologies that constitute the ethos of the peer group. Professors are not saints or thinking machines! They are just as self-interested and tribal as any other group with common interests. In my view, review committees in academic freedom disputes should include members from outside the profession as a check on inbred group thinking and a surround-the-wagons mentality. No group unchecked by a balance of power and interest can be trusted to be fair to everyone concerned. Nimo iudex in causa sua (No one is judge in their own case!).

Academic Freedom Reconsidered

If the concepts of “the profession,” “the academic” and “peer review” must be broadened beyond the confines of research institutions and scholars engaged in discovery of new knowledge and mentoring the next generation of critical scholars, it follows that the concept of academic freedom must be broadened as well. An undergraduate college that emphasizes the great books or traditional or religious wisdom must embrace a view of academic freedom with a different scope and limits than an elite research university. Professors who desire to transmit, explain and defend traditional wisdom need the academic freedom to do that, and they need institutions that employ such teachers and rewards this kind of teaching. And why shouldn’t students have the academic freedom to study at such a college and to learn from such professors? It would be institutional suicide for a college that exists to provide this kind of education to grant professors academic freedom to criticize, reject, and replace traditional wisdom or religious faith with progressive or radical thought. Nor does it make sense for them to recruit and employ or retain professors with these aspirations. Academic freedom must be broadly conceived so as to be applicable to a wide variety of colleges and universities and a variety of professors. Academic freedom, then, is the freedom to carry out your academic vocation within the scope and limits of the educational philosophy and mission of the college where you teach, be that a research/critical university or a traditional, religious, or classical college. What counts as academic freedom depends on your location within the higher education spectrum. In education as in foot ware, one size does not fit all.

Next time: “Institutional Autonomy and Academic Freedom: The Cases of Dartmouth, AAUP Declaration, and Rabban, Academic Freedom”

“Pay No Attention to That Man Behind the Curtain” Or Demystifying Academic Freedom and Professorial Privilege

4 Replies

In my previous essay on academic freedom (July 15, 2023), I reviewed Daniel Gordon’s recent book, What is Academic Freedom? A Century of Debate–1915 to the Present (Routledge, 2022). Gordon argues convincingly that no single definition of academic freedom commands universal assent within American academia. In this essay, I will explore the implications of Gordon’s thesis and lay a foundation for constructing a view of the nature and limits of academic freedom in Christian colleges and universities.

Academic Freedom: Universal Right or Elitist Privilege?

Knowledge is Power

Every ancient society treasured its wisdom, technical skills, and bodies of knowledge. Prophets, priests, and philosophers mastered the received tradition and taught it to the next generation. Some speculated about God and the heavens and others dealt with humanity and earth. But from Solomon to Socrates, Descartes to Darwin, and Newton to Nietzsche thinkers were admired and despised, immortalized and martyred. One person’s saint is another’s heretic. Why would the same thinker be hailed as a savior and persecuted as a traitor? How could an idea be received as light from heaven by some and condemned as infernal heresy by others?

Francis Bacon may have put his finger on the reason: “Knowledge in itself is power.” Technical knowledge enables us to do things that we could not do otherwise.  Knowing how to speak and write well may enable you to persuade other people to buy your product or join your cause. Learning the sciences of mathematics, physics, chemistry, or biology opens doors to respected and well-paid professions. If people think you know how to fix the economy or win wars, they will place you in high office and put their collective power at your disposal. No wonder professions, unions, and guilds jealously guard their trade secrets and defend their privileges by requiring degrees, accreditation, licensure and sometimes by resorting to intimidation and violence!

Ideas are Dangerous

Knowledge can be used for good or evil, to build or destroy. Ideas, even if they are true, are dangerous things. To a politician that maintains power by perpetuating falsehoods, truth is dangerous and one who speaks it is an enemy. Lies, too, can destroy lives and livelihoods. So can fancies, superstitions, and other expressions of ignorance and conceit. Prophets, liars, and charlatans wield the dangerous weapon of speech.

We should not be surprised, then, that societies from ancient to modern times feel the need to regulate the knowledge industry, that is, to have a say about what counts for knowledge and who is recognized as a reliable teacher.  Sometimes that regulation was enforced with a heavy hand, as in the cases of Socrates, Jesus, and Galileo, and at others, through the subtle power of social disapproval. In any case, for most of human history, those who dared speak their minds understood that they risked losing freedom, livelihood, and life itself.

The Price of Privilege

The modern doctrines of academic freedom and professorial self-governance were designed to buck the trend of history and exempt university professors from hazards braved by their courageous predecessors. But I wonder, can “truth-to-power” speech be institutionalized without losing its prophetic edge? What price must be paid for these privileges? The modern professorate is a self-perpetuating, highly selective group, and the fee for admission is steep. No charlatans and liars, purveyors of fancies and superstitions are allowed to join. But who are the gatekeepers, the ones that decide who is in and who is out? Who determines what ideas are fanciful and superstitious and who the charlatans are?

At the risk of sounding more cynical than I already have, I have to ask a further series of questions: Was professionalizing the professorate and adopting the modern doctrine of academic freedom just a less obvious way for progressive society to regulate the knowledge industry? Might not excluding some thinkers as “charlatans and purveyors of fancies and superstitions” be the way the “profession” colludes with its powerful patrons to shield them from scrutiny? Is “professionalization” a euphemism for “cooptation”?

Even the casual reader of the AAUP’s 1915 General Declaration on academic freedom can catch the disdain in which its authors held “proprietary” colleges, a category that includes any school dedicated to advancing particular political, philosophical or religious causes. As “proprietary types,” devoted to their “propagandist duties,” denominational colleges, seminaries, and what we now call “Christian” colleges, do not rise to the high standards of universities devoted to the “public” good. By making themselves the arbiters of what counts as the common good, the authors of the General Declaration in effect institutionalized their (progressive) political, philosophical, and religious causes as if they were the rationally self-evident norms of academic excellence.

The Profession: Self-Governance or Self-Service?

Who Guards the Guardians?

The modern concept of academic freedom goes back at least to the founding of the University of Berlin (1810). Thousands of Americans studied in Germany during the nineteenth century, and they returned to America eager to raise American universities up to German standards. Establishing the professorate as a self-governing profession protected by complete academic freedom was among the first tasks they undertook. The 1915 AAUP General Declaration of Principles on Academic Freedom and Academic Tenure  is the classic American statement on academic freedom. The Declaration argued that as a profession constituted by a specialized body of skills and knowledge and dedicated to the public good, the professorate has earned the right to self-governance in all academic matters, that is, the qualifications of teachers, tenure decisions, the curriculum, and the range of theories worthy of consideration within each discipline. The original AAUP statement and all later iterations insist that faculty should be free from all external regulation in matters of academic judgment. According to the Declaration, faculty should not be treated as “employees” as are the grounds keeping staff but as “appointees” in analogy to federal judges.

As an insider to the profession, I understand wanting freedom to write and teach as I please. I understand why professors want the public to think that their work is vital to the common good and that academic freedom and tenure, good pay, a light teaching load, and time to study and research are necessary to that end. I can make a good case for all of this. But the AAUP’s General Declaration paints professors with an aura of sainthood. They are portrayed as incorruptible guardians of knowledge and unselfish benefactors of society. In its rhetoric about the glories of the vocation, professors walk on water and open the eyes of the blind, but in reality they stumble along in the same muddy stream as do other human beings. The nobility of the professorial calling must not be carelessly attributed to practitioners of that vocation. In my experience professors can be just as petty, jealous, narrow, envious, hypocritical, greedy, and ambitious as politicians, business leaders, and the cleaning crew. Of course they want complete self-governance in matters of academic freedom and tenure! I want it too!

But who will guard the guardians? The General Declaration assumes that, even if a few of its members abuse their privileges, “the profession” will remain pure; it can police its members. But the history of other associations and organizations makes this assumption dubious. Should we believe that the professorate can escape the gravitational pull of mundane self-interest, ideological orthodoxies, and nepotism when the clergy, labor unions, and police departments have not been able to do so? Shall we, then, appoint an elite group of superguardians to guard the academic guardians? But who would guard them?

There is no substitute for checks and balances that can serve as counterweights to tyranny arising from outside or inside the university. The faculty can be as tyrannical as the government or the administration or the board. Universities exist as cooperative efforts on the part of many interested parties, all of them necessary to the existence and functioning of the school: founders, donors, boards of regents, alumni, students, administrators, the public, and faculty. There is no escaping the messy business of negotiating, if not harmony, at least some acceptable compromise among these parties. The guardians must guard each other in an unbroken circle of accountability in which no one and no area is exempt from the scrutiny of all.

What is “the Profession” and Who Speaks for it?

The General Declaration speaks as if there were a real entity called “the profession.” This way of speaking leaves the impression that every competent college teacher shares the same view about the aims of higher education and agrees on the methods and resources needed to accomplish these goals. This was not true in 1915, and it is not true today. Is the purpose of higher education to pass on the wisdom accumulated by generations past or to train researchers to engage in discovery of new knowledge? Should professors in their research and teaching seek disinterestedly for truth or work to change the world? Professors were divided then, and they are divided now on these questions. Implied in this second dichotomy are two very different views of academic freedom and the professor/student relationship, which we see today in the conflict between the postmodern activist and the anti-political professional views.

Professors in Christian colleges and universities often find themselves on different sides of this debate. But more importantly, thoughtful Christian professors, especially those teaching in Christian schools, understand that they do not fit comfortably in either camp. For they are committed to doing their research and teaching guided by the Christian worldview. In the final article in this series, I will take up how this institutional and professorial commitment to the truth of Christianity changes the way we think about academic freedom and professorial self-governance.