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New Resource for Lovers of Christian Colleges and Universities

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I wanted you, my readers, to know that as of yesterday, my book The Christian University and the Academic Establishment is now in print and available. I hope, wish, dream that it will be read and discussed on Christian college and university campuses everywhere. I wrote it because I love the ideal of a Christian college. I believe it would be of interest to anyone who shares my love for Christian education—students, alumni, donors, faculty, staff, administrators, and trustees. Each chapter has questions for discussion at the end, and each theme (sometimes more than one chapter) has “takeaways” at its conclusion. And the last chapter (#12) contains a conclusion and four practical suggestions for Christian universities.

Take a look at the Amazon.com page for the book. Peruse the Table of Contents and the summary Amazon provides. Of course, if you know someone who could benefit from reading it, please recommend it.

In future posts I will quote some excerpts from the book and reflect on them.

Institutional Autonomy and Academic Freedom: The Cases of Dartmouth, AAUP Declaration, and Rabban, Academic Freedom

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In this post, I will follow up on my previous essay of January 13, 2025, “Can Christian Colleges Survive.” In that essay, I reviewed and responded to a new book by David Rabban: Academic Freedom: From Professional Norm to First Amendment Right (Harvard, 2024). I want now to explore a connection I noticed when reading Rabban’s book, that is, the connection among the State of New Hampshire’s rationale for rewriting the Dartmouth College charter, the American Association of University Professors’ rationale for asserting its theory of academic freedom, and David Rabban’s argument for making academic freedom a First Amendment right.

As with the earlier post, I hope you will read it and pass it on to other interested parties, especially to trustees, administrators, and faculty in Christian colleges.

Trustees of Dartmouth College v. Woodward (1819)*

Legally, there were two issues in this case: (1) Is Dartmouth’s charter (1769) a “contract” under the “impairment of contracts” clause of the US Constitution (Art. I. 10. 1); and if so, (2) did the NH legislature “impair” said contract in its 1816 legislation changing the charter of the college?

In its legal defense of the legislation, New Hampshire denied that Dartmouth’s charter is a contract subject to constitutional protection or that the legislature impaired the “contract” through its action. The Trustees argued in the affirmative in both cases. In this essay, however, I want to focus not on the legal but on the moral/social utilitarian arguments made by the NH legislature to justify the legislation.

The NH legislature argued that the Dartmouth charter was granted for the public good, therefore Dartmouth is a public institution and falls under the authority of the state of NH to regulate matters involving public welfare. The first paragraph of the New Hampshire law in question reads as follows:

WHEREAS knowledge and learning generally diffused through a community, are essential to the preservation of a free government, and extending the opportunities and advantages of education is highly conducive to promote this end, and by the constitution it is made the duty of the legislators and magistrates, to cherish the interests of literature, and the sciences, and all seminaries established for their advancement—and as the college of the State may, in the opinion of the legislature be rendered more extensively useful ; Therefore…(p. 539).

Then follows a series of changes that amount to confiscation of the college by the State of New Hampshire.

Daniel Webster presented the case for the Trustees against the State of New Hampshire. Webster refutes the idea that a contract among private parties to carry out education and other works advantageous to the general public makes an institution a public institution in the legal sense. Webster emphasizes this point over and over in different contexts:

The granting of the corporation is but making the trust perpetual, and does not alter the nature of the charity. The very object sought in obtaining such charter, and in giving property to such a corporation, is to make and keep it private property, and to clothe it with all the security and inviolability of private property. The intent is; that there shall be a legal private ownership, and that the legal owners shall maintain and protect the property, for the benefit of those for whose use it was designed. Whoever endowed the public? Whoever appointed a legislature to administer his charity? Or who ever heard, before, that a gift to a College, or Hospital, or an Asylum, was, in reality, nothing but a gift to the State? (p. 574).

…

The case before the Court is not of ordinary importance, nor of everyday occurrence. It affects not this college only, but every college, and all the literary institutions of the country. They have flourished, hitherto, and have become in a high degree respectable and useful to the Community. They have all a common principle of existence, the inviolability of their charters. It will be a dangerous, a most dangerous experiment, to hold these institutions subject to the rise and fall of popular parties, and the fluctuations of political opinions. If the franchise may be at any time taken away, or impaired, the property also may be taken away, or its use perverted. Benefactors will have no certainty of effecting the object of their bounty; and learned men will be deterred from devoting themselves to the service of such institutions, from the precarious title of their offices. Colleges and halls will be deserted by all better spirits, and become a theatre for the contention of politics. Party and faction will be cherished in the places consecrated to piety and learning. These consequences are neither remote nor possible only. They are certain and immediate (pp. 598-99).

In sum, Webster’s point is this: charitable institutions (a college in this case) aim to benefit the public. The state has an interest in promoting the public good. But this overlapping interest does not give the state a legal right to assert control and manage the institution.

Mr. Joseph Hopkinson, Webster’s co-counsel, drives the same point home quite vigorously:

It is true, that a college, in a popular sense, is a public institution, because its uses are public, and its benefits may be enjoyed by all who choose to enjoy them. But in a legal and technical sense, they are not public institutions, but private charities. Corporations may, therefore, be very well said to be for public use, of which the property and privileges are yet private. Indeed, there may be supposed to be an ultimate reference to the public good, in granting all charters of incorporation; but this does not change the property from private to public. If the property of this corporation be public property, that is, property belonging to the State, when did it become so? It was once private property; when was it surrendered to the public? The object in obtaining the charter, was not surely to transfer the property to the public, but to secure it forever in the hands of those with whom the original owners saw fit to entrust it (pp. 616-617).

Chief Justice Marshall writes for the Supreme Court in its decision favoring the Trustees of Dartmouth College against Woodward. In his carefully reasoned opinion, Justice Marshall argues that the New Hampshire legislature violated the US constitution’s stricture against the impairment of contracts. Dartmouth is a private charitable institution and not a public institution subject to state control:

That education is an object of national concern, and a proper subject of legislation, all admit. That there may be an institution founded by government, and placed entirely under its immediate control, the officers of which would be public officers, amenable exclusively to government, none will deny. But is Dartmouth College such an institution? Is education altogether in the hands of government? Does every teacher of youth become a public officer, and do donations for the purpose of education necessarily become public property, so far that the will of the legislature, not the will of the donor, becomes the law of the donation? These questions are of serious ‘moment to society, and deserve to be well considered. (p. 634).

Marshall concludes:

But the Court has deemed it unnecessary to investigate this particular point, being of opinion, on general principles, that in these private eleemosynary institutions, the body corporate, as possessing the whole legal and equitable interest, and completely representing the donors, for the purpose of executing the trust, has rights which are protected by the constitution.

It results from this opinion, that the acts of the legislature of New-Hampshire, which are stated in the special verdict found in this cause, are repugnant to the constitution of the United States; and that the judgment on this special verdict ought to have been for the plaintiffs. The judgment of the State Court must, therefore, be reversed (p. 654).

It would be hard to overestimate the importance of Trustees of Dartmouth College v. Woodward for the freedom of private institutions to conduct their business free from state interference. And as we shall see, the principle established in this case is still of great importance today. The insidious logic of the NH legislature is still being employed—under different guises to be sure—to reduce the autonomy of private non-sectarian and Christian colleges. And Daniel Webster’s argument and Justice Marshall’s decision are still the most potent responses to a government’s assertion of a right to control higher education in private colleges.

AAUP 1915 Declaration

In the American Association of University Professors’ 1915 “Declaration on Academic Freedom and Academic Tenure” we meet again, I shall argue, the NH equivocation between the word “public” used to mean “people in general” and to mean “publicly owned and governmentally controlled.” The Declaration argues that institutions that call themselves colleges and claim to promote the public good are “public trusts” and must therefore accept a definition of academic freedom and tenure commensurate with their self-incurred obligation to serve the good of the public as a whole. That is to say, a college’s claim to promote the good of society obligates it to adopt a non-sectarian stance. Like the State of New Hampshire of 1816, the Declaration imposes its own definition of the “public good” on all institutions that lay claim to the title of college or university. All other ways of serving the public are “proprietary” (“private trusts”), not true universities. The Declaration does not argue that a college’s claim to promote the common good places it within the sphere of direct state control (as in the Dartmouth case). It asserts, rather, that “proprietary” colleges are not truly academic institutions and that their claims to benefit the public, and therefore to be worthy of public support, are misleading or false:

Trustees of such universities or colleges have no moral right to bind the reason or the conscience of any professor. All claim to such right is waived by the appeal to the general public for contributions and for moral support in the maintenance, not of a propaganda, but of a non-partisan institution of learning.

Colleges that do not acknowledge “unfettered” academic freedom are not truly academic, not truly a benefit to the public; they are second rate at best.

The Declaration argues that any college that claims to benefit society at large and appeals to members of the public for support is a “public trust” and therefore must become truly “non-partisan” and free from all religious, political, or commercial interests. Hence it must allow unfettered academic freedom to its professors. This is the same argument made by the New Hampshire legislature for its right to confiscate Dartmouth college and rejected by the Marshall Supreme Court. However, in this instance the argument is used not by a state to justify confiscating private colleges, but by an elite professorial class to discredit, intimidate, and shame colleges founded to serve the church or other private causes.

Rabban and the First Amendment right of academic freedom

David Rabban in Academic Freedom: From Professional Norm to First Amendment Right,** intensifies the AAUP’s argument outlined above and transforms academic freedom from a professional norm into a First Amendment right, thus justifying (like NH in the Dartmouth Case) the intrusion of the government into the heart of the university–private as well as state owned .

As I documented in the previous essay,** Rabban argues (1) that the public benefit generated by professors justifies protecting their academic speech as a special First Amendment right; and (2) that since 1957 the Supreme Court has steadily moved toward asserting a First Amendment right of academic freedom.

Without explicitly saying so, Rabban in effect argues that the claim by a college to be an institution of higher learning that provides a good to the public and employs “professors” to function in this role should come under the jurisdiction of the First Amendment. Clearly, Rabban resurrects the utilitarian/quasi-legal reasoning used in the New Hampshire legislature’s legislation in the 1816 takeover of Dartmouth college. Professors, precisely as members of the professorate, Rabban argues, should have the constitutionally protected right of academic freedom against state or institutional abridgment.

The academic speech of individual professors, no matter where they teach, has become legally protected speech as long as it is truly “academic,” which determination must be made solely by the professorial community. Whether or not a professor’s speech is academic cannot be decided by trustees, judges or administrators. Therefore, the authority to regulate professorial expression has been transferred from the trustees of the college to the government, specifically the US government. States may also decide independently to give academic freedom special state constitutional protection.

This theory aims to achieve what the New Hampshire legislature attempted to achieve in Trustees v. Woodward. However, instead of taking a top-down approach, using the sovereign power of the state, opponents of private institutional autonomy start from the bottom, pitting individual professorial constitutional rights against state legislatures and college trustees. By freeing professors from responsibility to the trustees in the use of their “academic” speech, the profession, backed up by the federal courts, takes control of the core activity of the college. It’s a kind of nationalization of a college’s faculty backed up by the First Amendment to the US Constitution. Academically, it levels or homogenizes all colleges and universities in the US.

In other words, treating academic freedom as a special First Amendment right accomplishes what the NH legislature attempted to do to Dartmouth in 1816 and failed to accomplish. But instead of handing control to state legislatures, it places it in the hands of the federal courts. It gives constitutional backing to the AAUP Declaration’s utilitarian and moral arguments.

*This hyperlink takes you to the complete, 199-page record of the case, including the original 1767 charter, the full texts of the 1816 New Hampshire law taking over Dartmouth college, the arguments of the plaintiff  (Trustees of Dartmouth College) and the defendant (Woodward, New Hampshire’s recently appointed treasure of Dartmouth University), and Chief Justice Marshall’s decision.

**See my previous post “Can Christian Colleges Survive” (January 13, 2025).

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

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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”

What is the Purpose of a University that No Longer Believes in Knowledge, Truth, or Virtue?

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Many of you know that I am very interested in the current state of higher education. Lately, I’ve been reading books about academic freedom. Most of my reading focuses on academic freedom in Christian colleges and universities. Today, however, I want to share my review of a book that sheds light on the present state of secular higher education:

Julia Schleck, Dirty Knowledge: Academic Freedom in the Age of Neoliberalism, University of Nebraska Press, 2022.

In this book, Julia Schleck attempts to defend the traditional practice of granting university faculty the special privileges of academic freedom and tenure, which employees in other lines of work do not enjoy. As her book title hints, she describes the challenges that the rise of the “neoliberal” model of the university poses to academic freedom. Her proposal for dealing with these challenges centers on the concept of “dirty knowledge.”

The Challenge

The term “neoliberalism” refers to a late 20th century political philosophy that argues that “a society’s political and economic institutions should be robustly liberal and capitalist, but supplemented by a constitutionally limited democracy and a modest welfare state” (See “Neoliberalism,” in the Stanford Encyclopedia of Philosophy). According to Schleck, neoliberalism subordinates social/moral goods to economic goods and reduces group rights to individual rights. Applied to the university, neoliberalism measures the worth of knowledge production and student learning by their direct and immediate economic impact on society in producing qualified workers, new technology, and goods for the market. The public, politicians, governing boards, and administrators increasingly view the university as a business that should produce a near-term return on investments made by donors, students, granting agencies, and tax payers. University boards and administrators act as CEOs and managers of this knowledge business.

As a result of the university’s assimilation to neoliberalism, academic freedom is no longer understood as a privilege necessary for practicing the profession of professor. It is reconceived, rather, as a right of the individual citizen-professor almost totally assimilated to the constitutional right to free speech. In Schleck’s estimation, the focus on the individual professor weakens the idea of the professorate as a self-governing community of experts. Instead, professors become employees with employee and citizen rights. The turn to individual rights disperses the collective power the professorate traditionally used to protect the professorial vocation against violations of academic freedom. Not only so, in this new environment academic disciplines experience greater difficulty defending competent colleagues from censorship and disciplining incompetent or rogue professors.

Moreover, according to Schleck, one of the greatest threats to academic freedom in the neoliberal university is the division of professors into the tenured elite and the mass of contingent faculty. In theory, the contingent faculty (nearly 70% of all university teachers!) have “academic freedom” conceived along the lines of freedom of speech. But they have limited contracts that expire at designated dates. Hence not only are they underpaid and overworked; they are vulnerable to contract nonrenewal without recourse to the juridical procedures afforded to tenured professors. This practice allows boards and administrators to work around academic freedom rules in these cases. Increasingly, then, academic freedom is reserved for an elite few, not for all who engage in the profession. And sometimes, the elite tenured professors are the greatest threats to the academic freedom of the untenured and contingent faculty.

Two Proposed Solutions

What can be done to protect academic freedom today? Some urge a return to the original 1915 AAUP rationale for giving professors special privileges (academic freedom and tenure) not given to other employees, that is, society needs a professorate devoted to the public good. To devote themselves to the public good wholeheartedly, professors need to be free from the narrow interests of donors and board members and the fear of losing their livelihoods. Schleck warns, however, against getting too nostalgic about the good ole days. First, the idea of the “public good” will most likely be assimilated to neoliberal culture with its focus on productivity and economic value. Second, the “public good” as understood in 1915 was neither public nor good; it left out women, the poor, people of color, and other “invisible” groups.

A second proposal urges unionizing the faculty and engaging in hard-hitting collective bargaining. Schleck admits that unions can negotiate better pay, benefits and working conditions for professors. But unions still work within the neoliberal framework, treating professors as “labor” and the administration and board as “management.” The unionized professorate falls short of a self-governing profession that can justify its traditional privileges, that is academic freedom and tenure.

Schleck’s “Dirty Knowledge” Solution

Schleck proposes a model of academic freedom fitted to the university as it exists today. According to Schleck, the university of today is thoroughly postmodern. The university does not recognize any viewpoint as “true” or “good” or any one method of creating knowledge as superior to others. Hence academic freedom can no longer be defended with the rhetoric of the disinterested pursuit of truth or service to the highest good. These qualities no longer (if they ever did) describe the work of the professorate. The professors and disciplines of the postmodern university are overtly political, combative, and activist. They are warriors fighting for power to advance their causes.

Hence Schleck proposes that we reconceive academic freedom as “agonistic academic freedom,” that is, freedom to fight for your truth, your good and your knowledge, that is, for whatever helps your cause to achieve power. The university must not be expected to serve any one vision of “the public good.” It is only out of the refereed clash of ideas that society will be shaped and moved into the future. She states succinctly her vision of the postmodern university in her last paragraph:

“The knowledge produced and disseminated at universities has always been and will always be dirty, shot through with the politics and material inequities that characterize our society at large. Providing a special space for those contentions and an especially strong set of contenders is what the university offers to our democracy, and it is why it should continue to be funded by our communities. Like a wild profusion of plants, professors compete for the resources they need to generate the intellectual seeds specific to their form of life, seeds that universities will continue to store in the expectation that someday we as a society will need them to maintain and improve our quality of life, or even to perpetuate our species on earth. Universities should be sure to foster with a deliberate distribution of material resources the strangest, least useful, and most contrarian of these plants to ensure that we have the diversity we need to survive the coming storms. This new grounding for academic freedom gives us a better rationale for the renewal of the special employment protections under which previous generations of faculty have flourished. Such a renewal will enable us once again to reach for the heavens in our pursuit of knowledge, without forgetting that we are firmly rooted in the dirt” (pp. 116-117).

Critical Comments and Questions

Schleck’s book deserves thorough analysis and critique. But I will limit myself to a few observations.

(1) Her analysis of the challenges to academic freedom and the goals of higher education deserves thoughtful consideration: the commodification and monetization of the university’s contribution to society; the use of contingent employees for 70% of the faculty, and the assimilation of profession-based academic freedom to individual freedom of speech.

(2) I agree that unionization may be needed to secure better treatment for faculty and graduate student teaching assistants, and I agree that unionization falls short of the ideal of a self-governing profession. For it fails to ground its claim to the special privileges of academic freedom and tenure in publicly acknowledge values.

(3) Schleck is correct that there is no social consensus about the public good—at least not a very detailed consensus.

(4) But I am not clear how her proposal differentiates the university space from the public square where everyone is free to say whatever they wish. In her summary paragraph quoted above in full, she urges,

Providing a special space for those contentions and an especially strong set of contenders is what the university offers to our democracy, and it is why it should continue to be funded by our communities.

She attempts here to justify funding a “special place” for a “strong set of contenders” to engage in the clash of interests and ideas and the struggle for power. By what standards are the combatants (professors) deemed “strong,” that is competent? And who decides? Why can’t these functions be carried out in other places and by other people? Why pay and give people job security to do what every citizen is free to do?

Notice that she offers a public-good like rationale for granting a privileged space to the university. In the quote above, she hinted that the university offers something “to our democracy.” Apparently, then, promoting “democracy” is a foundational value she presupposes. And the traditional privileges granted to the professorate is valuable because it supports democracy. I am not sure how this works, because “democracy” itself is a contested concept in the postmodern university.

Using an ecological metaphor in which genetic diversity is of survival value, she outlines the postmodern university’s contributions in greater detail a bit later in these words:

Like a wild profusion of plants, professors compete for the resources they need to generate the intellectual seeds specific to their form of life, seeds that universities will continue to store in the expectation that someday we as a society will need them to maintain and improve our quality of life, or even to perpetuate our species on earth.

Society should support the contentious and seemingly useless discussions in the postmodern university because of their potential utility in the future. Again, Schleck appeals to a vague notion of public good. She urges society to tolerate what may seem to most people useless, ideological, destructive, godless, profane, extreme, angry, and racist discussions in view of the possibility that some of the ideas thus formulated will contribute to our future “quality of life.” One might ask about the scale on which a “quality of life” is measured.

Scheck seems particularly worried that the neoliberal university may not see the social value of such disciplines as her own. She is Professor of English at the University of Nebraska, specializing in Woman’s and Gender Studies. She says,

Universities should be sure to foster with a deliberate distribution of material resources the strangest, least useful, and most contrarian of these plants to ensure that we have the diversity we need to survive the coming storms. This new grounding for academic freedom gives us a better rationale for the renewal of the special employment protections under which previous generations of faculty have flourished.

Perhaps Scheck stretches the ecological metaphor beyond its applicability. For it makes sense to assume that nature never produces the useless, redundant and wrong, but human beings often produce nonsense and evil. She here urges toleration and even fostering of strange, useless, and contrarian studies in the postmodern university. I don’t think she thinks these studies are truly strange, useless, and contrary to all that is good and true. She speaks, rather, of the public’s untrained perceptions. But we must ask her this question: might not some ideas, theories, and fields of study generated by the postmodern university be truly strange, useless and contrary to all that is good and true? Should the university tolerate anything and everything? If she answers “Yes,” I return to my previous question about what distinguishes the university from the public square. If she answers “No,” I’d like to know how we judge between the tolerable and the intolerable.

Must the public blindly trust the community of scholars in a specialized area to judge between bad and good academic projects? Can we rule out the possibility that whole disciplines, subdisciplines and communities of scholars may be engaged in that which is truly “strange, useless, and contrary to all that is good and true”? Might not some disciplines simply be manifestations of mass kookiness? I don’t see in Schleck any rules for what counts as sound academic teaching, learning, and research and what does not. She seems to be saying to the public something like this: “Trust us with your children and your money. Give us unfettered freedom, good pay, and lifetime employment. But don’t expect us to answer to you or explain why your investments are sound.”

What, then, is the purpose of a university that no longer believes in knowledge, truth, or virtue? Julia Schleck tries valiantly to answer this question. She fails. And I am not convinced that anyone else could do a better job. Because, a “university” that no longer believes in knowledge, truth, or virtue no longer believes in itself. As far as I can tell, its driving purpose is maintenance of a system that provides faculty unfettered freedom, good pay, and lifetime employment in exchange for expressing their private opinions in esoteric vocabularies.