• September 19, 2014

To Protect Academic Freedom, Look Beyond the First Amendment

To Protect Academic Freedom

Jordin Isip for The Chronicle

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Jordin Isip for The Chronicle

Professors in public colleges and universities have long cherished the belief that the First Amendment protects our academic freedom as we publish, teach, and participate in decision making within our institutions—and, of course, as we exercise our sacred right to criticize the university administration.

In reality, the First Amendment does not apply to those forms of speech, or at least it may not. And that is a good thing.

In Garcetti v. Ceballos (2006), the Supreme Court declared that when public employees speak or write as part of their jobs, that expression is not covered by the First Amendment.

Since public-university professors are public employees, that appears to include us. Uncertainty arises, however, because Garcetti also states:

"There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."

This passage, known as the Garcetti reservation, leaves two key questions unresolved: whether the First Amendment protects "speech related to scholarship or teaching," and whether this formulation encompasses faculty speech about such matters as promotion, tenure, hiring, and administrative competence.

Several lower courts, ignoring this reservation, have decided academic-freedom lawsuits as if Garcetti unquestionably applies. In cases involving uncertainty about the reasons for disciplinary action, these courts have ruled that even if professors were indeed penalized for their speech, the First Amendment provides no remedy.

These post-Garcetti decisions—its "progeny," in legalspeak—have aroused widespread alarm. Garcetti, we are told, is the worst thing that has ever happened to academic freedom. But that may not be the case.

Despite the stirring rhetoric of a few mid-20th-century Supreme Court decisions, administrative authority trumped faculty rights in most cases even before Garcetti. Moreover, courts generally concede that they are not qualified to make academic judgments, such as whether a teacher is competent—but such judgments are essential to the responsible exercise of academic freedom.

In reality, faculty academic freedom has always been more firmly rooted in professional norms than in legal decisions. This is readily apparent in private colleges and universities, to which the First Amendment does not apply. The vigorous free speech that exists in many private institutions, including those in the top tier, reflects the shared vision of administrators and faculty regarding the need for an open marketplace of ideas and the importance of faculty participation in institutional decision making. The same is true of public universities, although that fact is less widely recognized. Public-university faculty may have been emboldened by their belief in First Amendment protection, but in practice the legal outcome of most pre-Garcetti cases left a vacuum that was filled by the expectations and customs of the profession.

One response to the wake-up call that the Supreme Court delivered in Garcetti would be to seek to bolster First Amendment protection for academic freedom. But even if that approach were successful—and there is no guarantee that it would be—it would not represent the best long-term solution, because the First Amendment itself is not a good fit for academic freedom.

If academic freedom is defined in terms of the First Amendment rather than as a professional standard, its scope and application will be determined by courts unfamiliar with the college and university environment. That approach has never worked well and is unlikely to do so in the future.

Moreover, the function of the First Amendment is to prevent the government from abridging the free speech of individuals. Its protection does not depend on whether that speech is original, well reasoned, or well informed. By contrast, academic freedom as a professional norm upholds the authority of the faculty as a whole to establish and maintain academic standards and to share in institutional governance. It poses no obstacle to penalizing individual faculty members for scholarly speech that is judged to be professionally incompetent, even if the First Amendment would protect the expression of those same ideas by a citizen on the street. The applications are different because the fundamental purposes are different.

Rather than focusing on the First Amendment, public institutions would do better to expand, update, and revitalize campus policies in recognition of their crucial role in defining and protecting academic freedom. Indeed, Garcetti itself encourages government-run institutions to establish their own free-speech regulations.

Several institutions, including my own, have crafted post-Garcetti language to replace earlier academic-freedom statements typically drawn from the AAUP's 1940 Statement of Principles. A selection of such policies appears on the AAUP Web site. Process and product are both important, as faculty senates, administrators, trustees, and faculty unions grapple with the purposes and scope of academic freedom.

Courts interpret the First Amendment, and university policies cannot conflict with applicable legal decisions. That is a long way, however, from the traditional view that the First Amendment provides the best, and perhaps the only, protection for academic freedom in public universities. In declaring that administrators may penalize faculty speech, courts have not said that they must do so.

Nothing prevents public universities from shaping their own academic-freedom policies as private universities do. Collective-bargaining agreements provide the strongest legal enforceability, but even if that avenue is unavailable, there is much to gain by forging a commitment to academic freedom reflecting the values and purposes of the institution. Whether in a collective-bargaining agreement, a faculty handbook, or a set of institutional bylaws, this is a far more nuanced approach than the courts' one-size-fits-all application of public-employee law.

The widespread dismay following Garcetti has sparked productive discussions about principles of academic freedom that are no longer complacently regarded as sufficiently protected by the First Amendment. Garcetti and its progeny have also drawn attention to the value of free speech in shared governance, as well as in teaching and scholarship. If these developments galvanize faculty and administrators into taking responsibility for academic freedom, then far from being a catastrophe, Garcetti might provide the greatest boost that academic freedom has enjoyed in decades.

Joan DelFattore is a professor of English and legal studies at the University of Delaware. She is the author of Knowledge in the Making: Academic Freedom and Free Speech in America's Schools and Universities, just published by Yale University Press.

Comments

1. 12080243 - November 01, 2010 at 04:13 pm

I suspect that administrators will cheer your article. In that regard, you are safe from their retaliation. If, however, you express ideas that your administrators take a personal dislike to, you will regret the views you've expressed in this article. You will need every protection you can get.

2. eudaimon - November 01, 2010 at 05:02 pm

I am sure administrators are already aware of their institution's legal position. Take this article as free legal advice if you are a faculty member working for a public university and you have a less than clear notion of what the First Amendment does and does not do for your academic freedom. Better to hear the news before you need to file an action.

3. jaydee - November 01, 2010 at 09:47 pm

The outcomes of many court cases before and after Garcetti bear out the argument that the best defense for academic freedom is a well-crafted institutional policy. Check out http://www.aaup.org/NR/rdonlyres/1211228E-39C3-4CD1-B90A-BE99A4F02B6F/0/ChartpostGarcettipolicies0810.pdf for examples of good post-Garcetti policies.

4. 12080243 - November 01, 2010 at 10:18 pm

The "best defense for academic freedom is a well-crafted institutional policy"?

And therefore depend on institutional enforcement/protection?

Good luck.

If you think you have academic freedom/freedom of speech, you're living an illusion. If you don't believe it, identify and speak out about a college/university corruption. If you can't find one, you're indeed living an illusion. I am sure administrators are already aware of the practical realities of academic freedom/freedom of speech.

5. 11223435 - November 01, 2010 at 11:04 pm

A couple of weeks ago, I heard a university lawyer addressing a question in front of a large audience (he thought they/we were all university counsels like him, apparently).

In response to a hypothetical case posed in a question, he said (near quote here) "I can't imagine that there would be a dean so stupid that he or she would take [punitive]action against a faculty member based on that faculty member's research."

In that audience, there was no laughter. As far as I could tell, I was the only audience member stunned by the speaker's naivete.

Deans, provosts, presidents have all taken exactly that sort of action, as any reader of the CHE--much less someone who can push the "Enter" button while using Lexis/Nexis, or for that matter, Google--could have told our lawyer/speaker.

6. eudaimon - November 02, 2010 at 01:03 am

A few scattered comments in response to the above:
The AAUP's case reports do document bona fide violations of academic freedom by administrators. Such violations are real. However, in many of the reported and censured institutions, their institutional policies were weak. In some they were not. If your institution does have strong policies, these should include faculty due process procedures. So, to answer a question above, the faculty would enforce tenure protections. Second, if the institution failed to enforce its policies, it could be sued under breach of contract. Courts are willing to enforce contracts, though less than eager to make substantive judgments about academic management. Hence, having robust policies can be useful, in that they provide a contractual basis for employment protections. Also, the AAUP does act as a standards setting and juridical body, and it will censure institutions. That of course, may be cold comfort.
Now, all that said, let me point out that faculty are not being fired in droves because of their exercise of academic freedom. A lot of faculty engage in abusive behavior against those who are powerless in their institutions, and they are not even reprimanded. So don't panic.
Yes, it is true that courageous speech on America's campus is rare, but that is more because of peer pressure and the fear sheepish academicians have of straying from the herd, not fear of getting fired from their tenure track jobs.
Finally, whether or not you feel that your institution and academia in general provide adequate safeguards for your academic freedom, you would be ill advised to depend upon First Amendment jurisprudence. Whatever protections are available, and there may still be some, they are only available against governmental intrusions on protected speech. If you teach in a private university, the question of First Amendment protections does not arise.

7. 12080243 - November 02, 2010 at 10:58 am

The faculty would enforce tenure protections? Administrators isolate one trouble maker and the other faculty members will be in lock-step with the administrators. Yes, indeed sue. You better have money and endurance. Most faculty don't. Courts, including federal courts can't get the facts right much less the law. Understand, suing is like gambling, you have very little control over the outcome. Administrators enforce whatever rules, due process, etc they choose. Oh, yes, call the AAUP, they'll use censure. They don't use it when administrators scare them and the AAUP is easily scared. And if the AAUP chooses to censure, it means very little.

Faculty are "not being fired in droves"? They don't need to be. As stated above, they administrators only have to isolate and punish one faculty member and the rest shut up. Also, don't forget during economic hard times, administrators rule.

Don't depend on anyone or any organization, or any idea, like freedom of speech or academic freedom. Depend on yourself and the resources you can command. If administrators and toady colleagues attack you, then beat them into the ground. Force is all they will in the end understand.

8. eudaimon - November 02, 2010 at 01:23 pm

You paint a very ugly picture of faculty. On your view, they are easily intimidated and generally act in their self interest instead of on principle. They are easily manipulated, and won't speak out if one of them is made an example of by an administrator. So I guess we agree on something.
Where we disagree is on is the extent to which their collective cowardice is stimulated by administrators or their own indifference to anything but their careers, research, and conformity to prevailing views among their peers. However, we might agree on more if we looked at the particular institutional context. At public universities, administrators wield real power and tenure protections are more limited. At private colleges, the AAUP system is often adopted and provides very strong protections. Administrator's are drawn from faculty and therefore share their frailties. Hence, they are often spineless. Faculty not only can speak out on extramural matters without fear, many speak out on intramural matters, with strong, sometimes misplaced criticisms. They have nothing to fear, because the way tenure is structured in their institutions, administrators have no recourse. In these institutions, what they fear are the other faculty members who sit on committees that can affect their interests. But I understand, institutional contexts differ and it is not so everywhere.
You recommend going it alone and not depending upon any one or thing. Well, fine. I would not suggest placing my trust in other faculty or the AAUP, but if I have to pound on administrators, I would like to have as many tools as possible. Having a contract, or a plausible discrimination claim, a set of agreed upon norms, etc., is better than nothing. I think faculty would be well advised to build up these tools, so that they would have more to pound with when needed.
You suggest that the AAUP is toothless. Okay, but why is that? Why can't the profession establish an independant body that enforces standards? Perhaps it is the apathy of the profession and its wishing to receive academic freedom as a personal gift as opposed to a shared responsibility. How many faculty have sat by while contingent faculty were hired on temporary contracts, with no due process protections? How many faculty have themselves violated the academic freedom of contingent faculty? As weak as you think tenure is as a protection of academic freedom, I am sure there are some thousands of contingents who would readily accept it.
As for legal recourse, I most certainly understand how difficult it is. And it is not because courts get the facts and law wrong. It is because the law is often not favorable to your position (wasn't that the point that started off this thread?). My point original point was that having misconceptions about the law makes a bad situation worse.

9. 12080243 - November 02, 2010 at 02:59 pm

We agree on many things. A couple of comments:Ddon't expect the courts to get the law or the fact right. I've watched judges (Juries are much more prone to doing justice) misstate important facts and refuse to correct them. I watched judges refuse to obey clearly stated law. And if you challenge them, they look you straight in the eye and say, "tough". Keep in mind, judges are members of the community. They are, if not friends, very loyal to universities. Furthermore, the law is often--especially in areas like freedom of speech--so open to interpretation, you may get different rulings with similar facts in the wake of Garcetti. Some federal circuit court judges would overturn the Bill of Rights, if they could, so they're doing it one decision at a time. And no organization can establish and enforce standards outside the law in this country. And even if you could, people, colleagues, would abuse the process and you'd be no better off than you were before. Power is a strange mistress. I've counseled university presidents, for example, on the need to be magnanimous with regard to the exercise of their power, when they clearly had the opportunity and advantage to be magnanimous. They chose brute force every time.

Administrators will provide the rope with which to hang them. My experience is that they are up to their ears in mismanagement and petty--and sometimes not so petty--corruption with regard to the use of resources, sports, Foundations, outside contractors, etc. A bludgeon is Freedom of Information requests and other procedures for collecting documentation and evidence to pound administrators and their toadies in to the ground. Gather whatever bludgeons you can and use them. The internet is the great equalizer and administrators are PR crazy. Hurt them were it hurts them the most--in their PR. If the current group of administrators wield power like children with guns, run them off. If the next group is the same, get rid of them, too. In the best of all worlds, if the context permits, take turns being administrators. We should not abdicate leadership to the morons who now have control at many universities.

I could make the AAUP run from any campus with a simple sentence and they'd never return. I've seen it done. Furthermore, they lull inexperienced faculty into believing pollyanna views of academic freedom much to the inexperienced faculty's misfortune. Experience is the great educator, if you survive. Law, AAUP, notions of due process, and other such metaphysics do more harm than good.

And contingent faculty? We, tenured full professors, can't even help ourselves. Contingent faculty don't have a prayer, unless, that is, they can make themselves useful to administrators. An instructor in our department has more power than any of the tenured full professors. Over the years I've done a lot of thinking about and acting on these issues and I haven't seen/heard a good idea yet--except, of course, beating administrators' brains in. But I'd love to hear another. I'd use it to see if it was worth a damn.

10. eudaimon - November 02, 2010 at 03:16 pm

We do agree on many points, especially our shared disdain of administrators and faculty. You out-disdain, me, however, when it comes to the legal system, but that may be just a matter of degree. I do know of places, however, where the faculty and administrators work well together to protect their privileges and it is only the students, staff, and contingent faculty who suffer.

11. 12080243 - November 02, 2010 at 09:25 pm

Eudaimon, I believe we have the best careers of any I can think of. I love university environments from the very first moment I stepped on a campus but am disappointed how easily we can and do destroy them. I'm heartened that your school is an environment where faculty and administrators work well together. You have an environment where staff and contingent faculty can be brought into a wonderful work environment. Given your comments, I suspect that's where you're headed. I wish you and your colleagues the best.

Chauncey M. DePree, Jr., DBA
Professor
School of Accountancy
College of Business
University of Southern Mississippi

12. jaydee - November 02, 2010 at 10:13 pm

It seems to me that the central issue is whether it is true that the First Amendment as applied by the courts does not provide a reasonable degree of protection for the academic freedom of faculty when faculty and administrators clash. If that IS true, then the question is not whether we would rather have effective constitutional protection for our academic freedom -- of course we would. But we don't have it, and nothing that's going on in the courts gives any reason to think that we're going to get it through that route in the foreseeable future. So now what to do?

Alas, it's true that tenured faculty haven't done a good job of protecting even ourselves, let alone the more vulnerable contingent faculty. In fact, in some institutions, the tenured faculty itself is one of the biggest obstacles to the improvement of working conditions for contingent faculty, including the protection of their academic freedom. And of course some administrators and university attorneys would rather see the power remain with the administrators. All that is true. Even if faculty get off our rear ends and agitate for good academic freedom policies in our institutional documents, some of us are almost certainly going to fail. If we don't try, all of us will certainly fail. Dismissing those efforts as pollyanna-ish or naive may seem to be a reasonable response to the situation that presently exists in some institutions, but as applied to the profession as a whole, it's also a self-fulfilling prophecy that justifies continuing to do nothing, or at least nothing that has even a chance of being effective.


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