Sunday, November 29, 2009
A more productive debate on the Garcetti report
Deep in comments to my last post (comment 45, to be exact), Bloix disagrees with me about the Garcetti report in a most interesting way. I had argued (in comment 43) that “the whole point of the Garcetti report is to decouple the definition of academic freedom from First Amendment case law,” and Bloix replied,
Okay, I’ve read the AAUP Garcetti report again, and there’s no doubt that it advocates a strategy of attempting to use the precautionary language in Garcetti as the basis of efforts to create first amendment rights for professors that are different from and more protective than such rights as afforded to non-academic public employees. So I don’t see how the report can be said to be trying to decouple academic freedom from the first amendment. I do see that there is emphasis on protecting academic freedom in institutional ways as well, but the report does not accept Hong et al as the last word—to the contrary, it advocates using litigation to roll Hong back and to establish a first amendment basis of at least the right to participate in institutional governance without fear of retaliation. And I think this is a worthy goal and an intelligent strategy.
I think the AAUP’s goal is worthy and its strategy intelligent, but I also think Bloix and I aren’t reading the Garcetti report precisely the same way. On one hand, yes, everyone teaching in a public college or university should hope that the Pickering-Connick-Garcetti line of First Amendment caselaw is abandoned, and that courts begin to interpret the Constitution so as to provide protection for the free speech of public employees (all public employees) acting in the course of their professional duties. That would be great. On the other hand, the closer you tie the concept of academic freedom to First Amendment rights, the more vulnerable you are to changes in First Amendment case law. (And, of course, people at private colleges and universities aren’t covered by the First Amendment anyway.) The relevant section of the Garcetti report reads as follows:
C. A Closing Note about Academic Freedom
We conclude this section by returning to a matter raised in Section I but worth reiterating more fully here. We have focused almost exclusively on faculty members at public institutions, because, as explained early in the report, it is only at public institutions that the Constitution affords protection to academic freedom (or potentially causes that protection to recede). At no time have faculty members at private colleges and universities been beneficiaries of the progressive development in First Amendment protection of academic freedom. It has always been the case at those institutions that faculty have had to turn to the persuasive merits of the 1915 Declaration and subsequent policies, rather than to the U.S. Constitution, when seeking means of securing conditions of academic freedom within their institutions.
Indeed, when professional notions of academic freedom began to be advanced in the beginning of the last century, not only were those notions not within the law, they were explicitly outside and even against the law. The 1915 Declaration was effectively a statement of reasons for philanthropists, trustees, alumni, legislators, and ordinary citizens and taxpayers to forego exercising their legal (and fiscal) power to control faculty speech and, instead, by enacting self-denying ordinances, to enable their schools to become genuine universities. There is thus a historical understanding that institutional distinction arises in part from a university’s foreswearing the power that it might be legally permitted to exercise over its faculty. In light of Garcetti and its progeny, it is more urgent than ever that it be clear that the case for academic freedom is not now written, nor was it ever written, merely on legal litmus paper, but in the history of the profession that recognizes universities that deserve to bear the name.
As Robert Carr said half a century ago, “[W]hat the courts give, they may take away, and that having thus given and taken away, academic freedom may be left in a weaker position than it was before it became a concern of the law.” Whether academic freedom is in a weaker position in the legal firmament, universities that are worthy of the name, and the faculties by which they are constituted, may—indeed, must—recognize that the unstinting protection of academic freedom is not a faculty perquisite but a pre-requisite for the university’s continued status among the great institutions. (84; emphasis added)
I’m reading that as a defense of academic freedom as a concept all its own, dependent neither on the vicissitudes of Constitutional law nor on the institution of tenure. So where Bloix says the report “advocates a strategy of attempting to use the precautionary language in Garcetti as the basis of efforts to create first amendment rights for professors that are different from and more protective than such rights as afforded to non-academic public employees,” I’m inclined to say the report “advocates a strategy of attempting to use the precautionary language in Garcetti as the basis of efforts to create academic freedom rights for professors that are different from and more protective than first amendment rights as afforded to non-academic public employees. But I’d like to hear what you all think.
Tuesday, November 24, 2009
Dean Dad responds—and how!
Berube’s post is a couple of weeks old, since I stopped reading his stuff a few years ago. I mentally consigned him to the same category as Stanley Fish, David Horowitz, and Marc Bousquet—basically, predictable caricatures of their former selves who jumped the shark some time ago. When Berube did the Punch-and-Judy act with Horowitz, I stopped paying attention. I dimly remember him ‘retiring’ from blogging, which seemed about right. Apparently, though, he’s back, and his ego has only inflated.
Berube, who is tenured, attempts to eviscerate my proposal for a contract-based system as a successor to tenure. I say ‘attempts’ because he never actually engages with it, or with the reasons behind it. His method seems to be to drip contempt from on high and hope that enough sophistry and attitude will make up for the lack of an actual argument. This, from someone whose job it is to teach textual interpretation.
Well, yes, that has been my method for some time now. But as DD admits, he hasn’t been paying attention, because ... hey, didn’t the phrase “jump the shark” jump the shark in 2005?
I’m not sure how seriously I can take a provocation from someone who thinks I made my “professional name” by “duking it out with Horowitz,” so I decided to respond by simply referring Dean Dad to my lawyers (the ones with guns and money), by reminding him that the AAUP’s Garcetti report does not support the conclusions he wants to draw from it, and by wishing him and his family a happy Thanksgiving. That’s not snark, either! That’s a real wish. Thanksgiving is my favorite holiday of all times, and this year we’re hosting twenty people for a couple of days. It should be a madhouse. I only hope that my old house’s water system holds up.
Have a Happy Thanksgiving, everyone. When I’m not cleaning up, finding lost clothing, refilling drinks, and making remarks about stuff, I’ll be working on that Story of the Broken Stick. See you soon!
When Black Friday Comes update: I was unaware that Dean Dad’s reply was also posted at Inside Higher Ed. The IHE version of DD’s post is 20 percent more delicious, because it mocks my photo in the upper right corner. Twice! In fact, DD takes that photo as evidence of my great big huge ego. Apparently I think I am saving the planet from David Horowitz.
I think this might just be the best interpretation of anything ever. I hereby apologize for nominating DD for the Richard Cohen Award.
But the really funny thing is that I do not look like Vladimir Putin in the least. Everyone knows that I bear an eerie resemblance to Charles Kinbote.
Monday, November 23, 2009
They call it crooked Monday
I’m over there today, just because.
Update: I’ve decided that it is not neighborly of me to send people over to CT empty-handed. OK, here’s that song that we talked about in that thread:
Now my work here is done.
Friday, November 20, 2009
Arbitrary but Resentful Friday
For the very first ARF Friday on this humble but tenacious blog, I turn you over to a Mystery Guest. Take it away, MG!
America has forgotten. Yes, you have forgotten when your Palin defends you from me and when your “major party” “Presidential candidate” says that Sarah Palin knows more about energy than anyone in America. And she does make many energy in your media and blogs! You say, these nuclear “starbursts” could ricochet around America! You have also forgotten when your Bush saw into my soul, and then later when your Condoleeza Rice told a funny joke about how “it is important that Russia make clear to the world that it is intent on strengthening the rule of law, strengthening the role of an independent judiciary, permitting a free and independent press to flourish.” It is like Alanis Morissette, isn’t it ironic? What a country!
So. Thanks to Michael Bérubé colleague Hannah Williams, who works in Gravitational Wave Astronomy Group keeping your homeland safe from undetectable cosmic Putinos, I am insisting to you that you have for yourself Arbitrary But Fun Friday all about me:
That is all.
Thursday, November 19, 2009
Immediately, I say.
I suppose this means I have to stop saying “dang” now.
Wednesday, November 18, 2009
I have only one question
about the people who oppose a civilian trial in federal court for Khalid Sheikh Mohammed and the other four 9/11 conspirators.
Why do they hate America?
I have a sneaking feeling that they hate us for our freedoms.
Besides, over at America’s slowest-loading website, Adam Serwer explains why this wingnut frenzy is even more farcical than their outrage at Obama’s
overweening arrogance servile bowing and scraping.