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.