Thursday, November 12, 2009
Academic freedom update
The AAUP has a new video on the consequences of Garcetti v. Ceballos. If you teach at a public university in the United States, watch this video. Then distribute it to your colleagues. Do this or I will come to your house—and you don’t want that.
The .pdf of the full AAUP report is here. If you’re not up to speed on this stuff yet, now’s the time—the report is smart and useful and instructive and basically terrific.
OK, deep breath.
Yesterday, Sherman Dorn alerted me to the fact that the blogger known as Dean Dad has a, how shall I say, interesting interpretation of the AAUP’s position on Garcetti: because it is now possible, thanks to three lower-court decisions, for administrations to punish faculty for what they say in the course of their professional duties (and these might range from routine committee service to comments in the local newspaper about this or that university policy), it is therefore a good time to get rid of tenure. Yes, you read that right:
Apparently the AAUP is launching a new campaign in recognition of the rocky judicial climate for its conception of academic freedom. I couldn’t agree more. In fact, I agree so strongly that I wonder if it has thought through its position completely.
As regular readers know, I’ve argued for some time that the tenure system is unsustainable and even unethical. I’ve proposed as an alternative a system of long-term renewable contracts with academic freedom stipulated in the contract language. (For the record, I envision an initial contract of three years—consistent with current practice for most tenure-track lines—followed by renewable five-year contracts.) That way, if academic freedom is attacked, a complainant wouldn’t have to rely on an extra-constitutional and undefined legal doctrine; she could bring action as breach of contract. Academic freedom could also be stipulated in institutional policy. To the extent that employee handbooks and/or institutional bylaws are given the force of contract, the objection from ‘expiration’ is rendered moot. (The recent decision that non-renewal is tantamount to termination further buttresses this argument.) Contract law is well-established, so the claim wouldn’t rely on the good graces of any particular justice. What might sound, at first, like a retreat would actually be a significant advance for academic freedom.
Read the whole thing, as they say, and the comments too—especially the comment about how scrapping tenure will lead to an increase in salaries. I have to go and teach today and make a bunch of statements in the course of my professional duties, as I’ve been doing on my last couple of out-of-town trips (I now serve on the AAUP’s Committee A and I chair the MLA’s Committee on Academic Freedom and Professional Rights and Responsibilities), so I have to keep my response relatively brief. But for now, I am nominating DD’s post for the coveted Richard Cohen Award for Advanced Wrongheadedness. Five severe and distinguished wrongisms make this post worthy of the honor, in my humble opinion:
(1) The idea that academic freedom will be protected “to the extent that employee handbooks and/or institutional bylaws are given the force of contract.” Here’s the short answer: they’re not. They are routinely set aside by courts. The reason the AAUP is advising faculty to revise their handbooks anyway is that in the wake of a series of extraordinarily perverse court decisions, this is the best we can do. We have to look to written safeguards in internal institutional procedures because the legal climate is so very hostile. We are not looking for better legal ground. We are looking for matters of professional principle. From the report’s executive summary:
Based on its review of relevant cases, the subcommittee report reiterates the imperative of making the case for academic freedom at both public and private institutions, not as a matter of law, but as a principle vital to the effective functioning of institutions of higher learning.
Which brings me to (2).
(2) As for the claim that “contract law is well-established, so the claim wouldn’t rely on the good graces of any particular justice”: yes, well, no one could possibly anticipate a situation in which employers set aside contracts. Which brings me to (3).
(3) “Outside of the elite institutions, tenure is going the way of the typewriter. If the only alternative to tenure is temp gigs, then academic freedom becomes de facto the exclusive province of the elite. But if tenure can be replaced with a more sustainable system featuring long-term contracts and academic freedom, then we can keep the best elements of it without chaining ourselves to a dying system.” This is some pretty amazing logic at work. Back in 1970, roughly 70 percent of people teaching in American universities had tenure. Now, after four decades of scorched-earth adjunctification, during which universities have created about three untenured positions for every tenure-track job, that figure is around 25 percent (check out the DD commenter who blames this on unions. Come on, people, everyone knows ACORN did it). That means tenure is now elite, and elitism is bad, so the responsible and egalitarian thing to do is to jettison the system altogether, because, after all, it’s dying. Which brings me to (4).
(4) Dean Dad assumes throughout the post that the AAUP position is that only the tenured faculty have academic freedom. This is badly mistaken. We argue that every single person teaching and researching in a university should have academic freedom, and we’re still working out what this means for graduate researchers and teaching assistants (who work under various degrees of supervision). We argue that people who are not on the tenure track should nevertheless have academic freedom with regard to teaching, research, and statements made in the course of their professional duties or as public citizens; with regard to their possible termination, they should also have rights of due process, and we’ve even laid out our standards for the appointment and nonreappointment of contingent faculty. See “Recommended Institutional Regulation 13” (some serious scrolling required). Which brings me to (5), and I promise you I’ve saved the best for last.
(5) “The accountability built in to a renewable-contract system would go a long way towards defusing the cheap political shots to which higher ed is now routinely subject.” Readers, friends, skeptics, and sworn enemies, I have lain awake all night trying to figure out how to reply to this without snark, and I have failed. I keep trying to imagine Roger Kimball saying, “I used to get all squicky about queer theory, but now that universities have scrapped tenure, bring on the fabulous challenges to heteronormativity.” Or Daniel Pipes saying, “I used to target anyone who didn’t toe the Likud line, but now that universities have scrapped tenure, let a hundred critiques of Israel bloom.” Or my old friend David Horowitz saying, “I used to have a list of dangerous professors, but now that universities have scrapped tenure, Bill Ayers is just all right with me, whoa yeah.” But alas, I have to admit that I’m just not that imaginative. I do worry, however, that many deans think this way: if only we got rid of tenure, we’d go a long way toward defusing those cheap shots! Well, sure, tenure is always going to be a target of public ire and resentment, particularly when unemployment is rising, entire company towns are shutting down, and the banksters of Goldman Sachs, together with 25 percent of college professors, are making out like bandits. But if you really think that abandoning tenure is going to defuse the higher-ed cheap-shot industry, you don’t know who and what you’re dealing with.
Speaking of which, one of the stranger and stupider consequences of Garcetti is that the more you actually know what you’re talking about when you speak or write in the course of your professional duties, the less protection you have. In other words, lunatics and cranks (and Moloch knows we have our share) have full constitutional protection for their remarks, but well-informed people, not so much. That’s because Garcetti relied in part on the Pickering precedent (in which Pickering was found to have First Amendment protection for his remarks because his remarks were completely uninformed and implausible); see Robert O’Neil’s explanation of this curious development here. Transcript:
In the current climate, it seems to me almost any faculty participation that might entail a controversial statement or an outspoken view is potentially at risk. If the only time a state college or state university professor is really safe, in terms of First Amendment protection, is when talking about something that person is woefully uninformed about, has no expertise, couldn’t possibly be deemed to be within that person’s official duties—and that’s basically where we are now—then it seems to me at least all useful types of faculty participation in university governance are potentially at risk.
So remember, folks: if you’re going to speak out about something at your college or university in the course of your professional duties, first make sure that you have no idea what you’re talking about.