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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.

Posted by on 11/29 at 09:11 PM
  1. I think that the difference in our approaches is captured by your sentence, “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.” I agree if by “First Amendment rights” you mean only the corpus of court opinions. But the political rights afforded by a “First Amendment” discourse often extend beyond court cases to an equally-messy popular debate about speech that is as valuable as legal protections.

    Here’s my concern: if we pass too quickly by “speech of public employees (all public employees) acting in the course of their professional duties” to bolster the concept of academic freedom as a special right for faculty qua faculty, we miss an opportunity to make an argument for academic freedom as part of a broader conception of democratic principles, one that includes public employees broadly.

    That’s why the various Fish definitions of academic freedom seem not only cramped but actively dangerous by dint of isolation from citizenry in general, and why I think I think that not only is it historically accurate to read students into the definition of academic freedom but damned smart politics, too. In the end, it’s students and former students who will form the best defense of academic freedom, and by making too hasty an exit from the idea of academic freedom as part of democratic discourse, we may be cutting ourselves off from the deep sense of millions of fellow citizens that they’ve got a right to speak up. Because if they do, so do we.

    Posted by Sherman DOrn  on  11/29  at  11:05 PM
  2. Okay, I have tried this twice and some glitch keeps destroying the text. 

    I agree with you that the AAUP position is about establishing the principle (standard) of academic freedom for public university and college faculties, and does not rest on interpretations of the 1st (and 14th) Amendment/s.  Academic freedom has a very long history in terms of how empires (particularly Islamic and Catholic) have abused those engaged in researches and studies.  It will continue to be so I am sure.  Therefore it is imperative that the professorship be free from the burden of always having to look over their shoulder for the shadow of hierarchical authority about to come down upon their heads.  I also am very supportive of efforts on the part of educators’ unions and associations to push for their own protections from Garcetti issues.  These must be based on Constitutional predicates, and not rely on some sort of trickle-down from the AAUP endeavors. 

    Garcetti is clearly a First Amendment case (and subsequently a 14th one).  The AAUP report advocates avoiding the complexities of these sorts of battles, through seeking to clearly establish academic freedom as a necessary principle of relation between professors and administrations.  Academic freedom is about protecting free speech for a specific community.  My hope is that we can find a way to expand that to a much larger community (k-20?), which would, to a certain degree, require a new filing and overturning of Garcetti.  The AAUP position would certainly help expand protection to professors at private institutions through creating competition that advocates freedom over dollars.  Attacking the fundamental constitutional principles of Garcetti would hopefully expand protections to other faculties and public servants.  Both of these efforts can only be successful through increasing the participation in, and activism of, unions and associations!

    Posted by  on  11/29  at  11:57 PM
  3. Pardon my ignorance—is the AAUP linked in any way to the process of accreditation?  Because the language about “recognizing universities that deserve to bear the name” suggests some process by which such recognition could be revoked—do they mean this in a “moral authority” way or something more literal?

    Posted by  on  11/30  at  12:13 AM
  4. Sherman:  Here’s my concern: if we pass too quickly by “speech of public employees (all public employees) acting in the course of their professional duties” to bolster the concept of academic freedom as a special right for faculty qua faculty, we miss an opportunity to make an argument for academic freedom as part of a broader conception of democratic principles, one that includes public employees broadly.

    Ah, now I see why you didn’t like the idea of academic freedom as a “guild concept.” Sure, academic freedom can be seen as part of a broader conception of democratic principles that includes public employees.  But as Craig Vasey points out in that AAUP video, (a) we’re not “employees” in the way an assistant district attorney is an employee, and (b) the scope of our professional duties encompasses just about everything we do, from hiring to curriculum to faculty senate service to routine committee work, in the course of which we are actually required to speak and write so as to help govern the academic end of the university.  But sure, that’s no reason (to take spyder’s suggestion @ 2) not to attack the fundamental principles of Garcetti so as to expand protections to K-12 teachers and public servants.

    Kathleen @ 3:  No, the AAUP is not linked to accreditation.  But we’ve been talking about how to get accrediting agencies to pay attention to stuff like this (and stuff for which we censure institutions), because, you know, it’s important.  Until we do, the phrase “recognizing universities that deserve to bear the name” will be one of those moral-authority kinds of utterances.

    Posted by  on  11/30  at  11:20 AM
  5. It’s probably the accumulated detritus of working in the South for more than 15 years that makes me want to hug my fellow Floridians very tightly and shout, “You need us to have academic freedom because you’ve got rights, too!”

    You’re correct that the involvement of faculty in governance arrangements is a particular arrangement in many (if not all) colleges and universities (and not for all faculty). That’s what tossed private-university unionization in the Yeshiva case. I am not happy with the term guild, but if governance entanglement is too awkward a term, I’ll give up on the terminology for now. The core dilemmas of the Yeshiva case and the spawn of Garcetti are parallel: if you’re responsible, you lose some legal protection of the state guaranteed to others, but if you’re not responsible you lose something essential from being part of the faculty.

    The intellectual and political problems with making the self-governance argument are fairly complicated, beyond the fact that too many faculty are outside those types of governance arrangements, and I think they reside in the arrangements of other occupations we see as professional (cf. Eliot Friedson and Andy Abbott for much smarter ideas about professionalization beyond the scope of this). Many well-educated neighbors of ours will say, “Well, I’m highly educated, and I participate in the broader professional life and even self-governance of my occupation. What’s so special about you?”

    To wit, why does a law professor who sits on a faculty senate peer disciplinary committee have academic freedom at a university, but the same person employed as a prosecutor and who sits on the state’s bar disciplinary committee does not? In both cases, there are some aspects of self-governance, and if you’re not happy with the sufficiency of the parallel I am sure I can create a fictional prosecutor who is also deeply involved in continuing professional education, pro bono, and any parallels to faculty service that are needed. I’ve wrestled with a way to claim that faculty are unique, and I’ve been unhappy with every attempt.

    Posted by Sherman Dorn  on  11/30  at  11:53 AM
  6. I should also give a shout-out to Philo Hutcheson, whose <cite>A Professional Professoriate</cite> addresses some of the internal debates of the AAUP in moving towards collective bargaining and thus some of the internal AAUP latter-20th-century debates over what it means to be a faculty member. (Also see the Michael Olivas review [$$ JSTOR] for a critical perspective on the book.)

    Posted by Sherman Dorn  on  11/30  at  11:59 AM
  7. I wonder how possible it would be to encourage something like the Newsweek survey to include an index of academic freedom—colleges and universities will absolutely step on one another’s heads to rise in those rankings.

    It would be useful to clarify for the public at large that academic freedom correlates well to general excellence.  I don’t know if Horowitz has children, but I am willing to bet he and every other public scold about tenured radicals would choose, say, Berkeley over Patrick Henry College for their own precious infants’ educations.  It’s not like schools that limit academic freedom in exactly the ways scolds advocate don’t exist already :  the point is they are just not very good.  That object-lesson could use more publicity.

    Posted by  on  11/30  at  12:53 PM
  8. Kathleen—yes, the U.S. News rankings are almost entirely bullshit, and a ranking system that paid attention to violations of academic freedom would be a fine thing.  As for where right-wing intellectuals send their children:  Horowitz doesn’t have any, but Medved and Will and Bolton do, and I made precisely this point in What’s Liberal About the Liberal Arts:

    Even America’s elite conservatives know this.  They may talk a good game about liberal indoctrination here and leftist domination there, but when it comes time to send their own kids to college, do you imagine for a moment that they’re looking over the brochures for Olivet Nazarene University, or even the famously conservative Hillsdale College, which accepts no federal money of any kind?  Do you think they’re hoping their children will click onto Yorktown University.com, a revolutionary (hence “Yorktown”) Internet “university” created in 2000?  You may not have heard of it, but it’s one of the good works accomplished by Paul Weyrich, president of the Free Congress Foundation and one of the most influential “movement conservatives,” widely credited with sparking the rise of the Reagan wing of the GOP.  Writing for the website of the Free Congress Foundation, Weyrich announced the advent of Yorktown in August 2001:

    For most of the past century the United States boasted of the finest universities in the world. But as millions of students head back to school after Labor Day, they face a bleak prospect in higher education.

    Unfortunately, toward the end of the 20th Century, the major institutions which produced the best and the brightest began to be gripped by “political correctness,” a form of cultural Marxism. Whereas the objective at the best colleges and universities used to be to teaching people how to pursue truth, this has been turned on its head now. The pursuit of truth is largely forbidden and has been replaced by an ideology which is every bit as pernicious as what the Soviets pushed down the throats of their students for seven decades.

    There are a few exceptions to this rule, Hillsdale College in Michigan and Christendom College in Virginia come to mind, but these, and the handful of other sound academic institutions, are but a tiny drop in the sea of political correctness. Now many students get failing grades, face disciplinary measures or, worse yet, even the long arm of the law if they challenge the current Marxist orthodoxy. . . .

    This is the only online university dedicated to the restoration of Western civilization based on the Judeo-Christian framework.

    In the promotional literature, Yorktown’s president, Richard J. Bishirjian, asks, “Do you trust mainstream universities today?  Are you worried that members of your family are being attracted to left-wing ideas at the college they attend?” and assures prospective students and parents that the university is for real:

    I’m proud of our faculty which includes some of the top scholars in America. Really top notch scholars in their own right, many of whom, like myself, were political appointees in the Reagan and first Bush Administrations, or who were GOP Congressional staff to US House and Senate members. Two of our Faculty, Dr. William B. Allen and Dr. Art Laffer, ran for the U.S. Senate nomination from California. All of us have found a home in the more traditional and conservative culture at Yorktown University.

    Strangely, this appeal seems not to appeal to the conservative elites who actually run the country; for some reason they prefer to send their children to the Ivy League, to Duke, to Berkeley, just as young Ben Shapiro, author of Brainwashed (an account of his undergraduate years at UCLA), managed to resist the brainwashing programs of UCLA and then decided to attend Harvard Law School rather than Pepperdine, where he would have had the benefit of studying with Professor Kenneth Starr.

    And there’s more in the next comment!

    Posted by Michael  on  11/30  at  01:33 PM
  9. Even culturally conservative pundits—the kind who spend a good deal of ink decrying the state of American campuses—know better than to ship their offspring off to Bob Jones University or to urge them to click onto Yorktown.com.  Witness U. S. News and World Report’s John Leo, who opened a January 2005 column with these words:

    In the fall of 2000, I promised my daughter the freshman that I wouldn’t write about Wesleyan University (Middletown, Conn.) until she graduated. As a result, you readers learned nothing from me about the naked dorm, the transgender dorm, the queer prom, the pornography-for-credit course, the obscene sidewalk chalking, the campus club named crudely for a woman’s private part, or the appearance on campus of a traveling anti-Semitic roadshow, loosely described as a pro-Palestinian conference.

    Well, Wesleyan sure does sound like a hopping place, with plenty of nudity, sexual experimentation, and even an anti-Semitic roadshow.  One can only admire Leo’s restraint in not writing about these travesties for four full years so as not to interfere with his daughter’s life.  I don’t doubt for a moment that the Wesleyan student body is every bit as liberal as the Leo family says it is: “After the 2000 election, my daughter told me that 80 percent of the students had voted for Al Gore. ‘Bush got only 20 percent of the vote?’ I asked. ‘No, Dad,” she explained, ‘the 20 percent was for Nader’” (though I’m one of those Democrats who don’t see any meaningful distinction between “I voted for Nader” and “I voted for Bush”).  But I also don’t doubt for a moment anything in Leo’s final paragraph: 

    I should add that I think my daughter got a decent education at Wesleyan.  You can do this if you are strong-minded, independent, and willing to pick your courses very carefully.  But admission to the university should come with a warning label: If you are fainthearted, go somewhere else.

    And I should add that I wish every American undergraduate were strong-minded, independent, and willing to pick his or her courses very carefully.  But my guess is that even the fainthearted among the offspring of the conservative elite would rather follow the Bush family to Yale or follow John Leo’s daughter to Wesleyan than take their chances with the really top notch scholars at Yorktown.com.

    More publicity for this argument, please.

    Posted by Michael  on  11/30  at  01:34 PM
  10. More publicity for this argument, please.

    Heck, perhaps there should be a picket line outside Harold Bloom’s office, asking him why he stayed at an Ivy League university that so routinely sullies the lofty aesthetic isolation of the Canon.

    Posted by  on  11/30  at  02:01 PM
  11. Anyway, I still think it’s reasonable to consider faculty as occupying a slightly different place on the “intellectual freedom” map than other professionals, since the free spirit of inquiry is much more essential to education and research than it is to prosecutors.  But perhaps we could compromise by producing an umbrella organization that included non-academic as well as academic public employees, and which acted as a buffer against wrongful termination.  We could call it an “intersection,” or some such Boolean expression.

    Come to think of it, what is the status of academic freedom in Canada?  There obviously isn’t the same First Amendment jurisprudence at work, for good or ill.  And at, e.g., the University of Toronto, there’s United Steelworkers, CUPE, and the Faculty Association.  Is anyone familiar with how these issues play out compared to the US?  (Hush, Mark Steyn, I’m asking grownups.)

    Posted by  on  11/30  at  02:55 PM
  12. well, Michael, maybe I oughta reada your book as well as your blog smile

    You put it all very well, and with delicious examples (how self-sacrificing of public Blue Eagle Leo never to mention his own offspring’s formative years in a hotbed of PC liberalism.  It was all for her sake, I’m sure).

    It’s also reminiscent of the creationism in schools debate—the prominent conservatives who are noisiest about it wouldn’t dream of subjecting their own children to an education that would shut them out of careers in medicine or the biosciences.  but poor kids in the heartland dependent on public schools for their education?  Sure!

    Posted by  on  11/30  at  04:00 PM
  13. mds—I work in Canada and thus should know more, but I will say that in the 4 years I’ve been here it looks to me as though CAUT (Canadian Association of University Teachers) does a very good job defending academic freedom.  But I don’t know what the relationship of academic freedom to Canadian legal frameworks is.  I’d be very interested to find out if there is a more knowledgeable commenter out there.

    Posted by  on  11/30  at  04:05 PM
  14. Many years ago a dear close friend of mine reminded me that too often in these sorts of discussion (debates?) fail to put faces on the players.  We (well at least most of those of us on the more left of the left) too often say some corporation is polluting or toxifying, or destroying whole-cloth, large swaths of the planet, or the financial system.  We don’t very often commit ourselves to the actual faces involved, yet there they are: Geitner, Paulson, Welch, Murdoch, Dearborn, Levirias, Bernacke, et al, conspiring with their compatriots to do great harm to all of us.  Likewise, we are reticent to put faces on university and college administrations, but they too are actual human beings making decisions (like Dean Dad) that harm.  Academic freedom accords members of faculties to call those names out, to chastize and criticize behaviors that are egregious and clearly harmful.  Without this freedom, the leaders of the institutions charged with educating the future generations sally forward with authority predicated on titled and ideas best described as incompetent. 

    Colleges and universities are indeed responsible for the future, and we citizens need to demand that they perform at the optimum, rather than kowtow to this or that political whim.  Kathleen makes a great point {"It’s also reminiscent of the creationism in schools debate"} in reminding all of us that hundreds of thousands of children in this country are intentionally being taught doctrines of faith and not fact-based epistemologies.  We need our professoriate to be free to correct some of these errors in thought.  Larry Summers made stupid mistakes, and was held up in the stockades of public scolding; others need to be likewise, so let’s name them and put there faces in our minds.

    Posted by  on  12/01  at  04:12 AM





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