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As Inside Higher Ed and the New York Sun report this morning, Professor Timothy Shortell has withdrawn his bid to become chairman of Brooklyn’s Sociology Department. I have generally been a critic of BC president C.M. Kimmich, but in this instance, Kimmich handled the controversy just right. Early on, he exercised his own free speech rights and issued a public statement noting his strong disagreement with Shortell’s views that religious people are “moral retards.” Then, as required by the CUNY Bylaws, Kimmich conducted an investigation into Shortell’s fitness for the position, which included a consultation with the entire membership of the Sociology Department.
Shortell, on the other hand, remained defiant throughout."We laugh at our critics,” he wrote in response to press criticism. “We will behold with joy their silly tantrums . . . We are becoming Ubermenschen.” Yesterday, in an email widely circulated around campus, he accused unnamed senior colleagues of “dishonesty and opportunism,” charging that they “demonstrated their capacity for and willingness to
use all manner of unprofessional conduct.” He supplied no evidence for any of these wild allegations; throughout the controversy, Shortell’s departmental critics consistently declined public comment, and behaved as models of professionalism.
Two issues in the Shortell matter have broader significance. The first is that at CUNY, department chairmanships are extraordinarily powerful. As a result, the Bylaws impose additional requirements for the position—unlike the situation at most universities. The CUNY Bylaws require the college president to give" careful consideration . . . of the qualifications of those selected by the respective departments" to serve as chair. The president must also certify that the prospective chair can “act effectively as the departmental administrator and spokesperson and as a participant in the formation, development, and interpretation of college-wide interest and policy."
This clause originates from the controversial tenure of City College’s Leonard Jeffries, who was removed as chairman of CCNY’s Africana Studies Department in the early 1990s after he made continued anti-Semitic statements in public and in the classroom. Jeffries appealed his demotion to the Second Circuit, and lost the case, in Jeffries v. Harleston. The Jeffries court stated that colleges in the jurisdiction of the Second Circuit can remove department chairs if they have a “reasonable belief” that the publicly expressed views of the chair could harm the college, whether from negative publicity or the loss of pledges from donors.
Given the crudity of Shortell’s public statements, his case pretty clearly fell under the provisions of a Bylaws removal or the Jeffries decision. Indeed, in response to a question from the Sun, the AAUP’s Robert Kreiser question whether the affair was an academic freedom matter, remarking that an administration may not want to have as chairman someone whose views"are outside the mainstream" of the department or the college, since department chairmanships are partly administrative positions.
Second, the Shortell matter offers an opportunity to reflect on the definition of academic freedom. The CUNY union, the Professional Staff Congress, has adopted Shortell as its poster boy for academic freedom. The union’s conception of academic freedom, however, has left a bit to be desired. Under the terms of our contract, adjuncts have no right to reappointment. Yet in recent months the union has claimed a denial of “academic freedom” to two adjuncts who were not reappointed—Susan Rosenberg, convicted during the early 1980s of a variety of crimes related to her terrorist activity in the Weathermen underground; and Mohammed Yousry, tried and convicted for violating the special administrative measures for imprisoned cleric Sheikh Omar Abdel Rahman, mastermind of the 1993 attack on the WTC. Under the PSC's conception of academic freedom, the only adjuncts entitled to reappointment in the CUNY system would be those charged with or convicted of politically-related terrorist acts.
A more reliable barometer for defining academic freedom might be the 1940 AAUP Statement of Principles on Academic Freedom and Tenure. This document notes,"College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others."
It would be hard to argue that Shortell’s public writings deeming religious people"moral retards," or comparing Karl Rove to Joseph Goebbels, or celebrating the higher death rate of older Americans fit these guidelines. Instead of following the AAUP’s suggestions to"at all times be accurate,""exercise appropriate restraint," and"show respect for the opinions of others,” Shortell elected to frame his statements in a way deliberately designed to inflame opinion. That, of course, is his right under the First Amendment. But he might have been better served to remember the AAUP’s guidelines impose obligations as well as confer rights.
In the end, I agree with CUNY Trusstee Jeffrey Wiesenfeld on this issue: “While [Shortell] is entitled to his voice, the school is certainly better off served by a different chair."
David, I'd submit to you that Shortell's obnoxious speech _is_ being protected. There is no threat to his tenured position. Did you object when Ward Churchill resigned (probably under pressure) as chairperson of Ethnic Studies at the University of Colorado almost as soon as the controversy broke over his remarks about 9/11?
Clearly, we disagree about the the protection. And yes, I thought Churchill's resignation was premature. Given the apparent actual misconduct that has surfaced in the Churchill case, however, I think it's better that he's out.
David, if I understand you correctly you are saying that speech by definition cannot be a form of 'misconduct' relevent to a job hiring (at least that is what "not because of actual misconduct, but because of potential misconduct as indicated by what he has said" implies to me). I disagree.
I think that the burden of having speech be a form of misconduct should be massively higher than for other forms of misconduct and should be so clearly connected to the job at hand that there is no avoiding that connection. Dr. Shortell has commented that his beliefs would not influence his professional execution of the chair's job, and in a speech case like this, absent any misconduct in the performance of that job, that should be enough.
I don't think that a hiring committee is bound by the First Amendment, and to elevate Dr. Shortell's self-imposed predicament to the status of a freedom of speech case strikes me as absurd
The First Amendment is only the expression of free speech rights for the government and is thus a bit of red herring here. But the ideal and concept of free speech extends much further than Amendment One, and--especially in an academic situation--I think we should be exquisitely aware of it.
Question: if the members of the department who voted for him
Alan Allport -
6/9/2005
David, if I understand you correctly you are saying that speech by definition cannot be a form of 'misconduct' relevent to a job hiring (at least that is what "not because of actual misconduct, but because of potential misconduct as indicated by what he has said" implies to me). I disagree. I don't think that a hiring committee is bound by the First Amendment, and to elevate Dr. Shortell's self-imposed predicament to the status of a freedom of speech case strikes me as absurd. But I don't think we're going to reach any agreement about this, so I'll leave it at that.
Ralph E. Luker -
6/8/2005
David, I'd submit to you that Shortell's obnoxious speech _is_ being protected. There is no threat to his tenured position. Did you object when Ward Churchill resigned (probably under pressure) as chairperson of Ethnic Studies at the University of Colorado almost as soon as the controversy broke over his remarks about 9/11?
David Silbey -
6/8/2005
ut leaving that aside, surely there's no need to agonize over the theoretical basis for this. Judging whether or not someone has the necessary gravitas to successfully fill the role of department chair is naturally a subjective decision; and it's just the kind of subjective decision that a university president has to make all the time, borderline calls and all. The fact that speech is involved does not strike me as more significant than any other aspect of past action that has to be taken into account when judging professional character (why should obnoxious speech be sacrosanct in a case like this when other forms of obnoxious behavior would not be?)
Perhaps we should ask Dr. Shortell whether he feels punished or not?
Much of your post is avoiding my point. I have never argued that outsiders could not criticize Dr. Shortell, or that his sayings were not worthy of criticism. It is the idea that he could not hold the position of department chair--not because of actual misconduct, but because of potential misconduct as indicated by what he has said. To make the argument that obnoxious speech is no different from any other kind of obnoxious behavior is to ignore the privileged place that speech is deliberately given in both American society and in the university system. Tenure is based on the idea that obnoxious speech should be protected. This is nowhere near the same level, but it is of the same ilk.
Alan Allport -
6/8/2005
Well, as others have suggested, I'm not sure if the withdrawal of an illustrious promotion like the departmental chair (!) is quite the same thing as a punishment. But leaving that aside, surely there's no need to agonize over the theoretical basis for this. Judging whether or not someone has the necessary gravitas to successfully fill the role of department chair is naturally a subjective decision; and it's just the kind of subjective decision that a university president has to make all the time, borderline calls and all. The fact that speech is involved does not strike me as more significant than any other aspect of past action that has to be taken into account when judging professional character (why should obnoxious speech be sacrosanct in a case like this when other forms of obnoxious behavior would not be?). Nor to my mind is it particularly important that third parties have thrown in their opinions. The New York Sun is quite entitled to judge Dr. Shortell's appropriateness for the position if it chooses; and the BC President is equally entitled to absorb or ignore that advice as he chooses. It remains his call.
David Silbey -
6/8/2005
Since we're apparently in agreement that this is not a borderline case, why is it so crucial to know where the theoretical borderline is?
It's not a borderline case for speech that I find worthy of condemnation. But that's not the issue. The issue is whether--absent any actual misconduct or even accusations of the same--Dr. Shortell should be punished for what he said, as he apparently has been. So now, since speech is worthy of punishment, I'm trying to figure out where the borderline is. Wouldn't want to run afoul of Dr. Johnson or the New York Sun and have a headline like "The Shame of Silbey" on HNN.
Alan Allport -
6/8/2005
That is surely true--and what I'm trying to find out is where the borderline is, and who defines it.
Since we're apparently in agreement that this is not a borderline case, why is it so crucial to know where the theoretical borderline is?
Leo Edward Casey -
6/8/2005
Absent collective bargaining protections, the only protection a person has for an improper dismissal is the law. For the most part, this means anti-discrimination law. Thus, if a person were dismissed [or not rehired, as in the case of the adjunct] because she was pregnant or because she was too old, they would have legal redress. However, it is very hard to prove such discrimination in a court of law, especially given recent Supreme Court decisions requiring a demonstration of intentionality. It is the awfully dense employer who provides proof of his intention to dismiss pregnant or older employees. Academics and teachers may have legal protections for academic freedom if tenure is a matter of law, as it is New York State, but the definition of an adjunct is precisely that s/he could not obtain tenure.
David Silbey -
6/8/2005
but I think most reasonable people would agree that calling someone a 'moral retard' falls into the latter category and should be treated as such. We're not dealing with a borderline case here.
That is surely true--and what I'm trying to find out is where the borderline is, and who defines it. Given the implications, I think we might want to do better than the Supreme obscenity formulation of "I know it when I see it."
Alan Allport -
6/8/2005
Further addendum--since the problem seems to be the phrasing as much as the ideas, could I get a sense of what is permissible and isn't?
I have no strong feelings either way on the question of Dr. Shortell's chairmanship, but I don't think an appeal based on imprecise definitions really helps here. I may not be able to tell you exactly how many grains it takes to make a heap, but I recognize a heap when I see it. Similarly, there's no way to define in advance exactly the difference between a criticism and an insult, but I think most reasonable people would agree that calling someone a 'moral retard' falls into the latter category and should be treated as such. We're not dealing with a borderline case here.
David Silbey -
6/8/2005
Further addendum--since the problem seems to be the phrasing as much as the ideas, could I get a sense of what is permissible and isn't?
If Dr. Shortell had said "I would argue that religion can often serve as a crutch for people unsure of their own moral compasses" would that be grounds to prevent him from ever being chair?
If Dr. Shortell had said "Some of Karl Rove's uses of public relations seem in some vague way to resemble those used in the Germany of 1933-45" would that be grounds to prevent him from ever being chair?
If not, could we find out where the line is drawn? What words are permissible and what aren't? And who do we call to find that out? Dr. Johnson? Dr. Luker?
David Silbey -
6/8/2005
"As you know, we disagree about what punishment is. Shortell was elected on a 7-5 vote. It wasn't as if he had some overwhelming mandate. The chairmanship is not an entitlement. I don't see any element of punishment in this. Has he suffered a pay cut? Is his job at stake? Will he be forced to teach an overload? Those things should be considered punishment. Not serving as chairman? Some people would see that as a reward."
I personally would agree that not having to be chair is a reward.
But...Shortell has essentially been publically informed that he is not trusted to behave in a professional manner, that his words are beyond the pale for Brooklyn College, and that he is restricted in what functions he can take as a member of the college community.
That strikes me as punishment.
Ralph E. Luker -
6/8/2005
As you know, we disagree about what punishment is. Shortell was elected on a 7-5 vote. It wasn't as if he had some overwhelming mandate. The chairmanship is not an entitlement. I don't see any element of punishment in this. Has he suffered a pay cut? Is his job at stake? Will he be forced to teach an overload? Those things should be considered punishment. Not serving as chairman? Some people would see that as a reward.
David Silbey -
6/8/2005
"David, I'd be interested in knowing how you would compare this case with that of President Summers at Harvard. Is a University president _always_ a University president and, therefore, _always_ obliged to be discrete about his public remarks lest it damage the U or does he somehow have the sometimes on/sometimes off official/unofficial option that you and Shortell claim for a department chair's and his indiscrete remarks."
It's an interesting question, but note that Larry Summers did not lose a position as a result of the remarks, so the situations aren't quite comparable. In any case, I have no issue with people _criticizing_ someone's remarks. I think Dr. Shortell's remarks were ill-considered and inaccurate. I think Dr. Summers' remarks were as well.
What I have a problem is having people punished for saying something in the absence of any evidence of actual misconduct. If Larry Summers refused to hire a female scientist because he believed that women are less capable than men, that seems to me worthy of firing. If Frank Shortell had mistreated religious students as chair of the department, then that seems to me worthy of relieving him of the chairmanship. But we should be enormously careful about penalizing speech in the same way.
Sherman Jay Dorn -
6/8/2005
I don't know the details of the PSC-CUNY contract, but there are sometimes odd provisions of contracts or employment law that come into play. For example, non-tenured faculty can be given notice for nonreappointment without cause as long as the decision is not for improper reasons (hard to prove) and, I understand, as long as no other administrative action otherwise impedes the faculty member's general employability (I guess an employment-law equivalent of a nonprejudicial decision). But if someone is given notice of non-reappointment without cause <em>and</em> an administrator says all sorts of things about the faculty member in ways that clearly affect the person's employability chances elsewhere, that may not be kosher (depending on state law).
The other irony is that some aspects of collective-bargaining agreements are clearer if the person has a disciplinary or otherwise stained record. (Don't ask me for the details—I've been trained as a grievance rep for initial processing of grievances but I don't know the details of arbitration.) That may be a perverse incentive for unions, but it's a practical matter. (You probably don't want to know whether a reckless driver is likely to be hit for more damages if a victim is severely injured or dies.)
Ralph E. Luker -
6/8/2005
I'm with KC on this one. We've seen several cases lately of tenured professors who ought to have been flying way low under the radar. Instead of that, tenure apparently gives them a false sense that they are reasonably intelligent and productive human beings and they go after power and visibility. Then, all of a sudden, people start wondering how on earth these particular characters got by tenure scrutiny in the first place.
Robert KC Johnson -
6/8/2005
Sorry for my lack of clarity--which I see now from re-reading my post. I wasn't at all saying that the PSC opposes academic freedom for adjuncts. It most certainly doesn't. Indeed, its most recent round of contract demands came very close to demanding tenure for adjuncts.
But as things stand now under the contract, adjuncts have no right to reappointment at CUNY. That may or may not be a good thing, but that's the way the contract stands. The PSC actually filed grievances on behalf of Yousry and Rosenberg after they were non-reappointed, saying that the university could not consider their criminal records/charges in decided whether or not to reappoint them, and that they were therefore entitled to reappointment. So the PSC was arguing in a grievance to give Yousry and Rosenberg rights that non-criminal adjuncts didn't possess.
Robert KC Johnson -
6/8/2005
I sympathize with much of what Sherman has to say--and some of this is probably a where you sit is where you stand issue. My sense is that most of the objection to Shortell (this was certainly the case with me) came from the fact that he demonstrated a tendency, over a considerable period of time and on several issues, to make crude statements that were fundamentally anti-intellectual. Kimmich's statement, on the other hand, was neither crude nor anti-intellectual.
It is on these grounds that the Bylaws distinction is to me very, very important--since it essentially rules out chairs (like Jeffries or Shortell) who demonstrate a capacity to make consistently inflammatory statements of dubious veracity. Most institutions (at least from my knowledge) don't have that separate level of requirement, but even on this point, the AAUP 1940 statement, which suggests that professors should engage in what amounts to common-sense self-censorship, is on point.
If Shortell had a more impressive scholarly record, he might have been able to argue more convincingly that these statements did not reflect his normal intellectual approach. But, a decade into his career, there just wasn't much there.
Sherman Jay Dorn -
6/8/2005
I don't know about David Silbey, but I'll address it. The brief answer is that even Harvard's president is allowed to be a private individual and a scholar as well as an administrator.
What many people are ignoring about Summers's speech is the broader institutional context, in terms of the decline in women hired in sciences at Harvard during Summers's term as president. If Harvard had been hiring scores of good female scientists and Summers had made the same remarks, he could have issued a statement something like the following: "I spoke off the cuff and screwed up. Please keep in mind that my record as an administrator is pretty good on that score." And if his record as an administrator had been better, Arts and Sciences faculty would not have censured him in a public humiliation. It is much to his credit, by the way, that he didn't prevent one of his critics—Theda Skocpol, no less—from being appointed as graduate dean in A&S.
Ralph E. Luker -
6/8/2005
David, I'd be interested in knowing how you would compare this case with that of President Summers at Harvard. Is a University president _always_ a University president and, therefore, _always_ obliged to be discrete about his public remarks lest it damage the U or does he somehow have the sometimes on/sometimes off official/unofficial option that you and Shortell claim for a department chair's and his indiscrete remarks.
David Silbey -
6/8/2005
Dr. Dorn said it better than I could. But let me raise one further issue: how long does this last? If in five years, Dr. Shortell has made no more incendiary remarks, does he get to be considered for chair? Ten years?
But perhaps the most reasonable remark in this situation was this:
“I don’t worry when I visit my dentist, for example, that I am going to receive substandard care because he is a conservative Republican and I am not. I trust that he is a professional and when he is wearing his dentist’s hat, as it were, he treats his patients to the best of his ability. When he is off-duty, sitting in an overstuffed chair at the country club, let’s say, he is free to criticize my left-wing views and even insult me if he chooses.”
Who said that? Frank Shortell, in the Inside Higher Ed article that Dr. Johnson linked.
Sherman Jay Dorn -
6/8/2005
I agree with Leo here on the fact that a collective bargaining agreement does not describe the goals or ideals of a union. (If it did, then any change in a collective-bargaining agreement over time would imply that the union leadership is fickle instead of engaging in negotiations.)
Leo Edward Casey -
6/8/2005
Collective bargaining agreements are not unilaterial expressions of union sentiment: they are negotiated documents, which represent the interests and demands of management as much as of the union. The fact that adjuncts do not have a right to reappointment under the CUNY collective bargaining agreement would certainly be because it was a point on which management would not move, not because the PSC would be opposed to job security for its own members. To suggest that the latter is the case betrays a lack of understanding of collective bargaining in education, and a willingness to attribute the most illogical and irrational motives to the union side of the relationship.
Sherman Jay Dorn -
6/8/2005
I understand your consternation with Shortell since you're on the same campus, and in the same system as Jeffries. So maybe this is a case of "where you stand depends on where you sit." But I'm not so sure that dividing a chair post from faculty is as neat and clean as you imply. (Let me start out this dissent by pointing out that Shortell isn't the brightest star in the academic firmament. On that we agree. But to say that he is an unwise choice for chair is different from saying that he should be removed once elected.)
First, the Second Circuit Court decision in their second go-round on Jeffries did not revolve around his administrative responsibilities. The opinion mentioned that in a two-second aside towards the end, but the more I think about it, the more I doubt that would be a precedent. Their decision instead revolved around the Supreme Court decision in another public-employee case where a nurse was fired for having criticized hospital administration, but where the administrators had not established a record of actual harm coming from her statements. The Supreme Court had decided that the actual-harm standard was inappropriate, and it was that shift that led to the Second Circuit's change in Jeffries (along with inconsistencies in the jury's factual decisions). It is a lot less clear than you imply whether a court would make a different decision on faculty rights or positions stemming from public speech. If there was a solid record of Jeffries' anti-Semitic statements in classrooms, it would have been better from my standpoint to claim misconduct or incompetence in his role as a teacher and discipline him on that basis rather than leave an opening for a heckler's veto, which is what the case did. (I'm not well-versed in the Jeffries case to know what the factual record was—just pointing out that there is are differences in how you treat faculty [mis]behavior.)
The second concern I have here is with a double standard in the treatment of administrators' roles. Either administrators are allowed to make personal comments about public matters and not be affected by them in their job, or you don't. You can't simultaneously applaud the BC president for making non-ex-cathedra comments about the case and also say that Shortell's post should depend on his non-job-related remarks. (In this regard, there's a difference between saying that faculty do not represent the institution and saying that you personally disapprove of what an individual faculty member wrote. From your description, Kimmich made the second type of remark.) Stanley Fish used similar reasoning (that public remarks affect the suitability for a position) in saying that Larry Summers's statements about women and science disqualified him from being Harvard's president. I think Fish was wrong there. (Whether Summers is a good president—and the censure vote in Arts and Sciences—has a great deal to do with his other statements and actions over the past few years that are more directly related to his administrative responsibilities.)
Third, as an e-mail correspondent of FIRE's David French noted, concerns about the liabilities of chairs' extramural statements about religion could be used to bar anyone from a chair position. What about an evangelical Christian in Religious Studies who writes an article saying that Jews cannot be saved, from a scriptural standpoint? Does that disqualify the person from being an associate dean overseeing the tenure process? (To say that Shortell's view is more extreme, or less rooted in academic discourse, doesn't really address the question which is one of quality and not degree.)
Fourth, the personnel argument you've raised (and French has raised) is a fig-leaf cover for what the real issue here is: the embarrassment and irritation over a faculty member who writes something idiotic and prejudicial. I don't know the details of Jeffries' record as chair, but I don't recall hearing that he had discriminated in his administrative responsibilities (which would have been an actual harm to the institution). Yet it appears to me that the same reasoning would apply to his case. Even apart from chair positions, faculty have enormous power to screw up the personnel decisions of an institution. Unfortunately, you know that from personal experience, and I know it from observation. Would you bar Shortell from voting on tenure cases or from all search committees in fear that his fundamentalist atheism would result in religious discrimination? If you really believe in the personnel-decision argument, your answer has to be yes, here. But then you're affecting faculty rights and privileges, not just administrative posts.
Fifth, the division of chairs from faculty does not eliminate the chilling effects of allowing a heckler's veto over faculty decisions. Telling faculty in a department that the controversy over their chair won't affect them because chair posts are different from faculty jobs is pretty cold comfort, especially if a New York daily has gone after the chair's head. It may be legally true (though I'm doubtful of that, as I state above), but that's not the only thing that affects faculty.
As I wrote at the start, Shortell isn't the brightest bulb in sociology. But most campuses can survive the occasionally embarrassing chair (and if not, there is something much more serious with the institution as a whole). And, moreover, if we head in the direction of requiring purity in chairs (or faculty), then essentially we're opening colleges and universities up to every kind of politicization imaginable.
