Sep 2, 2009
Aziz Huq: Review of Two New Books on Academic Freedom
Under Discussion:
Matthew W. Finkin and Robert C. Post, For the Common Good: Principles of American Academic Freedom (Yale University Press, 2009).
Stanley Fish, Save the World on Your Own Time (Oxford University Press, 2008).
In 2007, the University of Colorado fired ethnic studies professor Ward Churchill based on accusations of plagiarism, falsifying research, and academic misconduct. Few doubted that the real cause of the firing was an article in which Churchill had (among other colorful assertions) described those who were killed by the September 11 attacks as “little Eichmans” culpable for their role in “America's global financial empire.” In April 2009, a state-court jury found that Churchill had been improperly fired, and awarded him nominal damages. Judge Larry Naves of the District Court of Denver, Colorado, however, demurred. Resisting Churchill’s request for reinstatement, he also declined to award damages against the state on technical grounds.
Partisans of the left and the right crowed victory and cried foul over different parts of this passing scandal, largely based on their estimation of Churchill’s views. Voluptuaries of the First Amendment—and I generally count myself as one of them—generally held their noses in distaste at Churchill’s views but, with Voltairian high-mindedness insisted on his right to hold them free of any sanction.
The resulting debate, however, cast little light on the complex subject of academic freedom, which is too often seen merely as a shield for toxic (generally left-leaning) views or as a mere appendage of the First Amendment. It does not help that the historical origins of academic freedom, and its present purposes, have been lost from sight, obscured in present turmoil. The net result is that despite Supreme Court precedent dating back a half century endorsing the constitutional protection of academic freedom, today judges on at least two federal circuit courts have suggested that the whole concept be jettisoned.
Two recent books clarify that academic freedom is neither a sham cover for offensive words nor a mere appendage to the First Amendment. Rather, academic freedom is an idea that predates constitutional protection. Obsessive focus on the Toquevillian litigiousness of American society has obscured the fact that academic freedom is a social phenomenon, one separate from and prior to the First Amendment’s twentieth century renaissance.
The professional concept of academic freedom is also not coextensive with the legal one. The latter only protects against “state action.” It does not extend to private universities. Ironically, the American ivory tower has especially deep roots in government largesse: When Harvard College was founded in the 1600s, it was kick-started with state funds from tolls. Today, Johns Hopkins University, the largest private employer in the state of Maryland, is also the recipient of more federal grant money from the National Institutes of Health than any other entity in the country. This means that despite the functional interlocking of academy and government (deepened by the degree of post-war financial support for area studies, languages, and the sciences), the position of an individual academic (or the collective faculty) is quite distinct, in constitutional terms, in a public and a private institution.
So clarifying what academic freedom meant before the constitutional law came along has some use. The recent books by Matthew W. Finkin and Robert Post, and also by Stanley Fish do thus. They give life to academic freedom as a concept distinct, separate, and older than any legal protection. Where Finkin and Post set forth its history, Fish acts it out. Custom is embedded in the profession’s norms and respected not as a matter of law but of ethics, that initially developed in response to a particular problem—i.e., over-zealous trustees at the turn of the twentieth century trying to exercise too much control over who taught and what was taught. No matter how particularized the origins of this professional sense of academic freedom might have been, it has now transcended those origins. Just as journalists, lawyers, and physicians have developed situated ethical codes, so too have contemporary academics. That initial movement in response to overzealous trustees has flowered into a carefully defined and delimited field of privilege, an autonomous zone covering the groves of academe and hedged about by a profession and its culture.
Finkin—who teaches at the University of Illinois—and Post—who is presently dean of the Yale Law School—aim to recapitulate in brief the development and formulation of academic freedom as a professional norm inherited from German university seen, at the turn of the twentieth century, as the contemporary acme. As such, theirs is a (useful and trimly written) summary recapitulation and extension of academic freedom’s history, first presented in Richard Hofstadter and Walter Metzger’s magisterial 1955 The Development of Academic Freedom in the United States.
Central to the Finkin-Post account are the 1915 Declaration of Principles on Academic Freedom and Academic Tenure and (to a lesser extent) the 1949 Statement of Principles on Academic Freedom and Tenure, both produced by the American Association of University Professors. The first, critically, broke from the then-dominant assumption that professors were employed “at will,” and could be terminated for good reason or bad. That is, when James Duke or Leland Stanford founded their great institutions, they secured not mere employers but staff who shared in a public trust—the production of knowledge through accepted, and rigorously vetted, academic procedures and standards. That is, the Declaration did not announce an untrammeled freedom of speech, but a more limited concept of professional judgment, to be exercised freely but within disciplinary boundaries and constraints. Finkin and Post suggest that broader public support for faculty autonomy, even in this regard, rests on the assumption that (at least so defined) it promotes the production of useful knowledge—an optimistic assumption, at least if law schools are anything to go by.
Stanley Fish, though, will have none of this: He argues that universities professors are tasked only with presenting students with complex analytic and descriptive tools that allow them to take apart, understand, and test (conceptually or by various empirical methods) propositions and ideas. (In fact, Fish’s book, which concededly sprung from a grab-bag of “disparate essays,” is about lots of things: political correctness, the “culture wars,” the task of being a university administrator, and, especially, grammar—on the evidence here, Fish wants to, and should, write an entire book on grammar.) Much of his book is occupied with ill-tempered polemic against colleges that claim to do more (usually in vaguely left-liberal moralistic terms). He doesn’t provide any evidence, though, that this is much more than bloviating ad-copy from colleges eagerly competing by pandering to what they see as students’ wishes.
On this basis of this narrowed vision of the academic function, Fish resists any notion this might have a larger moral or economic purpose. In response to critics who would strip the Fishes of this world of jobs teaching literature and (like Charles Murray) both shrink radically the college age population and also truncate college, Fish would just hurl imprecations. Defending the value of academia, Fish argues (presumably on the back of his experience as a dean at the ill-fated University of Illinois), just shout back. “And when you are invited to explain, defend, or justify, just say no.”
Yet Fish’s account of academic freedom, while resisting easy assimilation into the larger concept of free speech, nevertheless insists that administrators must not judge the protected speech of their faculty. It still is shot through with a robust sense of professional norms. It simply has nothing useful to say about why those norms matter to anyone other than Fish.
Neither Fish nor the Finkin-Post book address the question how this species of ‘academic freedom’ should cash out in the courts, either as constitutional protections or some lesser shielding measure (although their separate writings address this issue; Post’s essay in another edited volume on academic freedom after 9/11 is especially worth consulting). But their equal embrace of professional norms suggests that courts should craft rules to respect the autonomous zone that academic freedom embodies and protects.
At times, this means special First Amendment protection against legislators. For example, courts should have little tolerance for state-sponsored efforts to regulate who teaches based on political affiliations or what is taught based on its content or viewpoint. But courts may also want to be careful not to allow individual professors to hold up the process of professional judgment embodied in peer review by claims of ideological exclusion.
The peculiar result in the Churchill case—a jury verdict awarding the plaintiff nominal damages followed by a judicial decision holding in sweeping terms for the defendant, state officials—makes more sense in these terms. The court in that case grappled frankly with the need to preserve the collective faculty interest in making academic assessments. The trial and the complex remedial sequence are an effort to reconcile judicial protection against overbearing political intrusion on academic work with the risk that a lone academic will be a “spoiler,” gumming up the works for his colleagues. Cognizant of both concerns, Judge Naves (and, it seems, the jury) tried to hold them in equipoise. Disagree with the result one might, but the method shows due regard for values ably articulated by Finkin, Post, and Fish.
Matthew W. Finkin and Robert C. Post, For the Common Good: Principles of American Academic Freedom (Yale University Press, 2009).
Stanley Fish, Save the World on Your Own Time (Oxford University Press, 2008).
In 2007, the University of Colorado fired ethnic studies professor Ward Churchill based on accusations of plagiarism, falsifying research, and academic misconduct. Few doubted that the real cause of the firing was an article in which Churchill had (among other colorful assertions) described those who were killed by the September 11 attacks as “little Eichmans” culpable for their role in “America's global financial empire.” In April 2009, a state-court jury found that Churchill had been improperly fired, and awarded him nominal damages. Judge Larry Naves of the District Court of Denver, Colorado, however, demurred. Resisting Churchill’s request for reinstatement, he also declined to award damages against the state on technical grounds.
Partisans of the left and the right crowed victory and cried foul over different parts of this passing scandal, largely based on their estimation of Churchill’s views. Voluptuaries of the First Amendment—and I generally count myself as one of them—generally held their noses in distaste at Churchill’s views but, with Voltairian high-mindedness insisted on his right to hold them free of any sanction.
The resulting debate, however, cast little light on the complex subject of academic freedom, which is too often seen merely as a shield for toxic (generally left-leaning) views or as a mere appendage of the First Amendment. It does not help that the historical origins of academic freedom, and its present purposes, have been lost from sight, obscured in present turmoil. The net result is that despite Supreme Court precedent dating back a half century endorsing the constitutional protection of academic freedom, today judges on at least two federal circuit courts have suggested that the whole concept be jettisoned.
Two recent books clarify that academic freedom is neither a sham cover for offensive words nor a mere appendage to the First Amendment. Rather, academic freedom is an idea that predates constitutional protection. Obsessive focus on the Toquevillian litigiousness of American society has obscured the fact that academic freedom is a social phenomenon, one separate from and prior to the First Amendment’s twentieth century renaissance.
The professional concept of academic freedom is also not coextensive with the legal one. The latter only protects against “state action.” It does not extend to private universities. Ironically, the American ivory tower has especially deep roots in government largesse: When Harvard College was founded in the 1600s, it was kick-started with state funds from tolls. Today, Johns Hopkins University, the largest private employer in the state of Maryland, is also the recipient of more federal grant money from the National Institutes of Health than any other entity in the country. This means that despite the functional interlocking of academy and government (deepened by the degree of post-war financial support for area studies, languages, and the sciences), the position of an individual academic (or the collective faculty) is quite distinct, in constitutional terms, in a public and a private institution.
So clarifying what academic freedom meant before the constitutional law came along has some use. The recent books by Matthew W. Finkin and Robert Post, and also by Stanley Fish do thus. They give life to academic freedom as a concept distinct, separate, and older than any legal protection. Where Finkin and Post set forth its history, Fish acts it out. Custom is embedded in the profession’s norms and respected not as a matter of law but of ethics, that initially developed in response to a particular problem—i.e., over-zealous trustees at the turn of the twentieth century trying to exercise too much control over who taught and what was taught. No matter how particularized the origins of this professional sense of academic freedom might have been, it has now transcended those origins. Just as journalists, lawyers, and physicians have developed situated ethical codes, so too have contemporary academics. That initial movement in response to overzealous trustees has flowered into a carefully defined and delimited field of privilege, an autonomous zone covering the groves of academe and hedged about by a profession and its culture.
Finkin—who teaches at the University of Illinois—and Post—who is presently dean of the Yale Law School—aim to recapitulate in brief the development and formulation of academic freedom as a professional norm inherited from German university seen, at the turn of the twentieth century, as the contemporary acme. As such, theirs is a (useful and trimly written) summary recapitulation and extension of academic freedom’s history, first presented in Richard Hofstadter and Walter Metzger’s magisterial 1955 The Development of Academic Freedom in the United States.
Central to the Finkin-Post account are the 1915 Declaration of Principles on Academic Freedom and Academic Tenure and (to a lesser extent) the 1949 Statement of Principles on Academic Freedom and Tenure, both produced by the American Association of University Professors. The first, critically, broke from the then-dominant assumption that professors were employed “at will,” and could be terminated for good reason or bad. That is, when James Duke or Leland Stanford founded their great institutions, they secured not mere employers but staff who shared in a public trust—the production of knowledge through accepted, and rigorously vetted, academic procedures and standards. That is, the Declaration did not announce an untrammeled freedom of speech, but a more limited concept of professional judgment, to be exercised freely but within disciplinary boundaries and constraints. Finkin and Post suggest that broader public support for faculty autonomy, even in this regard, rests on the assumption that (at least so defined) it promotes the production of useful knowledge—an optimistic assumption, at least if law schools are anything to go by.
Stanley Fish, though, will have none of this: He argues that universities professors are tasked only with presenting students with complex analytic and descriptive tools that allow them to take apart, understand, and test (conceptually or by various empirical methods) propositions and ideas. (In fact, Fish’s book, which concededly sprung from a grab-bag of “disparate essays,” is about lots of things: political correctness, the “culture wars,” the task of being a university administrator, and, especially, grammar—on the evidence here, Fish wants to, and should, write an entire book on grammar.) Much of his book is occupied with ill-tempered polemic against colleges that claim to do more (usually in vaguely left-liberal moralistic terms). He doesn’t provide any evidence, though, that this is much more than bloviating ad-copy from colleges eagerly competing by pandering to what they see as students’ wishes.
On this basis of this narrowed vision of the academic function, Fish resists any notion this might have a larger moral or economic purpose. In response to critics who would strip the Fishes of this world of jobs teaching literature and (like Charles Murray) both shrink radically the college age population and also truncate college, Fish would just hurl imprecations. Defending the value of academia, Fish argues (presumably on the back of his experience as a dean at the ill-fated University of Illinois), just shout back. “And when you are invited to explain, defend, or justify, just say no.”
Yet Fish’s account of academic freedom, while resisting easy assimilation into the larger concept of free speech, nevertheless insists that administrators must not judge the protected speech of their faculty. It still is shot through with a robust sense of professional norms. It simply has nothing useful to say about why those norms matter to anyone other than Fish.
Neither Fish nor the Finkin-Post book address the question how this species of ‘academic freedom’ should cash out in the courts, either as constitutional protections or some lesser shielding measure (although their separate writings address this issue; Post’s essay in another edited volume on academic freedom after 9/11 is especially worth consulting). But their equal embrace of professional norms suggests that courts should craft rules to respect the autonomous zone that academic freedom embodies and protects.
At times, this means special First Amendment protection against legislators. For example, courts should have little tolerance for state-sponsored efforts to regulate who teaches based on political affiliations or what is taught based on its content or viewpoint. But courts may also want to be careful not to allow individual professors to hold up the process of professional judgment embodied in peer review by claims of ideological exclusion.
The peculiar result in the Churchill case—a jury verdict awarding the plaintiff nominal damages followed by a judicial decision holding in sweeping terms for the defendant, state officials—makes more sense in these terms. The court in that case grappled frankly with the need to preserve the collective faculty interest in making academic assessments. The trial and the complex remedial sequence are an effort to reconcile judicial protection against overbearing political intrusion on academic work with the risk that a lone academic will be a “spoiler,” gumming up the works for his colleagues. Cognizant of both concerns, Judge Naves (and, it seems, the jury) tried to hold them in equipoise. Disagree with the result one might, but the method shows due regard for values ably articulated by Finkin, Post, and Fish.