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Academic Freedom Verdict

October 18, 2010

A special faculty panel investigating an academic freedom dispute at the University of Illinois at Urbana-Champaign has finished its inquiry with findings that expressly avoid saying whether there were grounds for the religion department to stop employing a controversial adjunct who taught about Roman Catholicism and whose anti-gay e-mail offended many students.

The committee's report, which was given to the university's senior administration late last week and a copy of which was obtained by Inside Higher Ed, states definitively that causing offense to students or others would not have been grounds for dismissal. And the report notes that the instructor lacked due process protections as the controversy transpired.

At the same time, the committee finds that the e-mail in question raised questions of professional competence -- particularly in incorrect definitions of utilitarian thought given by the instructor -- that could offer legitimate grounds for the department to decide not to continue the instructor's employment. The report is also notable for documenting a significant degree of involvement by the university administration in the initial handling of the case. And the report suggests that the case illustrates the problems of the lack of clearly understood due process rights for all adjuncts at the university.

The report over the instructor and his comments is unlikely to end debate over the situation. A lawyer for the instructor applauded the panel for raising due process issues and affirming that instructors shouldn't lose their jobs for offending students. But he questioned the fairness of the panel's discussion of the instructor's references to utilitarianism and vowed to protect the instructor's rights to continued employment.

The dispute involves Kenneth Howell, who for many years has taught Catholic thought as an adjunct at Illinois. Howell taught in an unusual arrangement -- opposed for years by faculty members -- in which instructors for some courses on Catholicism were selected and paid by the St. John's Catholic Newman Center. Howell was told at the end of the last academic year that he would no longer teach at the university, following a student complaint about an e-mail he sent to all of the students in his course. In the message, he expressed his views about utilitarian thought and gay sex, arguing against homosexuality by making comparisons to the morality of adults who have sex with children or with dogs, and asserting that gay sex is inherently "deleterious to the health" of gay men, and that those who support gay rights need to study "the history of moral thought."

After the case became public -- and the subject of huge debates on this website and elsewhere -- Howell received backing from the Alliance Defense Fund, which threatened to sue if he did not get his job back. Illinois officials appointed the committee that has now finished its report, and agreed to reappoint him for the fall semester, saying that it would be inappropriate to deny him that teaching position without the completion of the report that has now been finished. Further, Illinois ended its arrangement under which the Newman Center nominated candidates to teach at the university.

The university has said that, in the future, the department will have the ability to decide who teaches Catholic studies courses, suggesting that Howell may not be asked to continue to teach. And the faculty committee said that that was quite possible, for legitimate reasons. It added only that if Howell believes that any future decision not to renew his appointment violates academic freedom, he should have access to a committee review of his situation to ascertain that the decision was made on appropriate grounds.

On the question of procedure, the committee writes that -- at the current time -- adjuncts at Illinois lack any sort of formal review process. "There is no requirement of notice of reappointment or non-reappointment nor is there any requirement of formal review," the report says. As a result, "[e]ach academic unit is thus at liberty to act as it will with respect to such appointees and, not surprisingly, practice varies widely."

According to the faculty committee, "this regulatory vacuum abetted the difficulty the department encountered in the wake of Dr. Howell’s e-mail." What the department did was consult among its own members, with an associate dean (who expressed concern that the university might be sued by "the gay community") and with the university's legal office, which advised that the department was not required to end Howell's teaching, but was free to do so.

Robert McKim, who was then finishing a period of chairing the department, acted to end Howell's teaching, the faculty report says, feeling that he was "being strongly encouraged if not actually ordered by the administration" to end the employment of Howell. The only caution the university gave the department, apparently out of concern over being sued, was that "no apology on the department or university's part [be] made which might have implied institutional acceptance of responsibility for Howell’s e-mail message."

Given that Howell has been rehired for the fall semester, the report notes that there is no current issue of whether he should teach. But it then goes on to analyze the grounds on which he might have been legitimately dismissed (stressing that even in cases of legitimate grounds, some due process system is needed).

First, the committee discusses the question of how to judge an e-mail sent by a professor to all students. The panel notes that faculty members are judged in many ways on formal publications, but are not typically judged on offhand remarks in a class. The committee says that an e-mail sent to every student in a course should be viewed as more than a quick remark. "Though it does not bear all the earmarks of a finely wrought professional exercise it is more like a thought-through professional exposition than an impromptu classroom expostulation and we shall treat it as such," the report says.

On at least one issue -- whether Howell incorrectly described utilitarian thought in a way that was so off as to be unprofessional -- the committee appears to find solid evidence to back a decision to end Howell's teaching at the university, and says that such a decision would not amount to limiting his rights to free expression in the classroom, provided there was an appropriate review process.

"Obviously, a manifest failure to comprehend the subject or to explain it accurately is not sheltered by academic freedom; and Professor McKim believed that Howell’s e-mail did just that," the faculty report says. "Though Howell connected utilitarian analysis to the role of individual consent, utilitarianism does not; utilitarianism takes a purely consequential approach to moral reasoning irrespective of individual consent. Further, according to McKim, Howell’s account of how a utilitarian would assess a decision of whether to engage in homosexual activity misstates how a utilitarian would assess the full range of interests at stake. The committee need not evaluate that judgment at this point save to say that the criticism cannot be said on its face to be without substance. Professor Howell’s competence in the subject can and should be subject to collegial review; but, because of the unique history of his status, no review was ever undertaken."

On another issue -- the fact that Howell's e-mail offended students -- the committee was unequivocal that angering those in the class can't be a reason for dismissal. However, the committee adds that the comments can be judged -- and judged critically -- for their substance.

The report says that "it should be clear that students have no right not to be offended; indeed, students deeply committed to some economic, political, religious, or philosophical teachings may be profoundly offended by having to engage with faculty criticism of those teachings — the more serious and thoughtful the criticism, the greater the likelihood of offense. We could not do our job, which is to instill the habits of a critical mind, if we had to be chary of giving offense. Accordingly, Professor Howell’s observations on homosexuality, relevant to the subject of moral natural law and its relationship to utilitarianism, should not be held to account because a student took offense.

"But they can be faulted on grounds having nothing to do with hostile student reaction; that is, as the committee reads it, for being unlearned and jejune."

On another issue, the report is less clear-cut. McKim told the committee that one reason he was concerned about Howell is that, in religious studies, it is common for faculty members to give students more "distance" and to avoid arguing for a particular dogma, given the lack of any right answer on issues of faith and the inappropriateness of a faculty member telling students what to believe. Howell told the committee, however, that he viewed his comments not as a matter of indoctrinating students in a faith, but of simply explaining what Catholic teaching involves. The committee notes that the e-mail could be read in more than one way, but adds that "from the text of this message and the reading given it by faculty and administrators, we believe that there is a real question of whether, in this instance, Professor Howell has observed the distinction he drew."

Joyce Tolliver, chair of the Faculty Senate Executive Committee and associate professor of Spanish and gender and women's studies at Illinois, said she was impressed with the report. Tolliver, who was not the person who sent the report to Inside Higher Ed, said that "one could read the report as support of the judgment that the e-mail showed a lack of understanding of the basic materials the instructor was teaching" and that it was worth noting that the report "found no violation of academic freedom" in this case.

But she said she fully backed the report's view that Howell is entitled to a review if he believes any subsequent decision not to renew his contract raises issues of academic freedom. Tolliver said she hoped that, years from now, the significance of the report will be leading to the creation of consistent and fair reviews for the performance of adjuncts, a project the Faculty Senate is poised to start. "Anyone with academic duties has the right to due process," she said.

David French, senior counsel for the Alliance Defense Fund, said via e-mail that the report is correct in many respects. "We agree that Dr. Howell should have received due process before his dismissal, we agree that he did not receive any due process, we agree that students do not have a right not to be offended and can in fact be directly challenged by their professors, we agree that professors in religion courses have the same academic freedom as professors teaching any other course at the university, and we agree that the university should adopt policies that clearly outline the rights and responsibilities of adjuncts in a manner that protects their academic freedom."

But he said that "any inference that Dr. Howell could have been appropriately terminated based on his very brief discussion of utilitarianism in a class about Catholicism is almost laughable." Said French: "By that standard, the ground would be littered with the academic corpses of professors who offer disagreeable statements about opposing philosophies. Is the university going to be perusing the e-mails of atheist professors to make sure they accurately describe Christian theology and firing those who allegedly do not? That entire section smacks of an attempt to provide some degree of cover for university officials -- to allow them to save some face in a matter they badly mishandled."

As for the future, French predicted that Howell would "continue his work as an outstanding and thoughtful professor. If, however, the university foolishly tries to terminate him, we will be there to vigorously defend his rights."

A university spokeswoman released the following statement last night about the report: "We appreciate the work of the Committee on Academic Freedom and Tenure, and we agree with their assessment that teaching about religion versus advocating a religious belief or doctrine is a complex issue."

 

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