Aug. 31, 2006

Stretching the Definition of Academic Freedom

By John Friedl

Academic freedom is under attack on college campuses across the country. The “Academic Bill of Rights,” authored by David Horowitz, seems to be motivated by a concern that some professors are turning their classrooms into personal forums in which they force-feed their students a liberal political dogma unrelated to the subject matter of the course.

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Horowitz’s attempt to involve legislatures in addressing what is clearly an academic issue is not only a dangerous precedent, but unnecessary as well. It is dangerous because it threatens the freedom of inquiry and critical thinking that we strive to achieve through open discussion of controversial issues. And it is unnecessary because we have in place institutional guidelines and professional standards that, when properly applied, provide balance without destroying the spontaneity and intellectual stimulation that is currently found in our classrooms.

The real problem that needs to be addressed is the growing gap in the understanding of the concept of academic freedom shared — or more often not shared — by faculty and administrators. Matters of institutional policy proposed by academic administrators are increasingly — and frequently without justification — condemned by professors as infringements on their rights.

A few examples provide an enlightening illustration. These examples involve what are mistakenly seen as academic freedom issues, providing a sense of how broadly many faculty interpret the concept and the rights it creates.

My current university for many years has provided an e-mail list service open to all faculty and staff for virtually any purpose: to post notices, advertise items for sale, express opinions on any topic, and to disseminate official university announcements. As the volume of garage sale ads grew and the expression of opinions became increasingly vitriolic, many faculty and staff members elected to filter out messages from the list service, with the result that they did not receive official announcements.

As a solution to this problem, university administrators created a second list service limited to official announcements, in which all employees would participate without the option of unsubscribing. The original open list remained available to all who chose to participate. In response to this action, one faculty member sent a message to the entire university (on the pre-existing list service) denouncing the change as a violation of academic freedom and First Amendment rights, because the “official” announcements would first be screened by the University Relations Office before being posted.

A second example: At my former university, in response to concerns over a high rate of attrition between the freshman and sophomore year, the deans proposed a policy whereby each instructor in a lower division course would be required to provide students with some type of graded or appropriately evaluated work product by the end of the sixth week of a 15-week semester. The stated purpose of the policy was to identify students at risk early enough to help them bring their grades up to a C or better. (The original proposal also included the suggestion that faculty members work with students to develop a plan to improve their performance, but that was quickly taken off the table when faculty complained of an increase in their workload without additional compensation.)

When this proposal was discussed among the faculty, several complained that the scheduling of exams was a faculty prerogative protected by academic freedom, and that any attempt by university administrators to mandate early feedback to students was an infringement upon that right. Those who spoke out did not object to the concept of early feedback — they just didn’t want to be told they had to do it.

Another example: At the same institution, in preparation for its decennial review by the regional accrediting body, the vice president for academic affairs began to assemble the mountains of documents required for that review, including a syllabus for every course offered. The accrediting organization guidelines list 11 items recommended for inclusion in every course syllabus, and the vice president duly notified the faculty, through the deans and department chairs, of this recommendation.

The response of a surprising number of the faculty members was to argue that what goes into their syllabus is a matter of academic freedom, not subject to the mandate of the vice president or the accreditor. Again, their complaints did not seem to be directed at the suggested content, but rather they were opposed to being told what they must put in their syllabi.

The concept of academic freedom is often viewed as an extension of the rights granted under the First Amendment, applicable within the limited context of the educational system. One of the earliest definitions of academic freedom is found in the AAUP’s 1915 Declaration of Principles on Academic Freedom and Academic Tenure. The discussion is framed in terms of the freedom of the individual faculty member to pursue his or her research and teaching interests without interference from “outsiders,” whether they be members of the institution’s governing body or the public at large.

As an indication of how far the pendulum has swung in the 90 years since the AAUP Declaration was written, in 1915 the authors expressed concern that “where the university is dependent for funds upon legislative favor, ... the menace to academic freedom may consist in the repression of opinions that in the particular political situation are deemed ultra-conservative rather than ultra-radical.” But the authors correctly point out that “whether the departure is in the one direction or the other is immaterial.”

As appealing as the principle embodied in the AAUP Declaration may be to many academic administrators and to most, if not all, professors, that principle has not found favor in American jurisprudence. Academic freedom is not mentioned directly in the U.S. Constitution or in any federal statute. It was first recognized by the U.S. Supreme Court in the 1957 case of Sweezy v. New Hampshire, when Justice Felix Frankfurter defined the four elements of academic freedom as: “the freedom of an institution to decide who may attend, who may teach, what may be taught and how it shall be taught.” Note that this definition places the bundle of rights that make up academic freedom in the institution, not the individual faculty member.

It is a huge leap from the AAUP Declaration to the contention that a policy requiring a graded work product by the sixth week or mandating 11elements in every syllabus is an abridgment of the faculty’s constitutional rights, not to mention the claim that university administrators have no right to screen what goes out to the campus community as an official university announcement.

The problem, of course, goes much deeper. The real difficulty is that on many campuses throughout the country, the expanding concept of academic freedom has created an expectation of total individual autonomy. Our concept of faculty status seems to have evolved from one of employee to that of an independent contractor offering private tutorials to the institution’s students using the institution’s resources, but unfettered by many of the institution’s policies.

Lest any of us grow accustomed to this new order, it is instructive to see what one federal court has said about the limits to academic freedom. In the case of Urofsky v. Gilmore, a prominent legal scholar challenged a state policy aimed at restricting the use of state-owned computers by public employees to visit pornographic Web sites. The faculty member made the by now familiar claim that access to such information for teaching or research is constitutionally protected under the First Amendment, and falls within the scope of the individual faculty right to academic freedom.

The U.S. Court of Appeals disagreed, saying that academic freedom is not an individual right, but one that belongs to the institution, and in this case the institution (Virginia Commonwealth University) is an extension of the state. In the court’s words, “to the extent the Constitution recognizes any right of ‘academic freedom’ above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the university, not in individual professors....” The U.S. Supreme Court declined to review this decision, thereby allowing it to stand. And while it is binding legal precedent only for federal courts in the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia), this decision will serve as a powerful influence on other courts throughout the country.

The court’s conclusion was a shock to many of us, administrators and faculty members alike. Even more troubling is the court’s statement that “the [Supreme] Court has never recognized that professors possess a First Amendment right of academic freedom to determine for themselves the content of their courses and scholarship, despite opportunities to do so.” But as offensive as this statement may seem to some, it could have an unintended and beneficial consequence of bringing faculty and administrators closer together in recognizing their common bonds and in working toward achieving common goals for the good of their colleges and universities.

When faculty members recognize that there are limits to academic freedom, and that the rights ultimately reside with the institution, there is a powerful incentive to work with academic administrators to reach consensus on policies that will achieve important goals. And even if administrators feel emboldened by what may at first be perceived as a weakening of the individual faculty member’s freedom, every seasoned academic administrator knows that without faculty cooperation and support, even the most well-intentioned policy cannot succeed.

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