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At the top of the syllabus for my civil liberties course, I include a quote from the late Supreme Court Justice Felix Frankfurter who said: “It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.”

It is a quote we are well advised to keep in mind as we look at the latest controversy involving two professors who were fired from their universities for offensive speech.

Just days ago, the University of Delaware announced anthropology professor Katherine Dettwyler would not be hired back as a result of her controversial social media post regarding American student Otto Wambier. Dettwyler made international headlines for posting that the recently deceased Wambier was a “clueless white male” who “got exactly what he deserved.”  

Similarly, just weeks after appearing on Tucker Carlson Tonight to defend the exclusion of whites at a Black Lives Matter event, communications professor Lisa Durden was fired from Essex County College. During an appearance on the Fox News Channel’s show, Durden stated that “you white people are angry because you couldn’t use your white privilege card” to attend the event.

The question, though, is not whether they have a right to say these things; they do. Instead, the question is should they lose their teaching positions for making statements that are not popular?

No one, including faculty members, has a right to a job. When it comes to academia, however, there is a long standing tradition of granting tenure to faculty in part to allow them to safely pursue their academic pursuits, no matter how controversial or objectionable. It is similar to the way the founders decided to grant federal judges life appointments to ensure they are not subject to the whims of public opinion. Since the early 20th Century, it has been standard practice to grant faculty tenure in large part to protect their academic freedom and ensure they are not subject to the whims of university administration, alumni, students, faculty colleagues, etc. In the case of both  judges and faculty, the practices have been defended as being in the public interest. In a similar way that Frankfurter and other jurists have argued that we may not like the speech of the American Nazi’s or member of the Westboro Baptist Church, we may not like the speech of faculty or we may find it offensive, but it is in all of our interests to defend their freedom to say it, and to do so without fear of reprisal such as losing their livelihood.

A part of the story involving Dettwyler and Durden that has gone under-reported is that they do not enjoy this freedom to the degree that others in the academy do because they are adjunct faculty members.  If they were tenured or on the tenure track, their respective universities would have to go through a more arduous, rigorous, and defined process in order to let them go as a result of their statements. Given that they are adjuncts, their protections are minimal and their contracts to teach in the upcoming academic year can simply not be renewed.

Another part of this story that should be a concern to us all is that Dettwyler and Durden are (or were) part of a large and growing contingent of faculty teaching at American colleges and universities – part and full time professors - who do not enjoy the protection of tenure. According to the Chronicle of Higher Education, by 2012 nearly seven out of ten of all faculty are not on the tenure track. As the American Association of University of Professors writes, “the proportion of faculty who are appointed each year to tenure-line positions is declining at an alarming rate. Because faculty tenure is the only secure protection for academic freedom…the declining percentage of tenured faculty means that academic freedom is increasingly at risk.”

As in the Supreme Court cases that Frankfurter was talking about, the question here is not whether these faculty said things that were offensive to some or all. The question is whether all of us as a society lose when speech is silenced, particularly at colleges and universities.  The protections and processes offered by tenure are one way to help ensure that there is not a chilling effect at the very place where even offensive speech should be tolerated. Unfortunately, as a growing number of faculty are hired on a contingent basis, this principle that has long defined American higher education may be  increasingly at risk.


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