Jane Buck, Ph.D.

    Academic Freedom Now
    Deans’ Meeting
    Delaware County Community College
    20 May 2008

    I’m delighted to be here at Dean Railey’s invitation.  I have several reasons to be especially pleased.  It’s not often that I get a chance to speak to a roomful of administrators about academic freedom, but when I do, we almost always have a lively discussion. Pennsylvania, in addition to being my natal state, has been in the center of the storm raging over academic freedom and its limits.  And, on a personal level, a good friend and former colleague is a member of your faculty.
    There are two raging and persistent issues in higher education that affect academic freedom: (1) What are the appropriate roles of students, faculty, administration, and governing boards within an institution, and (2) what are the proper limits of the influence of external groups such as alumni, corporations, and public officials? At what point does administrative leadership become insupportable tyranny? When do the legitimate concerns of a university's constituencies cross the line from reasonable scrutiny to malign meddling?
    The three groups within a college or university most concerned with and affected by definitions of academic freedom are the administration, the faculty, and the students.  A fair amount of confusion exists about the locus of ownership, confusion that is exacerbated by outside critics, the courts, and dissension within the academy itself.
    As the premier defender of academic freedom in this country, the American Association of University Professors (AAUP) has formulated and published statements that delineate what we consider to be the appropriate application of the concept to the three constituencies.  The 1940 "Statement on Academic Freedom and Tenure, which has been endorsed by more than 200 professional and learned societies, holds that:
        (a) Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
        (b) Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.
        (c)  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, and should make every effort to indicate that they are not speaking for the institution.
    The Association’s founding document, the 1915 "Declaration of Principles on Academc Freedom and Academic Tenure," addressed the function of the academic institution as follows:
        The importance of academic freedom is most clearly perceived in the light of the purposes for which universities exist.  These are three in number:
        (a)  to promote inquiry and advance the sum of human knowledge;
        (b)  to provide general instruction to the students; and
        (c)  to develop experts for various branches of the public service.
The document then emphasizes the importance of protecting the academic freedom of faculty in order for the institution to fulfil its purposes.  There is no mention of institutional academic freedom.  Students are mentioned only peripherally in the introductory paragraph of the Declaration:
        The term “academic freedom” has traditionally had two applications–to the freedom of the teacher and to that of the student, Lehrfreiheit and Lernfreiheit.  It need scarcely be pointed out that the freedom which is the subject of this report is that of the teacher.
    The AAUP’s primary focus continues to be the freedom of the faculty member to conduct research and to teach without undue constraints, although we recognize the student’s freedom to learn in a variety of ways, including the 1967 Joint Statement on the Rights and Freedoms of Students.  Students’ rights are delineated in six major areas:
    1.  Access to education
    2.  The classroom
    3.  Student records
    4.  Student affairs
    5.  Off-campus rights
    6.  Disciplinary procedures
Some of these rights, such as freedom of speech and assembly are guaranteed under the First Amendment and are identified as such in the document. Others are unique to the academic environment, and my focus this morning will be on the classroom, the focus of much current controversy regarding putative violations of students’ freedoms. The AAUP policy statement holds that student performance should be evaluated solely on academic grounds, that students should be allowed to challenge opinions and data on a reasoned basis,  that there should be procedures for students to challenge biased or capricious evaluations, and that information about students should not be divulged without their knowledge and consent.
    In the 1940 Statement on Academic Freedom and Tenure AAUP takes the unequivocal position that faculty should avoid persistently introducing controversial issues in the classroom unless they are relevant to the subject. However, the AAUP has also recognized the right, indeed the necessity, of faculty to introduce controversy as an integral part of the academic enterprise. But because faculty members wield power over their students, it is important to be aware of the manner in which that power is manifested in the classroom.
    The legitimate role of controversy and advocacy in the classroom has been under siege in this country at least since the middle of the last century, starting with the infamous assaults by Senator Joseph McCarthy and culminating in the current attacks by the religious and political right on what they perceive to be insidious brainwashing of impressionable and vulnerable youth by a powerful radical leftist intellectual elite. The popular and academic news media are filled with horror stories of students and faculty locked in legal combat over racist and sexist language and the creation of hostile environments. Faculty have been suspended or dismissed by institutions for expressing opinions that appear to some to be constitutionally protected. And legislation adopting language modeled on the so-called “Academic Bill of Rights” has been introduced in more than a dozen state legislatures, including Pennsylvania’s, and in both the U.S. Senate and House versions of the Higher Education Act. So far none of the proposed legislation has been enacted.
    It is increasingly obvious that the sound and fury have been sustained by the repetition of a few particularly egregious examples of faculty abuse of power or the exercise of poor judgment, such as the Ward Churchill case. A second level of attack is based on the assertion, perhaps sustainable, that the majority of faculty in the humanities and social sciences are politically liberal. Even if that assertion is true, it does not follow that professors use their positions to indoctrinate students. The evidence on which such attacks rely is largely, if not entirely, anecdotal. Hard data providing evidence of a widespread problem are largely nonexistent. 
    Further eroding the claims of professorial abuse of power is the fact that the most recent data indicate that 68%— more than two-thirds—of the professorate were contingent, that is, ineligible for tenure, and an additional 10%, although tenure-eligible, had not yet achieved it. Only 22% were both full-time and tenured. The issue is not one of full-time versus part-time employment, but of tenure status. Without tenure, academic freedom is fragile at best and nonexistent at worst. Contingent faculty, especially part-timers struggling to eke out an existence, must find the temptation to self-censor in order not to offend their students almost irresistible, when it is their students who often serve as their sole evaluators. In such cases, ultimate power resides not in the hands of magisterial and omnipotent professors, but in the hands of their charges who are too frequently viewed by fiscally strapped administrators as “customers”.
    Most of the debate on the issue of classroom controversy has focused on real or imagined transgressions on the part of faculty members. Little attention has been paid to the characteristics of students.
    Political indoctrination requires a pliant and acquiescent audience. But there are two assumptions that are relevant to this discussion and that are fairly well supported by research evidence. The first is that we develop beliefs early in life and resist changing them, even in the face of contradictory evidence. The second, and corollary, assumption is that we seldom change beliefs in adulthood except as a conversion phenomenon. If true, these assumptions, coupled with the pernicious characterization of student as customer, contradict the notion that college students are helpless victims of a powerful and malignant faculty.
    Several years ago I conducted a survey of 152 student volunteers in undergraduate psychology classes at Delaware State University, a historically black institution. Without going into great detail, I shall share a few highlights from that study. Questions were designed to elicit opinions about the introduction of controversial material in the classroom and about efforts on the part of faculty to indoctrinate students. There was a high degree of tolerance for faculty members’ expressing opinions on controversial subjects and a great deal of agreement among students as to what constitutes a controversial topic. Not surprisingly, most respondents agreed that abortion rights, the death penalty, and decriminalization of marijuana are controversial issues.
    Only 25% of the respondents agreed that faculty should avoid expressing an opinion on controversial subjects in the classroom, and 83% said it is acceptable to do so when the topic is relevant to the subject matter. There were no significant race or gender differences concerning these statements.
    In response to the statement that it is acceptable for faculty to express an opinion, provided they label the opinion as such, 76% of all respondents agreed.  Students, regardless of race or gender. also showed a high level of tolerance for faculty members’ wearing religious jewelry and campaign buttons and for the introduction of controversial topics by students. Only 31% of the respondents agreed with the statement that faculty should avoid discussing their religious beliefs in the classroom. On the issue of faculty attempts to change student opinion on controversial subjects either in the classroom or outside it, the majority of respondents found such attempts to be unacceptable. In short, if the students who responded to my survey are typical, most support the healthy exchange of ideas involved in discussing controversial issues, while simultaneously rejecting the appropriateness of faculty proselytizing.
    More informally, I often employed a classroom demonstration of how we reveal our attitudes indirectly. This exercise was designed to show prospective teachers that it is difficult, if not impossible, to convey perfect neutrality. Towards the end of a semester, I would ask my students to list controversial topics, such as affirmative action, abortion rights, etc., that had never been discussed in the class because they were not relevant to the subject. They then indicated by a show of hands what they thought my attitude was to each, either pro, con, or undecided or neutral. Although I have not kept detailed data, I can report that my students were amazingly accurate in reading my opinions, including my indecisiveness or neutrality where that was the case. I think that this is evidence, albeit very informal and unscientific, that students, at least mine in that setting, were not helpless pawns, but sophisticated and thoughtful adults capable of making mature judgments.
    I have saved for last the issue of academic freedom for the college or university, especially as it has an impact on the academic freedom of the faculty and on students’ freedom to learn.  It is an extremely complicated issue and one that has been addressed by the courts in several important decisions. 
    In a famous 1967 case, Keyishian v. Board of Regents, the Supreme Court said:

        Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

   More recent cases, have, however, had the effect of attenuating that decision.  In a very troubling 1998 case that strikes at the heart of faculty members’ professional judgment, the Third Circuit Court of Appeals ruled that a tenured professor’s First Amendment rights were not violated when the president of California University of Pennsylvania ordered him to change a student’s grade from F to Incomplete. This bizarre decision makes it extravagantly clear that academic freedom and freedom of speech are not isomorphic.  I refer to it as a bizarre decision because it appears to contradict the higher court’s earlier ruling and explicitly states that academic freedom inheres in the institution, rather than the faculty member.
    A 2006 Supreme Court case, Garcetti v. Ceballos, held that government employees’ First Amendment rights do not shield them from disciplinary action for utterances “made pursuant to official responsibilities.” Although the opinion stated that research and teaching of faculty members at public colleges and universities are explicitly excluded, many observers are concerned that a future case might eliminate that exception.
    Although AAUP is concerned primarily with the academic freedom of faculty, we recognize that institutional autonomy, especially in the public sector, is inextricably intertwined with the freedom of faculty to teach and the freedom of students to learn.  Some of the gravest threats to that autonomy are posed by right-wing extremists, such as David Horowitz, the proponent of the deceptively named “Academic Bill of Rights,” and Anne Neal of ACTA, the American Council of Trustees and Alumni.  They are to academic freedom as Tomás de Torquemada was to religious freedom.  Borrowing language from genuine defenders of academic freedom, they seek to impose constraints that would in fact destroy the autonomy of institutions to act independently of legislative and other outside influence.  What they seek is affirmative action for the far right in faculty hiring.
    The pernicious influence of large corporations that contribute huge sums in exchange for control over curricula and research priorities is a very real threat to academic freedom.  A Canadian case, with which I am familiar through our ties with the Canadian Association of University Teachers (CAUT), continues to raise questions in the medical and scientific communities.  Dr. Nancy Olivieri, a hematologist employed by the University of Toronto, conducted industry-sponsored clinical trials of a drug on patients at the Hospital for Sick Children.  When she discovered potentially serious risk factors, Apotex, the drug’s manufacturer, warned her not to publish her findings at the risk of legal action and possible loss of her position and license to practice medicine.  The University of Toronto, apparently under pressure from the company, was accused of failing to defend her adequately. CAUT came to her defense and mediated a settlement rumored to be in the millions for her and her research team.  I was privileged to be present at the meeting at which the settlement, the exact details of which are under seal, was announced.
    A potential threat to academic freedom is posed by international treaties such as GATS, the General Agreement on Trade in Services, a multilateral treaty regulating services provided by every economic sector and by governments at every level. The only aspects of government services excluded from the treaty are defined as “any service which is supplied neither on a commercial basis nor in competition with one or more service supplier.”  Although some analysts believe that post-secondary education is excluded from the treaty, others are not so sanguine.  If colleges and universities are subject to the provisions,  American institutions might find themselves in competition with foreign institutions, not all of which subscribe to our standards of academic freedom.
    Several high-profile incidents involving controversial outside speakers led to the AAUP’s development of a statement last year urging colleges and universities to stand up to outside pressure to withdraw invitations.  Because this issue is one that, in my view, encompasses the concerns of the institution, the faculty, and the student body, I conclude with an excerpt from the statement:
        Because academic freedom requires the liberty to learn as well as to teach, colleges and universities should respect the prerogatives of campus organizations to select outside speakers whom they wish to hear. The AAUP articulated this principle in 1967 in its Fifty-third Annual Meeting, when it affirmed “its belief that the freedom to hear is an essential condition of a university community and an inseparable part of academic freedom,” and that “the right to examine issues and seek truth is prejudiced to the extent that the university is open to some but not to others whom members of the university also judge desirable to hear.”
    We are not always right when we speak out, but we are always wrong when we do not.