Monday, September 08, 2014

What Good Is Academic Freedom Without An Academy?

by Michael Dorf

As a longtime fan of academic satire, I enjoyed Julie Schumacher's new book Dear Committee Members (favorably reviewed, e.g., here and here). The book takes the form of discursive letters of recommendation from a middle-aged professor of English and creative writing at a fictional midwestern university. Schumacher herself teaches English and creative writing at the University of Minnesota but "Payne University" is not a thinly disguised version of Minnesota; it is instead a generic stand-in for academe. The protagonist, Jason T. Fitger, is also something of a standard type: a once-promising author whose debut novel was more successful than any of his subsequent works; a pedant whose awareness of his own pedantry makes him something of a lovable curmudgeon; a man whose sense of irony alone prevents him from spiraling downward into self-pity. Fitger is more sympathetic than the character played (brilliantly) by Jeff Daniels in The Squid and the Whale but somewhat less sympathetic than, say, Philip Swallow, who appears in various David Lodge novels.

Dear Committee Members compares reasonably well with other academic satires. Although the book lacks the depth of the best works of the genre--Lucky Jim by Kingsley Amis; Moo by Jane Smiley; the Swallow/Zapp books of Lodge--Dear Committee Members is nonetheless a fun and well-crafted work. And like those other books, Dear Committee Members combines a keen sense of what is ridiculous about academia--the petty jealousies; the pompous posturing over nothing; etc.--with genuine fondness for the people who work and live here. But unlike academic satire of the not-too-distant past, Dear Committee Members has an elegiac quality about it, a sense that this lovely island of insane sanity is a fast-fading anachronism.

Dear Committee Members is chiefly about the gutting of the humanities, symbolized throughout the book by Payne University's lavish spending to renovate office space for the Economics Department, even as the English Department endures a hiring freeze, toxic debris, broken windows, and dysfunctional toilets. The relative penury of some departments is not a new development in academic satire (or academia itself). For example, the villain in Smiley's Moo (published in 1995) is an economics professor who prides himself on seeking, receiving, and ultimately rejecting competing offers from other universities so that he can maintain his status as the highest paid faculty member on campus. But in those pre-Great Recession works, the impoverishment of the "impractical" fields was only relative. In Dear Committee Members, as in reality, it is clear that whole areas of academic study will either be eliminated from the curriculum, or given over to instruction by very poorly paid and overworked adjunct faculty who are not rewarded for, and in any event have no time to engage in, scholarship. Indeed, in much of academia, that is an ongoing trend, rather than a forecast.

I share the view of the fictional Fitger (and presumably of Schumacher) that the demise of the humanities would be a great loss--not of the same scale as the Taliban's destruction of the Bamiyan Buddhas but reminiscent of it: a deliberate act of a kind of cultural suicide. But in one respect I am, if anything, more pessimistic than Fitger and Schumacher. For while they see the humanities losing out to the more practical/lucrative branches of the university, I see the very idea of universities as imperiled.

Professional schools are a case in point. Fitger's ex-wife is an administrator in Payne's law school, described in Fitger's letters as a land of plenty. And perhaps that is how law schools look from the vantage of a besieged English department. But of course it is no secret that law schools--especially those ranking in the middle of the pack, as Payne's ostensibly does--have also been under enormous pressure to scale back. Some will close. Others will go the way of the adjunct-heavy humanities. Presumably that is the plan for Suffolk Law School, where the university has offered to buy out all faculty with tenure and long-term contracts.

A similar fate may well await even those faculty in the so-called "STEM" fields that have gained in popularity as students, fearing the burden of large debt, have increasingly (and understandably) come to view higher education through a more narrowly practical lens. For even if there is greater student demand in the STEM fields than in the humanities, there will continue to be competitive pressure to reduce costs--and adjuncts in STEM fields are much cheaper than tenured and tenure-track faculty, just as they are in the humanities, the social sciences, and the professional schools. Whether you think of the fate of literature or other esoterica as a canary in a coal mine, a frog in increasingly hot water, or in terms of some other speciesist metaphor, the writing (to mix my metaphors even further) is on the wall: the very idea of academia as we have come to know it over the last few centuries is under enormous strain.

As I've said before, I think great research universities (of the sort I've had the privilege to attend and teach at) will likely survive for at least another few decades, which, from a selfish perspective, is all that I need. But the traditional picture of the university as a community of scholars will be increasingly inaccurate as an account of the actual people who do most of the teaching in the institutions we continue to call colleges and universities.

And that brings me back to the topic of academic freedom about which I have opined in recent weeks in response to the University of Illinois firing/unhiring of Professor Salaita (in chronological order, here, here, here, and here). The controversy in the Salaita case is over the scope and meaning of academic freedom, but even the Chancellor and Trustees at the University of Illinois continue to say they believe in academic freedom for tenured and tenure-track faculty. And there's no reason to doubt that they actually believe it. However, they also believe--very much erroneously and dangerously--that academic freedom does not extend to "disrespectful" speech or that faculty accused of such disrespectful speech are entitled to due process in determining whether they breached the standard.

I am aware that the university takes the position that Salaita was not yet hired and thus not fully entitled to academic freedom; as more facts have emerged, that claim appears even more fictional than when I first addressed this topic; but even assuming the university view were correct, it is irrelevant, as the pronouncements from the Chancellor and the board purport to circumscribe the limits of academic freedom even for those who are fully entitled to it.

Let us put all of that aside and assume that the Salaita case eventually has a generally positive outcome, leading faculty and administrators across the nation to reaffirm their commitment to robust principles of academic freedom. Still, only the battle will be won. If, over the long run, the number of faculty who are actually afforded academic freedom diminishes substantially--as seems likely given the real-world trends that form the backdrop for Dear Committee Members--the war will be lost.

I suspect that more than a few readers will now think to themselves, Well so what? I don't have academic freedom in my job as [lawyer, journalist, lumberjack, etc.]; what's so special about professors that they need academic freedom, much less tenure, to protect it?

As Professor Buchanan recently discussed in the related context of primary and secondary school teacher tenure, there are special reasons why people who teach need protection against arbitrary firing or discipline. There are additional special reasons to afford such protections to people who produce scholarship. But even apart from these special reasons applicable to teachers and scholars, some degree of "academic" freedom would, in an ideal world, apply to everyone, including non-academics. Suppose that a veterinarian, locksmith, or florist uses his spare time to tweet disrespectful comments about the Middle East or any other subject. Is that a sound reason for the veterinary practice, hardware store, or floral shop that employs him to fire him? True, there would be costs to adding speech to the list of impermissible grounds for employment decisions; litigation would ensue; etc. In principle, however, I think the idea is sound.

Put differently, the argument that academics don't deserve any special protection is partly right, but understood properly, it cuts in favor of extending such protection to others, not restricting it for academics. Unfortunately, however, the large trend is one of leveling down, not up.


David Ricardo said...

The argument that to some extent employers have the right to condition employment on the basis of speech is the fact that rightly or wrongly employee speech can be attributed to their employer by the employee/employment relationship. For example, here is some text from a recent NYT story on the decision in Louisiana to uphold that state’s ban on SSM.

“Michael C. Dorf, a professor at Cornell University Law School, described Judge Feldman’s decision as an “outlier, but a well-crafted outlier.”

Notice that while the story could have described the author of the statement as a highly regarded and distinguished law professor without mentioning his affiliation with Cornell, Campbell Robertson who wrote the story does so with the purpose of enhancing its credibility. Cornell could reasonably argue that this comment affects its reputation (either positively or negatively) or imputes Mr. Dorf’s position to that of Cornell and hence Cornell’s rights are being violated. In extending free speech protection to employees one must address the rights of employers where the employee speech damages the employer through the employment affiliation (and no, not the case with Mr. Dorf whose commentary should enhance the reputation of Cornell).

A final note, the real threat to freedom of speech in this nation today is not universities or employers, but Conservatives who use that doctrine as a weapon to inflict emotional harm (see Westboro Baptist Church), who use it to drown out competing views (see Citizens United et al), who use it to seek to impose their views on those who do not wish to listen (the Coakley decision in Massachusetts) and who use it to support suppression of content when they disagree with that content (see 11th Circuit decision in Docs vs. Glocs). The largest threat to freedom of speech is coming from those who are most vocal in their hypocritical position of defense of the Constitution. The problem described here by Mr. Dorf may be real, but it is pretty far down the list.

Michael C. Dorf said...

I agree with a good deal of what DR says about other issues, although perhaps I agree less about their relative importance.

On the question of attribution, I would make two points: (1) It is understood that faculty (unlike administrators) are not spokespeople for the universities that employ them; (2) I would like us to move to a world in which that is understood about people in all jobs. There is some circularity here: If people have freedom to say what they want without it being attributed to their employers, then over time a norm of non-attribution will develop. There are already areas where this is understood: Nobody attributes to Google every crazy thing that somebody posts on a blog hosted at Google's

Joe said...

Stating Mr. Dorf's institution is helpful to the reader.

The descriptive "highly regarded and distinguished" is a bit vague. The fact Cornell generally is understood to be a highly regarded law school is noted, but with apologies, I take it's possible somewhat sub-par people might in theory work in such places.

The real threat list is interesting though I'd note that Westboro Baptist is not really up there in my opinion as 'real' threats & especially vs something like CU, it is not a great example even for the category.

David Ricardo said...

Mr. Dorf cites the Feldman opinion as an ‘outlier’ and hopefully it is although we know that there are probably four Supreme Court Justices who would sign on to it, warts, mistakes and all. In the same vein, isn’t Salaita also an outlier, and if one thinks not is there evidence to support that it is the norm rather than the exception?

However the attacks cited in my earlier posts are not outliers. Three of the four stand as final verdicts, Supreme Court decisions that will exist for decades if not forever. The fourth case, the Docs vs Glocs seems to be a decision which except for a few of us no one seems particularly concerned about. And that decision, unlike the others deals with content, not speech in general. It legitimizes legislation that would regulate the content of political speech under the false guise of regulation of physician conduct. Since almost all commercial activity is ‘regulated’ the decision stands for the principle that the state may regulate/prohibit political speech in many instances, something that frightens some of us far more than Salaita.

Furthermore, while these four cases stand independently, taken together they present an evolving legal standard in which freedom of speech is used to protect speech with which Conservatives approve us, and freedom of speech is inoperative in protecting speech that Conservatives do not approve of. Speculate if you will about how the free speech concept would evolve with more Republican appointed Justices.

As for the idea that “It is understood that faculty (unlike administrators) are not spokespeople for the universities that employ them” I think the response is no, this is not understood by the general public. Harvard University has the reputation as a liberal institution because it has the reputation of being composed of a liberal faculty.

The attribution spectrum is continuous, not discrete. It is not a situation where non-management employees are speaking solely for themselves and statements by management in their private lives may be attributed to the employer. The higher up an individual is in an organization, the more that person’s characteristics are attributed to the institution. Everyone recognizes that a clerical person does not speak for Cornell but as the rank of the person speaking moves from say secretary to Assistant Professor to senior faculty with a Chair the perception that the position the person speaking is attributed to the university increases. And in life when perception and reality clash it is perception that wins.

It seems that Mr. Dorf is slowly becoming the face of Cornell University School of Law. And while many of us think that this is a good thing for Cornell there are probably a fair number of people associated with Cornell as either employees or alumni who are not at all happy about that.

djg273 said...

Isn't it part of a professor's job to enhance the prestige of the institution where they work? I don't have any empirics to support this but my hunch is that professors who are consulted by the media and sought out for their opinions enhance the prestige of their employer and can demand a premium.

Even if Professor Dorf's opinion is not the official opinion of Cornell, providing expert analysis to the press is still part of his responsibility as a professor.

I would argue that if he had instead told the NYT that that the proper response was to kidnap and murder Judge Feldman (the Steven Salaita option), Cornell would be justifiably upset.

Michael C. Dorf said...

djg273: You are quite right that universities benefit from their faculty being quoted as knowledgeable authorities in the media and conversely, may suffer detriment when their faculty say stupid or offensive things in the media. When they do the latter, university officials can, and sometimes do, avail themselves of the Brandeisian option of countering with "more speech" of their own, noting the generic disclaimer that the particular faculty member does not speak for the institution or even expressing disagreement with a particular statement. What university officials cannot do--if the university respects academic freedom--is to discipline faculty for their stupid or offensive public statements.

David Ricardo said...

My position, possibly misunderstood by a failure to communicate it effectively is that academic freedom, like every other freedom is not absolute. Just as an individual cannot cry ‘fire’ in a crowded theater under the protection of freedom of speech, cannot libel and slander under protection of freedom of speech, cannot lie under oath under protection of freedom of speech, if a faculty member makes stupid or offensive public statements that have the effect of creating great harm for the university, say a loss of millions in donations, a sharp decline in student enrollment or having the university held up to universal ridicule and condemnation then that faculty member should not enjoy absolute immunity under the color of academic freedom. Admittedly finding an objective standard here is difficult, but an employer has some rights when speech that is highly destructive to its well being is uttered by its employees.

But to repeat the point of all of this is not academic freedom, but that the major threat to freedom of speech in this nation is the activity of Conservatives who manipulate the doctrine for their political gain resulting in severe damage to that principle.

Sam Rickless said...

I love this post, Mike. Thank you for writing it.

Michael C. Dorf said...

I agree with Sam. ;-)

Barry said...

David, your comment comes down to a negation of academic freedom.

Barry said...

"...but even the Chancellor and Trustees at the University of Illinois continue to say they believe in academic freedom for tenured and tenure-track faculty. And there's no reason to doubt that they actually believe it. However, they also believe--very much erroneously and dangerously--that academic freedom does not extend to "disrespectful" speech or that faculty accused of such disrespectful speech are entitled to due process in determining whether they breached the standard."

Realistically, this paragraph is self-contradictory. Aside from the fact that there's excellent reason to doubt their belief in it, your last sentence pretty much states that they don't believe in it.

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