Why Universities Matter (aka Buchanan on Lawsky on Buchanan on Dorf on Law)

by Neil H. Buchanan

This week, my law school (the University of Florida Levin College of Law) initiated a series of celebrations of the work of those of us who are honored to sit on "eminent scholar chairs" in various areas of the law.
As I explained at the beginning of Wednesday's column, "Lawsky on Buchanan on Dorf on Law," I was the first on the list of honorees, and we held the inaugural event on Tuesday of this week.  I then turned over the remainder of that column to Professor Sarah Lawsky, whom we had invited as the outside speaker to evaluate and sum up my scholarly work to date.  Because Professor Lawsky is much better organized than I am, she had written her remarks in advance, which made for an interesting and engaging talk and allowed me to ask for her permission to publish the text of her remarks on this blog.  (Obviously, she generously agreed.)
After she spoke on Tuesday, it was my turn.  Again, I am not particularly well organized, and I have always been more comfortable speaking without notes.  Although feedback from audience members afterward indicated that everything went well, this leaves me in the position of not having a prepared speech that I could publish here.  Moreover, we did not record the event -- and even if we had, I would have spent hours turning the transcript from spoken words into written text.

Therefore, in today's column I want to write about the main ideas that I discussed on Tuesday, but without pretending (or even wanting) to replicate the talk from memory.  Rather, I suspect that anyone who attended Tuesday's event might read this column and think, "Yeah, I remember Neil talking about those topics, but this is clearly not verbatim."  And that is fine, because it is the ideas that matter here, not the exact words that I chose on a particular day while speaking extemporaneously.

Here, then, is the essence of the main ideas that I hope to have conveyed on Tuesday and that I think are important enough to share with a wider audience.

The title of today's event is: "Scholarly Impact: Sarah Lawsky Celebrates Neil Buchanan's Academic Impact and Contribution."  Professor Lawsky argues that my work has had an impact, which obviously is a pleasing thought for me.  But "did any particular professor have an impact, and how much?" -- while interesting -- begs a larger question about the academic enterprise.  Why, after all, do we care whether scholars have an impact?  Why does it even matter?

That broader question in turn forces us to expand our inquiry even further.  In the end, what we are truly asking is why universities matter.  Professors are the stakeholders within a university who generally stay the longest, so if we are saying that professors might create something that we could identify as having an impact, then we are saying that universities matter.  And they do.  A lot.

The United States clearly did not invent universities, the most ancient of which date back almost a millennium.  Other countries can point with pride to great universities old and new, but I will make the blunt statement here that the US is the home not just to individually great universities but that it dominates the world's higher education space.  Looking at any listing of top universities worldwide, using any (necessarily imperfect) metric to measure quality, we see that American universities outperform every other country even after adjusting for population, wealth, and so on.

That emphatic statement is not offered from an "America is #1 at everything" mindset, as anyone who knows me would surely attest.  We do some things quite badly (health care, poverty mitigation, and on and on), but boy-oh-boy do we have great universities.  The only country that might have an argument against the US is the UK, but the Thatcher era saw the beginnings of a decline of that country's great universities that continues to this day.  (If you ask any British academic about RAE, be prepared for an onslaught of anger.)

The next question is to identify the fundamental element of great universities' greatness.  The answer is, without question, intellectual and academic freedom.  And although it should not matter to us whether one country or another has better universities than other countries have, a country-by-country comparison is almost inevitable because each nation's laws and norms will necessarily determine the degree of intellectual and academic freedom that their universities enjoy and build upon.  When Viktor Orban decided to turn Hungary into an "illiberal democracy" (his term), he did not merely turn the state against one university that had angered him.  What mattered was that universities in general were doing things that undermined Orban's autocratic agenda, and he wanted them stopped.

The mirror image of that repressive national approach to higher education can be seen in the US and some other countries.  Yes, there are exceptions within this country (often religiously affiliated institutions, which is hardly a coincidence), but the national atmosphere of intellectual and academic freedom here has been the foundation upon which American academic greatness has been constructed.

The timeless problem with such freedom is that it is, in essence, what we might call a license to tick people off.  That is not an unintended consequence but the core of intellectual and academic freedom: scholars understand that knowledge advances only when verities are challenged.  Often, the challenge comes to naught, but that process is itself a good thing, because we no longer have to accept a piece of conventional wisdom on faith but because it has been exposed to constructive criticism and come out stronger.

When such widely accepted truths are disproved, that makes comfortable people (especially political leaders) uncomfortable.  Yet even the challenge itself can enrage.  George W. Bush's tragic decision to begin the second Iraq War led academics and others to challenge nearly every aspect of that historic mistake.  When the rest of the country was rallying around the flag, some academics knew that they were in the best position possible to say: Wait!  And even though there was a high-profile case in which a Bush critic was eventually fired from his tenured professorship, the people who were most able to challenge the prevailing norms were academics.

Or, I should emphasize, tenured academics.  Because we are not at-will employees, the laws and norms of tenure in this country embody and protect the ideals of intellectual and academic freedom that make it possible for professors to speak out without fear of meaningful retaliation.

Although we tend to think of tenure protections in the context of plainly political contexts -- and in Florida, that is very much on professors' minds, as the state's political class has recently engaged in some worrying (to put it mildly) efforts to cut back on academic and intellectual freedom -- it is not always partisan politics that can make tenure necessary.

I recall vividly one example that came up after class during my first year as a law professor at Rutgers.  As the students were milling around the lectern asking questions, one of the students began to complain about an op-ed that a Professor of English at Rutgers had published that morning.  In it, the professor had argued that Rutgers should drop its football program, and the student (whose BA was also from Rutgers) was angry, as were thousands of Rutgers alums, students, and New Jersey politicians.  Mind you, even though Rutgers played in what is considered to have been the first college football game in 1869, the Scarlet Knights were not a powerhouse by any means (nor are they now).  The university was losing so much money while fielding terrible teams year after year that it had reportedly begun to include an extra fee charged to all students to support the athletic department -- specifically, to support a team that often lost almost all of its games, with funds involuntarily collected from all students, not just football fans.

There are great universities that have no football teams (NYU, Chicago, and MIT, to name a few) and others that waste money on football but at least do not try to compete with the Ohio States and Oklahomas of the world (the Ivies being the most obvious).  And to be clear, the English prof who penned the op-ed had no decision-making power.  He had not in fact disbanded the football team.  He simply said that it would be good for the university and the state to do so.  Yet my student (speaking for many others) thought of that as a firing offense of a tenured professor.  Fortunately, that professor was not fired.

My point is that the political aspect of intellectual and academic freedom is not always a simple Republican-versus-Democratic matter.  We academics are political in the sense that, again, we are only doing our jobs well if we allow ourselves to risk pissing people off.  And it matters that private universities allow political heresies to be uttered as well, because even though they are not directly funded by governors and legislators, there are powerful donors and others who could put pressure on universities to fire mouthy professors.  Only when the national atmosphere is clear that "we do not fire professors for saying annoying things" do both public and private universities serve their role of protecting intellectual and academic freedom.

The day that I truly "felt tenured" actually arrived before I had received tenure, but only because the standards of tenure were so clear and immutable that I had every reason to be certain that I could ask impertinent questions in my research that might irk someone in power.  Specifically, I had spent most of my career up to that point arguing that the economic policies that I favor were "good for future generations" and that my ideological opponents favored policies that were harmful to those innocents.  My opponents, in turn, accused my side's policies of being bad for our children and grandchildren while claiming the mantle of wise intergenerational stewardship for themselves.

On that fateful day, I thought to myself: "Wait a minute.  We're all disagreeing with each other about means, but we agree on the ends.  Everyone is saying that we owe something to future generations.  But what if we don't?"  Here, there is no right/left political dichotomy, but one could hardly imagine a more discomfiting question: Do we owe anything at all to future generations?

As it happens, I eventually concluded that we do in fact have such obligations, but I learned that no thinker has been able even to identify the various categories of policy outcomes on which current generations should focus.  And there definitely is no satisfying answer to date to the followup question: "OK, so even if we agree that we owe something to future generations, how much do we owe them?"  And if we cannot answer that question, then how do we know that we are not already doing enough -- perhaps even more than enough -- for generations to follow?

Imagine, however, a motivated politician or anti-intellectual provocateur shouting something like this: "That professor says that kids don't matter!"  Again, that is not what I said.  Moreover, there is no widespread movement on the left or the right that argues that we should do nothing for future generations.  Even so, the right questions can be counterintuitive and difficult.  But those seemingly odd questions can be turned into political weapons, which is why tenure matters so much.

I will close with a final example (which, by the way, I did not mention in my live remarks).  William Proxmire was a Democratic US Senator from Wisconsin from 1957 through 1989.  (Interestingly, he was Joseph McCarthy's successor.)  Proxmire decided that it was his goal in life to root out "waste" in government spending, and he started to make public announcements about supposedly egregious examples of the public's money being misused.  He called them his "Golden Fleece Awards," invoking the idea of hard-working American taxpayers as sheep.  (For a longer discussion of Proxmire, see here and links therein.)

There is nothing wrong with congressional oversight of public spending, of course.  What is wrong, however, is when such oversight is abused and turned into an anti-intellectual crusade.  At one point when I was a teenager, Proxmire (whose announcements had become catnip for the network news shows) complained about a government-funded study that was trying to determine why convicts try to escape from prison.  The senator was incredulous: "Because they want to get out.  How hard is that?"  But of course, the government's grant money was being used to study why convicts try to escape from prison given how dangerous it is to try, and how unlikely it is to succeed.  If I were running a criminal justice system, I would want to know the answer to that question.

But demagoguery is easy, and people like Proxmire have always been able to find a megaphone into which they can pour their anti-intellectual nonsense.  People like him can indirectly affect the academic enterprise by cutting research funding, but at least for now, it is still not possible for professors to be fired simply for asking questions that someone thinks are dangerous, obvious, or wasteful.  We must remember, however, that there are always politicians who will try.