New and Continuing Threats to Academic Freedom: Causes and Solutions

Presented at Academic Freedom Conference, Boyd School of Law, University of Nevada, Las Vegas, October 14, 2005

I greatly appreciate this opportunity to discuss with you the current state of academic freedom and tenure, and its corollary, faculty governance. I have spent considerable time over the past decade thinking about the challenges we all face and how best to confront them. I hope my comments will help you grapple with the problems you face here in Nevada.


My subject concerns the preservation of academic freedom at colleges and universities where, in the words of John Henry Newman,
“. . . inquiry is pushed forward, and discoveries verified and perfected, and rashness rendered innocuous, and error exposed, by the collision of mind with mind, and knowledge with knowledge.”

Or, in words that capture the meaning of academic freedom at the University of Wisconsin-Madison,

To promote inquiry and the search for truth, the American Association of University Professors, through long and painstaking effort, developed the concepts of academic freedom and tenure, due process, and faculty governance. These concepts are central to the world-wide preeminence of American higher education. As inheritors of this unique legacy, we must do everything we can to protect it, lest the purposes of higher education be compromised.

I address three questions. First, what are the current threats to academic freedom, tenure, and faculty governance? Second, what forces gave rise to these threats? Third, what must be done to counter these threats?
This last question can be stated more specifically: How can we promote among the general public, state legislators, governing boards, top campus administrators, faculty and staff members, and students an improved understanding of the nature and importance of academic freedom and its corollary, faculty governance?

Current Threats

Today, academic freedom, tenure, and faculty governance are all threatened. In the early post-World War II years, the threat came from outside. At that time the country was preoccupied by Cold War-inspired concerns about the influence of Communists and their sympathizers in American society. Federal and state loyalty oaths were instituted. Many college and university faculty members came under attack for their political views. Some were dismissed for holding these views. Others were dismissed because they refused to divulge their views.

These actions produced a chilling effect on speech both inside and outside the classroom. Fortunately, this brief episode in American history known as McCarthyism soon passed.iii Its effects are remembered now only by older generations of academics.

Today’s threats come from both outside and inside academe. The threat from outside bears no resemblance to that of the post World War II years. The nature of this threat is best captured in the words of Salman Rushdie, the world-famous author of the 1988 book, The Satanic Verses. That book, which through its parody of Islam incurred the ire of Iran’s Ayatollah Khomeini, caused Rushdie to be charged with apostasy, and Khomeini proclaimed a fatwa, calling for Rushdie’s death. These following passages from his recent book, Step Across the Line, pinpoint the problem.

We live in an increasingly censorious age. By this I mean that the broad, indeed international, acceptance of First Amendment principles is being steadily eroded. Many special-interest groups, claiming the moral high ground, now demand the protection of the censor. . . . I would like to say a little about just one of the weapons of this resurgent lobby . . .the concept of ‘respect’.

On the surface, ‘respect’ is one of those ideas nobody’s against. . . But what we used to mean by respect . . . has little to do with the new ideological usage of the word. . . . Very few people would object to the idea [for example] that people’s rights to religious belief must be respected after all, the First Amendment defends these rights as unequivocally as it defends free speech, but now we are asked to agree that to dissent from those beliefs, to hold that they are suspect, or antiquated, or wrong; that, in fact, they are arguable is incompatible with the idea of respect. When criticism is placed off limits as ‘disrespectful’, and therefore offensive, something strange is happening to the concept of respect.

I want to suggest to you that citizens of free societies, democracies, do not preserve their freedom by pussyfooting around their fellow-citizens’ opinions, even their most cherished beliefs. In free societies, you must have the free play of ideas. There must be argument, and it must be impassioned and untrammeled. A free society is not a calm and eventless place-that is the kind of static, dead society dictators try to create. Free societies are dynamic, noisy, turbulent, and full of radical disagreements. Skepticism and freedom are indissolubly linked.

In short, this new demand for ‘respect’–this coerced mandatory agreement— is like poison in a well. It affects the well-being of everyone but particularly those of us who are teachers and researchers.

Current threats to academic freedom, tenure and faculty governance take several forms.

The first, already mentioned, is about ‘verbal harassment’ or lack of respect–that all views must be respected even though some may be suspect, antiquated, or wrong..
The second is marked by attempts to redefine the meaning of academic freedom to fit new and unsettling views about the nature of modern universities and the search for truth they embody.
The third is the growing willingness of university presidents and governing boards to override the principles of academic freedom and faculty governance in their efforts to discipline and dismiss tenured faculty members, staff, and students.

These are almost unimaginable developments, especially when they occur at one of the nation’s preeminent research universities, namely, the University of Wisconsin-Madison.

Threat No. #1: Limiting speech

This first threat took the form of campus speech codes. These codes were intended to limit speech, described as ‘verbal harassment,’ that might offend (show disrespect to) minority students and to penalize those who violated these codes. Speech code proponents argued that without these restrictions increasing minority enrollment would be difficult. So also would be retaining minority students because many would feel uncomfortable, perform less well academically, and be more likely to drop out or transfer before completing their degrees.

The perverse effects of the speech codes became quickly apparent. The codes exerted a chilling effect on student discussion both within and outside the classroom. Students became more wary about what they said in class. Moreover, they found it less easy to disagree particularly in discussions of controversial issues, such as racism. The resulting atmosphere led professors to compromise what they taught and to limit what students could learn; faculty members simply avoided controversial issues that might give offense to members of minority groups. They also became cautious in their interactions with students, particularly their interactions with minority students, the very group the speech code was intended to help.

Wisconsin’s student speech code was declared unconstitutional in 1991. The UW-Madison’s faculty speech code was finally abolished by the Faculty Senate in 1999. What proved to be surprising is how few complaints were filed against other students or faculty members. Since the demise of these codes, other approaches have been devised to limit speech. Most important is the effort to create a more ‘welcoming’ campus climate, now under the guidance of a new Associate Vice Chancellor for Diversity and Climate. Despite these efforts, campus administrators continue to fret about the ‘unwelcoming’ campus climate.

Threat #2: Redefining Academic Freedom

A second threat comes from those who want to redefine the meaning of academic freedom to accommodate the push for greater racial/ethnic diversity. They call for setting out a new set of rules that would displace the long-established, AAUP inspired principles of academic freedom and tenure, and faculty governance. We see it in the relaxed standards for tenure often applied to minority faculty. We see it in statements from administrators that criticism of racial/ethnic diversity policies and programs is not acceptable.

Here at UW-Madison, the former Dean of the College of Letters and Science, in several public statements, campaigned to redefine the concept of academic freedom. His ostensible goal was to accommodate the new fashion of diversity and multi-culturalism, under the guise of creating a welcoming, supportive ‘community’. Under his definition, faculty members would be discouraged if not prohibited from criticizing these new developments and their associated implications, as they applied to teaching, research, and department decisions on hiring, granting tenure, and shaping the curriculum.

The Dean’s effort struck many colleagues as strangely out of the character of his office. His predecessors had all stoutly defended traditional AAUP approaches to academic freedom, tenure, and faculty governance. Indeed, as AAUP president, one of them helped author the AAUP’s famous 1940 Statement on Academic Freedom and Tenure. Two other UW-Madison faculty members also served as AAUP presidents, both at critical times; they helped to solidify the procedures for dismissals and set out the principles of faculty governance. Sadly, the Dean’s proposal appeared in a volume of essays commemorating the University of Wisconsin’s 150th year anniversary. Fortunately, the Dean’s effort has failed to ever gain traction.

Threat #3: Violating the Compact

The third threat also comes from inside academe but from a surprising source-the UW System and the Board of Regents. Knowledge of this threat emerged with the dismissal of a tenured faculty member from another UW System campus. In firing this individual, the Board of Regents invoked a new standard of ‘just cause’. In so doing, it ignored the clear statement in Wisc Stats 36.13 (3) which states “The Board and its several faculties after consultation with appropriate students shall promulgate rules for tenure and probationary appoints, for the review of faculty performance and for the nonretention and dismissal of faculty members.” It also ignored Wisc Stats 36.13 (5) which states: “The Board and its several faculties shall develop procedures for the notice and hearing which shall be promulgated under ch. 227.” In applying what is known the Safransky Standard and the due process procedures accompanying its application, the Board did not follow either of these stipulations. Moreover, the Board failed to follow due process procedures in reaching its decision to fire the individual in question.

The UW System and the Board have been unresponsive to entreaties from the ‘several faculties’, including the UW-Madison Faculty Senate, to meet and reach agreement on what constitutes ‘just cause’. They also assert, quite erroneously to my mind, that the standard being applied is consistent with AAUP standards.

These developments are an occasion for great sadness. The University of Wisconsin-Madison has always served as a beacon light for academic freedom and tenure, due process, and faculty governance. The Board’s unilateral actions erode the principles of academic freedom, undercut tenure and due process, and display a serious disregard for faculty governance. If these actions stand, the greatness that has long characterized the UW-Madison will be imperiled.

What Accounts for these Threats?

Several recent developments set the stage for the gathering strength of threats to academic freedom, tenure, and faculty governance. As Rushdie’s comments make clear, we live in an increasingly polarized, litigious age. People are less tolerant of views not their own. Indeed, many are both hypersensitive and hypervigilant, reacting strongly to innocent or unwitting comments made by others, whether directed at them or not. We also live in a period when the political views of faculty members are to the left of the views of their students. Reports of ‘bias’ in the classroom undermine the confidence of both students and the general public in the objectivity of what is being taught and learned.

While these developments are important, the culprits must be sought elsewhere. One is the growing lack of understanding of the importance to colleges and university faculty members of the protections of academic freedom and faculty governance. Most faculty members who remembered the McCarthy era have long ago retired. In the absence of any new external threats, their replacements have became complacent.

1990s, but they came from within and consequently were not immediately recognized as threats. One was the already-mentioned push for racial/ethnic diversity. Another was the growing dominance of deconstructionism and its proposition that there is no absolute truth.

Perhaps even more important is the shift in the allegiance of faculty members from their institutions to their disciplines. Faculty members are increasingly interested in furthering their research rather than helping to maintain and promote academic freedom and governance at their own campus. It is much more rewarded for faculty to focus on their research, and they can now more readily than ever collaborate with colleagues around the world through email while sitting in their offices. Finally, the rewards for being, in the words of David Riesman, a ‘local’ instead of a ‘cosmopolitan’ have steadily diminished.

The capacity of faculty members to counter these trends had also weakened or is perhaps a reflection of these developments. Membership in the organization that guards academic freedom, tenure, and faculty governance, the American Association of University Professors, declined precipitously in the early 1970s. Its membership dropped from more than 91,000 in 1971 to 66,000 in 1981, continued its decline to a low of 40,000 in 1989 and since 1993 has stabilized at about 44,000.

Even more disconcerting is the diminished allegiance of campus administrators to the principles of academic freedom and faculty governance. Years ago campus leaders (Presidents, Chancellors, and Provosts) were drawn almost exclusively from the ranks of faculty members; even when they occupied administrative positions, they continued to view themselves first and foremost as faculty members. Now, campus leaders are recruited through national searches and, as they rise through the ranks by moving from one institution to another, have come to see themselves as part of a new ‘administrator class’. Their itinerant career histories limit their appreciation for and understanding of academic freedom, and their ‘investment’ in the academic culture of the institutions they currently serve is likely to be limited. Even when top campus administrators remain committed to academic freedom, tenure, and faculty governance, they are also called upon to do raise private funds, extend research, improve teaching, deal with the federal government regulations, promote the university’s image, and interact with the local community.. Something has to give. The steady decline in the number of top administrators who belong to the AAUP may be indicative of the troubling compromises they must make.

A dramatic example of the declining importance of academic freedom, and to a lesser degree, faculty governance, is revealed by a review of the advertisements for Executive Positions in six recent issues of the Chronicle of Higher Education (September 2, 2005 through October 7, 2005). During this period, approximately 75 unduplicated display advertisements for college and university Presidents, Chancellors, Provosts, and Vice-Chancellors appeared that listed the desired qualifications/requirements for the position. Only two of these 75 institutions mentioned a commitment to academic freedom, though 15 did list a commitment to faculty or shared governance. Only two institutions listed both academic freedom and governance; one was a historically black college, the other a pubic university in a larger state system.

What about college and university governing boards? A check with the Association of Governing Boards of Colleges and Universities reveals a variety of materials available for newly-appointed members of campus governing boards. A cursory examination of these publications indicates little or no attention to academic freedom and governance. Thus, it would appear that too little is being done to educate new governing board appointees, many of whom come from the private sector, about the unique character of colleges and universities, the importance of academic freedom and tenure, and the constructive role of faculty governance.

What To Do?

First, the AAUP’s preeminence in setting the gold standard for academic freedom and tenure, due process, and faculty governance in higher education must be recognized. Its carefully developed policy statements include among others, the 1940 Statement of Principles of Academic Freedom and Tenure, Recommended Institutional Regulations on Academic Freedom and Tenure (1957), 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, and Statement on Government of Colleges and Universities (1967). All four of these statements can be found in the AAUP ‘Redbook’, Policy Documents and Reports.

Second, everyone in academe and everyone associated with it the general public, state legislators, campus governing boards, top campus administrators, faculty, staff, and students needs to possess a better understanding of the meaning and importance of academic freedom and tenure, due process, and faculty governance. Copies of the ‘Redbook’ should be in the hands of every college and university president, all senior campus administrators, all members of college governing boards, and every faculty member.

Third, there needs to be a commitment to rebalance institutional priorities, in favor of academic freedom and tenure, due process, and faculty governance, and away from other projects that intrude upon and impede the search for truth.

Exactly how these challenges are to be accomplished cannot be elaborated here today. But, these are matters that all of you need to be thinking about if we are to preserve the bedrock principles that are so central, in the century-old words of University of Wisconsin Board of Regents, to the ‘continual sifting and winnowing by which alone the truth can be found.’

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