The posting below provides an interesting discourse on academic freedom . It is from Chapter 14, The Tenure System, by Matthew W. Finkin in the book, The Academic's Handbook, edited by A. Leigh Deneef and Craufurd D. Goodwin. Duke University Press. © 2007 Duke University Press All Rights Reserved. Reprinted with permission.
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Matthew W. Finkin
The American claim to academic freedom, though of Germanic origin, drew breath in the struggle of the academic profession to emerge from clerical and lay control at the turn of the twentieth century, particularly in the claims of professors of economics and of the social sciences to teach, investigate, and publish conclusions at odds with the prevailing orthodoxies regnant on the governing boards of their employing institutions or occupying the chairs of their presidencies. The claim would draw continuing sustenance in subsequent controversies-over political affiliation and expression in the 1940s and 1950s, over the Vietnam War in the 1960s and 1970s, over "political correctness" and the "culture wars" in the 1980s and 1990s, and in renascent nationalism and ultra-conservatism (whose critique is sometimes couched as in defense of academic freedom qua political heterodoxy in faculty selection) in the first decade of the twenty-first century.
The claim of academic freedom (and so tenure) was advanced at a time when higher education was dominated by private institutions, many under denominational control, and when the free-speech rights guaranteed against state infringement by the First Amendment did not extend to speech by public employees. Today, higher education is dominated by the public sector-at least in the number of students enrolled and of faculty employed; and, since a 1968 Supreme Court decision, public employees, including the faculties of public universities, do enjoy the protection of the First Amendment. But constitutional free speech is not coterminous with academic freedom: It applies only to the public sector; and it subjects the speaker to a judicial balancing test that weighs the speech against its potential for bringing "disharmony" to the workplace.
In contrast to a public employee's privilege to engage in political discourse, academic freedom rests squarely on the professor's special disciplinary competence. The professor's claim of freedom to express, test, and extend knowledge rests upon professional training, the development of specialized skills, and the mastery of a discipline. The claim is that one is exercising a professional prerogative not shared by the citizenry at large. In consequence, the academic is held to a standard of professional care. A university groundskeeper may publish a book arguing to the merits of astrology, but a professor of astronomy might do so at his peril.
The point is not the seemingly paradoxical one that as a matter of "free speech" a groundskeeper may write a bad book but a professor may not, but that academic freedom is at once more narrowly circumscribed and, within its confines, more protective than is a public employee's exercise of political speech. Within the realm of professional utterance, so long as the professor has adhered to the canons of responsible scholarship-has not falsified evidence, knowingly misrepresented the evidence, or acted in wanton disregard of the evidence-he or she is not to be placed at risk because of the controversial nature of what he or she has to say. So long as the professor has adhered to a professional standard of care, disciplinary discourse is not to be weighed against any consideration of collegial disharmony, hierarchical accountability, or extramural displeasure.
Academic freedom in teaching is less absolute, but not much. The freedom to select curricular materials may be constrained by a departmental prerogative to require a common syllabus and even a common text for multisectioned courses. The professor may be required adequately to cover the announced offering before addressing collateral, if seemingly more interesting, material. And the persistent interject of controversial (or any other) matter not germane to the offering would not be protected. But, subject to a professional obligation to state opposing views fairly (analogous to the requirement in research that the evidence not be distorted) and to treat with respect students who disagree, the teacher is free to espouse controversial views that are germane to the subject-and passionately. Contrary to some contemporary critics, freedom of teaching is not limited by any obligation of "balance" or "objectivity"; the freedom is accorded equally to committed partisanship as to dispassionate dissection.
The professor is not only a researcher and teacher but, in a sense, a citizen of an academic community. Faculty members are expected to serve on a variety of committees and other agencies of academic government that recommend institutional policy or effectively make decisions under them; faculty play a host of adjudicative and advisory roles. Accordingly, the AAUP long understood the performance of these professional duties to be within the compass of academic freedom. A professor's appointment cannot be terminated because of displeasure with the views he or she advances on the content of the curriculum, admission standards, grading practices, and the like. By extension, the professor is free to criticize institutional policies and practices with which she disagrees.
That extension, however, is not without recognized limits. As in the civil setting, the protection of speech on intramural affairs would not extent to the malicious utterance of knowing falsehoods tending to destroy another's professional reputation, not, on a very different level, would it extend to conduct (including speech) that is destructive of a department's or institution's very ability to function-the persistent proffering of pointless motions and objections during the conduct of faculty business with no purpose but to prevent the business being carried out could claim no shelter.
The last aspect of academic freedom requires comment, for the claim has been advanced even as to a professor's political speech and activity as a citizen. The 1940 Statement, promulgated almost thirty years before public employees were held to enjoy the protection of the First Amendment, subsumed the professor's speech as a citizen under the rubric of academic freedom. That subsumption has been criticized because it would seem to assume that the professor is to be held to a professional standard of care, a higher standard than that accorded our groundskeeper. The error in connecting the two has been compounded, some argue, by the 1940 Statement's admonition that the professor's "special position in the community imposes special obligations"-that as the public may judge the professor by his utterance, he or she should "at all times be accurate, should exercise appropriate restraint, should show respect for the opinion of others."
These admonitions, however, have not been understood by the AAUP as establishing rules of conduct. A failure to exercise "appropriate restraint" may, under certain circumstances, be a basis to inquire into a professor's fitness for office-total indifference to the facts in political speech may raise a question of whether the scholar is equally indifferent in his professional work-but it cannot be a basis for dismissal. Suffice it to say, the drafters of the 1940 Statement, writing at a time when professors were not free political actors, sought to shelter that activity from institutional restraint or censorship. Perhaps it might be well to think of this portion of the Statement as addressing an academic's freedom rather than an academic freedom.
Two additional points to this overview of academic freedom bear upon its relationship to tenure: First, the courts cannot be trusted to vindicate academic values, and, second, even if they could, that vindication would arrive only after the professor had been dismissed and pursued years of pretrial discovery, litigation, and, possibly, appeal. What is needed, in order to protect the exercise of academic freedom, is the insulation of the individual from that risk: whence tenure. As William Van Alstyne put it:
The function of tenure is not only to encourage the development of specialized learning and professional expertise by providing a reasonable assurance against the dispiriting risk of summary termination; it is to maximize the freedom of the professional scholar and teacher to benefit society through the innovation and dissemination of perspectives and discoveries aided by his investigations, without fear that he must accommodate his honest perspectives to the conventional wisdom. The point is as old as Galileo and, indeed, as new as Arthur Jensen.
This function of tenure has been challenged as "absolutizing" academic freedom: "[T]enure can never protect of guarantee academic freedom," John Silber opined. "Academic freedom is protected and guaranteed by the courage of individual professors, and by individual administrators who protect individual members of the faculty, and by students. If they express their freedom responsibly, they will not expect immunity from criticism or public disapproval; they will recognize these risks as one of the essential conditions of responsibility." That argument was dispatched over forty years ago by the economist Fritz Machlup:
Great scholars, great discoverers, great inventors, great teachers, great philosophers may be timid men, or they may not care enough to face vilification, or they may be too "realistic" to invite trouble. A society that wishes to avail itself of the fruits of their intellectual expertise must give them as much immunity as possible. Assuming as a fact that scholars may be timid or too "realistic," society has developed the institution of academic freedom in order to reduce the penalties on unpopular unorthodoxy or on unfashionable orthodoxy and to encourage scholars to say whatever they feel that they have to say.