Sidney Hook on Academic Freedom

Courtesy of Michael Berube, a quote from Sidney Hook's seminal 1970 book Academic Freedom and Academic Anarchy:

The qualified teacher, whose qualifications may be inferred from his acquisition of tenure, has the right honestly to reach, and hold, and proclaim any conclusion in the field of his competence.  In other words, academic freedom carries with it the right to heresy as well as the right to restate and defend the traditional views.  This takes in considerable ground.  If a teacher in honest pursuit of an inquiry or argument comes to a conclusion that appears fascist or communist or racist or what-not in the eyes of others, once he has been certified as professionally competent in the eyes of his peers, then those who believe in academic freedom must defend his right to be wrong--if they consider him wrong--whatever their orthodoxy may be.  (36)

This from an NYU professor who moved  from Marxism to conservativism over the course of his distinguished academic career -- but never abandoned the need to protect the academic freedom of all professors, regardless of ideology.

It's too bad so many people on both the right and the left are willing to sacrifice academic freedom in the name of political orthodoxy.

Comments

[Mike]

It's too bad so many people on both the right and the left are willing to sacrifice academic freedom in the name of political orthodoxy.

Kevin, this is one case. Academics frequently say kooky and offensive things -- People are okay with that, as we realize that's what academics do. The attack on Churchill does not indicate a trend against "academic freedom." If anything, that people are only going after Churchill indicates how tolerant we taxpayers are of professors. Churchill crossed the line -- He is the moral equivalient of a member of the Ku Klux Klan.

Maybe we shouldn't hold membership in the KKK against a professor. But I don't think that we should cloak Klan membership with "academic freedom." Let's call a bigot a bigot, and then say, "Bigots have rights, too."

[Mike]

A point of clarification. For a lot of reasons, I don't think Churchill should be fired. My only beef with the discussion is pretending that his views have anything to do with academic freedom.

[Buster]

Hey! You know what? My watch is right by my watch, too!

One would think someone purporting to be a law professor would be able to... well, quote law or something concrete as a foundation for a defense of Ward Churchill. Or something from - you know - this CENTURY at the very least.

Funny, Kevin doesn't want to address the allegations of academic fraud swirling around ol' Ward. If Ward did lie and he isn't an American Indian, why shouldn't he be fired for lying on his employment app? If he has committed academic fraud, why shouldn't he be summarily dismissed? If he has perpatrated fraud no matter how slight, why does he deserve any protection from his actions?

Oh, that's right - ol' Ward is a brother Liberal and must be defended even in the face of evidence pointing to fraud. The slightest whiff of rumor or speculation about any conservative must be acted on NOW! If it's a brother Liberal, well... let's take our time and not rush to judgment.

At some point, reality has to enter the picture, and the picture isn't pretty. The chickens are coming home to roost, but it was ol' Ward what built the coop, nail by nail, and board by board.

[Kevin Jon Heller]

Notice how Buster, unable to respond to the points I was making about academic freedom, has now shifted the discussion onto whether Churchill committed academic fraud. That's a completely different subject. I have no idea whether Churchill misrepresented himself in his C.V., so I have no opinion on whether that would justify firing him.

I will say, though, that in general firing a professor because he lied about his credentials is very different than firing him because of his opinions. The former does not involve, much less violate, academic freedom; the latter certainly does.

[Buster]

Kevin, it is far too easy to respond to your "points" - it ceases to be sport.

I do have to say that I would be embarrased to be representing myself as a college law professor and making First Amendment-cum-academic-freedom-as-absolute arguments like a rookie. Nobody enjoys an absolute freedom of speech, and the Constitution was never intended to convey any restriction or "right" as absolute. So whence comes this ridiculous notion of "academic freedom"?

You want academic freedom? There's a street corner - teach away! Nobody says you are entitled to earn a living at it.

But I am still waiting for some semblance of a legal defense beyond "I said so". You liked his classes? Well, whoop-de-freakin'-doo - that and a buck will get me on the bus. I mean, even if you have to be an utter rookie and fall back on Mill's Harm Principle... give us something solid, man!

Or has the Peter Principle already come into play for you, Kevin?

[Heidi]

I'm not sure exactly how Heller saying, "firing him for misrepresentation is allowable, but not for politics" means that academic freedom is absolute. He seems to be saying the opposite -- that academic freedom, in the area of politics, should be large because we want to foster counter-majoritarian heresy, but in the area of fraud, lying, and misrepresentation, should be strictly punished.

There we have: non-absolute measures, a reason for academic freedom, and some standards to judge it by.

As for the legal arguments -- I mean, seriously, the legal arguments to defend Churchill are contractual, and we don't have a copy of his contract, so they're harder to make. The arguments supporting tenure as an abstract principle are policy arguments. And those are the arguments Heller makes.

[Buster]

Heidi,

Until I raised the spectre of fraud - academic and otherwise - Kevin was making absolutist arguments in favor of Churchill, which is absurd thinking and behavior for a law professor. Excuse me, alleged law professor.

As to the "contractual" matters - hogwash. We have employment, discrimination, and educational laws which cover ol' Ward-the-non-Indian. Who cares what his contract does or does not say? It would be nullified if he violated law anyway, so I want chapter and verse on why UC is wrong to fire him for his speech. I don't want to hear vague and amorphous concepts such as "academic freedom", I want law.

There is a lot of smoke being blown around over this matter - and no small amount of it coming from Kevin's specious arguments - so applicable law would blow the smoke out in a hurry. What it tells me is this - if a law professor can't cite anything in law preventing UC from dumping ol' Ward-the-non-Indian on his can, then maybe UC should dump him like the naughty alleged-fraudster he appears to be.

[Kevin Jon Heller]

It's more than a little ironic that someone who openly admits he thinks Churchill's contract with CU (not UC) is irrelevant to whether the University can fire him demands a legal argument for why Churchill can't be fired. Especially given that the short answer would be: contract law.

Now, I realize that Buster has wished Churchill's contract -- and contract law with it -- out of existence. But let's assume for the moment, purely hypothetically, that contract law still matters. The argument that Churchill's contract with CU prevents him from being fired for his 9/11 statements would then look something like this: the "1940 Statement of Principles on Academic Freedom and Tenure" drafted by the American Association of University Professors (AAUP) contains a guarantee of individual (not institutional) academic freedom. The AAUP's statement does not itself have any legal effect, but nearly all major colleges and universities have not only adopted the Statement (or a variation of it), but include it in their faculty-policy manuals and incorporate it by reference into the employment contracts of their individual faculty members. Under normal contract principles, then, a University would not be able to fire a professor on the ground that it disagreed with the content of his speech, however offensive. See, e.g., Greene v. Howard University, 412 F.2d 1128 (D.C. Cir. 1969) (holding that provisions in a faculty handbook "govern the relationship between faculty members and the university").

Constitutional law also protects Churchill. Assuming Buster hasn't eliminated constitutional law along with contract law, it's worth noting that the U.S. Supreme Court has consistently held that academic freedom is a First Amendment right of professors. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234 (1957); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985); Univ. of Wisconsin v. Southworth, 529 U.S. 217 (2000). Following those precedents, The Second, Sixth and Ninth Circuits have held that the First Amendment right of academic freedom protects statements made by professors in the classroom. See Dube v. State Univ. of NY, 900 F.2d 587 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991); Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001), cert. denied, 535 U.S. 970 (2002); Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir.), cert. denied, 534 U.S. 951 (2001); Parate v. Isibor, 868 F.2d 821, reh'g denied, 1989 U.S. App. LEXIS 5203 (6th Cir. Mar. 16, 1989); Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997). The Seventh and First Circuits have held that a professor's First Amendment right of academic freedom extends to research as well as to teaching. See, e.g., Dow Chemical Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982); United States v. Microsoft, 162 F.3d 708 (1st Cir. 1998). And finally, the Eighth Circuit has held that the First Amendment protects professors in their role as scholars. See, e.g., Burnham v. Ianni, 119 F.3d 668 (8th Cir. 1997) (en banc).

Finally, notice how Buster once again elides the difference between claiming Churchill could be fired for his speech and claiming Churchill could be fired for fraud in his CV. As I made painfully clear in my previous comment, it is logically consistent -- not "absurd," as Buster would have it -- to accept the possibility of the latter (fraud as a ground for termination) and still maintain an absolutist position against the former (speech as a ground for termination).

But don't believe me. I'm just an alleged law professor.

[Kevin Jon Heller]

CU, by the way, has adopted the 1940 AAUP Statement regarding tenured professors.

[Buster]

Kevin,

Two words - thank you. Why couldn't you do that in the first place?

Now, as to the irrelevance of his employment contract - it is my understanding ol' Ward-the-non-Indian was not in the classroom when he made his remarks, so how would his contract enter into the picture? If he was not on CU property, and maybe even being paid by someone other than CU, isn't he acting outside his capacity as employee, thereby rendering the contract a moot point?

[Heidi]

Who cares what his contract does or does not say? It would be nullified if he violated law anyway....

Um, why is that true? Last time I checked, people who violate the law don't lose all benefits for which they have contracted.

[I]t is my understanding ol' Ward-the-non-Indian was not in the classroom when he made his remarks, so how would his contract enter into the picture?

Okay, let's start with some basics. CU has signed a contract with Churchill that says something like, "We won't fire you, except maybe if you molest students (or maybe some other conditions)." Now, if you want to talk about the legality of firing Churchill, you need to look at the conditions specified in his employment contract. It doesn't matter what's Constitutional -- it doesn't matter what's legal -- he can't be fired if the contractual conditions don't allow it. Tenure is a contractual obligation on the part of the University to put up with him for the rest of his life, no matter how embarrassing he is. They can, of course, breach the contract. But my guess is that the resulting lawsuit would be even more embarrassing, and so they'll sit tight, and wait for the tide of public opinion to go elsewhere.

But the factors you mention -- not being in the classroom, not speaking on school property, nor representing the University -- all agitate in exactly the opposite direction. If what he did had nothing to do with the University, how can you possibly make an argument that the University should fire him?

[Buster]

Heidi,

You have not understood what I have been driving at. Patton had a wonderful saying - if everyone is thinking alike, then everyone isn't thinking. I think that wisdom applies here. Everyone is calling for ol' Ward-the-non-Indian's head, just because they didn't like what he said. Tell you what, I would shoot the first SOB who tried, because that's how tyranny starts. I don't like what Ward said, but that doesn't mean he can't say it.

What I am trying to get to the bottom of is the details of how they COULD fire him, not why they SHOULD. If he was not acting in the capacity as a tenured professor of CU, then I fail to see how his contract with CU could possibly apply. Kinda like the company whose name escapes me at the moment firing all employees who smoke at home. I fail to see how they could reach that far no matter how noble the cause.

If ol' Ward was speaking on someone else's dime, it looks like he has Constitutional protection up the wazoo, but I fail to see where that translates to his CU contract while he is "moonlighting". In other words, if I paid him to speak I could certainly fire him, but can the university do so, as he was not acting as their "employee" while he spoke?

That is a whole other ballgame from free speech, at least by what I see. If we are going to do the deed, I just want to make sure the "i" is dotted and the "t" crossed. After all, I can be fired for drunk driving outside of work, or any of a thousand other sundry crimes, so is ol' Ward any different?

[Heidi]

Buster, you're making unwarranted assumptions about what I think (I don't think they SHOULD fire Churchill, and I don't know where you got the impression that I did). You also seem to have some fundamental misapprehensions about employment law in the United States.

The reason why companies COULD fire someone who smokes at home is that in the absence of an employment contract, your employer CAN fire you for just about anything, except race gender age and so on. There is no protection for smokers or politically unsavory types; here in the US, we have at-will employment. That means that in the absence of a contract, CU could fire Ward for saying anything he liked, no matter where he said it. They wouldn't have to have a good reason connected with his employment. Heck, they can say, "I saw you in a bar last night wearing an orange shirt and I hate orange." That's good enough. They don't even have to give a reason to fire you. So it wouldn't matter who Churchill was representing or if he was moonlighting or any of this other stuff. Without a contract, you can be fired for basically anything.

(The game turns a little complicated once the employer is the State, because at that point, firing him for saying things may have constitutional protection. But a company, who is not the government, can fire you for expressing your First Amendment rights. The constitution only binds the government.)

Now we turn to Churchill. If we want to know how they COULD fire Churchill, and we ignore the contract (and the constitutional issues, and I'm not sure how those play out), the answer is simple: CU say, "we don't like your hat or your politics." And that's the end of the story. Period. No contract, and Churchill COULD be fired for any reason at all. If you don't like that, then you should agitate for stronger employment laws, like the ones implemented by those socialist bastards over in Europe.

With a contract, it is much more difficult to fire Churchill. In order to see how they COULD fire Churchill, they must prove that he met one of the conditions of the contract that would allow him to be fired. So the contract provides Churchill with MORE protection than the law allows, not LESS. Therefore, in order to figure out if Buster COULD be fired, we must look to his contract, which is basically the only thing that protects him. Without his contract, he could be fired with no questions asked.

P.S. I suspect that shooting people that disagree with you is not the best way to overcome tyranny.

[Buster]

"P.S. I suspect that shooting people that disagree with you is not the best way to overcome tyranny."

Worked for the Founding Fathers, didn't it? :-)

I didn't say I would shoot anyone who disagreed with me, I said I would shoot the SOB who tried to silence ol' Ward. Confiscation of guns and limiting of speech are the big one-two of establishing tyranny. I sure don't like what Kevin says most of the time, but by God I will put myself between him and the bullet that tries to silence him. At 6"4" and 300 pounds Kevin is going to enjoy a LOT of protection. :-)

[Ron Groeber]

I have been reading a book entitled "Six Wives: The Queens of Henry VIII" by David Starkey. I note that Henry the 8th, persecuted 1st protestants as a defender of the Catholic faith, then Catholics once he broke off with the Church. If history teaches us anything, it should be to be wary of persecuting people on the basis of their expressed beliefs. To my mind, Academic Freedom would be a sham if it did not provided Academics with more protection than that provided by the 1st Amendment. As long as, the Professor restricts himself to the world of ideas, then he ought as a pioneer of thought to be given absolute freedom to express his beliefs and thoughts. Of course, he should not be allowed to abuse this freedom and use it to persecute others who have different beliefs. He should avoid as much as possible the humiliation, embarrassment or ridiculing of students as persons. In class views on the genetic endowments of various races is at this time unsupportable by any science. If some professor espouses such a view in a class populated in part by a student or students who are allegedly genetically inferior. He should be fired not for having an opinion, but for incompetence. Their is no genetic proof supporting such a factual assertion.