By Tom Clayton
Regents Professor, Department of English Language and Literature
University of Minnesota
The importance of higher education in making an enlightened citizenship and an advanced and prosperous nation can scarcely be exaggerated, and academic freedom is the foundation on which all else depends.
Of necessity, the faculties of colleges and universities are bodies of the best-educated citizens of the United States; they make uniquely valuable contributions to the advancement of learning and to the life of society as a whole. Their views both collectively and individually have special value.
Academic freedom must protect the integrity not only of scholarship and teaching, but also of the expression of views that may not be welcomed by bodies having power over the faculty. Even without such protection, many would speak out as they saw fit and necessary, but where such speech is not protected it can be muffled or silenced. The cost to society as well as to the educational institutions, when such conditions prevail, is incalculable, as there is ample evidence to show in 20th century world history.
The Minnesota Code Reexamined
The University of Minnesota’s Faculty Senate Committee on Academic Freedom and Tenure (AF&T) had its attention drawn to the Regents Policy on Academic Freedom and Responsibility rather abruptly. At the AF&T meeting of March 28, 2008, a member of the committee reported on Garcetti v. Ceballos and also on the Hong v. Grant case, in which Garcetti had been applied to an academic institutional dispute at the University of California at Irvine. No attention had been paid in that case to Justice Anthony M. Kennedy’s nod in the majority Garcetti decision that “expression related to academic scholarship or classroom instruction implicates additional constitutional interests” for which the Court’s decision did not account. For that reason, Justice Kennedy explained – in a line similarly overlooked in Hong – that the Court would not decide whether its analysis would apply to a situation involving “speech related to scholarship or teaching.”
We immediately redirected our attention to the Regents Policy. In doing so, we had the following advantages:
A generally alert, concerned, and communicating faculty;
A conscientious membership of Faculty Senate committees not there primarily to engage in shadow boxing and sandbox administration;
A Regents Policy well conceived, well written, and tight, but flexible enough to accommodate modification;
A Committee on Academic Freedom and Tenure exceptionally well constituted and including ex-officio the chair of the Senate Judicial Committee and the Vice Provost, who contributed actively herself and kept the Provost informed of our progress (or regress, as it sometimes seemed and was);
Abundant advice and assistance from a Law professor active in governance and intimately familiar with faculty issues; and
A Provost actively interested in our work who both spoke with the committee and strongly and unequivocally supported the Policy in its final form and as subsequently adopted by the Regents.
No Quick Fix
Where delicate issues are at stake, no language finds quick consensus in a committee of diverse membership. I can say with conviction that if we had had as examples the two statements now proffered by the AAUP subcommittee with its report, we could have proceeded with greater dispatch. Without that example, we had little to go on but the law cases and our sense of what sort of faculty speech needed protecting, and that at least came early.
On May 9, 2008, a member presented a draft revision of the Regents Policy. After discussion, the committee voted unanimously to recommend changes to the policy, with the exact language to be determined after the forthcoming discussion with Professor Neil Hamilton, an expert on academic freedom in the AAUP tradition, who joined the committee on May 16.
What took so much time between May 2008 and March 2009 was not the Statement on Academic Freedom (II), on which virtually everyone agreed, but that on Academic Responsibility (III). Subsequent discussion reached a compromise on the following language: “Academic responsibility implies the faithful performance of professional duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that when one is speaking on matters of public interest, one is not speaking for the institution.”
As the committee chair, I met with the provost on March 2, 2009 to explain the committee’s current wording and seek his agreement and support, which he duly gave. The final revision was now ready to send through the Faculty Consultative Committee to the Board of Regents. The Faculty Senate gave its unanimous approval at its April meeting, and the Board of Regents approved it on June 12, 2009.
The Committee agreed that the Regents Policy should be sent annually to every faculty member, together with a cover message including a quotation from an article by Professor Hamilton that appeared in the Chronicle of Higher Education: "A professional cannot defend what he or she does not understand. . . . The profession carries an ongoing burden . . . to justify academic freedom, peer review, and shared governance."
A Foundation for Others
The members of the Minnesota AF&T Committee would be very pleased if our policy revision were of use to others, not least in making it possible for them to come to terms appropriate for their own circumstances in much less time than it took us to come to the successful conclusion that time will undoubtedly test.