January 9, 2006
My name is Robert O’Neil. I am currently a professor of law at the University of Virginia and director of the Thomas Jefferson Center for the Protection of Free Expression, a nonprofit, non-partisan organization in Charlottesville, Virginia, which is devoted to the cause of free speech and free press. I previously served as president of the University of Virginia, and earlier as president of the University of Wisconsin System. I have been chairman of the National Association of State Universities and Land-Grant Colleges, twice General Counsel of the American Association of University Professors and for seven years chaired AAUP’s Committee on Academic Freedom and Tenure.
I welcome the opportunity to meet with you this afternoon, and am deeply honored by your invitation. I applaud your commitment to the central issue of student academic freedom; we university professors too often act or sound as though we valued academic freedom only for ourselves as scholars, overlooking the fact that we enjoy such protection mainly because we engage in the process of teaching and learning. It is most reassuring that you have made the campus experience of Pennsylvania students your central concern.
The challenge comes in defining what we mean by student academic freedom. We all believe that students should enjoy a broad range of learning opportunities and experiences, including a diversity of viewpoints among those with whom they study. No student should be disparaged, or suffer any academic penalty, because of his or her political views or affiliations – any more than we would condone discrimination on the basis of race, religion, nationality or gender. Policies of the AAUP, as well as those of most universities, recognize and protect such essential elements of the student experience.
It is easy to move beyond these readily acceptable principles into far less familiar terrain. So I should like to take the opening portion of my time to identify three possible expectations I would not include within student academic freedom, though some might argue to the contrary.
First, students should not expect their views and values to go unchallenged as part of the university experience. Indeed, if the son or daughter of a friend had such an expectation, I would urge that he or she either not go to college, or at the very least find that rare campus where nearly everyone shared the same views. Having one’s beliefs and values tested in a college classroom – and outside class for that matter -- is of the very essence of higher education. So when I read of students who object to such challenges, or who feel that professors holding views very different from their own are somehow unfit to teach them, I fear that the most basic value of higher education has been misunderstood. If anything, we fail as college teachers if we do not force our students constantly to reflect upon the views they bring to campus.
This point was well made at an earlier hearing of this Committee by David French, whose views Professor Joan Scott invoked, and which I might invoke again. Student rights, said Mr. French, “do not include a right to be taught what they want to hear. Their broad rights do not include a right not to be offended. Their rights do include a right to have a teacher tell all sides of the story as they see all sides of the story.” The distinction is basic and central to the mission of this committee; to say that students may not be penalized for holding views different from those of the professor is a far cry from saying that students should not be exposed to, and required to study, even highly uncongenial and offensive views as part of the learning process.
Let me invoke a personal experience. For the past several decades I have taught constitutional law of Church and State. One semester I happened to have two students with diametrically opposed views on such issues as the origins of human life, abortion and others. Each came into my class fully convinced of the soundness of her views, and equally certain of the error of her classmate’s beliefs. I happened to have a conversation with the two of them after the course ended. What they reported was just what I had hoped would occur through the challenges I posed to each; while neither had abandoned her inherited views or values, each recognized how and why others might differ, and sensed possible limits on her own views.
Indeed, I believe in the end the conservative Christian was better able to defend her views than before, as was her non-believing classmate, simply because each had been challenged – quite possibly for the first time in her life. Had either of them during the course contested my right to challenge and unsettle them, I would have insisted that they were missing the whole point of higher education, which is precisely to make students uncomfortable with views and values.
Second, students should not expect to be free of all institutional values, even though the official declaration of such values may make them uncomfortable. Here I have in mind the perilous topic of speech codes, and of policies that are sometimes mistaken for speech codes. I would yield to few in my opposition to genuinely restrictive speech codes; the first year our Center conferred its Jefferson Muzzles on a dozen or so enemies of free expression, we targeted two campus speech codes that seemed to us dangerously inhibiting to student expression, thus setting a terrible example for that place in our society where all ideas should be tolerated. Along with the federal judges who have struck down every genuine speech code that has been brought to court, I never met a campus ban I could embrace.
At the same time, I am deeply troubled by the claim that any campus policy remotely affecting student expression is effectively a speech code and should be struck down on that basis. Here I have especially in mind the controversy several years ago at Shippensburg State University. The campus policies that were challenged, and eventually invalidated by a federal district judge, were not by any stretch of the imagination a speech code. Rather, those policies were declarations of an ideal of campus civility, a template aimed at creating a more tolerant and understanding academic community. No student had ever been sanctioned for any claimed violation of these policies – nor did the policies contemplate sanctions or penalties. The claims that several students feared reprisal for errant speech seemed to me wholly implausible.
Yet the effect of the federal judge’s ruling was to discourage conscientious efforts by university administrators and governing boards to enhance campus civility – a goal that ought to be capable of pursuit by hortatory statements and benign policies. Genuine speech codes are inimical to academic freedom and should be barred. But we disserve the learning environment, and the quest within it for civility and tolerance, if we treat every official statement or policy as a code. This for me is a lesson that goes far beyond Shippensburg, although it was most vividly played out there.
Third, and finally, students should never expect to impose their views and values on the institutions at which they study – nor should they expect government to give them tools by which to impose those views. Earlier I stated my firm belief that students should find on every college campus a wide variety of diverse views and values. For some who share my belief, the next logical step is that where such diversity does not exist – or is perceived not to exist – it should be imposed by external authority. This is where we part company, and quite dramatically. Questions of who shall teach, and what shall be taught, are properly left to the faculties and academic administrators, of our colleges and universities. Even where others might strongly disagree with the curricular and personnel choices that have been made on the campus, the Supreme Court has time and again insisted that external authority should defer to internal professional judgments – until and unless there is clear evidence of a total abdication of such judgment.
Appropriately, the pertinent policies of the AAUP and of most universities are firm and clear in defining a process that merits such deference by courts and agencies. The AAUP’s Standards for The Ethics of Recruitment and Faculty Appointments, adopted in the early 1990s, declare what is a nearly universal understanding within the academic community. Not only is a rigorous and transparent process required for the filling of any vacant faculty position. That process, at the departmental or professional school level where initial hiring decisions are made, must be designed to ensure objectivity and emphasis upon a candidate’s teaching and scholarly potential. Any intrusion of political bias or affiliation into that process would be sharply at variance with the most basic of scholarly values and traditions. Consistently, my own experience in appraising and interviewing prospective junior colleagues over more than four decades reflects just such criteria.
There are reasons, both practical and principled, why such deference is appropriate. On the practical side, there simply are no generally accepted standards by which such authority could be implemented; one person’s “imbalanced” curriculum or faculty almost certainly seems “balanced” to others. Change the equation to suit the objector, and concerns will now immediately arise on the other side. Equally problematic is the impossibility of even the largest and most comprehensive university being able to offer all options to all students. And even if all of us could agree on what constitutes an appropriate curricular “balance,” it is far from clear who should be empowered to enforce such standards -- unless it is the faculty and academic administrators who are charged with that task. Finally, such intrusions could hardly be limited to a single sector, or one type of institution, or one set of objections; once the door had been opened to such intervention, there would be no logical place at which to stop or draw lines beyond which to resist further invasions. The practical problems posed by external supervision of such matters are therefore legion and daunting.
The concerns of principle are even more serious. Central to academic freedom is the premise that the outside community relies upon internal faculty governance – one of the most refined forms of self-regulation to be found anywhere in our society – to resolve doubts and disputes. The notion that external authority might validly determine such matters as “balance” or “fairness” or “objectivity” in hiring, in shaping the curriculum, or in the individual classroom, would severely undermine the process that ensures a quality of higher education to which students are entitled. Thus in the end, the superficial appeal of external intervention turns out to be as illusory as it would be pernicious to the core of higher education.
Let me conclude with a few thoughts about what those of you who govern reasonably expect from those of us who teach. You expect, and we insist, that faculty members are not hired, promoted, tenured or fired on the basis of their beliefs or political affiliation or ideology. If there is evidence of departure from such objectivity, the academy takes appropriate notice. An actual case that played out several months ago illustrates this commitment. Professor Robert Natelson of the University of Montana (who had once been a Republican candidate for governor) claimed that his persistent plea to teach constitutional law had been rebuffed because he was viewed as overly conservative. An outside review committee of law teachers was appointed and asked to review the case. They concluded that, despite Natelson’s conservative views, he was fully qualified to teach constitutional law. The dean and the president of the university accepted that conclusion. Within the next week or two Professor Natelson will for the first time be offering constitutional law. Unusual though this experience surely is, it illustrates well the commitment that we in the academy make to fairness and objectivity.
Here let me add that recent reports of ideological “bias” in the classroom are greatly exaggerated. Having taught at universities like California that might be identified as “liberal” and others like Virginia that are viewed as “conservative” I would insist that variations among professors and their politics are far fewer than the media might lead you to believe. Even more critical, any notion that a professor who regularly votes Republican will invariably take a “conservative” view in class is simply outlandish, despite its currency. As one who might be deemed “liberal,” I derive the greatest satisfaction from twice-yearly team teaching with a colleague whose views on most political issues differ dramatically from mine – but he and I would challenge the students to tell which of us is which without a scorecard.
You who govern also expect that we will take positive steps to protect the academic freedom of students, and so we do. National AAUP policies, and those of most universities, not only declare that students are to be judged on the basis of performance and not politics, but also provide recourse for the occasional student who may feel aggrieved by a biased assessment. I mentioned earlier that I have taught Church and State for some years. One cannot teach this subject without taking note of unusual religious beliefs and practices, which may even seem bizarre to mainstream students. There are always risks that in such a sensitive area the instructor may inadvertently discourage one student’s faith. Yet I take great pains to avoid such risks – not only because they would adversely affect the learning environment, but because any student whose faith I disparaged in class could appeal to my dean who, in turn, would call me to account for my transgression.
This is precisely what I meant earlier by invoking self-regulation. We take very seriously our responsibility to treat students fairly and objectively. We are prepared to rebuke our colleagues who do not share that commitment. In the end, what we who teach ask of you who govern is to continue to trust us as you have done throughout American history, as we work together to make the learning experience even better and more rewarding. I welcome the opportunity to respond in any area in which I could be helpful to the Committee.