A Century of Change

How has academic freedom fared over the past century?
By Ann H. Franke

Chief among the Association’s concerns since 1915 has been the protection of academic freedom. This essay offers thoughts on how things have been going and where they may be headed with that critical task. I have been associated with the AAUP for about a third of its history as, at various times, a staff member and volunteer.

The timeline of the past century has several key reference points. In 1915 neither higher education nor the Association much resembled its counterpart today. The year 1940 saw the birth of the Statement of Principles on Academic Freedom and Tenure. In 1965 the Association celebrated its semicentennial, and in 1990 the Statement of Principles did likewise. Against these reference points, how has academic freedom fared? This essay looks back and also ventures some thoughts about the future, predicated on the commitment and creativity of those who shape it.

Would the AAUP’s founders recognize the Association’s academic freedom work today? Before answering this question, we might usefully ask whether the founders would recognize higher education today. Major differences exist in areas including students, faculty, and institutions of higher learning.

Students. In 1915, US higher education institutions awarded about forty-four thousand bachelor’s degrees. Men earned thirty-one thousand of them. Today, the Ohio State University alone has forty-four thousand undergraduates just on its main campus. Across the United States, over 20 million students are enrolled at the undergraduate and graduate levels. The majority are women, and nearly 3 million students are age thirty-five or older. About 60 percent are white. The AAUP’s founders could probably not imagine the scale and diversity of higher education at the beginning of the twenty-first century.

Faculty. The number of faculty members has grown to 1.5 million. The most dramatic change on this front is not the sheer numbers but rather the precipitous decline in tenured and tenure-track positions. The founders probably would have trouble grasping today’s reality that over 75 percent of instructional faculty hold contingent appointments. As we will explore further below, this fact has had profound and adverse effects on academic freedom.

Institutions. Changes in administration have centered on diversity and growth. The Association’s first investigation “committee of inquiry,” neutrally examining conditions for academic freedom on a campus, had members hailing from Columbia, Johns Hopkins, Harvard, and Princeton Universities as well as the University of Pennsylvania. By now, those five institutions have had a total of four female presidents, something the original committee members likely would find startling were they to visit today. The size of the administration needed to run a complex university would surely give them pause, as would the proliferation of for-profit institutions. Online instruction and global locations might strain their imaginations, as would the existence of litigation between faculty members and their institutions (not to mention the occasional damage awards exceeding $1 million).

Would the founders recognize the AAUP of today? Its new tripartite organizational structure would not be immediately obvious or, one hopes, troubling. The Association’s policy development and investigative processes would likely seem familiar. The founders would be gratified to learn that the AAUP has conducted two hundred investigations over the past century. It is difficult to gauge how our forebears would regard the change in membership eligibility—with membership only by nomination long ago abandoned. The use of faculty collective bargaining as a path to shared governance would require some explanation, as would the Association’s lobbying and legal programs. Overall the founders would be gratified to see committed volunteers working around the country and more than thirty people in the national office.

Advances for Academic Freedom

We have much to celebrate from a century’s work on academic freedom. Consider, for example, that first committee of inquiry’s concern, in its Report on Conditions at the University of Utah, about the widespread lack in 1915 of stated grounds for faculty dismissal:

In any attempt to judge the conditions of professorial service in a university, it is manifestly important to know what are officially regarded as pertinent and sufficient grounds for dismissal. There appear to be at the University of Utah no statutes or permanent regulations of the governing board defining these grounds. They are determined in individual cases by the judgment of the President and Board of Regents holding office at the time; and may be diversely determined at different times. In this sense, the government of this University, like that of many others in America, is a government of men and not of laws.

Rare is the accredited institution today that lacks any policy on the grounds and procedures for dismissing a faculty member. The AAUP may disagree with an institution over whether it used the stated grounds as a pretext for shedding a professor who held unpopular views. Still, it is hard to imagine the distant past in which many institutions lacked so basic an element of procedural fairness as stated reasons for which a professor may be dismissed.

The pinnacle achievement of the century in protecting academic freedom is indisputably adoption of the 1940 Statement of Principles on Academic Freedom and Tenure. The AAUP and the Association of American Colleges, then the leading organization of academic institutions, jointly drafted the statement. It has been endorsed by more than 240 learned societies and educational organizations and incorporated, in whole or in part, into countless faculty handbooks and institutional regulations. It serves as the bedrock for American principles of academic freedom and tenure. Basic concepts of the 1940 statement include academic freedom for faculty members in their teaching and research and freedom in making extramural utterances. These rights are not absolute, as each carries limitations. Other key elements include a time-limited probationary period followed by the award of tenure or the individual’s departure and dismissal for cause only after the institution has afforded a proper hearing and carried the burden of proof. The 1940 statement draws legitimacy on these and other points from its joint parentage. It would behoove the Association going forward to seek occasional opportunities for similar collaboration with administrative groups.

Occasionally a faculty member will overstate the scope of academic freedom, asserting, for example, a right to disregard established grading practices or to ignore topics that a department requires all instructors to cover in a multisection course. Curiously, the Western Association of Schools and Colleges maintains, in its Handbook of Accreditation, that academic freedom protects not only faculty and students but also staff. While college business officers, for example, deserve an opportunity to express professional opinions, academic freedom is not the mantle shielding them from adverse consequences. With the Association’s guidance, each succeeding generation must reach an understanding of academic freedom.

Changes in Tenure

Tenure is surely the strongest protection for academic freedom. The 1940 Statement of Principles supports a maximum probationary period of seven years, which the academic community widely recognizes—at least for appointees eligible for tenure.

The endpoint of tenure has changed since the Association’s founding. Beginning in 1967, Congress took a series of steps raising the mandatory retirement age for American employees. Debate raged over the impact of these changes on higher education. If professors could choose their own retirement dates, would academic freedom and the tenure system survive? Could the academy continue its progress toward diversity? The AAUP argued in favor of eliminating mandatory retirement, suggesting that academic institutions substitute reliance on retirement incentives and, if needed, the occasional dismissal of a tenured professor for cause. As of January 1, 1994, Congress eliminated mandatory retirement for tenured faculty. The sky has not fallen in the intervening two decades. Research-intensive institutions most often see an uptick in the average age of their faculty, stalling the entry of new scholars. Suggesting, however, that older faculty members are less productive or current in their disciplines than their younger colleagues perpetuates ageist stereotypes. Proceedings for the dismissal of tenured faculty may have increased slightly, although assuredly not to the level of widespread abuse.

The challenge today and for the foreseeable future will be protecting the academic freedom of faculty members who will never be eligible for tenure. The teaching of controversial subjects may be a fool’s errand for those who would thereby put their livelihoods at risk. As a society we become the poorer for it.

Shared Governance and Ethics

In “Origins of the Association,” an address on the occasion of the AAUP’s fiftieth anniversary in 1965, the eminent Columbia University history professor Walter Metzger found much to celebrate in the Association’s steadfast defense of academic freedom. At the same time he raised some challenges. Where was work on shared governance, and what about ethics? These issues, he explained, had concerned the founders. Yet they subsequently attracted little attention within the Association, which instead devoted most of its energy to academic freedom. Metzger expressed the hope that, fifty years later, the Association could mark a positive midcourse correction. We can surely do so for shared governance. The AAUP now has an investigative process for governance violations, a companion list of sanctioned institutions, and an abiding commitment to collective bargaining as a means of advancing shared governance. The huzzahs are more muted for the Association’s efforts in professional ethics. The year after Metzger’s call, the Association adopted the Statement on Professional Ethics, intended to “serve as a reminder of the variety of responsibilities assumed by all members of the profession.” It offers important counsel on how professors should approach their academic endeavors, their colleagues, and their students. In its website’s section on “Professional Ethics,” the AAUP explains that its “work in the area of professional ethics is primarily educative: to inform members of the higher education community about principles of professional ethics and to encourage their observance.” If the Association’s website is a primary outreach tool, one observes with some dismay that, as of this writing, most of the items among the handful of ethics resources are at least a decade old.

Calling institutions to account for their failings in academic freedom or governance seems more congenial than turning attention inward to the profession. Metzger raised the prospect of the Association’s developing sanctions for faculty who commit professional improprieties. This, however, does not appear to be even remotely in the cards for reasons of appetite, scope, and resources. Is the Association content merely to protect members of the professoriate? Surely not. Faculty members seeking assistance are frequently told that their situations do not present potential violations of Association policy. Two academic freedom investigations in the past century have resulted in published reports that exonerated the administration (coincidentally, both involved the same institution, Northwestern University, in 1962 and 1988). The Association has never filed an amicus brief supporting an administration that faithfully followed AAUP policy in dismissing a professor; such a step, however, might be too much even for the founders to bear.

Academic Freedom and the Law

How well have the courts protected academic freedom over the past century? Even posing that question might startle the Association’s founders, for whom a link between academic freedom and the law might seem strange. Judicial reactions to academic freedom have followed a twisted, if not tortured, path. Consider, first, that academic freedom and the First Amendment are not coextensive. The First Amendment limits only the actions of government and hence does not reach a private institution’s relationship with its faculty. (At private institutions, academic freedom is typically enforced under contract law.)

The First Amendment covers many types of public employees, from gardeners to generals. Faculty at public colleges and universities may, or may not, merit a special place in the free speech realm. The US Supreme Court first explicitly mentioned academic freedom in 1952 in a dissenting opinion by Justice William Douglas. The court gradually elevated the concept into a special subset of First Amendment rights. The most often quoted statement came in 1957, in a concurring opinion by Justice Felix Frankfurter who, like Douglas, had been an academic. In Sweezy v. New Hampshire, the court reviewed the work of a state body investigating subversive activities. The body issued a subpoena to a university lecturer, Paul Sweezy, who declined to answer questions about the contents of his university lectures. The court upheld Sweezy’s right to decline. In his concurring opinion, Justice Frankfurter stated:

A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates—to follow the argument where it leads. . . . It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail the four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. 

This passage, which draws from a South African document condemning that government’s interference in higher education, endorses the university’s rights, leading one federal appeals court to conclude in 2000 (in Urofsky v. Gilmore) that faculty members possess no individual right to academic freedom. This unusual holding, a way station on our twisted path, sets into sharp relief the respective rights of institutions and professors. Once viewed as complementary, the institution’s rights are now more often raised to bar faculty members’ exercise of their individual academic freedom.

A prevailing view among scholars of academic freedom is that faculty members merit both more and less First Amendment protection than other public employees. The greater protection (notwithstanding the 2000 appellate-court decision) derives from the social value of intellectual exploration. The lesser protection rests on the fact that a university may dismiss a faculty member for professional incompetence. While a keeper of the public gardens might assert without consequence that the moon is made of green cheese, an astronomy professor at a public university can be dismissed for a professionally incompetent conclusion.

The path continues with the US Supreme Court’s 2006 decision in Garcetti v. Ceballos. Here the court scaled back the First Amendment rights of both the gardener and the general, concluding that public employees could be dismissed for speech, even accurate speech, falling within the scope of their professional responsibilities. But what about faculty speech? The court acknowledged that this might be different: “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Just as the Frankfurter concurrence in Sweezy explicitly addressed institutional rights but not individual ones, the “carve out” for faculty speech in Garcetti v. Ceballos is also incomplete in covering teaching and research but not service.

The Association has made commendable investments in shaping subsequent legal developments. Since 2006 it has participated as a friend of the court in cases around the country. It has also encouraged institutions to adopt internal policies eliminating the threat that Garcetti poses. Eventually the Supreme Court may decide the question it left unresolved in 2006. (For a more extended discussion of the AAUP’s responses to Garcetti and its progeny, see Robert M. O’Neil’s article in this issue of Academe.)

In the legislative realm, we are in a period of gradual, yet seemingly inexorable, increases in the legal compliance obligations that government imposes on institutions and, in turn, their faculty. Regulatory requirements now range from providing annual training on stalking for disciplinary panel members to teaching the Constitution every year on September 17. Both state and federal governments show no fatigue in imposing their mandates on institutions. Taken separately, each initiative may have merit. Collectively, though, the requirements can become burdensome and impede scholarly work.

Looking Abroad and Ahead

The AAUP remains active in the United States and, increasingly, beyond. It collaborates often with the Canadian Association of University Teachers, and, in 2009, the two organizations jointly issued the Statement on Conditions of Employment at Overseas Campuses. Expansion of American institutions into authoritarian countries has received needed attention. Eventually the Association would do well to enlarge its international focus on conditions for academic freedom at colleges and universities unaffiliated with American higher education. The Scholars at Risk Network is among the groups already doing important international work on academic freedom. The professoriate in the United States appears to be unusual, perhaps even unique, in the world in often addressing academic freedom without paying equally vigorous attention to academic responsibility. In deeper international engagement and domestically, the AAUP would do well to link rights and responsibilities more explicitly.

Another worthwhile step would be to review national office staffing. Only 4.75 staff positions, including both senior program officer and administrative support positions, work on academic freedom as a core responsibility. Other staff members—including capable organizers, lawyers, researchers, and external relations experts—contribute to advancing academic freedom. Yet deep knowledge of the Association’s academic freedom policies and procedures, along with daily experience in providing direct assistance to individuals facing serious abridgment of their professional rights, is now confined in the national office to a very small group indeed. That small group manages investigations of potential academic freedom violations and also governance infractions. With 1.5 million faculty members nationwide, the founders would likely find the odds overwhelming, especially in an era of declining public support for higher education and dwindling opportunities for faculty to earn tenure.

A centennial is an occasion for celebration. Yet the willingness of individual faculty members to express controversial opinions may be declining, to the detriment of free inquiry and, ultimately, to the detriment of society. Fifty years ago, in his AAUP Bulletin article “The First Investigation,” Metzger described the AAUP as the academy’s constable, albeit only “lightly armed” with moral rather than legal authority. The continuing integrity of the Association’s positions and processes undergirds its moral authority. Only through evenhanded, vigorous application of its core principles will the Association retain its legitimate authority and advance its mission.

Ann H. Franke consults nationally on higher education policy and legal issues. She served as AAUP staff counsel from 1982 to 1997, as a trustee of the Association’s Academic Freedom Fund from 1997 to 2012, and, from 2011 to 2012, as chair of a subcommittee of Committee A on Academic Freedom and Tenure addressing the accommodation of faculty members who have disabilities.

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