Panel on Academic Freedom feat. Richard Shweder and Adam Kissel
Richard Shweder is William Claude Reavis Distinguished Service Professor of Human Development at the University of Chicago. Adam Kissel, is Director, Individual Rights Defense Program at the Foundation for Individual Rights in Education. This panel was recorded on May 6, 2010 as part of a student-organized campus-wide Academic Freedom Symposium that was sponsored by (among others), the ACLU, ACS, and the Federalist Society.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: I'm also very pleased to introduce our speakers. Our first speaker, I will stop sending Professor Shweder who comes from a across the midway. He's the Harold H. Swift Distinguished Service Professor of Human Development at the University of Chicago. He received his PhD in Social Anthropology at Harvard in 1972. He taught a year at the University of Nairobi in Kenya and here since. He's a fellow at the American Academy of Arts and Sciences, and the author of Protecting Human Subjects and Preserving Academic Freedom. Our second speaker is Adam Kissel, who's the director of Individual Rights Defense Program, the foundation for individual rights in education. He graduated from Harvard and the University of Chicago, and we're pleased to have him back. While he was here, he served as the student liaison to the board of trustees and he earned a master's degree from the Committee on Social Thought. And before they begin, let me just make a pitch for some of the other terrific events we have scheduled for the rest of this week. This afternoon we have a conversation between the University President Zimmer and Geof Stone and Peter Schmidt from the Chronicle of Higher Education at 2:50, and at 4pm Professor Stanley Fish will be giving a talk. Both of those events are in the courtroom with other events scheduled throughout the week. And I also just like to think ACS, ACLU, the Federalist Society, the Dean of Students office, the President's office, and the Graduate Council for sponsoring these events. Thanks very much.
Richard Shweder: Well, I'm delighted to be here. There's a story about Rockefeller Chapel, that architectural and symbolic center of our academic community right across the street, which goes back to the years of Robert Maynard Hutchins who became President of the University of Chicago in 1929 at the startling age of 30, I might add. Rockefeller Chapel used to be open twenty-four hours a day; Hutchins ordered the building closed at night. When asked why, he remarked, "Unfortunately more souls have been conceived at Rockefeller Chapel than had been saved there." My brief remarks this afternoon are going to be a kind of reflection on the saving of academic souls in the hope that if we make some progress figuring out what academic freedom means and what it is really for in a community such as our own, which views itself one of the very greatest of free universities in the world, perhaps Bob Zimmer this afternoon will consider ordering Rockefeller Chapel open again at night.
Richard Shweder: Let me begin by juxtaposing the following two official University of Chicago discourses. The first the discourse from out of the dawn of the great American University, and the second the discourse which I associated with its twilight. The first discourse is from the University of Chicago Articles of Incorporation, bylaws and statutes, but it is the type of discourse one finds in several other official university documents. Simply and straightforwardly put it reads, quote, "The basic policies of the University of Chicago include complete freedom of research and the unrestricted dissemination of information." An example of the second discourse comes from a recent official communication from the University of Chicago Social and Behavioral Science Institutional Review Board to a faculty sponsor of a personally funded research project. Quote, "We regret to inform you that IRB approval of your research protocol has expired. Please note that research related activities including interaction with human subjects, data collection, and/or data analysis may not continue or be initiated until the IRB has approved the continuation of this research."
Richard Shweder: Now gratuitous restraints on inquiry of that type, in this case originating within the walls of the academy itself, and overextending the reach of restrictions tied specifically to federal research grants, extending it to all researchers even those who don't have or seek such funds, are just one sign of the Twilight. There are many others, and I'll mention a few as I go along, if only in passing. Although I hasten to add that in our disputatious academic community, not everyone agrees about what is the dawn and what is the twilight. As it turns out, some of the best of the discourse about the dawn at the University of Chicago actually originates with faculty in this Law School. Consider for example, this comment by Edward Levi delivered to the University of Chicago Citizens Board in 1967 while he was President of the University of Chicago. What is academic freedom for? Levi embraced the view that the primary aim of a great university is here, quoting Edward Shills, "improving the stock of hoarded knowledge and rational judgment." So Levi forthrightly told the Citizens Board something that I suspect many university presidents today would hesitate to say to members of their local nonacademic communities.
Richard Shweder: Levi announced that it's not the role of the university to serve the community in which it's embedded or to directly respond to the needs of the broader world of politics and commerce, or to be popular with the general public. Noting that we live in a time when "rational discussion itself is suspect" when "our society is fascinated with the manipulative techniques of persuasion, coercion, and power, and a time when the sense of injustice, which we all must prize, is subject to manipulation." Levi told the Citizens Board that first and foremost, "the university conceives of itself is dedicated to the power of the intellect. It's commitment is to the way of reason." Now, as you may have already noticed, Robert Maynard Hutchins always seems to loom large in the self consciousness of University of Chicago presidents and Levi went on to note that the University of Chicago stands quote, as Robert Hutchinson in perpetual agreement with Cardinal Newman, "that the object of the university is intellectual and not moral." One wonders how much agreement such views would gardner amongst students, faculty, and administrators at Chicago today.
Richard Shweder: So what is academic freedom for? Is it sufficient or even necessary to offer something like the Levi response that its aim is to increase the stock of hoarded knowledge and rational judgment? And to what extent can want to embrace a teleological answer to that question seeing academic freedom as a kind of excellence or virtue associated with communities and institutions that aim for the fullest realization of the scholars' trade rather than falling back on a more narrowly instrumental practical or economic answer to the question? To continue with the metaphor of the dawn and with my admiration for the contribution that Chicago Law School faculty to a particular conception of the nature of genuine academic institutions and the calling and associated duties. The document that makes me feel most proud to be a professor at the University of Chicago is an expansive, influential official policy statement about our community's conception of academic freedom.
Richard Shweder: It is parochially known as the Calvin Committee Report. The Calvin Committee Report was written in 1967 by a faculty committee that included the historian John Hope Franklin, the Noble Prize economist George Stigler, and faculty from all the academic divisions of the University. The committee was chaired by Harry Calvin Jr, who was at the time of professor in this Law School. Calvin was a Socratic eminence and a brilliant stylist who wrote a seminal book called A Worthy Tradition: Freedom of Speech in America, a book I highly recommend to all of you. The document identifies two fundamental and interconnected qualities of academically free institutions, namely the traditions that support the autonomy of voice of faculty and students, and the ideal of institutional neutrality. The two notions are interconnected as we'll see in a moment. The Calvin Committee report has been influential enough to have been the basis for three highly visible refusals of the University of Chicago administration to engage in social and political action in the face of calls to condemn the war in Vietnam, to divest endowment funds from companies doing business in South Africa, and more recently in Darfur, and thus the report has been debated by social activists who very much want to be able to associate the University of Chicago name and the prestige associated with the community as a scholarly community with moral, social, or political causes of some sort or another.
Richard Shweder: Significantly, the Calvin Committee Report describes a fundamental aim of the University of Chicago is follows, "a university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it's the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upset." In the service of that mission and of that worthy tradition the report points to those to two closely linked traditions: institutional neutrality and faculty and student autonomy. The university as an institution has cautioned against taking any collective stance on the social and political issues of the day in part because there is no intellectually defensible process "by which it can reach a collective position without inhibiting the full freedom of dissent on which it thrives." In other words, the university as an institution refrains from social, political and moral posturing out of respect for the autonomy of its faculty and students who in a sense have a duty to be autonomous in their judgments and especially out of respect for those individuals in a disputatious academic community who may embrace an unpopular or politically incorrect point of view.
Richard Shweder: Indeed, by way of contrast, bring to your mind those private educational institutions that are proprietary in the sense discussed by Robert Post in his stimulating essay, Instructor of Academic Freedom, where the university does take a collective institutional stance on matters of varied sorts and it's the duty of members of the community, perhaps even part of their implicit or explicit work contract, to support the collective stance and where faculty might be sanctioned or even fired for voicing heterodox opinions either inside or outside their institutions. Yet another fact member of your faculty, Geof Stone, who was a former provost of the university, recently invoked the Calvin Committee report and the principal of student and faculty autonomy and institutional neutrality to defend the University of Chicago's Darfur decision. And this, despite the fact that as a student, he himself had strong, morally motivated feelings that as did I at the time, about the importance of getting our universities to condemn the war in Vietnam.
Richard Shweder: Geof described the Darfur decision in the following terms. "What the Calvin Report forbids, our decisions of the university designed expressly or symbolically to proclaim right moral, political, or social positions. Lawyers know all about slippery slopes. If the university divest from Darfur than others will surely insist that the university must divest from corporations that manufacture cigarettes perform abortions, sell arms to Israel, and pollute the environment. Of course there are degrees of right and wrong than degrees of evil, but it is not the role of the university to take positions on such questions. Indeed, the university should no more divest on the basis of these sorts of issues than it should prohibit students and faculty from speaking freely on campus in support of tobacco subsidies, the moral legitimacy of murdering abortionists, the right of Palestinians to destroy Israel, or even the morality of genocide."
Richard Shweder: Geof Stone goes on to conclude his reflection, which appeared on the University of Chicago Law School blog on February 9, 2007 by noting "the role of the university is not to decide such questions, but to create a nurturing environment in which we made freely and openly debate them without fearing that the university has already resolved them on our behalf." He might just as well have said in effect by means of the provocative indignation arising examples he introduced he did say it. In brief, a good university like Socrates will be upsetting. I'd like to believe that is what the concept of viewpoint diversity at institutions of higher learning is meant to be about. It's a concept that has been used to justify various policies associated with affirmative action where the application has always seemed remote to me and seems like a cover story offered to to a Court that will not accept historical discrimination against groups as a ground for remediation or benign discrimination.
Richard Shweder: Yet, I'm encouraged to think that the following comment by Justice Roberts in Parents Involved in Community Schools versus Seattle School District Number One may suggest that academic freedom may be a longterm legal beneficiary of the viewpoint diversity strategy associated with affirmative action, and I'd like to Roberts from that decision very quickly. He writes, "Prior to Gruder, the courts of appeals rejected as unconstitutional attempts to implement race based assignment plans such as the plans that issue here in primary and secondary schools. After Gruder, however, the two courts of appeals in these cases and one other found that race based assignments were permissible at the elementary and secondary level largely in reliance on Gruder. In upholding the admissions planning Gruder, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of "the expansive freedoms of speech and thought associated with the university environment," universities occupies a special niche
Richard Shweder: in our constitutional tradition. The Court explained that context matters in applying strict scrutiny and repeatedly noted that it was addressing the use of race in the context of higher education. The Court in Gruder expressly articulated key limitations on its holdings, defining a specific type of broad based diversity and noting the unique context of higher education." So here we have ironically a way in which the viewpoint diversity argument that was advanced to support affirmative action may in the long run be a little wedge into a constitutional tradition that may actually see institutions of higher learning as special context with special kinds of protections for viewpoint diversity.
Richard Shweder: The ideal of viewpoint diversity in a disputatious community in which the community exists primarily to promote the scholars' trade and cultivate conditions that favor critical reason and the autonomy of voice of students and faculty is, in my view, part of that discourse of the dawn. Yet, even right here and now while quoting my former Provost, I find myself wondering how many members of the faculties, student bodies, and administrations of the great universities of the United States would actively or even passively support an institutional environment that protected debates and conversations of the type Geof listed. Just think of Larry Summers who gave the talk in a private setting where he was encouraged to be provocative and gave a speech that red light many talks I have witnessed at the freewheeling rational choice workshop at the University of Chicago and he ultimately was made to apologize by Harvard University. The academic freedom ideals, autonomy of voice and institutional neutrality, are extraordinarily difficult to uphold.
Richard Shweder: There are many forces in our contemporary society both inside and outside the academy that threatened the principles of student and faculty autonomy and institutional neutrality. Increasingly timid, cowed, and restrained and economically pressed universities of America, and I don't just have in mind the Patriot Act or attempts to control what is done in the Middle Eastern area centers. Those who love Calvin's report in principle don't always love it in practice. For example, when they want the university or the office of the president to take a collective stance and of their own favorite social or political cause or to efficiently celebrate their own cultural or activist heroes. And not everyone loves the report even in principle, for example, one finds some members of one's own academic community arguing as do some politicians in Washington and bureaucrats in the once revealingly and appropriately named Office of Compliance that freely conducting research is a kind of indulgence or a favor and certainly not a natural or constitutional right.
Richard Shweder: Although as I suggested, perhaps the Roberts Court will pull a special constitutional protection for speech and thought in the context of higher education out of the affirmative action hat. In fact, there are many in the academy these days who believed that any student or faculty member who talks to human beings as part of their research, in fact should it be required to have his or her project approved in advance by an institutional licensing board in part to guarantee, especially in the social sciences and humanities, but also in some forms of biomedical research, that no one asked questions that are too upsetting to some. Deep and difficult questions about the foundations of free inquiry might certainly be raised and debated in this context. Such questions is whether academic freedom is a natural right having its source in some transcendental good or in something you want to desire because it's inherently good or a constitutional right, having a source in some kind of a prenumbra or extension of the first amendment of the US Constitution and amendment, which never mentions academic freedom per se and applies only to acts of Congress abridging freedom of speech or the press, or whether it's a positive right, having it source and the legal instruments that incorporate and empower an institution to be an authentic academic institution, enhanced faithful to the mission of a genuine university or center of higher learning.
Richard Shweder: Of course, the different aspects of the way of life you and I associated with the free university may have different sources. When a wealthy patron or member of the board of trustees of a private institution instructs the President of that institution to make sure that a controversial or politically annoying junior faculty member is not retained on the faculty, the first protections of the US Constitution and not going to be very helpful in defense of academic freedom. The relevance of that famous speech amendment as far greater and presumably will be decisive. If Congress ever passed a law requiring social science faculty members at private universities to submit their course readings and research proposals for content review by a committee of the Congress. But one feels less sure what would happen in a court of law if that hypothesis, federal statute simply conditioned the receipt of sought after federal funds on such a review, but never required researchers at private universities to apply for those funds. And what if the content review came from one's own board of trustees or from the censorious demands and judgments of organized groups of peers who favor restrictions on viewpoint diversity but were prone to put fear in the hearts of timid faculty and students who might then prefer to censor themselves and avoid discussing or researching politically and socially sensitive topics.
Richard Shweder: rather than risk being accused of racism, sexism, antisemitism, homophobia, or neocolonialism. The very fact that such questions about the justification and basis for academic freedom even get raised may just be one more sign of the times. It does not help matters that many of us find ourselves to be surprisingly inarticulate and it a bit of a loss trying to answer the question, what is academic freedom for? It is noteworthy that the most readily persuasive defense that comes to mind is some kind of instrumental appeal to the collective material benefits, whether in the areas of technology, health, economics, or energy that derived from discoveries and inventions originating within the walls of the academy, demonstrating that the social and economic benefits of academic freedom are great and far outweigh the costs to society as a great achievement, and here I hail Jonathan Cole, his recently published book on that topic titled, The Great American University.
Richard Shweder: I've used such a showing, however, as a functional or practical account of the promote part, unintended even as beneficial consequences of the establishment of free universities and not necessarily as an account or at least not a complete account of what academic freedom is for. Aren't we able to say more about the telos of academic freedom and of our intellectual motives? I have much more I'd like to say I'm mindful of the time, so I'm just going to stop. If we have time during question and answer period, I'd like to read you a comment by Felix Frankfurter, which I think is probably one of the better comments on what academic freedom is for, delivered in a case in which Paul Sweezy was prosecuted for refusing to tell the state of New Hampshire what he lectured on and the lecture at the University of New Hampshire, but in any case, I'm going to stop and let Adam have the floor and leave some time for questions. Thank you very much.
Adam Kissel: I'm aware of the time too. I'll try not to go over too much so that we do have some time for questions. As Americans, we must always remember that we all have a common enemy. An enemy that is common, powerful, and relentless. I refer of course to the federal government. Said Dave Barry in an article, a humoristic type several years ago. A Marquette University Phd students put this quotation on his door and he was told by the University that is patently offensive. You have to take that off your door. "That's patently offensive." You may know, right? That's what you'd like to say about pornography. It's that bad. We deal with cases like that all the time. At fire Foundation for Individual Rights in Education, we've been around for 10 years defending the first amendment rights of students and faculty members and academic freedom as the Supreme Court set a special concern as the first amendment. It's not only a constitutional right, but it's also a professional right or a professional privilege that academics give a to one another, they earn it, and they'd give it and that gives you some additional responsibilities and some additional privileges that you may not have.
Adam Kissel: In fact, you don't have almost any other employment contract, but listen to these stories about academic freedom. Brandeis 2007: a Professor in 47 years is explaining the origin of the term "wetback," and the origins of the term 100 years ago, it often had a positive connotation. People were proud of making it into the United States from Mexico either because of the sweat on their backs or being wet and proud of it. For later generations, this became a connotation of the word that few people have. Some people still have a positive connotation for it. Most people saw the negative connotation for it. This Professor had been teaching Latin American politics relevant to the course and he was reported by a couple of students who felt guilty of discriminatory harassment and the associate provost was put in his class and his other class for the rest of the semester until he learned his lesson to make sure he wouldn't discriminatorily harass another student. 2007 Tufts University, the primary source student, a conservative newspaper during Islamic Awareness Week prints a bunch of facts about Islam such as the following of Salman Rushdie, such as the age of Mohammed's second wife probably being about nine years old. Things that were not things that everyone on campus wanted to know or hear about, especially during Islamic Awareness Week. The primary source was found guilty of racial harassment for printing this one page flyer.
Adam Kissel: In it's publication. IOPUY, not that far away, a student was reading a book. It was called Notre Dame versus the Klan, and it had pictures of Klansmen on the cover but it was an antiquarian book. It's about how Notre Dame students beat up Klansmen in the 1920s. Guilty of racial harassment. But now 2009 affirmative action bake sale. Do you know what that is? You sell different items, different prices to parody affirmative action. You say the white male student only has to pay for a whole dollar where the black female student only has to pay seventy five cents. This is kind of a conservative version of what you might see as a wage gap bake sale where you're drawing attention in a parody kind of way to the opposite kind of phenomenon where women make on average less than men in different fields. So the woman only has to pay seventy eight cents or whatever it is, you know, in each generation compared to what the man has to pay for the same donut.
Adam Kissel: Right? So the Dean of Students says affirmative action is not a topic that you can discuss in the public areas of the campus. That's too sensitive a topic; shuts down the bake sale. Grand Valley State University, 2009, in order to become a professor of a trombone or a professional instrument, you have to prove that you have a demonstrated commitment to the principles of diversity. What that means in the world of trombone or flute, particularly to a trombone player, so maybe it means jazz and classical, other kinds of. Well obviously not right, but that's the kind of ideological requirement we start to see more and more. Virginia Tech, 2009 in order to be qualified for merit raises, tenure, or promotion you had to show "diversity accomplishments." And they had a big list of the different things that counted as diversity accomplishments and the president and the provost
Adam Kissel: year after year saying you really have to show them in order to deserve a promotion or tenure. Social work schools, education schools, many other schools say that if you don't have the right dispositions, you're not qualified professionally to be in our profession. If you don't have the right social justice, views, values, dispositions, you're not going to be a good teacher or a good social worker. You've got to go. And so some people actually get expelled because of their sincerely held beliefs such as at Eastern Michigan or Missouri State two social work schools were a conservative student was opposed to homosexual behavior and didn't think that the right thing to do was to promote it, but she, they both were very willing to refer clients to other people, following social work protocols, didn't matter. One was expelled and the other had to go into a six hour hearing where she had to prove that she was good enough to be a social worker.
Adam Kissel: Some law school cases. Harvard Law, some people I think know about Harvard law case from just this past week or two. A student in a private email several months ago, says I'm not 100 percent sure that there's no correlation between race and intelligence. Her fellow student holds onto this email for several months and then releases it to the world maybe a week ago, and the Dean of the Law School sends out a campus-wide message saying how awful it is that someone in her private thoughts can express them in an email had this idea that she wasn't 100 percent sure. We can talk about that more if you want to. 1999 in Columbia Law, a professor gives a hypothetical example question based in part on several cases. In the example, there's a woman who says that she was grateful for the criminal assault against her because it resulted in a miscarriage that she was glad to have.
Adam Kissel: It's awful, awful situation, but that's the way the exact question went. Students complained. The professor was investigated for sex discrimination. The Dean said, yeah, that maybe isn't protected speech, but then we got involved and then the dean said, well, okay. Yeah, so it is protected by academic freedom to ask an exam question about something that really happened or putting different things that really happened together into an exam question. A case that you should know as law students Lyle v. Warner Brothers in the ninth circuit, 2006. The special educational context of being a professor means that you sign up to hear things that you don't like. It means that you sign up to be provoked and offended; to have every question on the table. To have your identity challenged, to have someone come up to you and say, well, why are you an atheist anyway?
Adam Kissel: Why are you a Christian anyway? Maybe in a more friendly way than I just said. To challenge Everything about the deepest beliefs and values that you have. You sign up for it. Lyle v. Warner Brothers is an interesting case because it was a secretary on the show Friends for the writers, and she was told ahead of time what "we're signing up to actually transcribe and to kind of record the notes and you're going to hear all kinds of sexual banter and no holes barred that's what the Friends writers do." Well after she got fired for a completely different reason than she thought she got fired, she sued for sex discrimination among other things for hostile environment. Well guess what? She signed up for the environment that she was in. Same thing if you're a professor and say you're at the med school and you have to talk about body parts and anatomy all the time, or if you're in Law School and you have to talk about real bad things that actually happened to real people, or you're in the Gender Studies Department and the thing that you're supposed to do all the time is talk about sex or sexuality or gender. So the rules that apply to you are different than if you say operating a forklift or if you worked at Wendy's, so the protections for you as an academic.
Adam Kissel: You should read what the Court said. in Lyle v. Warner Brothers. It really helps you understand what's going on for academic freedom or something special that you deserve because of the kind of work that you do as a professor or as a student. I have some more cases to talk about. Churchill several years ago wrote an essay that the people who died in the World Trade Center were little Eichmanns, that they kind of deserved it. That they were part of an American system that made people hate America, and so if anybody could be killed, I guess, you know, maybe. He got into all kinds of trouble for this essay. He was investigated, and the university eventually found that he had done some things unrelated to that essay, plagiarized, and he was fired from University of Colorado. He went to court: but for my essay, I would not have been investigated.
Adam Kissel: But for that essay, the people who finally voted on the final word that made sure that I would really be expelled that I got fired. But for that essay, they would have voted the other way and let him stay. And he had a very good lawyer and the lawyer persuaded the jury that even though he had plagiarized multiple times, it was wrong for the University to investigate him in the first place. And I agree with that. Bill Ayres in Wyoming. Anyone know who Bill Ayers is? So very controversial. Yes, exactly. Tell the president of UIC that here's somebody that doesn't deserve to be on a college or university campus lecturing the students or other faculty members. Tell them to folks in Nebraska or Wyoming or at Boston College, all kinds of places where somehow he's not supposed to be allowed to speak. Death threats get called in. The community organizes against the professor.
Adam Kissel: The president of the university puts pressure on the sponsor of the event to say, you know, maybe the responsible thing to do is to revisit your invitation to that person and sometimes the event gets canceled. Fortunately, the same lawyer for Churchill defended Bill Ayres in Wyoming just a week ago. And it came out that the real reason of course, that the president of the university put pressure on the sponsors of Bill Ayers to cancel the event was because the donor was going to withhold $2,000,000, which would have meant 4 million because of matching money. And that didn't matter of course, that all the Republican gubernatorial candidates and spoke out against it and the governor has spoken out against it and people were calling in veiled threats. The judge looks at all those so called threats and said none of those are really true threats.
Adam Kissel: So the event can go on and even if some of them were somewhat real is not, is it not the duty of government to protect its citizens and protect their right to speak and not let the hecklers detail. We're now over freedom of expression. So cases from the right cases, from the left cases in the center of these might be examples. So cases from the center. 2009 Boden College down east, a professor wrote a paper comparing 25 universities on the amount of denigration to the academic program because of athletics, and his research maybe conveniently showed that Boden came out number 25 out of 25 and the university didn't like it. And he got charged with harassment, hostile work environment, failure to cite, plagiarism, and misuse of research subjects. Everything ended up being dropped except failure to cite which was a pretty minor thing they finally found to get them on, but they did have it on their site.
Adam Kissel: Here's a better one. Action University, a private university that supports "Judeo-Christian values," the school a few years before this event got $100,000 from a donor to pursue objectivist scholarship, and then the professor, one of the two professors who did the research on objectivism was denied tenure and they, the university said, you know, it was very difficult to win a case when you say, well, they just denied me tenure because of my ideology. Well, in this case they said explicitly it was because of his objectivist writings. Well, the school had accepted $100,000 to support his objectivist writings. It didn't help him. There are many more examples of this which you can find a in FIRE's Guide to Free Speech on Campus, free online or you can sign up and ask for one. A set of cases from the AAUP, the American Association of University Professors.
Adam Kissel: It's called For the Common Good. Matt was going be on this program, but for some reason couldn't come. And Robert Post now you know, the dean at Yale Law, so lots of more cases. You can even get a DVD with all of the decisions of the AAUP not from the constitutional point of view, but from the professional point of view about what academic freedom is and how you manage it in different threats to it. So that's all I want to say about academic freedom in practice. We'll do a real quick review of academic freedom in theory and now have a couple of minutes to talk about University of Chicago. So I did mention that there is a constitutional right versus a professional right, which has its own kind of responsibility associated with it. Maybe the AAUP or this other book is the best place to go. The way [inaudible] and Post describe it,
Adam Kissel: they kind of demarcated into four ways of having academic freedom, freedom to learn, freedom to teach, and then freedom to express yourself either within the university or as a private citizen. And they have different ideas about what kinds of things you do in that mode and then what kinds of protections you might get. And then from a law school or from legal point of view, an interesting question is, so how much difference do you give to the university to guide those different kinds of activities? Should it be different if the university wants to punish you for saying I didn't get a raise if I know I should have gotten or I deserve two weeks of vacation time more than I get. It's kind of a different question from the university punished me for publishing this paper. Kind of a different question from the University of published punish me because I had a bunch of students complained that I was hurting them in class.
Adam Kissel: So interesting ways to think about it. So that set of modes I think is good. This other book, liberty and learning, you might look into academic freedom for teachers and students. He just out there kind of spreads it out into a different set of categories that there's institutional, academic freedom. And then there's departmental academic freedom. And then there's the individual professors academic freedom, in other words, who gets to decide what English 101 has in it? Well, if that's the department and then you're the professor teaching English 101, and they say every English 101 has to have Shakespeare in it, it probably doesn't violate your academic freedom, especially if you're on the committee that has to vote on it or you come into that committee knowing what the 101 course is. But if the department doesn't say what the rules are and you get pretty much get to teach what you want, they trust you as a professor. They have hired you, and then the student has his or her own academic freedom, different for different age ranges.
Adam Kissel: If you're an adult in college, you have all the same racism adult. Then parents and community members might have some role here to. According to this author, very little. So the one quick thing before we go to the University of Chicago, if you don't know the Gar study case about punishing people for protected speech in the course of their professional duties. This was someone who was not in an educational context, but the Supreme Court said it's okay to punish him because what he was doing was part of his employment work and so his speech was part of his employment work, and therefore it was okay to punish him. A footnote: this may not apply to college professors. So we still have yet to have any good result on that. We will leave it to another time and then lower court summer.
Adam Kissel: They said, well, this doesn't find professors, others not, and I think they're probably looking at the details of each case, wanting it to turn out a certain way and they decide whether or not. So University of Chicago, the Calvin Report. Is there anybody here who can go to the website at sustainability.uchicago.edu? Or you go to the Reg and just as you're about to push open the door, you see "Please don't open the door. We're committed to sustainability here. Go through the, what do you call that? Revolving door." They're committed to sustainable dining. We're committed to ... what else are we committed to?
Adam Kissel: Well, you can look it up. We ran out of time, but University of Chicago is committed to a lot of things that seems to violate the Calvin Report principles. Fostering environment free from racism, sexism, ageism, and so on might sound like a good thing. Is that worse than genocide in Darfur? I don't know, but the university has decided. Should there be benefits to same sex partners, medical benefits? The university has to decide some questions like that. It's got to be either yes or no, so in some cases the university has to make a decision and take a side and the university has decided on the side of giving those benefits, but suppose there was a pressure group saying, well, "You definitely need to do that because of our social goals" or "you definitely don't need to be doing that." That's when I think the university would want to step into and say,
Adam Kissel: "The reason we're doing it or not doing it is not because some pressure group is trying to make us do it. We're doing it because we genuinely think that this is even the most free or the right thing to do." So how do those kinds of questions go? How far is the University of Chicago willing to go with affirmative action or with sustainability before it crosses that kind of Calvin report line is a really interesting question. Most people when they think about sustainability and think about the environment, but when you actually talked to sustainability advocates, they say, no, there's a political agenda to it. There is a social agenda to it. There's an economic agenda to it. The University of Chicago hasn't embraced that agenda yet, but they're about this close away from. So if that becomes part of the official university mission, what does that do for protecting when already views people who don't actually go along with that agenda? Oh, so final thing, we will have 10 minutes for questions. Uh, I think, um, my favorite example of the University of Chicago Academic Freedom is President Hodgkins before the State of Illinois' version of the unAmerican Activities Committee defending his own professors against the state of Illinois legislators saying what about
Adam Kissel: all your communist sympathizing professors? And he says, well, you know, you shouldn't be coming to me. You should be going to the trustees because they ultimately run the university, don't they? So if you want to get me in trouble, how about all the leading men of Illinois. Want to get them? Try to come after us. That kind of shut them up. So not completely, but it does a pretty good job. All right. That's all I have to say. We'll have 10 minutes for questions. I'll do questions. Mr. Fish?
Question One: I will be speaking to most of these issues and so I thought I'd just touch on three points that I think it is specifically addressing. One of them is the citation of the specific case which Roberts' uses the phrase "special niche." Well that's a phrase that first turns up in 1967 in the first case in which academic freedom is mentioned.
Question One: The interesting thing about the idea that there is a special niche is that it's never defined in all of the cases that followed, and indeed it's a feature of the law of higher education, which is one of the courses I teach at Florida International University, that whenever, courts will decide cases that come before from colleges and universities on grounds other than education. That is they will turn cases into total cases or into employment cases, a orange one or two incorporation cases. So then it's a feature of the law that the law is reluctant or unwilling and thinks itself in some to some extent, uh, unable to consider matters of education because the law does not know what higher education is. That as a parallel in the establishment clause pieces where the court does not know what religion is, says an extraordinary number of stupid things. That's point
Question One: one, don't put too much faith. Your faith, I think, Richard isn't going to pan out. The second thing is do not ever invoke Larry Summers as a sympathetic figure. The thing about Larry Summers, he wasn't fired. Actually, he resigned. He wasn't told that he was going to resign because he made several remarks about women and their capacity for science or because he told Cornell West not to make rap videos, etc. He was fired because he was lousy at his job, and one part of his job was not to be provocative. Being provocative is what like us are paid to do, but once you become a senior administrator, provocativeness or provocativity is not supposed to be one of your accomplishments. You think about it. If you're on a search committee, and I've been on a search committee for presidents of universities on both sides of the tape. If you're on a search committee, one of the question is not asked of you is "How many constituencies will you offend?"
Question One: Well, that seems to be the question that Larry Summers thought that he should be continually asking and answering with a large number of constituencies. That guy was just lousy at his job. And he brought publicity of the wrong kind to university when you have the New York times my for roasting you over the coals for six months because of what you, uh, your conversation with Cornell West, it's not good for the university. And the third thing goes to what Adam was talking about, his initial example. What's wrong with that, Dave Berris thing being put on the door or someone's office is not that it's offensive, but that is political and it doesn't belong there. The faculty member's office is an extension of the senior construction: students who walk through the door or look at what's on the bulletin board should in no way feel that they are passing into a space in which certain contested political views, normative and others are, are less than. So, If I were dean, as I once was it dean surprising though that may be, if I were deam that sign would have been done in an instant, not because it offended anybody, but because it was a political statement and didn't belong there.
Adam Kissel: If you don't know, Professor Fish has a book, Save the World on Your Own Time. It expresses this view in detail, although I strongly disagree with it, but there's something to be said for the difference between indoctrination and expressing your political views. We see people on the right especially saying the professor went beyond their bounds because they promoted their social agenda instead of actually teaching. And I'm very sympathetic to that and to the extent that those questions come from the other side too. I'm sympathetic to that. But to say, well, I was actually at Harvard during the Larry Summers thing and to say that a professor or a president needs to leave his prejudices at home is kind of the new thing for today's multicultural postmodern academy. I'm not exactly sure why that's suddenly become new yet it certainly invoked when somebody is provocative on the wrong side.
Adam Kissel: When someone is told, well, if you provoke any constituency that's loud enough to make a big stink in the New York Times, then well, I guess you shouldn't have said it. And so the question is, who gets to decide what the community values of the university are? Is it the loudest people? Is it the people who are most easily offended? Or is it the people who say that let everybody provoke and offend and let the devil sort them out right?
Question One: Harvard Board of Governors couldn't care less about the opinions, what they didn't like was a president who was continually getting in the news for the wrong reasons.
Adam Kissel: Well, it was not only that. What you and I agree about is that it was not about the comments he made at the NBER, but his overall leadership and management styles and maybe also his ability to run the finances at the school too. But and so that those things can be debated.
Adam Kissel: But what you can't say is that a president needs to hide and not offend anybody or not have provocative views. Now, President Zimmer might also disagree with me because, uh, in his statement on academic freedom recently, he also said something like, he wouldn't do what Hutchins did. Hutchins was too far out there. But I would suppose that anybody who's up to the challenge of being provocative and actually willing to defend itself like Larry Summers totally wasn't, should be out there saying under every constituency that's willing to be offended, uh, so long as they're willing to listen to our academic ability. Oh, the bully lectern is very important. As the president of Dartmouth said, on a great piece on the bully lectern. The president has a special role in American society to express his opinions given the authority and privilege of his office. But we can take this up later.
Richard Shweder: But just very quickly, if I might, I thought those were all pertinent points. I think I agree with about two and a half of them. The Roberts' decision, I was struck when I saw that mentioned at all, it, it, it's, it's a very thin read. Whether it goes anywhere I think is totally open question. Although I was a little encouraged by the formulation. I don't disagree with your assessment, nor do I disagree with the idea of having faculty announcing their political views on their doors. It strikes me that that is a problem. Summers, however, I think you're right. Summers had managed to dis everybody in sight, and I was at a meeting with them and when she started by saying I'm really happy to be with people on the softer side of the social sciences offending a whole bunch, but I'm gonna take off my president's hat and put on my faculty cap. So he thought he could wear two hats. He thought he could just say, now I'm talking as a faculty, not as president, and I think that to get them in trouble. However, the way in which that speech was treated in the press and widely was essentially an attempt to shame him for having those views. And it seems to me that that moved away in a different drive. That's why only two and a half agree. There are a lot of the questions.
Question Two: So this is a Professor Shweder. So how do you reconcile this notion of student and faculty autonomy with the idea that in the hypothetical abesnce of an IRB that faculty research can impose externalities upon human subjects?
Richard Shweder: How do I reconcile it?
Question Two: How do reconcile these two? It doesn't seem...
Richard Shweder: Well, there are two things. The, the, the um, the IRB. Let me just very quickly say something about the IRB system and the way it's evolved. Um, there is no doubt that universities must, if they're going to accept, well actually the rule is if the, if the federal government is allowed to give money to an institution that's not a government institution, they have to demonstrate that that institution has some kind of concern for ethical review or else they can't give the money. So it's sort of like the funding agencies are the ones who were bound by regulations that come out of Congress. The institutions themselves, however, are not under any requirement to use the IRB apparatus for reviewing research that's not federally funded. It's only federal grants that, that where that's required. So for example, the University of Chicago in a second could decide that when a student is going off to do thesis research, that the thesis committee at the time of the proposal hearing had a review of the ethical issues that were involved and certified that they thought this was acceptable.
Richard Shweder: The University of Chicago, however, has not done that. Instead, they've decided that everybody should have to go to the IRB apparatus which abides by rules that are for federal grants and which essentially defines itself as a permission granting institution. Okay. Now the real problem is that, um, various aspects of the faculty's relationship to the University of Chicago, both statutes and other ways, does not allow the institution to tell you cease and desist from research with no cause. Okay? Of course, if people go ahead and do things that harm people in their research, there's recourse that people have if they are harmed. I mean, they can sue in various ways. And with, with various, you know, there's minimal medical malpractice insurance. I'm prepared to buy Socratic research insurance. I mean, if you think that, you know, asking people questions is going to do the kind of harm in which you are liable to a lawsuit such insurance could be made available.
Richard Shweder: I expect it would be very inexpensive since the number of cases in the social science and humanities in which law cases as a result from harm's done is very low. Moreover, it's not at all clear that I IRB review protects anybody. I mean, what's happening now is that prosecutors are simply listing the IRB as part of the suit for even letting someone go ahead and do the research. So, I mean there's a lot of ways to. I'm not suggesting that there's a license to do things that are harmful to people, but the notion of harm in the social science and humanities has become quite expansive. And every review board has a different set of personnel, and people have notions about what kinds of questions they wouldn't like to be asked that they think are embarrassing or they think are offensive. And they end up sending things back on those kinds of grounds. And that's one of the many ways I think it's become a problem.
Question Three: This question is for Professor Shweder as well. So I haven't read the Calvin report, but I'm curious as to how it negotiates between the idea that divestment is a political statement but investment is not, and it seems to me that you really have a question about what's neutral in that situation. And it could either be a statement that says, you know, investment in this particular area, whatever the area of controversy may be is okay or more like acceptable or it could be that, you know, it's another sort of statement that says investment should be taken. You know, those sorts of decisions are to be made on economic grounds alone and not, not involve any moral consideration, but It seems like it must be one of those two things. And those are both sort of positive positions that the university has taken.
Richard Shweder: And I think that probably the investment part of the University of Chicago board believe it's their responsibility to do the best they can to support the University through their investments. And that if they're investing in things that are legal, um, there's not much more to say that their decisions should be based on economic considerations and return and risk and so forth, and that, uh, starting to make moral judgments about what those companies do involves all the problems that the report suggests. I think that's probably the position they would take. I do think there's a distinction to be made between running your own community, where of course, I mean we are a moral community. We are a moral community, however, in which the central moral goal is supporting disputatious engagement between members of the community. So as the Calvin Committee Report points out, we are community in the very thinnest of senses.
Richard Shweder: Okay. We're not a club. We're not a lobby. We are a community of disputatious students and faculty trying to increase the stock of knowledge and engage in rational discourse. And so there are certainlY legitimate moral judgments to be made, for example, about who should be in that conversation. So I don't think there's any problem to be said when the university says we're not discriminating on the basis of gender who can be a student here, and that is we're going to enlarge the community of disputatious scholars and we think it's irrelevant what your race is, what your ethnicity is, what your gender is, and those kinds of judgments certaInly are judgments, substantive moral judgments, but they are judgements that have a direct bearing on running ourselves as that kind of community. I also think lots of disturbing issues arise, for example, you know, if, if you take to an extreme or the logical extreme, if you follow the argument where it leads, which was Frankfurter says about universities, that should be the main goal - an environment in which people follow the argument where it leads.
Richard Shweder: This argument I think probably leads to a position that there's something antithetical to the nature of this community when people try to organize themselves as collectivities or groups and influence policy as members of x, y, or z status. That we should be a community of individuals, not organizations with agendas. And just as the professor who announces their political position is a problem, so to, you know, x kinds of students who have now a lobby and they thInk they have a position that the university should somehow give authority to because they're organized. It seems to me that runs against the tradition I'm talking about. And the bigger problem of course is that viewpoint diversity is not something that's going to fly very well in the broader community. That there's a way in which cloistering is an important part of academic environments that are going to have this kind of robust dispute going on because if the general population actually knew the kinds of conversations that went on at universities, they would be appalled. And, and what we've done now through technology and our commitment to freedom of the press is we have a eroded the wall around the university now.
Richard Shweder: It's as though everything is out there in the public. And that's a real problem for academic freedom. It seems to me there really was something to. There is something to secrecy. There is something to having a circle of people who really are free and can trust each other to follow the argument where it leads, even if it's going to rub against people's political, social sensibilities. And we're faced with that as a big problem. I'm less worried about the government right now than I am about some combination of the economic demands on administrators to always be able to support the university, and hence have research problems defined by where the money is. And um, and secondly, by what can I say I think there's a way in which accusations of sexism, racism, antisemitism, homophobia have done a lot to chill the environment and to create fears that make people self sensor. And that's not healthy for the environment we're talking about.
Adam Kissel: I think I agree with that whole thing. Do I have time?
Host: You have time to respond but we're going to have to wrap up.
Adam Kissel: Sorry to the people who have questions. We can go outside and ask more. You don't have to go to Leo Strauss' ultimate secrecy, kind of secret text to still sometimes say what you need to say and sometimes not say it. You could go to the Jonathan Swift, right? You can be a great ironist. There's this great part of A Tale of the Tub where the book seller says, "I didn't understand that book that I published in any way." There was this element; the thing especially is [inaudible], let it be given to the worthiest. He especially didn't know these words. Let it be given to the worthiest. The bookseller says, I had to ask the curator, you know what it meant, and then I went around asking everyone kind of liked the way Socrates did. Do you think this means you that you were the worthiest? They'll say, yes, it probably does. And so there's a way to write to do the work of the academy in a language of the academy that kind of helps save the academy from some of the problems between town and gown. Okay. That's all we have time to talk about.
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