‘Understanding Academic Freedom’

Henry Reichman’s new book is a product of his scholarship and his activism. Reichman, professor emeritus of history at California State University, East Bay, has previously published books on academic freedom and on censorship in the schools. He was also for the last nine years the chair of the American Association of University Professors’ Committee A on Academic Freedom and Tenure. His new book is Understanding Academic Freedom (Johns Hopkins University Press).

He responded via email to questions.

Q: There are lots of books about academic freedom. What is your purpose with this one?

A: In a review of my previous book The Future of Academic Freedom, Keith Whittington opined that it “should be read by every professor working in the United States” and that study of academic freedom should be “a core part of … professional training.” I was flattered, to be sure, but I wasn’t so certain that my collection of essays was necessarily the “invaluable entry point” Whittington suggested. I wanted to write something shorter, less topical, perhaps a bit more timeless than just timely, that could serve as a concise and accessible introduction to and survey of the topic, based on both historical and contemporary experience. In some respects Matthew Finkin’s and Robert Post’s 2009 book, For the Common Good, was a model, but not only is it a bit dated, it also fails to cover student academic freedom, a defense of tenure and, ironically, given that the authors are both law professors, the legal environment, each of which gets a chapter in Understanding Academic Freedom. It is my hope that college and university administrators, attorneys involved in higher education law, journalists, even politicians and, most of all, ordinary faculty members, tenure track and contingent, and graduate students will find the book a useful guide.

Q: You note in several places the decline in the percentage of academic workers who are tenured, but also say that in matters of academic freedom, it doesn’t matter if a professor has tenure. Why doesn’t it matter? Do you worry that drawing attention to that could undermine efforts to reverse the trends on tenure?

A: It’s not so much that tenure “doesn’t matter” than that contractual tenure is the strongest defense of academic freedom we have, both for those who can lay claim to it and, perhaps more importantly, for the faculty as a collective body. As the AAUP and the Association of American Colleges and Universities acknowledged in their 1970 interpretive comments on the 1940 joint Statement of Principles on Academic Freedom and Tenure, “Both the protection of academic freedom and the requirements of academic responsibility apply not only to the full-time probationary and the tenured teacher, but also to all others, such as part-time faculty and teaching assistants, who exercise teaching responsibilities.” The tenure system is based on the conviction that once instructors have not only obtained academic qualifications but have gained classroom experience sufficient to demonstrate competence and fitness for their positions, they should be entitled to a presumption of continuous appointment, with dismissal only for appropriate cause as determined by a due process hearing before a qualified faculty committee. As I pointed out in Understanding Academic Freedom, “the existence of a sufficiently large group of tenured faculty can ensure that dissenters and gadflies can have a community of supporters able to advocate on their behalf.” This can, I hope, help protect even part-time and untenured gadflies and dissenters. An institution that claims a commitment to academic freedom but does not embrace tenure is one whose claim will be much too readily abandoned.

Q: You write critically of Turning Point USA and its Professor Watchlist. Why isn’t that just another example of free speech?

A: In a sense, it is such an example. But just because people are free to say their piece doesn’t guarantee that what they have to say will be constructive. And it certainly doesn’t mean that such expression should itself remain immune from condemnation. As the AAUP’s 2004 Committee on National Security in a Time of Crisis noted, “private entities … are protected by the First Amendment from state censorship or sanction as long as they stay within lawful bounds. They are sheltered by the same freedom of expression that we seek for ourselves, and they are equally subject to public rebuke. Insofar as a particular professor might be thrust into the rough and tumble of the public arena, the law demands, as a prominent legal scholar once put it, a certain toughening of the mental hide. Such is the price of free speech.” I won’t dispute the First Amendment rights of these organizations, nor do I call for censorship or sanction against them.

I do, however, condemn efforts to intimidate or silence faculty members, and urge others to do so as well. Governing boards of colleges and universities have a responsibility to defend academic freedom and institutional autonomy, including to protect institutions from undue public interference, by resisting calls for the dismissal of faculty members and by condemning their targeted harassment and intimidation. The entire academic community should join the American Historical Association’s forthright 2017 call to “condemn in the strongest terms the creation, maintenance, and dissemination of blacklists and watchlists—through media (social and otherwise)—which identify specific individuals in ways that could lead to harassment and intimidation.”

Q: What have been the issues with academic freedom during the pandemic?

A: It’s become something of a cliché to point out how the pandemic experience brought to the fore problems already long festering in American society, including in higher education. I was honored to serve on the AAUP investigating committee that in May published a special report on COVID-19 and academic governance. While that report found “scant evidence that the governing boards and administrations of the investigated institutions terminated the services of the affected faculty members based on considerations that violated their academic freedom; nevertheless, the committee did encounter overwhelming evidence that tenure—and, thus, academic freedom—has faced a frontal assault at these institutions and many others in the wake of the pandemic.”

The renewed assault on tenure, initially justified by an alleged need for “flexibility” in the face of pandemic challenges, has now, like the pandemic itself, been politicized. What began in Kansas—where in early 2021 the state governing board approved a policy allowing for “emergency” terminations and suspensions of tenured positions—has now spread to Georgia, where, as a recent AAUP investigation concluded, newly adopted policies deny academic due process to tenured faculty members dismissed through posttenure review, essentially eviscerating the protections of tenure. In South Carolina, the Cancelling Professor Tenure Act seeks entirely to eliminate tenure in the state’s public colleges and universities for all employees hired in 2023 or later. And, of course, while not directly related to the pandemic, the chilling assault, including via legislation, on teaching and scholarship dealing with race and gender, epitomized by the “critical race theory” moral panic, has rendered the overall atmosphere for academic freedom as toxic as it has been at least since the McCarthy era, if not the early 20th century.

Q: Can you discuss the case of Amy Wax?

A: Wax is a professor of law at the University of Pennsylvania who has been widely condemned for public remarks that most people consider racist, including remarks about Penn students of color, although to my knowledge no direct evidence has yet been offered that she actually discriminates against any students. There have been calls for her dismissal, and her dean responded by prohibiting her from teaching mandatory first-year classes. Whittington called her case “a classic example of ‘extramural speech,’” noting that the argument against Wax is the same argument “that has been turned against professors who engage in racially inflammatory rhetoric that might make students think they would be judged by the color of their skin.” In his view, “professors are allowed to denigrate groups of people in such a way that students might fear that they will not be treated fairly in the classroom. Professors are not allowed to in fact treat students unfairly.” He has a point, but the standard by which we should judge professorial expression outside the classroom is how relevant that expression is to the faculty member’s fitness to perform instructional and other duties.

As I asked in Understanding Academic Freedom, “might it be argued that Wax’s repeated disparagement of minorities, including of minority students at Penn, creates a situation in which such students could genuinely expect she would not treat them fairly, even if evidence that she has actually discriminated remains inadequate? And could it therefore not be said that this might be relevant to her fitness to teach?” Frankly, I can’t answer definitively, and the real point of academic freedom and tenure is that providing an answer is not my role in the first place. If such questions are to be raised, the answers must come neither from an outsider like me nor from outraged students, much less the Penn administration, but from a qualified panel of legal scholars in a due process proceeding. As I concluded in my book, it should be “extremely difficult to dismiss a tenured faculty member for unfitness on the grounds that her extramural expression alone could create a classroom atmosphere so intimidating to the learning of some students that this implicates her fitness for the position. In principle, however, this is not inconceivable. Still, extreme caution must be exercised.”

Q: What should professors do to protect academic freedom on their campuses—when there isn’t an attack on a particular faculty member?

A: This is perhaps the most important question that the faculty today faces as a group. The old saying that “an ounce of prevention is worth a pound of cure” is certainly relevant. The best protections for academic freedom are institutional rules and regulations that comport with procedural recommendations developed by the AAUP, specify how and why an institution can properly terminate a faculty member’s service or impose discipline, and that provide for faculty tenure. It is the obligation of all who teach and conduct research in higher education to advocate for the adoption of such rules; educate themselves and others on their importance; and insist that administrators, trustees and politicians not only comply with and enforce them, but defend them.

A strong system of shared governance and, where possible, a strong and active faculty union (and a collective bargaining agreement that provides a basis for enforcing rules and regulations governing academic freedom) are critical vehicles. We are educators, but if we are to educate freely, we must educate ourselves, and not only about our disciplines but about the critical importance of academic freedom to the very mission of our institutions. I conclude Understanding Academic Freedom with a long quote from the AAUP’s 1956 investigation of the impact on academic freedom of that era’s anti-Communist hysteria, which includes these words that may provide the best answer to this question: “we deem it to be the duty of all elements in the academic community—faculty, trustees, officials and, as far as possible, students—to stand their ground firmly even while they seek, with patient understanding, to enlarge and deepen popular comprehension of the nature of academic institutions and of society’s dependence upon unimpaired intellectual freedom.”