Why Boards Can’t Ignore Academic Freedom

By Pamela J. Bernard, Thomas A. Gottschalk, and Robert M. O'Neil    //    Volume 19,  Number 4   //    July/August 2011

“Academic freedom is too important to leave solely to academics,” Alison Bernstein, vice president at the Ford Foundation, declared as a challenge to 10 board members and a like number of general counsels, who recently met to consider how to better protect and advance academic freedom—and to preserve the institutional autonomy of colleges and universities.

The meeting reconfirmed that boards have a key, and increasingly important, role to play in sustaining academic freedom on campuses across the nation. Board members must have a sound understanding of this fundamental and essential principle of higher education—as well as be prepared to develop the appropriate policies and practices to support it.

Two of us, Pamela J. Bernard and Thomas A. Gottschalk, were participants in that meeting, and one of us, Robert M. O’Neil, organized and directed it. The meeting brought together leadership from the Association of Governing Boards (AGB) and the National Association of College and University Attorneys (NACUA) under the sponsorship of the Ford Foundation’s Difficult Dialogues Initiative and guided by the Thomas Jefferson Center for the Protection of Free Expression.

Why Board Support is Vital

Higher education serves important societal interests by assuring through respect for academic freedom that faculty members may pursue new ideas or concepts in their research, teaching, and publications. Faculty members should be free to explore and expand the perimeters of existing knowledge without being stymied by prevailing orthodoxies or precluded by controversies that their work may engender. Academic freedom creates an environment where innovation flourishes and new knowledge is acquired in every field of study. It assures that students will benefit from hearing competing and often dissenting viewpoints, as they sharpen their own analytical skills to determine for themselves which points are well supported and which are not.

Of course, academic freedom is not a license for faculty members to do whatever they please. Academic freedom carries with it obligations of scholarship, integrity, and professionalism which, if dishonored, may warrant some form of academic or institutional sanction, as normally prescribed in institutional policies and procedures. Faculty members may always be held accountable within the institution for neglect of their responsibilities, incompetence, and other failings. Where is the line to be drawn between legitimate intellectual inquiry and debate—which should be protected under academic freedom—and academic misconduct, which deserves sanction? And, who is to decide?

It is such questions that implicate institutional autonomy—the freedom of a college or university to regulate its own affairs free from external mandates or pressures—along with academic freedom. Academic freedom protects institutions themselves from improper intrusions into their mission of teaching, research, and scholarship. Too frequently, we see colleges or universities criticized for allowing controversial speakers, political debates, or artistic performances or exhibits (especially when sex or religion is involved). External organizations may mount pressure campaigns to ban speakers or performers, governmental units may threaten financial support or changes in administration and board membership, and donors may seek to recoup or restrict gifts based on their displeasure over campus events.

It is especially when such external threats arise that it becomes very clear why governing boards need to be prepared to help their institutions deal with them in ways that uphold and reinforce academic freedom. Without strong backing from their boards, administrations may not have the stamina or power to ensure that the core values of rigorous free debate and inquiry are sustained.

In AGB’s “Governing in the Public Interest” statement released more than a decade ago, board members are expressly encouraged to endorse the principle that “intellectual integrity and academic freedom are at the heart of the historic social justification for self-governance in colleges and universities.” In Effective Governing Boards (AGB Press, 2010), AGB stresses among the core responsibilities of board members the need to “preserve and protect institutional autonomy and academic freedom.”

Quite simply, trustees, administrators, and students, as well as faculty members, all share a common interest in assuring understanding and respect for the principles of academic freedom and institutional autonomy within higher education. But boards must fulfill the ultimate responsibility for defending and protecting the academic institution against a host of adverse forces, both on the campus and beyond.

While the gravest and usually the most-sensational attacks on academic freedom are externally initiated, trustees must also be mindful that it can be subverted by forces on the campus as well. The assault could come, for example, from an administration seeking to silence a professor whose views create issues with a donor, or a faculty group that wants to quiet the voice of a scholar with unorthodox views, or even students who—yielding to their own political correctness—want to silence, rather than debate or protest, a speaker with whom they disagree and whom they disrespect.

Wherever the threat may arise, the college or university must be prepared. And it is the ultimate responsibility of the board to ensure that the administration and faculty have the policies and procedures in place to deal effectively with such threats when they do materialize.

At our meeting of board members and campus counsel where Alison Bernstein delivered her challenge, the day-long discussion focused on how boards and institutional lawyers can work better together to support academic freedom. A number of important points were identified that could help make such a collaboration effective. We will summarize the group’s recommendations of most relevance to board members.

Key Points for Board Members

Periodic board orientation about academic freedom is essential.

One of our central premises—held by both the trustees and the lawyers alike—was the urgency of devoting greater attention to academic freedom in orienting new board members and updating continuing trustees. Given the priority of more immediate tasks—reviewing (and often paring) budgets, approving construction and facility needs, raising funds, and dealing with curricular review and accreditation, and more—we could understand how academic freedom briefings could be repeatedly deferred. Yet, as a group, we were unanimous in our view that slighting such an emphasis would directly undermine a board’s ability to deal with time-sensitive academic freedom issues when they arise.

We shared two imperatives underscored by AGB President Richard D. Legon: the special value of providing such orientation for new board members, especially those who come from institutions that might be less familiar with such matters, and the concomitant value of going beyond initial orientation to provide regular (at least annual) updates on vital legal issues, ideally led by university counsel. Legon suggested that board members might be expected to sign an annual recommitment statement that included a reference to academic freedom and the trustees’ role in upholding it on their campus.

Faculty members themselves require education about academic freedom.

Reflecting Alison Bernstein’s view that “academic freedom is too important to be left solely to academics,” we recognized a corollary need to make college and university scholars and teachers more conscious that “academic freedom” is not a shield from accountability or misconduct. Beyond service on college committees or accreditation teams, many professors probably feel little need to reflect thoughtfully on what academic freedom is and is not until a crisis looms close to home.

Ironic though it may seem to urge that a board member or university counsel take on the task of “educating” faculties about principles that might seem obvious to them, this is an area that has been largely neglected and now needs greater attention. A generation ago, three quarters or more of professors at most institutions were either tenured or on a tenure track. Today less than half hold such positions, while the numbers of contingent faculty are steadily growing. Moreover, most professors will complete their careers without encountering a challenge to their academic freedom, so there is a tendency to give it a low priority as “an issue for others, but not for me.”

Hence, there is real value in reaching out to help orient campus faculties—working, for example, through faculty senates and other governance groups. While the orientation is not the job of a governing board, it is a legitimate expectation for the board to have of the administration and faculty leaders. University counsel should play a key role in helping faculty members understand more about how academic freedom works in a variety of contexts, and how the particular policies and procedures of their universities may apply in those situations.

The distinction between academic freedom and freedom of speech should be better understood.

The often confusing (indeed baffling) distinction between academic freedom and free speech recurrently entered our discussion. The two related principles overlap but are not at all identical, even though some people, including many faculty members and students, may assume they are equivalent.

Academic freedom does not protect the right to say demonstrably foolish and unsupportable things free from consequence at private or public institutions. Free speech, however, constrains the government from imposing restraints on the speech of any citizen, no matter how foolish it is. At the same time, a private university may be constrained by academic-freedom values from disciplining a professor who espouses unorthodox or unpopular views, but as a non-governmental actor the private university is not bound by the Free Speech clause.

Jonathan R. Alger, senior vice president and general counsel at Rutgers University, explained that the gradual emergence of academic freedom as a guiding principle began in the early 20th century—mainly at the major independent institutions, but also at a few public pioneers like the University of Wisconsin. Much later, courts began to frame corollary precepts of free speech and inquiry, starting by invalidating intrusive loyalty oaths and disclaimers and hostile legislative inquiries. Not until the late 1960s did the Supreme Court declare that public employees, including state college professors, enjoyed even partial First Amendment protection for speech on matters of public concern. Today the strength of such safeguards has been compromised by judicial indifference to the need to protect public employee expression.

Obviously, the contrast between academic freedom and First Amendment free speech is a complex and evolving topic, greatly influenced by court decisions. It would be good for campus lawyers to work with board members and campus representatives regularly to keep abreast of the legal distinctions between the two principles as new situations arise and new judicial opinions are issued. That is particularly true today with sweeping investigative demands from governments and private litigants for faculty research and, worse, faculty e-mail messages related to topics on which political, religious, and social passions run high.

Better information about academic freedom is becoming available.

At the beginning of our discussion, we became aware of the shortage of current and useful materials on academic freedom issues. Thus, in preparation for our meeting, two such contributions were written: An “Academic Freedom Primer” by former senior counsel of the American Association of University Professors (AAUP) and consultant Ann Franke, and “A Guide to Academic Freedom” by Frederick P. Schaffer, general counsel of The City University of New York. (See box above.) After a curious drought of materials for non-lawyers, including board members, who would like to know more about academic freedom issues, those new offerings go far to help fill the gap. Even campus lawyers, experienced in the intricacies of academic freedom, have welcomed more focused analyses of the subject.

Likewise, several trustees noted the immense potential of guiding boards through a set of plausible (if often hypothetical) case studies that anticipate potential academic freedom issues in advance of an actual or imminent crisis. Such advance preparation, and the particular medium of cases for discussion, have occasionally been useful in the past, and seemed to offer far broader potential for the future.

Board policies should balance safety and security with academic freedom.

At several points during our discussion, participants cited recent incidents in which controversial speakers like Ward Churchill and William Ayers had been denied a platform not on the basis of their disfavored political views, but rather because of what the university perceived was a serious and demonstrable threat to campus safety and security. (Churchill is an ethnic-studies professor at the University of Colorado who compared victims of the September 11th terrorist attacks to the Nazi war criminal Adolf Eichmann, and Ayers is an education professor at the University of Illinois at Chicago who was a leader of the Weathermen group during the Vietnam era and who was convicted of a violent crime relating to that activity.)

While most higher-education institutions have faced such threats with relative equanimity pursuant to well-established policies on handling risks to outside speakers, others have been less prepared. Board members and lawyers at the meeting agreed on the importance of establishing and publicizing policies that respect First Amendment guarantees (in the case of public institutions) and academic freedom for a controversial visitor—thereby enhancing the true character of higher education as a place of broad inquiry and exchange.

Trustees should be prepared to serve as sounding boards for presidents or chancellors who face an imminent controversy and should stand behind them if the decision is made to allow—with appropriate security of course—potentially heated discussions to occur, notwithstanding the risk.

International issues concerning academic freedom are emerging.

Several trustees and lawyers took note of the burgeoning importance of global academic issues. Well beyond traditional opportunities—such as overseas study and student-faculty exchanges across borders and even continents—boards are increasingly facing novel challenges in extending learning (in both traditional and electronic formats) to vast new populations. With the growing prospect of new programs and even campuses in China, India, Indonesia, Singapore, and other heretofore remote regions, the need for board and legal attention to governance, operational, and legal challenges is acute at many of the American colleges and universities engaged in such globalization.

Each nation will view free speech and academic freedom issues through its own lens—even Canada, so closely comparable to the United States in many ways, defines free speech differently. During the weeks when we prepared for the meeting, a spate of unprecedented uprisings, even revolutions, in the Middle East radically altered expectations of human rights and liberties in several countries, while other nations watched nervously to see if this tide of discontent would reach their shores.

What speech will be protected on university campuses in countries experiencing such actual or potential upheavals? How will their American partners, owners, or sponsors react if certain speech is forbidden or punished? Does academic freedom apply to those distant campuses? Or perhaps there are precepts that still support free inquiry and debate that better serve scholars in those countries than the invocation of what we in this country call academic freedom.

Again, this topic is just emerging and is one that boards of institutions involved in overseas campuses should be prepared to deal with, relying on guidance provided by those with appropriate expertise. Board members and college lawyers will have to be aware of the potential for international issues involving academic freedom to arise.

Although emphasis of the Ford Foundation’s initiatives on academic freedom came initially from a letter to campus presidents, the commitment of trustees and university lawyers powerfully reinforces the efforts of faculty members and administrators in their embrace of free inquiry and institutional autonomy. Professors need to sustain and enhance understanding of free inquiry, institutional autonomy, and due process. But, as Alison Bernstein cautioned, they clearly need help from two other quarters. That’s where AGB and NACUA, and their unique collaboration, enter the picture—and where board members at campuses across the country, working closely with their legal counsel, have important responsibilities to carry out.

How Maryland’s Regents Addressed “Porn” on Campus

The line between acceptable free speech and obscenity can be so hard to define that it famously drove Supreme Court Justice Potter Stewart to utter the words “I know it when I see it” in reference to obscenity. Members of the board of regents for the University System of Maryland didn’t need to see it to know that Pirates II: Stagnetti’s Revenge, a XXX-rated film, was a movie that they didn’t particularly want playing on the flagship College Park campus. What they should (and could) do about it was another matter altogether.

The trouble began in April 2009 when students decided to show the movie on campus. A member of the Maryland General Assembly subsequently threatened to cut off the institution’s funding, and the brouhaha prompted the administration to cancel the screening, thus driving students to protest that their First Amendment rights were being violated. The funding threat proved moot, but a proviso was added to the state’s operating budget requiring the 11 colleges and universities within the state system to submit a written pornography policy.

Then things really got sticky. “We realized that this was very controversial,” said Clifford M. Kendall, chairman of the board of regents, looking back on the events with the wisdom of two years’ hindsight. While Kendall personally was opposed to the showing of the film, as were many of his fellow regents, it was immediately apparent that the decision wasn’t going to be as easy as simply imposing their own preferences as university policy.

The regents consulted with the University of Virginia’s Thomas Jefferson Center for the Protection of Free Expression, which provided assistance pro bono, as well as with their own attorneys. They learned, among other things, that no other institution in the country had an obscenity policy and that porn is very, very difficult to define. Their conclusion? No policy would be forthcoming.

“There were two really compelling things,” said Kendall. “If we put a policy in place, one, we’d have to administer it, and that would be an enormous amount of work,” meaning that any film shown on campus—even a Disney cartoon—would have to be reviewed for appropriateness. The second concern, he said, was “If you put in a policy, you will probably be sued for restricting free speech, and you will lose.”

In the end, the regents defied the order and refused to submit the policy. Instead, said Linda Clement, vice president for student affairs at the University of Maryland at College Park, the university “came up with the notion of pairing controversy with educational opportunity.” Noting that politically charged movies can be just as polarizing as porn (for instance, a film taking on the Israeli-Palestinian conflict drew a sharply divided audience), Clement said all potentially controversial films are now shown in conjunction with a faculty panel to discuss the merits of the case, as it were.

“It’s an ongoing struggle between freedom, and civility and good taste,” said Clement, who worked with the regents to develop their non-policy policy. “It was a very useful exercise for them. It’s been a good outcome.”

—By Julie Bourbon

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