Friday, September 29, 2017

How should a Dean who understands academic freedom respond to public controversy about faculty writing?

So we know from the unhappy example of Dean Ferruolo throwing a faculty member under the bus what not to do:  you don't publish a statement on the homepage of the school singling out a faculty member's work, declare that not only do you, as Dean, disagree with it, but suggest that these are pariah views in "our law school community", and imply that the offending views may implicate "racial discrimination" and persecution of the "vulnerable" and "marginalized."  Making an obligatory reference to academic freedom in passing does not undo the damage that this decanal misconduct causes. 

The job of administrators is not to share their opinions about the views of members of the faculty, but to administer a university environment in which faculty and students may express points of view that do not otherwise violate anti-discrimination, sexual harassment or other laws.  (The silly op-ed did not violate any applicable law obviously).  So one obvious, and preferable, option would have been for the Dean to make no public statement at all.  He could have met with concerned student groups, and educated them about academic freedom and reaffirmed institutional policies about equal opportunity.  If a Dean makes any public statement in the context of such a controversy, it should not include any comment on a faculty member's views; it would suffice, for example, to simply reaffirm the institution's commitment to equal opportunity for all students and the like.

The Kalven Report got it exactly right fifty years ago, and all administrators ought to read and think about it.  The university sponsors critics, it is not itself a critic or advocate (except for that narrow range of issues central to the university's function).   A Dean, or other university administrator, forfeits his academic freedom upon becoming Dean--in part, because Deaning is not a scholarly enterprise but an administrative one, and academic freedom exists only to protect the scholarly pursuit of truth.  As an administrator, the Dean's job is to protect academic freedom and protect an environment in which faculty and students can express their views in the appropriate fora, such as the classroom, scholarship, and sometimes in the public sphere.   In order to preserve a community of open and vigorous debate, the Dean must not lend his authority to one side or the other.   That there is an uproar about a faculty member's scholarship or op-ed does not mean the Dean must speak out, except perhaps to educate people about what a university is and what academic freedom is and why it matters.

Recall two of the cases I discussed in my piece for the Chronicle of Higher Education last March:
  • In 2011, my University of Chicago colleague, John Mearsheimer, an eminent scholar of international politics, blurbed a book about Zionist ideology written by Gilad Atzmon, a former Israeli soldier and rabid anti-Zionist frequently accused of anti-Semitism because of his polemical excesses. The usual suspects — from Alan Dershowitz to Jeffrey Goldberg at The Atlantic — denounced Mearsheimer in the mass media, and he defended himself, persuasively in my view, in Foreign Policy. During the entire affair, the University of Chicago was silent, making no comment about any of it. A couple of years later, Professor Mearsheimer, a popular teacher, was the featured lecturer at an event for admitted undergraduates — signaling, appropriately, his stature as a teacher and scholar at the university.
  • In 2012, Steven Landsburg, an economics professor at the University of Rochester, came to the defense of Rush Limbaugh’s vicious attack on a Georgetown University student who testified before Congress about the importance of access to birth control. Landsburg is a serial provocateur against decency and good sense. Joel Seligman — the university’s president and a former law professor, though an expert in securities not Constitutional law — subsequently issued a strongly worded rebuke: "Professor Landsburg has the right to express his views under our university’s deep commitment to academic freedom. … I also have the right to express my views. I am outraged that any professor would demean a student in this fashion."

 Chicago got this right, and Rochester got it wrong.  As I wrote:

Failing marks here go to Seligman, Rochester’s president. He, wrongly, invoked his own academic freedom to condemn remarks made by a member of the university’s faculty. But academic freedom does not protect the speech of administrators in their administrative capacities, nor should it: Administrators are not charged with applying disciplinary expertise to discover the truth, they are charged with administering, including sustaining an academic environment in which faculty can pursue knowledge without fear of censure.

Indeed, a federal appeals court has even ruled that a public college did not violate academic freedom by removing a professor from his administrative post (as chair) because of inflammatory speech he made off campus. (The professor did retain his tenured position on the faculty.) The trustees at Rochester would have been well within their rights to remove the president for publicly humiliating a faculty member who had engaged in protected speech. Had they done so, Seligman would have had no defense on academic-freedom grounds.

The same goes for the USD Dean, not to mention the Texas A&M Chancellor (another law professor!) who mishandled the fake controversy about a member of his faculty several moonths ago.  Administrators who feel the need to criticize the views of members of their faculty should step down from their administrative post and rejoin the faculty, where they may again speak freely, as, for example, several Penn professors have done regarding the silly op-ed.

http://leiterlawschool.typepad.com/leiter/2017/09/how-should-a-dean-who-understands-academic-freedom-respond-to-public-controversy-about-faculty-writi.html

Faculty News, Jurisprudence, Of Academic Interest, Professional Advice | Permalink