Last December, I wrote an article for The Federalist entitled Oberlin College Did the Right Thing by Firing Joy Karega. There, I argued that the American Association of University Professors 1940 Statement of Principles on Academic Freedom and Tenure (hereafter, Statement) and 1970 Interpretative Comments (hereafter, Comments) contain contradictions that lead, in part, to confusion about the limits of academic freedom.

My article advocated for a measured approach to academic freedom that balances rights and privileges with duties. The Statement declares that when professors speak as citizens, they should be free from institutional censorship; however, their position as professors requires special obligations, including accuracy at all times, exercising appropriate restraint, showing respect for the opinions of others, and making every effort to indicate they are not speaking for the institution. These obligations are sometimes referred to as the responsibility standard.

Later in 1940, the AAUP adopted clarifying statements to the original statement. This clarification added that only when a college thinks a professor has not observed the admonitions on extramural utterances and that the expression has raised grave doubts about the teachers fitness can the administration act against the professor.

The 1970 Comments, adopted after a controversial faculty firing at the University of Illinois and a revised interpretation of extramural utterances by the AAUPs Committee A, assert that a faculty members expression cannot constitute grounds for dismissal unless it clearly demonstrates the faculty members unfitness for his or her position. The Comments also argue that extramural utterances rarely bear upon the faculty members fitness for his or her position.

In my view, the two statements create conflicting standards that leads to confusion for faculty, administrators, and practitioners, who use the AAUPs precedents and documents to determine what protected speech is and what it is not. I wrote in my article that the Comments created an additional, hard-to-satisfy standard for judging whether such speech affects a faculty members fitness for employment and that the newer standard gobbled up the special obligations in the Statement. The result of this contradiction has been a murky definition, at best, of academic freedom and the inconsistent application of academic freedom standards.

Within a few weeks, the AAUPs Academe blog published an article criticizing my conclusions entitled, On Extramural Expression: A Response to Jonathan Helwink. In his reply, Hank Reichman, AAUPs first vice president and a former history professor at California State University-East Bay, wrote that no contradiction exists between the Statement and the Comments.

While persuasive in parts, Reichmans argument overlooks two key points. First, he ignores the dramatic departure from previous AAUP precedent embodied in the Comments, examined well by the AAUPs John K. Wilson, whom Reichman relied upon for the historical context of his response. In Wilsons history, he argues the Comments were a radical new principle that rejected the notion of a common academic ethic that binds the behavior of professors, on and off campus.

Second, Reichman does not start his analysis at the beginning of the AAUPs precedent. It is important to view the Statement in light of the complete precedent that created it, the 1915 Declaration of Principles on Academic Freedom and Academic Tenure (hereafter, Declaration). In light of the Declarations approach to professors speech as citizens outside the classroom, the Statement tracks much more closely to the Declaration than the Comments do, including the insistence on standards of behavior regarding extramural utterances. When viewed in this larger historical context, the sweeping changes the Comments embody are indeed, as Wilson says, radical, and do, in fact, contradict prior AAUP precedent.

To begin his argument, Reichman points to the 1940 clarifying statement adopted in November 1940 after the Statement. Reichman affirms that in it the AAUP called attention to the special obligations of the Statement, but added an important caveat: the fundamental issue was not the special obligations, but instead fitness for position and that teachers are citizens with the freedom of citizens. (I will address this freedom of citizens issue in a future article.) If Reichman is correct when he asserts that the special obligations in the Statement were already being limited in the year of its adoption, then his interpretation should appear in subsequent applications of the Statement, including the case of Leo Koch, on which he relies. Unfortunately, the history does not bear out Reichmans conclusion.

In 1963, Thomas Emerson, a famous First Amendment scholar from Yale Law School, would lead AAUPs ad hoc investigative committee on the Koch case. Emerson concluded that when making extramural utterances, the Statements standard of academic responsibility was not a valid basis for discipline. In For the Common Good: Principles of American Academic Freedom (Yale University Press, 2012), Robert Post points out that Emersons conclusion was consistent with a recent AAUP investigation.

In 1956, an AAUP report entitled Academic Freedom and Tenure in the Quest for National Security concluded that removal of a faculty member could be justified only on the grounds, established by evidence, of unfitness to teach. The report seemed to imply that unless a professors extramural utterance evidenced an unfitness for research, teaching, or institutional citizenship, the faculty member could not be disciplined.

Despite Emersons efforts, however, Committee A did not agree. Instead, faithful to the language in the Statement, the committee agreed with the University of Illinois Urbana-Champaign Senate Committee on Academic Freedom, which concluded that a professor has the obligation to be accurate, to exercise appropriate restraints, and to show respect for the opinions of others. The Senate Committee added that academic freedom did not mean unlimited license in speech.

AAUPs Committee A also wrote that they disagreed with Emersons conclusion that the notion of academic responsibility, when the faculty member is speaking as a citizen, is intended to be an admonition rather than a standard for the application of discipline. In short, Committee A refused to give up the responsibility standard in the Statement, even though they found Kochs firing appalling.

The language Committee A and the UIUC Senate employed tracks closely to the language of the 1940 Statement, not the later clarifying statement. The conclusions regarding the facultys special obligations to be accurate, exercise restraint, and show respect for others is directly out of the Statement. The behavior of Committee A in this case shows that, despite what Reichman concludes about the clarifying statement, Committee A and the UIUC Senate enforced the understanding of extramural utterances as contained in the four corners of the Statement.

The Koch case was deeply controversial and had a profound effect on the AAUP, spurring major changes in AAUP policy. This history brings us to the 1964 Committee A Statement on Extramural Utterances. Reichman offers, and I agree, that the 1964 Statement is the foundation of the organizations current position on extramural utterances. However, where we disagree is whether current AAUP approach to extramural utterances conflicts with the 1940 Statement.

The 1964 Statement declared: The controlling principle is that a faculty members expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty members unfitness to serve. Adding: Extramural utterances rarely bear upon the faculty members fitness. The question remains whether this 1964 Statement is an evolution of the 1940 Statement, thereby creating no contradiction, or whether the 1964 Statement marks a radical break with precedent that culminates in the 1970 Comments.

John K. Wilsons article on the Koch case and its aftermath contains telling remarks on this issue. Wilson argues, correctly, that the Koch case forced the AAUP to review its guiding philosophies and precedents. As a result of this, Wilson states that the AAUP moved forward with a new approach to extramural utterances.

Furthermore, Wilson argues that, by 1964, the AAUP accepted a radical new principle on extramural utterances. (Emphasis added.) He continues that through the 1964 Statement, the AAUP unilaterally changed the meaning of the 1940 Statement in a dramatic way that had never been intended by the original drafters a quarter-century earlierand which Committee A had itself rejected only a year earlier in the Koch case.

Wilson continues that to get around potential enforcement of the Statement, Committee A simply redefined the terms of the Statement and added a new requirement and a new standard, which Wilson states was a nearly impossible standard to meet considering that Committee A had just declared that extramural utterances rarely have any connection to a professors fitness to serve.

Wilson and I agree that by the mid-1960s the AAUP had broken in a radical direction away from the Statement. By redefining terms and creating a nearly impossible standard to discipline faculty, the AAUP had decided against the measured approach of balancing the protection of extramural utterances with the special obligations of the Statement. The result was to create a brand new standard that, indeed, gobbled up the obligations in the 1940 Statement.

Wilson writes that from the Statement to the Comments was the most important turn in the AAUPs history with regard to academic freedom.

This brings me to the Comments. Wilson states that the AAUP, as a result of the Koch case and through a general desire to update the Statement, adopted an interpretation of it to allow the AAUP to update the languages meaning without the burden of getting a consensus for a new statement and its adoption. This decision was reached, in part, because the leading college and university associations were not interested in expanding academic freedom by addressing the responsibility standards contained in the Statement.

Wilson writes that the AAUP was sensitive to the danger of having the Statement abandoned or potentially replaced by something worse. In fact, the AAUPs success in getting the Statement into so many campus codes was now a barrier, Wilson writes, to the AAUP wanting to alter its fundamental model of academic freedom.

Wilson writes that from the Statement to the Comments was the most important turn in the AAUPs history with regard to academic freedom. Wilson concludes that the Comments were amendments to the Statement which nevertheless often transform all previous interpretations of the words or effectively nullify them altogether and, at times, are directly countering the 1940 Statement.

In light of Wilsons well-documented history, I fail to understand how Reichman could conclude that no contradiction could exist between the Statement and the Comments. It is unclear to me how this redefining of terms and radical new principle does not constitute a contradiction. In fact, I would go further than my previous work for The Federalist. Not only do I continue to find a contradiction between the 1940 Statement and Comments, but I view the 1964 Statement and the Comments, like Wilson, as radical departures from previous AAUP policy including the Statement and the venerated 1915 Declaration of Principles on Academic Freedom and Academic Tenure.

It is the principles enshrined in the 1915 Declaration that make it revered, not its age.

Interestingly, Wilson, whom I have extensively quoted above, identifies a worrying trend. He states, in another article for the Journal of Academic Freedom, AAUPs 1915 Declaration of Principles: Conservative and Radical, Visionary and Myopic, that while the Declaration is one of the most influential definitions of academic freedom that forms the foundation of AAUPs doctrines, the Declaration is largely forgotten within the AAUP. Wilson states that the Declaration remains beloved by conservatives, stating that for conservatives, its greatest virtue is, perhaps, its oldness.

As a historian, I can appreciate oldness. However, it is the principles enshrined in the 1915 Declaration that make it revered, not its age. Quoted in relevant part, the Declaration states: Since there are no rights without corresponding duties, the considerations heretofore set down with respect to the freedom of the academic teacher entail certain correlative obligations. This language provides the precedent for the special obligations of the Statement.

Regarding extramural utterances directly, the document states that teachers are under a peculiar obligation to avoid hasty, unverified, or exaggerated statements and to abstain from intemperate or sensational modes of expression. J. Peter Byrne, of Georgetown Law, wrote the committee that drafted the Declaration rejected any view that academic freedom implied an absolute right of free utterance for the individual faculty member. The Declaration continues:

It isin no sense the contention of this committee that academic freedom implies that individual teachers should be exempt from all restraints as to the matter or manner of their utterances, either within or without the universityIt is, in short, not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion, and of teaching, of the academic profession, that is asserted by this declaration of principles.

In sum, the Declaration created the foundational precedent that academic freedom is a consideration with an accompanying duty. Even while he is critical of an individual academic freedom and of the nexus between rights and duties the Declaration seems to create above, Harvard professor Frederick Schauer concludes that it is no error to believe that special legal rights, like academic freedom, may impose on the right-holder special non-legal responsibilities.

Larry Alexander of the University of San Diego School of Law, writes that academic freedom is a privilege of academics that carries with it a responsibility, namely, to act as academics, following truth wherever it leads, within the guidelines of the professors academic discipline.

The Declarations language can be tracked directly into the Statements special obligations of accuracy, restraint, and respect. The Declaration makes no mention of only pursuing discipline against a professor if grave doubts about the professors fitness is raised, nor does it contain the controlling principle of the 1964 Statement, nor does it state that extramural utterances rarely bear upon the faculty members fitness.

When viewed in the totality of their historical context, it is in fact the 1964 Statement and the 1970 Comments that are outside the AAUPs precedents.

When viewed in the totality of their historical context, it is in fact the 1964 Statement and the 1970 Comments that are outside the AAUPs precedents. The Declaration and the Statement advocate for a similar approach of measured academic freedom that balance the privileges of additional speech protections with accompanying duties. I think this is the preferred approach.

So, in conclusion, after evaluating the AAUPs precedents and Reichmans article, I still believe a contradiction exists between the Statement and the Comments. As a practitioner, I see the value of trying to rectify the difficult issues between the documents. I understand the desire, on the part of an administrator or legal counsel, to try to glue common ground between the two competing conceptions of academic freedom to enforce any standards to hold faculty accountable.

With that being said, there is still a disconnect in AAUP precedents that needs to be addressed. Nearly unlimited academic freedom, as advocated by Reichman, Wilson, and the current AAUP, damages the credibility of the institution and, in the words of Mark G. Yudof of Berkeley Law: If academic freedom is thought to include all that is desirable for academicians, it may come to mean quite little to policy makers and courts. Until the contradictions are resolved, academic freedom will remain, as Byrne wrote, a doctrine [that] floats in the law, picking up decisions as a hull does barnacles.

Jonathan Helwink is a history professor at a college in Chicago. He is also an attorney licensed to practice law in Illinois. His academic interests include the intersection of law, history, tradition, and contemporary politics in American higher education. Reach him at jhelwink@gmail.com.

More here:

No, Professors' Academic Freedom Should Not Be Virtually Unlimited - The Federalist