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The Professional Freedom of the Academic, or The Secret People of Colorado, Who Have Not Spoken Yet

It's notable that in the discussion of the fate of Ward Churchill, a University of Colorado professor who believes that those who died in the Twin Towers were "little Eichmanns" deserving their deaths, no easily-traceable left-right distinction exists. Indeed, while they vary in the degrees that they excoriate his views, none of the following blogging profs support Churchill's removal:

  • Eugene Volokh: "His article reveals him to be a depraved person"... but "[i]f the Ward Churchills of the world are fired for their speech, disgusting as it is, that would be a perfect precedent for left-wing faculties and administrations to fire right-wing professors for much less offensive statements."
  • Professor Bainbridge: "[T]he man is an ass..." but "I take a rather expansive view of the First Amendment. As one of those rare conservatives in the academy.... [I]t is in my self-interest to insist that tenure and academic freedom must be protected."
  • Glenn Reynolds: Echoing Volokh, but commenting on the "hothouse" in the left-wing academy that can produce Churchills.
  • Prof. Kevin Jon Heller of the Yin Blog: Noting that "To say [Churchill's statement] is a stupid comment is an understatement." Nevertheless, Churchill is "a tenured professor and one of the most important scholars of Native American history and politics in the US, if not the world," and "[Republicans] simply want to make an example of a scholar who has consistently criticized the US government's genocidal treatment of Native Americans." (His post mainly criticizes Republicans for attacking academic freedom.)
  • Prof. Brian Leiter: Asks "Will Academic Freedom Survive at the University of Colorado?" (and responds that it probably will, as Churchill is unlikely to get fired)

On the other hand, most of those attacking academic freedom come from outside the academy. (To pick only two links. Writing on the Summers controversy, Judge Posner makes comments critical of the idea of academic freedom, but he's not directly addressed Churchill.) To those familiar with my general attitude towards self-selecting professionalism, there will be no surprise in finding that I side with the latter. Respect between scholars and a wide degree of tolerance in academic discourse undoubtedly contributes to the generation and dissemination of knowledge. But those of us outside the academy--or even those of us who are merely students--should wonder why a principle must be so unwavering that it shields one who glories in the death of his countrymen.

(For the moment, leave aside the First Amendment/state action problems of firing him. I'm speaking here of the normative argument against academic freedom absolutism. Suffice it to say that were the conceptual barrier breached, the First Amendment problems are workable.)

For Conservatives, This Is No Aegis
While I can see the case of the conservative professors, best put by Volokh, one would hope that academics have enough faith in their fellows to distinguish between Churchill's ranting and a legitimate dispute about views. What makes the rant in question intolerable is not that the author makes equivalences between American actions that may have caused death in the Middle East, or questions the root causes of 9/11. What makes it intolerable is its hateful dismissal of the dead, individuals that Churchill has never met and is singularly unqualified to judge. Even if the subject of the discourse is within scholarly debate (no matter how I may disagree with it), certainly the content of the rant is unbecoming a servant of the state.

But of course, the attitude that brings one to "academic freedom" is not one of service to the state, it's an attitude of professionalism. Just as in the legal profession many of the protections the profession guarantees the public have an uncanny way of enriching lawyers, so in professional academia professional norms have a tendency to ensure a comfortable position for academics.

In the meantime, if this academic freedom is so good for conservatives, why do so few conservatives actually enjoy that freedom? After all, one must actually become tenured before one enjoys Ward Churchill's liberty. Is it really better for conservatives that while a few are sheltered within the ivory towers, the rest of conservatism must muster its forces outside the castle walls? (Indeed, as much as I distrust this Ohio provision, I can't say I'm surprised by it, and agree, it should be considered a shot across the bow.)

This is not to say that academics should be dismissed for their views, particularly their views within their academic speciality. And indeed, academic dialogue can and should get heated. But what good does it do the scholarly community to say that there are no limits to what can be said without sanction? After all, if the ostensible purpose for academic freedom is that it benefits the public, isn't there some interest in convincing the public that they're receiving value?

Walls Protect the Academy, But They Beg For Siege
Here, of course, lies the rub. Whatever the intrinsic value of knowledge, most of those who support universities focus upon their instrumental benefits: college education helps in getting a job, providing for doctors and other skilled professionals, or developing nifty new bits of technology. These goals aren't particularly furthered through subsidies towards those who would demonize the dead. Indeed, humanities departments--which tend to be much more politically polarized--do not always inspire such universal good feeling.

Far from protecting conservative academics, such tolerance for the Churchills of the world may end up harming them. Given the vast difference in political affiliation between the majority of academics and the population at large, every sputtering about "little Eichmanns" may cause those who speak without protection of academic freedom to wonder why they are subsidizing protection for those who are antithetical to their views. (Indeed, consider the rather patronizing tone of some academic bloggers, especially towards "red state" citizens.) But if the academy does shrink, under the current paradigm one doubts this will favor the right.

Good reason thus exists for the University of Colorado to find some way to deal with Churchill, and for conservatives to support them. Certainly there are constitutional arguments (firing Churchill might well amount to "state action"), and there are the self-imposed constraints of tenure and his contract. As much as some will quote Voltaire and his defense of free speech, the immediate counterargument is that merely because Churchill can speak does not mean that his speech must be paid for.

To the extent that the calls for Churchill's removal are political, they are the very type of politics to which one should listen: a movement founded in a deep and visceral feeling that something wrong is being defended by a group who claim a privilege for the benefit of all. The taxpayers of Colorado may easily decide that if the University cannot eliminate that which is a discredit to the state and the institution, the state does not need quite so much university after all.

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Comments

As a Coloradan, thought I'd chime in. And while I don't think very much of my home state, I certainly take some umbrage at the suggestion that we might take higher education so unseriously as to cancel the University because we don't like what one American Indian scholar's political opinions are. (Although there are days when I suspect that they might actually do that, as well as revoking funding for any school that teaches evolution. Certainly my eighteen years provided enough examples to give me pause, but we couldn't possibly... unless... no. No, we wouldn't. I insist.) Are you taking Monaghan's First Amendment class? The old Holmes bit "a police officer may have the constitutional right to express his opinions, but he does not have a constitutional right to be a police officer" has been pretty well left by the wayside. Yes, it's state action, and if you fire someone because you don't like his political opinions---even if they're demonstrably foolish---one, you're an ass, and second, if you're the government, you're violating 1A. "But what good does it do the scholarly community to say that there are no limits to what can be said without sanction?" Well, there _are_ limits to what can be said without sanction; if one's words constitute a fraud or conspiracy or whatnot, there's that. But beyond that---do you want to be in the business of drawing that line? The "good" that you are pretending---I'm taking you seriously enough to imagine you're only pretending---not to see is quite simply that: Without an absolutist approach, citizens could not perfectly foresee what would and would not land them in trouble, and speech we would not want to discourage would get chilled. Neither would it be an especially easy task for lawmakers to decide what should retain protection, and you can only imagine what terrible committee sessions you'd see on _that_ issue whenever it came up for the next year. And you don't understand the point of academic freedom. Yes, it benefits the public. But it's an individual right, as well, as is any aspect of freedom of conscience. The Framers in their ultimate (and too-often ignored) wisdom decided that the benefit to the majority of being able to suppress objectionable ideas was far too slight to justify the grievous injury felt by the object of censorship, but that the political math wouldn't serve this calculation very well, and thus we have very broad no-skin-off-your-back protections in this country. This is not a particularly obscure point. Nor is it a sufficient understanding of the university to treat it like a mere job-training center. That's a self-evident oversight. Look, as I got tired of reminding people during the Larry Summers blowup, universities are fragile places; the commitment to free debate and the competition of ideas is not something made inevitable by the marketplace, nor is it something often served by a political system that caters to the cause-du-jour. You've seen, I trust, the distressing data on how many American teenagers think the First Amendment goes "too far"? You've seen the protest groups objecting that "Million Dollar Baby" would dare to have a message? You recall the chairperson of her department at Harvard so afflicted with an idea that it made her either barf or black out? You remember the letter writers who took umbrage at Bruce Springsteen having political opinions? It is no new trend to see the popular oppression of unorthodox views through collective disapproval. The obligation of serious people in this is clear: Whatever you conclude about the subject matter, the right to think what you think is this country is under attack by a multitude of very small people in this country, and also worth defending. Freedom of conscience is not in serious trouble of disappearing in this country; let's concede that right away. But that doesn't mean that serious and thoughtful people don't still have the obligation to support it; it does come under attack, yahooism being still the dominant civic religion in this country, and those attacks do lessen the concept of free thought, if not so much that we should worry about the knock at the door.
Uh... sorry. It really wasn't my intention to do that three times. Any way to delete the extra?
Oh my god. Is it just me, or was that one of the most incoherent and internally inconsistent pieces of writing ever written by an academic. What, do they just hand out tenured positions these days?
TtP: After having deleted the triple posting (and reminded myself of the multitude of the self-inflicted errors I have to correct to improve performance on this site), I'll take the above one-by-one: I certainly take some umbrage at the suggestion that we might take higher education so unseriously as to cancel the University because we don't like what one American Indian scholar's political opinions are. Umbrage you may take, when you find someone who made that suggestion. Cancelling a university would indeed be preposterous. Reducing its funding--say by the amount of a Native American Studies Department, or at least a principle scholar?--is a whole different ballgame, and would be politically viable. Perhaps you think that characterizing a university in an instrumentalist fashion is simplistic, but let us merely say that whoever is correct, such characterization is not bad politics. But if you find someone proposing that the University of Colorado be shut down wholesale, please do take your umbrage there. Yes, it's state action, and if you fire someone because you don't like his political opinions---even if they're demonstrably foolish---one, you're an ass, and second, if you're the government, you're violating 1A. But as already pointed out, the problem isn't his political views: it's a lack of decency with the way he expressed them. The question is not "shall some views on policy be excluded" but "are there minimum standards of decency we think should be upheld." It is possible to hold one responsible for the ranting without condemning for the contents thereof. And of course, the advantage of a bright-line rule of academic freedom is that its proponents don't have to take a look very hard at what they're defending. Call it my touching faith in the capability of my fellow man, but I'm relatively certain that responsible adults can find a definition of acceptable behavior that lies somewhere between "chilling academic debate" and providing public subsidy to someone making vile accusations about the dead. Now, the 1st Amendment thing was mostly untouched by my post above because it's fundamentally uninteresting. If the will is there among academia, a suitable workaround could be devised that obviates the problem of state action. Other bloggers [1] have pointed out multiple ways in which Churchill could be fired, many of which have nothing to do with his speech. If the will is there--and arguing for such a will was the subject of my post--then in very few cases will a firebrand need extinguishing in which he has not quite happily provided the necessary bucket of water. Without an absolutist approach, citizens could not perfectly foresee what would and would not land them in trouble, and speech we would not want to discourage would get chilled. Oh, come now. First of all, I was talking about academic freedom, which is not freedom of speech, and does not apply generally. The law is replete with balancing tests, and you and I make it through our lives without any particular problem with the majority of them. There's extravagant amounts of caselaw as to "reasonableness" standards; indeed, some law professors themselves are quite happy to mock Scalia for his insistence on bright-line rules in all cases bar this one. The idea that we will suddenly become a nation bereft of intellectual debate because we recognize that even if the line is fuzzy, a line should exist, is rather feeble. For instance, take any student who blogs. In only the most tenuous of senses are we covered by academic freedom standards. We're not tenured, we're evaluated by professors, and yet one might think from the preponderance of law student blogs that it's hard to shut us up. Yet we do show restraint--say, in naming names or complaining about professors--precisely because we know there are lines, and informal codes to be followed. In this case what we are arguing is a bright-line rule of "academic freedom" against a standard of behavior. I'd rather expect that instead of chilling debate, it may make things decidedly more civil. But it's an individual right, as well, as is any aspect of freedom of conscience. Now, far be it from me to detract from a pious invocation of the framers, but freedom of speech is an individual right. Academic freedom is not a universal right doled out upon the public, but the private preserve of academics, and Churchill is a state-sponsored academic. There is an entertaining debate to be had, I suppose, between those who would argue that our 1st Amendment protections presently go to far (as I would, if it defends a public employee acting as Prof. Churchill is), or those like you who think that without an absolutist standard, the heavens shall fall. But a compromise: at the very least the University could reprimand him for conduct unbecoming a scholar, and display their displeasure by formally asking him to resign, even in the face of 1st Amendment challenges to firing him. Collectively signalling that such conduct is unbecoming and asking him to withdraw would not violate freedom of speech, but would violate the academic freedom argued so strenuously above. That, at least, would allow us to separate the two issues. [U]niversities are fragile places; the commitment to free debate and the competition of ideas is not something made inevitable by the marketplace, nor is it something often served by a political system that caters to the cause-du-jour. I may as well reply that debate, academic or otherwise, is not a fragile thing, nor does it take place exclusively--perhaps not even primarily--within the academy. Whatever you think of the "obligation of serious people"--and for someone loathe to define a standard for speech, you are all to quick to define a standard of seriousness--the examples you've given are not an "attack" upon "the right to think what you think": most of the time, they're an expression of disapproval of an idea itself, part of the debate you're asking about. Of course, it's a hallmark of "serious" people that they dismiss so many others as "yahoos." No one is talking about jailing Churchill. The debate is simply over whether a professional--academics are given greater privileges because they're held to higher standards of conduct--should behave in the way he did, and whether such should command public subsidy. Of course, the greatest difference of opinion lies between your closing line and the title of my piece: [Y]ahooism being still the dominant civic religion in this country... Whereas I would refer you to the original poem. One would think that the opposition of these two phrases says all that need be said about why we differ. [1] UPDATE: I removed the link because I can't find the post again--there was a nice piece on four or five ways to remove Churchill. Can't find it at the moment, but I'll keep you updated once I come across it again.
First, thanks for rescuing me from looking like a boob. Tho' the heavens may fall.... I wouldn't go so far and tried to make clear that freedom of conscience, in my view, is not in danger of being ended. (I'm going to return the favor of your cutness with some snark: "There is an entertaining debate to be had, I suppose, between those who would argue that our 1st Amendment protections presently go to far (as I would, if it defends a public employee acting as Prof. Churchill is)...." Tony, Tony, Tony---why do you hate America? Why do you hate our freedoms? Okay, I'm done.) However... it's difficult to go into this without knowing how much of HMP you're familiar with (whatever the answer, it's probably not enough; recommend him highly). Suffice it to say that the legal point is that the First Amendment demands far more than other sections of the Constitution. (On overbreadth, for example, whereas otherwise a person has no right to assert the constitutional privilege of another in defending his own unprivileged acts, in the free speech context that becomes a valid argument.) Now, you don't think the 1A question is interesting and you're probably right. So let's get to the nut: How can the expression of ideas ever be sanctionable in a society that takes seriously the freedom of the individual? And I must say that this---"the problem isn't his political views: it's a lack of decency with the way he expressed them"---is a spectactularly empty distinction. Is there a principled position that holds that someone has the right to express his positions, whatever they are, but only in certain ways? Controversial views are permitted unless they cause controversy? Sorry, this is too short but I'm too short on time. Will update later. Thanks for a thoughtful response. Wish I could have responded in kind.
"On the other hand, most of those attacking academic freedom [are] from outside the academy. (To pick only two links. Writing on the Summers controversy, Judge Posner makes comments critical of the idea of academic freedom, but he's not directly addressed Churchill.)" It's amazing how sloppy A. Rickey is. Judge Posner is not "outside the academy" -- he has been a professor at the University of Chicago Law School since 1969, currently holding the position of Senior Lecturer in Law. Can we really trust anything A. Rickey says, given that he doesn't take blogging seriously enough to ensure that his basic facts are correct?
Oh, come on now, Prof. Heller, that's pretty pathetic. First of all, please note the word most. One of those important qualifiers, you know. Secondly, while I'll admit that the position of the parenthetical is ambiguous, the entire reason I put it in a parenthetical was because it was a dissenting opinion from within the academy--and hence it didn't belong in the preceding paragraph. I would have thought that was clear. Further, stating that Posner was "part of the academy"--considering he's easily one of the most well-known legal academics, and I carried one of his books on my books page for a bit over a year--seemed a bit too obvious to comment upon. But I'm happy to see that in a posting this long, this was your choice of petulant complaint.
TtP: First, thanks for rescuing me from looking like a boob. Presuming you meant the triple post, don't worry about it--actually, it's a sign of me looking bad. As I've explained before, I implemented the RSS feed so that it updates each time someone posts, a particularly ridiculous method that makes my readers comments take much longer to load, and sometimes time out. It's rottenly difficult to fix, however.
OK. Having read Mr Churchill's piece here are my thoughts. The man has a right to say what he likes how he likes and we all have the right to think more or less of him and the institution that hires him as a result. If academic freedom never led to this kind of thing it would be a complete waste of time. As for proposing someone be censored for lack of manners or however you phrased it that's outrageous. ps : Only on a lawyers blog would a discussion about this be reduced to where the brackets are in a paragraph...
You're too gracious. (That can't _really_ be Professor Heller, can it?)
Okay, I'm giving up on coming up with my magnum opus. Color me "got better stuff to do, like work" or whatever crayola best approximates that. But I will leave with an old story. A friend of mine, who used to be in the seminary (tho' I suppose that's not entirely relevant) always objected to Princeton retaining Peter Singer in its philosophy department, on account of his rather extreme beliefs about the propriety of infanticide, etc. I bring him up because I've always heard echoes of his argument in a particular class of later arguments. Specifically, he thought that while Prof. Singer should have the "right" to his opinions, it was wrong for Princeton to employ him and thus give him a heightened platform. Somehow, although I like and respect this person very much and generally think he's an honest person, I could never take seriously his avowal that he was distinguishing with the right to his opinions and the right to have them supported by other people.
I am perhaps not an absolutist on Academic Freedom, since I think if the speech is conduct or intended to induce conduct then it can be restricted. Beyond that I think it impracticable to restrict the speech of an academic since drawing the line appears to be impossible. It is not adequate to claim that we can have decency police or standards of decency. The appointed decency police or any such standards would inevitably be corrupted by either conservatives and liberals. It would simply depend on who is in power. Let the marketplace of ideas determine whose opinions are received and whose are rejected. By which I mean to say, that college students are not children, they can reject foolish statements. We ought not to deny them the opportunity to think for themselves. As to Academics embarrassing educational institutions or states, should we apply the same rule to those who hold political office? If I were a Coloradan I would find the Governor's position on this issue embarrassing. Which is precisely my point, decency like beauty is in the eye of the beholder.
As a supplement, please note the following. Introduction: In a Pittsburgh federal court a well connected corporate crony has suggested a novice "free speech" argument and the legal question is waddling without any legal precedent in need of an activist court. Creating the free speech crisis is a "red herring" to draw attention away from the plain and clear evidence of the Pittsburgh Federal Court proceeding (best example of the corruption). Ward Churchill was a relatively unknown professor at the University of Colorado at Boulder, until Bill O'Reilly reported a piece about him and requested his audience to make a fuss. His provacative essay was written more than three years ago. The connection: Ms. ElizaBETH Hoffman is the President of Colorado University. Go to http://www.hss.caltech.edu/Photos/Alumni/HoffmanElizabeth.jpg and/or http://www.colorado.edu/Carillon/volume47/images/1.jpg to view her picture. Ms. BETH (Rue) Kotcella Buchanan is the U.S. Attorney for Western Pennsylvania. Go to http://www.pittsburghlive.com/photos/2002-02-26/PH_2002-02-26_iattorney-b.jpg to view her picture. Background: I attended undergraduate school with Ms. Buchanan. At the Pennsylvania University I succesfully re-established (and served as president) the pre-law society and graduated in 1983. Here Ms. Buchanan would become interested in the law. She graduated after me in 1984. In addition, I was listed in Who's Who Among American Colleges and Universities, and given the 1983 Progressive Leadership Award, and 1983 Distinguished Honor Award. Before joining the U.S. Attorney's Office in 1988 Ms. Buchanan secured a clerkship with U.S. District Judge Maurice B. Cohill, Jr. Judge Cohill is the Western District Judge responsible for enforcing a consent decree governing United States of America v. Port Authority of Allegheny County, Docket No. 91-CV-1694. However, he turned a blind eye to my case Docket No. 95-CV-00339. I had organized (secure a union) a political sub-division. During that same year members of the state judiciary were charged and convicted for violating my civil rights (fixing cases against me in retaliation of Docket No. 95-CV-00339). In a case related to Docket No. 95-CV-00339, an alleged EEOC investigative file was prematurely purged and the U.S. Department of Labor refused delivery of its copy despite a subpoena, FOIA Request and Motion to Compel. See Docket No. 98-CV-230. That is, the Department of Labor closed its investigation based on the alleged EEOC decision. But, I had proffered to the court EEOC writings that demonstrated no investigation was conducted. Discussion: At issue is the reauthorization of the Higher Education Act. The Bush administration is attempting to change the 50 percent rule. That is, financial aid is available for postsecondary education provided at a college or university that has at least 50 percent of its students campus-based. Corporations have paid Senators and Congress men and women well, attempting to change the 50 percent rule. The rule is necessary to prevent fraud (absentee students and/or diploma mills). It appears at least three corporations have abused the administration's Distance Education Demonstration that wavied the 50 percent rule. The Career Education Corporation of Hoffman Estates, Ill., has faced lawsuits, from shareholders and students, contending that, among other things, its colleges have inflated enrollment numbers. In addition, F.B.I. agents raided 10 campuses run by ITT Educational Services of Carmel, Ind., looking for similar problems. Nonetheless, the S.E.C. and FBI investigation is just spin to make it appear the administration is doing its job. The Pittsburgh case involves Kaplan, Inc., which is wholly own by the Washington Post Company. For-profit postsecondary education has turned the company around. Individuals far more powerful than Martha Steward have made millions. Thus the current unexplained campaign against free speech appears to be little more than another Madison Avenue scheme to control any discussion.
Many universities already have speech codes. Of course, they're written by lefties, but if they can forbid offending blacks and gays, they can forbid insulting the dead.
He prepared meals for two U.S. presidents over 11 years. The White House chef, Walter Scheib, has been fired. He told The New York Times, that his ouster followed the appointment of a new social secretary to serve the first family. "We've been trying to find a way to satisfy the first lady's stylistic requirements," Scheib, 50, told the paper in a telephone interview, "and it has been difficult. Basically I was not successful in my attempt." Scheib, who was hired 11 years ago by then first lady Hillary Clinton, said he was asked to resign a few weeks after White House social secretary Cathy Fenton was succeeded by Lea Berman, the wife of a wealthy contributor to the Republican Party. Before working at the White House Mr. Scheib was executive chef at the Greenbriar Resort (Virginia). On or about the same time as his firing the Ward Churchill "free speech" controversy gained momentum. I did submit comments on several blogs identifying the free speech crisis as connected to a Pittsburgh federal court. In fact, I'd called the Pittsburgh federal court case a nominal free speech matter that has "Watergate" problems. That is, too many coincidental links to bigger issues. For example: To follow through on a promise President Bush re-nominated 12 candidates for federal appeals court seats whose confirmations were blocked by Senate Democrats during his first term. The re-nomination of the judicial candidates ignited the partisan battle with Senate Democrats. The battle over the makeup of the federal bench is an important concern for conservative evangelicals at the core of the president's political base. They see judges as crucial to their efforts to end abortion, allow for broader religious presence in daily life and limit the influence of the federal government. Senate Democrates will attempt to block those re-nominated. Although not verified, my sources identify Raymond Scheib, a former Pittsburgh judge involved in a "case-fixing" scandal, as a relative (sibling or inlaw). That is, the executive chef working in the White House is possibly linked to the same judge and scandal involving the Pennsylvania judiciary where individuals were charged and convicted for violating my civil rights (fixing cases against me). Note: The chef was hired on or about the same time that I started having unexplained difficulties with the federal court in Western Pennsylvania. See vls.law.villanova.edu/locator/3d/Nov2002/003466.pdf See also www.cjdpa.org/decisions/fulltext/jd97-02-01-op.html

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