This is the second piece in a three-part series. To read Part 1, click here.
A current controversy at Virginia Tech, where the NAS has been working closely with our ally FIRE, also concerns the intersection of academic freedom and public employment law.
On March 17 Peter Wood (“Free to Agree”) analyzed in detail a new proposal for faculty assessment at VT. Since I cannot improve on Peter’s analysis of the document, I will not repeat any of the details of the proposal here. NAS and FIRE have also posted links to the relevant case materials.
Peter has described the VT proposal this way:
Virginia Polytechnic Institute and State University—Virginia Tech—has imposed a political test on candidates for promotion and tenure. Specifically, Virginia Tech’s College of Liberal Arts and Human Sciences is making active support and advancement of “diversity” a requirement for faculty to keep their positions and for promotion.
This is a highly unusual step—one that flouts academic freedom. “Diversity” is not a category of academic accomplishment equivalent to high-quality teaching or success in scholarly research and publishing. “Diversity” is an ideology. The term summarizes a set of objectives popular on one part of the political spectrum. Virginia Tech, which is a public university, has no business turning a partisan political credo into a test that must be passed for faculty members to win tenure or to advance in rank.
Faculty members at most colleges and universities are evaluated for promotion and tenure on the basis of their teaching, scholarly performance, and to a lesser extent, on their service to the institution. The “service” requirement typically means the candidate’s record of serving on various departmental and college committees. Virginia Tech appears to have seized on this third, minimal requirement as the pretext for creating a political litmus test for faculty members.
On March 25, FIRE sent a letter to Charles W. Steger, President of Virginia Tech, calling on him to abandon the proposed new guidelines for faculty assessment.
In its letter, FIRE said that the proposal “imposes one fashionable agenda among many, reflecting an unacceptable orthodoxy that intrudes upon the private thought and conscience of free individuals in a free society. This truly does violate the university’s constitutional obligation of content neutrality, and it truly is a ‘loyalty oath’ inimical to academic and intellectual freedom.” The letter concluded: “FIRE hopes to resolve this situation amicably and swiftly; we are, however, prepared to use all of our resources to see this situation through to a just conclusion. We request a response by April 15, 2009.”
A university e-mail to tenured and tenure-track faculty from Debra Stoudt, Associate Dean of the College of Liberal Arts and Human Sciences at Virginia Tech, stated that the university’s Faculty Handbook requires each college and department at VT to have approved policies regarding promotion and tenure. The email stated that the College of Liberal Arts and Human Sciences did not have such a document; gave the history of the draft proposal through various committees that have approved the guidelines; and stated that “According to the Faculty Handbook, college policies must be formally approved by the faculty, so you are being asked to vote on the attached document.” Voting ended on March 31. So far as I know, the results of the voting are unknown.
Given the murkiness of the law in this area, the question arises how the courts would deal with the issue if Virginia Tech’s proposal for faculty assessment were challenged legally. While the outcome cannot be predicted with certainty, I am skeptical that courts would strike down the proposed policies. There are two possible ways that courts could view the matter:
(1) A favorable outcome for a plaintiff would be more likely if the courts saw the proposed guidelines as primarily or directly an attempt to control faculty speech and thought on the campus.
It is possible, but far from certain given the way things have been going, that courts would strike down any proposal that it viewed within such a framework. Recall the salmon industry case that Judge Andrew Kleinfeld discussed in his keynote address. The particular case involved (at least so far as I can recall) an outright prohibition of research that the university opposed because it was opposed by the salmon industry in Alaska. Is it more than just a matter of bad public policy when the University of Alaska is allowed to get away with this? To the extent that a university is an arm or division of the state government, control of research and teaching by a university administration involves state control of the content of speech and research on a campus. This obviously has the potential of making faculty at public colleges and universities nothing more than spokesmen or mouthpieces of the state. This is in fact the position that universities have in totalitarian and otherwise undemocratic societies. They are regarded in such societies as simply the ideological and public policy arms of the state.
That has not been the tradition here for public colleges and universities, and I think that courts would find it hard to say, in effect, that there is no difference under the federal constitution between a public university in the U.S. and one in North Korea in this respect. As Robert Post has argued, applying Garcetti would harm academe and society as a whole. Professors “would be responsible in their ‘official duties’ merely for promulgating the opinions of the governors of the university” and “could no longer serve the function of identifying and advancing knowledge.” (See Peter Schmidt, “Professors’ Freedoms Under Assault in the Courts“—subscription required.)
(2) The biggest concern for a potential plaintiff at VT, however, is that the courts would not have to reach this hard constitutional question. It is likely that courts would regard the VT issue instead as falling squarely within the domain of employment law. Within the limits of the law governing employment, a university administration has the right to establish employment policies, including promotion and tenure decisions.
Non-preferential forms of affirmative action are plainly legal. Furthermore, in Grutter and Gratz, the Supreme Court upheld some kinds of preferential forms of affirmative action in admissions (albeit very limited ones). A somewhat similar situation prevails in employment law. Since some affirmative action programs to increase racial diversity are legal, administrations have a right to adopt them and to expect professors to comply with those programs and policies whenever they are engaged as university personnel with the responsibility of implementing those policies.
A plaintiff might argue that the proposed guidelines at VT go well beyond what is required to ensure that lawful diversity policies are implemented by the faculty. It is one thing, the plaintiff might argue, to establish policies, and quite another to demand that faculty members swear allegiance to an ideology. An employment policy that crossed the line into harassment and attempts at thought control might be struck down in the case of any state actor, not just a university. But to be constitutionally infirm in this way, a personnel policy would likely have to be very extreme indeed.
There is no substitute for actually reading the guidelines (see again the links I have provided above). Reasonable people might disagree about them. It seems likely to me, however, that a court would view the proposal as a lawful and reasonable step—albeit a rather aggressive one—to ensure that the university’s diversity policies are implemented by the faculty.
A decision by the U.S. Court of Appeals for the D.C. Circuit in 2008 spoke directly to the constitutionality of government policies that have an adverse impact on the academic freedom of faculty to engage in teaching and research. In Emergency Coalition to Defend Educational Travel v. U.S. Department of the Treasury, the Appellate Court unanimously rejected legal challenges to federal regulations that limited academic study abroad programs held in Cuba. As the court recognized, the intent of the embargo, which was clearly based on the U.S. government’s anti-Cuban foreign policy, was to isolate the Cuban government by depriving the island’s economy of the benefit of U.S. dollars. Although the embargo had the practical effect of virtually eliminating certain types of academic programs in Cuba —and therefore eliminated academic content unavailable elsewhere—the court held that the restrictions were content neutral.
Senior Circuit Judges Harry Edwards and Laurence Silberman authored concurring opinions that addressed the question whether the U.S. Constitution protects academic freedom beyond the express protections afforded by the Bill of Rights (i.e., the First Amendment). Neither concurring opinion was encouraging for those who believe in, and hope for, constitutional protection for the principle of academic freedom.
Judge Silberman, who also wrote the opinion for the Court, wrote that “the very notion of academic freedom—as a concept distinct from the actual textual provisions of the First Amendment—is elusive.” He found little basis for concluding that academic freedom, particularly as understood as “shared governance” within the university, was entitled to constitutional protection. (“Shared governance” goes to the issue of whether it is institutions or individual faculty members who have special rights of academic freedom under the First Amendment.)
Judge Edward noted that several justices have suggested that there may be constitutional protection for academic expression more expansive than might otherwise be suggested by the Court’s approach to employee-speech. (His citations included opinions in Regents of the University of Michigan v.Ewing, Grutter v. Bollinger, and Justice Souter’s dissent in Garcetti.) But even Judge Edwards had to acknowledge that “Academic freedom is not an easy concept to grasp, and its breadth is far from clear.”
In the third and final part of this series, Tom Wood will examine the many non-legal objections to Virginia Tech’s proposed guidelines for faculty assessment.
