Last month I wrote a blog called “Academic Freedom or Poor Judgment,” discussing Professor Jack Gorby’s lawsuit against John Marshall Law School (JMLS). JMLS sanctioned Gorby because he commented to a student that lawyer-like skills are developed in Jewish training, which involves interpretation and application of scripture, but to a lesser extent in traditions that emphasize a charismatic, experiential approach, like the black Southern Baptist tradition. The original blog title was not meant to imply that academic freedom excludes statements that some interpret as the result of “poor judgment,” but rather alluded to the JMLS dean’s admonishment that “academic freedom does not excuse poor judgment.” In response to that blog, Professor Gorby wrote in with the following exegesis on my title, explaining just why academic freedom covers statements that some would classify as “poor judgment”:
Although in formal logic “or” means “and/or,” in traditional parlance it links alternatives, such as “In our society you can marry Linda or Jane, but not both.” Used in this sense, the title “Academic Freedom or Poor Judgment” implies that academic freedom does not protect statements that reflect “poor judgment.” If this rendering is sound, my comments are either protected or poor judgment, but not both. That, it seems, reflects the thinking of my former reprimanding dean’s view of academic freedom.The academic freedom statements of the AAUP and JMLS (which is based on the AAUP’s) do not provide an exception for “poor judgment.” Thus, the JMLS dean’s claim in her “written reprimand” that “academic freedom does not excuse poor judgment” finds no textual support in these statements. And for good reason.First, “poor judgment” is a vague and subjective standard for imposing limitations on the “preeminent right of those engaged in learning,” as the JMLS’ academic freedom statement promises. Nowhere in JMLS’ rules for faculty behavior is the term defined. What is one person’s “poor judgment” is another’s keen insight. The dean at the time suggested that the Board of Trustees might be interested in my insights as an explanation of JMLS’ ongoing difficulties with black graduates’ performance on bar exams. It was a later dean who found that this insight, previously deemed “worthy of the Board’s attention,” was “poor judgment,” deserving of a reprimand. In an institution committed to academic freedom, disputes about a teacher’s judgment in making certain comments are to be resolved by “open discussion, debate, assent and dissent” and the informal judgment of peers (who can be critical and harsh), not by administrative subjectivity and fiat coupled with disciplinary sanctions.Second, the circumstances under which a statement would reflect “poor judgment” are unclear. Since JMLS has never identified a disciplinary rule my remarks violated and the AAUP holds that academic freedom is essential to the free search for truth, we’re left to wonder what constitutes “poor judgment.” Does a teacher exercise “poor judgment” if he makes a claim that is not true? Or, if a teacher’s claim is true, can expressing it be “poor judgment?” Though academic freedom’s purpose may be truth-finding, it protects even incorrect statements and focuses on evidence and ongoing—perhaps endless—argumentation, not sanction or censorship, to determine which theory best accounts for the available evidence. What is essential to academic freedom is not the truth of a claim (there is no finality here) but its sincere expression and the willingness of colleagues to listen with an open mind to the reasons offered in support of the claim. The only permitted “sanction” in the academic freedom tradition is a rejection of the idea by unpersuaded colleagues, who, of course, are free to change their minds at a later time. This suggests that the ultimate truth or falsity of claims is, and must be, an irrelevancy in setting boundaries of academic freedom.In my case, no one at JMLS denies the existence of a serious problem concerning the academic performance of some minorities or the importance of finding a solution. Nonetheless, no one has discussed the soundness of the solution implied by my remarks. My thoughts about this problem were not so off-the-wall: Harvard Law Professor Noah Feldman recently published an article in the New York Times Magazine entitled “Orthodox Paradox” in which he discussed his Jewish religious education and preparation for law, writing, “A problem in Talmud study is never answered, it is only deepened. … Learning this sort of reasoning as a child prepared me well, as it has countless others, for the ways of American law.” And African-American sociologist W.E.B. DuBois in his 1903 work, The Negro Church, suspected that the emotionalism and anti-intellectualism in the black church do not adequately prepare young African-Americans for the practical affairs of secular life.The reprimanding dean said my comments were “impolitic,” which suggests that a wise politician would not say such a thing, particularly if seeking that group’s political support. Those engaged in learning, however, are truth seekers, not politicians, and academic freedom statements recognize this distinction. The Feldman and DuBois examples illustrate that I’m not the only person to express thoughts about what makes for academic success or failure in law school. No one suggests that these writers are “impolitic” or exercise “poor judgment” in expressing their thoughts. Others may disagree with the ideas but don’t demand a reprimand. In this regard, JMLS stands alone.Academic freedom in America grew out of situations where groups or individuals with power and influence pressured the administrators of academic institutions to sanction teachers whose ideas offended. It happened often enough, and it continues to happen. And administrations occasionally buckle to such pressure and carry out the wish. Academic freedom guards against and rejects such a response. Rather, to borrow again from JMLS’ academic freedom statement, academic freedom “encourage[s] open discussion, debate, assent and dissent.” More speech is indicated, not less. Indeed, through “open discussion, debate, assent and dissent,” an idea is challenged, tested, dismissed, modified, tweaked, rethought, discarded, strengthened, weakened, rejected, etc. The ultimate judgment is the acceptance or rejection of the idea in its most refined sense. In this spirit, administrative sanctions are neither necessary nor appropriate. Labeling an idea “poor judgment” or “impolitic” is simply name-calling; it is not successful at exposing the silliness of an idea. Most importantly it is not a justification for placing an idea outside of the protections of academic freedom and punishing its creator.FIRE’s original blog title, “Academic Freedom or Poor Judgment” presents a false impression of what is at issue. While this “either, … or” idea may be the premise behind the reprimand, the real issue is whether academic freedom statements can remain meaningful if they are subject to exception based on an administrator’s subjective view that an academic’s comments reflect “poor judgment.”
Thanks to Professor Gorby for clarifying these worthy points. FIRE will keep readers posted on the lawsuit as it develops.