By Hank Reichman at The Academe Blog
On June 2, the U.S. House of Representatives Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, held a hearing on “First Amendment Protections on Public College and University Campuses.” The subcommittee received testimony from four witnesses: Greg Lukianoff, President and CEO of the Foundation for Individual Rights in Education (FIRE); Kim Colby, Director, Center for Law and Religious Freedom, Christian Legal Society; Jamin Raskin, Professor of Law, American University Washington College of Law; and Wendy Kaminer. The subcommittee accepted additional public comment through June 11 and on June 9 I submitted the following public comment (minus appendixes) on behalf of the American Association of University Professors (AAUP).
Chairman Franks, Vice-Chairman DeSantis and Members of the Subcommittee:
My name is Henry Reichman. I am Professor Emeritus of History at California State University, East Bay, located in the San Francisco Bay Area, and have taught at a variety of public colleges and universities in several states for over forty years. I write on behalf of the American Association of University Professors (AAUP), which I currently serve as First Vice-President and Chair of the Association’s Committee A on Academic Freedom and Tenure.
Founded in 1915, the AAUP has for a century played a leading role in ensuring the rights of college and university faculty and has defined and defended the standards and principles of academic freedom that have helped make the American higher education system the envy of the world. In 1915, the AAUP issued its “Declaration of Principles on Academic Freedom and Academic Tenure,” which first elaborated the principles of academic freedom that have subsequently been accepted by both the academic community and in important aspects the American judiciary. Our 1940 “Joint Statement of Principles on Academic Freedom and Tenure,” formulated in cooperation with the Association of American Colleges (now the Association of American Colleges and Universities), along with its 1970 interpretive comments, has been endorsed by more than 240 scholarly organizations and institutions. The principles elaborated in the Joint Statement remain widely accepted throughout American higher education and continue today to provide the standard by which the academy measures academic freedom. The AAUP’s principles have been adopted in whole or part by the great majority of American institutions of higher education, and may be found in hundreds of faculty handbooks, university policy manuals, and collective bargaining agreements. A copy of the Joint Statement is appended to these comments.
In 1967, the AAUP joined with the United States National Student Association (now the United States Student Association), the Association of American Colleges (now the Association of American Colleges and Universities), the National Association of Student Personnel Administrators, and the National Association of Women Deans and Counselors to formulate a “Joint Statement on Rights and Freedoms of Students.” This important statement remains the best and most thorough description of students’ freedom to learn and to exercise the rights of citizenship, including those rights guaranteed by the First Amendment, on and off campus. A copy of this Statement is also appended to these comments.
The 1940 Joint Statement defines academic freedom as comprising three elements: 1) “full freedom in research and in the publication of the results;” 2) freedom of classroom instructors to discuss their subject matter and define curriculum and standards without political or other extraneous constraint; and 3) the freedom of faculty to speak as citizens on matters of both public and internal college or university concern. Although these principles of academic freedom developed outside the law, beginning in the 1950s the Supreme Court began to interpret the First Amendment to include some protections for academic freedom for faculty at public institutions. In 1967, in Keyishian v. Board of Regents, the U.S. Supreme Court stated, “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment.” In a subsequent decision, Rust v. Sullivan, the Court described Keyishian as recognizing that “the university is a traditional sphere of free expression … fundamental to the function of society.”
Hence, the state of First Amendment protections and the application of the principles of free speech and academic freedom at both public and private colleges and universities are topics of great significance to our Association. We have read with interest the testimony heard by the Subcommittee on June 2, 2015 and wish both to comment on and add to that testimony.
On the Written Testimony
The written testimony provided by Greg Lukianoff of FIRE raises a number of issues that are also of concern to the AAUP. We largely agree with Mr. Lukianoff and Professor Jamin Raskin that impermissibly restrictive speech codes, overly broad harassment policies, and “free speech zone” policies imperil free expression, especially of students. With respect to speech codes, our 1994 report “On Freedom of Expression and Campus Speech Codes,” raised some of the same issues that rightfully trouble Mr. Lukianoff and FIRE, arguing that
Freedom of thought and expression is essential to any institution of higher learning. Universities and colleges exist not only to transmit knowledge. Equally, they interpret, explore, and expand that knowledge by testing the old and proposing the new. This mission guides learning outside the classroom quite as much as in class, and often inspires vigorous debate on those social, economic, and political issues that arouse the strongest passions. In the process, views will be expressed that may seem to many wrong, distasteful, or offensive. Such is the nature of freedom to sift and winnow ideas.
On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed. . . .
An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas—and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.
Some may seek to defend a distinction between the regulation of the content of speech and the regulation of the manner (or style) of speech. We find this distinction untenable in practice because offensive style or opprobrious phrases may in fact have been chosen precisely for their expressive power.
More recently, our 2007 statement on “Freedom in the Classroom” addressed concerns over the invocation of “hostile learning environments,” which “presupposes much more than blatant disrespect or harassment”:
It assumes that students have a right not to have their most cherished beliefs challenged. This assumption contradicts the central purpose of higher education, which is to challenge students to think hard about their own perspectives, whatever those might be. It is neither harassment nor discriminatory treatment of a student to hold up to close criticism an idea or viewpoint the student has posited or advanced. Ideas that are germane to a subject under discussion in a classroom cannot be censored because a student with particular religious or political beliefs might be offended. Instruction cannot proceed in the atmosphere of fear that would be produced were a teacher to become subject to administrative sanction based upon the idiosyncratic reaction of one or more students.
Then, last summer we issued an influential statement “On Trigger Warnings,” which declared:
A current threat to academic freedom in the classroom comes from a demand that teachers provide warnings in advance if assigned material contains anything that might trigger difficult emotional responses for students. This follows from earlier calls not to offend students’ sensibilities by introducing material that challenges their values and beliefs. . . . The presumption that students need to be protected rather than challenged in a classroom is at once infantilizing and anti-intellectual.
In this light, we also largely share Mr. Lukianoff’s and Wendy Kaminer’s concerns about overly broad harassment policies, and in particular the apparent abuse of Title IX, although we disagree strongly with Ms. Kaminer’s contention that such policies and abuse derive from the actions of “the left” or “progressive” groups. The source of the problem is, we believe, significantly more complex than her testimony would acknowledge. In his testimony, Professor Raskin opined that “the overwhelming number of public universities and colleges know the difference between a serious intellectual debate and a relentless campaign of personal harassment.” I certainly hope that he is correct. However, some of the examples provided by Mr. Lukianoff and Ms. Kaminer suggest that this may not always be the case. Certainly the story shared by Ms. Kaminer of Professor Laura Kipnis’s experience with a Title IX investigation is a troubling tale that has attracted attention in our Association as well. In response to growing concerns about this issue among faculty members, the AAUP has recently decided that a joint subcommittee of our Committee on Academic Freedom and Tenure and our Committee on Women and the Profession will investigate the implications for academic freedom and for student and faculty free expression rights of harassment rules, including enforcement of Title IX.
With respect to the academic freedom of faculty, Mr. Lukianoff’s written testimony focuses on the implications for faculty free speech of the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. Again, we largely share his concerns. In fact, our organization submitted an amicus curiae brief to the Court when it heard this case, which warned of the sorts of difficulties that have since arisen. In 2009 we released a lengthy report, “Protecting an Independent Faculty Voice: Academic Freedom afterGarcetti v. Ceballos,” which expressed alarm at a number of post-Garcetti decisions that would restrict the First Amendment rights of faculty at public institutions and urged colleges and universities to adopt policies to protect free expression from the potential impact of the decision. Although we are heartened by subsequent rulings in the Ninth and Fourth Circuits limiting the application of Garcetti in academic speech cases, we share Mr. Lukianoff’s unease about the unresolved nature of the issue and continue to urge faculty to develop policy statements at the institutional level that will explicitly incorporate protections for faculty speech on institutional academic matters and governance.
I would now like to turn to three topics not addressed in the written testimony: the impact of social media on academic freedom and free expression more generally; the growing abuse of financial justifications for faculty dismissals or program eliminations in ways that may restrict academic freedom; and the dramatic increase in employment of faculty on contingent or “adjunct” appointments as a major threat to academic freedom.
In September 2013, at the University of Kansas, journalism professor David Guth, responding to a shooting incident at the Washington Navy Yard, tweeted a comment about gun control that many gun advocates found offensive, even threatening. He was barraged with hate messages and death threats, and several legislators called for his dismissal. Although the university publicly reaffirmed its commitment to his freedom of speech, he was suspended to “avoid disruption.” This incident prompted the Kansas Board of Regents in December 2013 to adopt new rules under which faculty members and other employees may be suspended or dismissed for “improper use of social media.” The new policy defined social media as “any facility for online publication and commentary,” a definition that covered but was “not limited to blogs, wikis, and social networking sites such as Facebook, LinkedIn, Twitter, Flickr, and YouTube.”
This definition could arguably also include any message that appears electronically, including email messages and even online periodicals and books. The policy defined “improper use of social media” in extremely broad terms, including communications made “pursuant to . . . official duties” that are “contrary to the best interest of the university,” as well as communication that “impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the university, or otherwise adversely affects the university’s ability to efficiently provide services.”
The AAUP, the ACLU and faculty leaders in Kansas quickly condemned the new policy as “a gross violation of the fundamental principles of academic freedom.” In the face of widespread criticism, the regents agreed to work with campus leaders to revise the policy, but when a faculty-administration task force recommended an entirely different approach, the idea was rejected and the policy remains largely intact.
In 2014, the AAUP published a revised and expanded version of its 2004 policy on “Academic Freedom and Electronic Communications.” Our fundamental starting point when it comes to the regulation of all electronic communications by faculty is simple. As we stated initially in 2004 and have repeated frequently ever since:
Academic freedom, free inquiry, and freedom of expression within the academic community may be limited to no greater extent in electronic format than they are in print, save for the most unusual situation where the very nature of the medium itself might warrant unusual restrictions—and even then only to the extent that such differences demand exceptions or variations. Such obvious differences between old and new media as the vastly greater speed of digital communication, and the far wider audiences that electronic messages may reach, would not, for example, warrant any relaxation of the rigorous precepts of academic freedom.
Unfortunately, this is not always the case. The events in Kansas were perhaps the most extreme example of a growing and distressing trend in our public (as well as private) colleges and universities. Increasingly, college and university administrators are treating faculty emails, Facebook posts, and Twitter messages as somehow exempt from the full protections of academic freedom and, arguably, the First Amendment. There are many other examples in states as varied as Colorado, Idaho, Illinois, and Wisconsin, among others. Sometimes administrators have couched their censorious actions under cover of combating cyberbullying, undoubtedly a significant problem among some students but hardly one that justifies the surveillance and censorship of faculty expression.
Finances and Freedom
Even before the 2008 economic crisis, public colleges and universities were facing increasingly difficult financial conditions stemming, we would argue, from a now decades-old trend among states and our society more generally to disinvest in public higher education, placing a growing burden on students who must make ever-increasing tuition payments and often accumulate inordinate levels of debt. But in a disturbing number of cases, difficult financial straits have provided college and university administrators with specious justifications for assaulting the academic freedom of the faculty.
The AAUP has long recognized that bona fide “financial exigency” may justify dismissal of even tenured faculty members. In 2013 the AAUP published an extensive and detailed report on “The Role of the Faculty in Conditions of Financial Exigency.” The report defined financial exigency as “a severe financial crisis that fundamentally compromises the academic integrity of the institution as a whole and that cannot be alleviated by less drastic means.” The report also argued that increasingly college and university administrators are making budgetary decisions that profoundly affect the curricula and the educational missions of their institutions; rarely are those decisions recognized as decisions about the curriculum, even though the elimination of entire programs of study (ostensibly for financial reasons) has obvious implications for the curricular range and the academic integrity of any university.
In a disquieting and perhaps rising number of cases, college and university administrators (and some legislators) have sought to justify faculty layoffs and program discontinuance not by claiming exigency but simply some sort of ill-defined distress — sometimes on grounds that seem unproven if not outright bogus. To take but one example, later this week our annual meeting will decide whether to censure the administration of the University of Southern Maine, which dismissed some 60 faculty members and closed several programs with the justification that this was required by the university’s financial condition. In fact, as our investigation revealed, there was no genuine financial crisis, at least not one justifying such drastic actions, nor were the faculty ever consulted about the situation. The layoffs, many suspected, were as much designed to punish or silence critics of the administration as they were to save money or reorient the mission. Whether or not this was true, there can be little doubt that colleges and universities that employ the justification of financial distress or “program prioritization” to dismiss long-time faculty members establish a chilling atmosphere for free expression among the faculty that remain.
Perhaps the most dramatic example of how financial conditions may negatively impact the academic freedom of faculty is currently transpiring in Wisconsin. On May 29, the Joint Finance Committee of the Wisconsin legislature approved an omnibus higher education funding bill that would, if approved by the Legislature as a whole, cut funding for the University of Wisconsin system by $250 million over two years. In addition to this draconian cut, the committee also approved provisions to remove the protections of tenure from Wisconsin law, increase the power of administrators and degrade the longstanding system of shared governance, and lastly authorize the Board of Regents to terminate faculty appointments for reasons of “program discontinuance, curtailment, modification, or redirection.” This is a profound departure from current policy, which allows termination of faculty appointments only for just cause after due notice and hearing, or in the event of a fiscal emergency.
As a group of 459 award-winning research scholars at the University of Wisconsin-Madison wrote, “this provision would greatly weaken any guarantees of tenure provided by the Board of Regents. In essence, state statute would say that tenure at the University of Wisconsin does not mean what it means at every other institution: a guarantee that university administrators cannot arbitrarily dismiss faculty who have earned tenure through research, teaching, and service.” Or, as a statement by PROFS, an organization of UW-Madison faculty members, put it:
Given legal cover by the vague terms “modification” and “redirection”, there could be no meaningful limit on the power of the Regents to dismiss faculty and/or to close programs or research centers that fell out of favor with administrators or political leaders.
It is above all the promise of academic freedom directly afforded by tenure that provides the fertile ground for independent scholarly inquiry. That promise would be rendered hollow by the provision in the omnibus motion on faculty and staff dismissals. The “fearless sifting and winnowing” central to the Wisconsin Idea would be no more.
Contingent and Adjunct Faculty
Our country’s long-term disinvestment in higher education has also created another obstacle to academic freedom and free expression at public colleges and universities. Increasingly these institutions have, rightly or wrongly, felt compelled to respond to funding cuts in part by hiring fewer tenure-track and full-time faculty and ever more adjuncts, many of them part-time. At this point we estimate that only about one-fourth of all faculty teaching in American higher education are tenured or on the tenure track, down from nearly half in 1975. And about half of all faculty are hired on a part-time basis, although many of these actually work full-time, sometimes at multiple institutions. While the AAUP and other organizations have won protections for such faculty members at some institutions where collective bargaining is permitted and the faculty have organized into unions, the overwhelming majority of such faculty members enjoy no job security; they may more often than not be dismissed without cause and without explanation, even after many years of service; and they frequently have diminished access to support systems, even office space, available to those on the tenure track. It is little wonder then that many of these faculty members have decided that they cannot afford to exercise their rights to teach in accordance with their understanding of their disciplines, challenge students to think independently, engage in original but potentially controversial research, advocate unpopular or innovative ideas, or speak out on issues of institutional or public concern.
Throughout its 100-year history the AAUP has believed and argued that a system of tenure based on a reasonable probationary period is the strongest protection for academic freedom and that institutions whose faculty enjoy academic freedom are most likely to create an environment that supports the First Amendment rights of students. Unfortunately, the extraordinary expansion of what some have called the academic “precariat” calls this into question. I fervently hope that the abuse of adjunct and part-time faculty will be recognized not only as the terrible injustice it is, but also as a major threat to academic freedom and to educational quality. Should this trend not soon be reversed, I fear that free expression on campus will be meaningless in an environment in which teachers are perpetually fearful of retaliation and even dismissal should they ruffle the wrong feathers.
Lastly, it may be asked what might the Congress do about these problems? At this time the AAUP does not support any specific legislative remedies. We are cognizant of the country’s long tradition of decentralized state and local control of public education, including higher education. But the Congress can do much by allocating federal funds to reverse the lamentable national trend to disinvest in public higher education. And the members can use their positions to help us educate the public about the important role that academic freedom and free expression have played in building the finest and most democratic system of higher education yet known and in ensuring that our campuses are havens for the robust exchange of ideas that is essential both for genuine quality education and the preservation of our democracy.
 However, we can neither endorse nor oppose any of the three pieces of draft legislation submitted to the subcommittee by Mr. Lukianoff.
 An additional statement, first issued by the AAUP in 1984 and subsequently revised in 1990 and again in 2014, also of relevance here is “Sexual Harassment: Suggested Policy and Procedures for Handling Complaints.”
 Contrary to common misperceptions, the tenure system in colleges and universities does not guarantee lifetime employment. It does guarantee that faculty members will be judged by professional and not political or arbitrary standards by academically qualified peers. I essentially agree with Professor Raskin’s statement in his testimony that “the rank and tenure process is a professional domain different from a public speech forum. Academic freedom means you cannot get bounced out of academia because your ideas are unorthodox or contrary to prevailing opinion but you can get bounced out because your research is sloppy, your data is flawed, or your ideas are illogical or unjustified by evidence.” I would add, however, that such judgments must be made only by qualified academic professionals in due process procedures that provide opportunities for all sides of a controversy to be heard and considered.
 AAUP, “Trends in Instructional Staff Employment Status, 1975-2011.”
 After public hearings in late 2013, in January 2014 the Democratic staff of the House Committee on Education and the Work Force produced a report, “The Just-in-Time Professor,” which examined the working conditions of contingent faculty in higher education. The report concluded: “While the occupation of “college professor” still retains a reputation as a middle -class job, the reality is that a growing number of people working in this profession fill positions not intended to provide the stability, pay, or benefits necessary for a family’s long-term economic security. Whether some adjunct professors piece together a living from their teaching job or only use it to supplement a more stable primary career elsewhere, many contingent faculty might be best classified as working poor. . . . While these individuals worry about their own futures and how to provide for their families, they are equally distressed by what they believe is a shortchanging of students who pay ever-increasing tuitions to attend their courses. The link between student outcomes and contingent faculty working conditions—not just the adjuncts’ schedules and compensation but the respect and professional support they receive from their schools—deserves serious scrutiny from the Committee and other policymakers around the country, as well as from institutions of higher education themselves.” The AAUP has issued numerous reports and policy statements on contingent and adjunct appointments.