Phi Beta Cons

The Right take on higher education.

Re: Academic Freedom for Non-Academics


I think Contreras is making a problem where there is none – there is no “academic’s cloak” denied to non-institutionally-affiliated scholars. I’m no lawyer, so I’m plenty open to persuasion, but at the very least, he falls far short of proving his case.

Academic freedom has two meanings in America. An institution grants the first kind: Most employers can fire employees basically at will, but colleges, even private ones, promise not to fire academics whose work becomes controversial. Obviously, there’d be no point in colleges promising not to fire people who don’t work for them, and think tanks, etc., can decide whether to provide similar guarantees.

But the second one, the one Contreras seems to be writing about, comes from the government: The government won’t prosecute you for academic inquiry. He makes a feeble attempt to prove there’s a legal difference between professional academics and private individuals engaged in scholarhship. My basic point is that the First Amendment applies to everyone, and the courts, by and large, have fairly and consistently interpreted it that way.

The only Supreme Court case he explicitly cites is Keyishian v. Board of Regents, from which he pulls this quote:

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, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

Aha! The court has singled out classrooms – behavior in a classroom gets greater protection than the same behavior outside of it.

But the facts of the case greatly complicate this reading. The Court’s major holding was:

The provisions of the Civil Service Law and the Education Law, which make Communist Party membership, as such, prima facie evidence of disqualification for employment in the public school system are “overbroad,” and therefore unconstitutional.

In other words, academic freedom in this case meant that public schools couldn’t apply ideological tests in hiring. The case had nothing to do with research or published works, laws censoring which are prohibited by the First Amendment, regardless of whether they “cast a pall of orthodoxy over the classroom.” It was a restriction on public schools, not a granting of rights to schools as opposed to independent scholars.

Contreras also claims that the Supreme Court “granted certain kinds of academic freedom protections to universities themselves, under a theory that they as institutions have a special role in society and need to have some protection from unseemly attempts to influence their work,” but doesn’t provide cases. He seems to be referring (at least in part) to a concurring opinion Sweezy v. New Hampshire, later written into the majority opinion in Bakke. This said a university has the rights to “determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’” Each of these has to do with instruction and student admissions, not research and publications. Again, research and publications are already protected by the basic, plain-old First Amendment.

(Contreras’s half-attempt to make the definition of “teaching” elastic is similarly unconvincing. If you’re a teacher, you instruct specific students directly.)

The bottom line is that it’s far from clear what, exactly, Contreras thinks he’s been denied. By his own summary, he’s “published chapters in . . . major books, 36 articles or commentaries on education issues, 75 on ornithology (mostly in non-refereed outlets) and another two dozen that don’t fit neatly into categories. This doesn’t count work that I produce in my job as a college evaluator. I’m also the new book review editor for a small, well-respected refereed journal and a glorious but undiscovered poet.” He doesn’t claim to have been prosecuted for any of those publications, and if anyone tried to do that, he could fall back on the First Amendment as easily as anyone else could.

Contreras does have a point, however, that the law can sometimes run into distinctions between affiliated and unaffiliated members of a profession. Take, for example, a journalist-shield law, which extends protection beyond the First Amendment and keeps reporters from having to testify in court – who counts as a journalist? (It’s for this reason that I oppose journalist-shield laws generally; they force the government to prefer some press outlets over others. They also interfere with the principle that press freedoms are universal, and that journalists have no more and no fewer rights than other citizens.) The problem is that, instead of writing about journalism, he writes about academia, where – to the best of my knowledge, and so far as Contreras demonstrates – no such discriminatory laws exist.


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