Susan Herbst posits in Inside Higher Education that colleges can do a better job of managing student incivility through education about civil discourse and the creation of new civility policies.   Her premise is sound.  Colleges can encourage civility in more effective and less constitutionally intrusive ways.  However, her proposed methods for change are fundamentally flawed. 

One of the problems is that she starts off on the wrong foot: “We have moved away from ‘hate speech’ codes because they are difficult to get right; they do have a tendency to trample on forms of free speech that really aren’t dangerous at all.”  Speech codes and so-called “hate” speech policies do trample free speech, but about 70% of public colleges and university still have one (or more) on the books.  I don’t know who has “moved away” from them, but most colleges have not. 

The problems continue.  Herbst argues that colleges should start using civility codes instead of “hate” speech policies and should teach students that civil discourse is more effective.  As an example, she points towards Penn State’s ”Principles” for students.  But Penn State’s Principles read like a speech code: 

Actions motivated by hate, prejudice, or intolerance violate this principle. I will not engage in any behaviors that compromise or demean the dignity of individuals or groups, including intimidation, stalking, harassment, discrimination, taunting, ridiculing, insulting, or acts of violence. I will demonstrate respect for others by striving to learn from differences between people, ideas, and opinions and by avoiding behaviors that inhibit the ability of other community members to feel safe or welcome as they pursue their academic goals.

Colleges must be careful in creating these aspirational policies.  Penn State created these aspirations only after A.J. Flueher sued over its former speech code, which stated “acts of intolerance will not be tolerated.”  Needless to say, he won.  Penn State claims the Principles are not a policy, but an administrator could easily accuse a student of violating these principles and then charge the student with a violation of another part of the student handbook (e.g., harassment is prohibited in both the Principles and the student code of conduct). 

Civility codes are not constitutional.  San Francisco State University required students to “be civil” on campus.  A student used that policy to file a complaint about the College Republicansand force a university investigation.  SFSU eventually revised the policy, but only after a federal court struck down the policy as facially overbroad.   The problem with civility codes is that they have a chilling effect on student speech and can be applied in a discriminatory manner–allowing some to speak, but not others.  Herbst should be familiar with this problem, as her employer was suedby two students who were silenced under Georgia Tech’s “acts of intolerance” policy.  (They also won in court.) 

Colleges can do a better job of encouraging students to engage in civil discourse.  But civility codes are not the answer.

Earlier today we received confirmation from the University of Illinois that it is reinstating Dr. Kenneth Howell as an adjuct professor this fall.  The University terminated Dr. Howell’s employment earlier this summer after a student complained that he was “offended” by Dr. Howell’s academic discussion of the Catholic Church’s position on homosexual behavior in an Introduction to Catholicism course.  The student was not even enrolled in the class. 

In a letter to ADF, the Universitystates that Dr. Howell will be asked to teach Introduction to Catholicism this fall.  This is a tremendous win for Dr. Howell’s academic freedom and First Amendment rights.  However, ADF will continue to monitor the situation. 

The University’s letter warns that Dr. Howell may not “violate the Constitutional principles precluding the ‘establishment of religion’ in a public university context.”  It seems the University has not yet learned its lesson.  No one alleged that Dr. Howell violated that principle or ever intended to.  Yet the University’s warning invites viewpoint discrimination and further violations of academic freedom.  The University must respect the right of faculty to speak freely in the classroom.  Further, the University’s Faculty Senate Committee on Academic Freedom and Tenure intends to review the University’s actions to determine if it violated Dr. Howell’s academic freedom.  We are confident the Committee will find in favor of Dr. Howell.

Dr. Howell’s reinstatement is also a resounding victory for the thousands of University students who rallied to Dr. Howell’s support through social media.

This week the ADF Center for Academic Freedom settled Professor June Sheldon’s lawsuit against the San Jose/Evergreen Community College District, a college that has been fraught with corruption charges lately.  Professor Sheldon sued the District two years ago after it terminated her employment because an anonymous student complained that she was offended by how Sheldon answered a student’s question in class.  In exchange for dropping the lawsuit, the District paid Ms. Sheldon $100,000 and expunged her personnel file from all charges of wrongdoing.

Professor Sheldon has taught college-level science courses for over 20 years.  In 2007, she taught human heredity at San Jose City College.  During one particular class, a student asked her how heredity affects homosexual behavior.  Professor Sheldon answered the student by discussing briefly both positions on the topic—as discussed in the course textbook—and mentioned the research of a well-known German scientist referred to in a website provided in the textbook.  A month later the District received an anonymous, informal complaint, which it claimed a student submitted.  The complaint stated that Sheldon’s answer to the student’s question about homosexual behavior was “offensive.”  The District then launched an “investigation” and found that Sheldon’s statements were “offensive and unscientific.”  The District’s board of trustees fired her in February 2008 because of what she said in the classroom. 

ADF filed suit on behalf of Professor Sheldon in July 2008.  The District asked the federal district court to dismiss the lawsuit, citing the Supreme Court’s decision in Ceballos v. Garcetti for the proposition that public employees, including faculty at public colleges, have no right to free speech when performing their job duties, including teaching.  (My colleagues and I have written at length about the perils of the Garcetti decision here, here and here.) 

While District argued that Professor Sheldon’s in-class speech was not protected by the First Amendment and that the District has the right to regulate it, even after the fact, the District’s academic freedom policy allegedly protected the faculty’s right to free expression in the classroom: 

The common good depends on the free search for truth and its free expression; to this end, faculty and students hold the right of full freedom of inquiry and expression. Academic freedom is essential to these purposes and applies to both teaching and research.  Freedom is fundamental to the protection of the rights of the teacher in teaching and of the student in learning…. The instructor has the right to study and investigate, interpret his/her findings and express resulting conclusions to students…. Because human knowledge is limited and changeable, the instructor may present views which are controversial and evaluate opinions held by others while simultaneously respecting and valuing their right of their free expression. 

So while the District promised freedom, it still wanted the right to censor and punish faculty for speech it disliked.  This is a dangerous position that all faculty should be concerned about, lest they fall into the same trap as Professor Sheldon. 

The court rejected the District’s Garcetti arguments, refused to dismiss the case, and held that “a teacher’s instructional speech is protected by the First Amendment.”  This is one of a handful of rulings nationwide that addresses Garcetti in the classroom and will provide protection to many faculty in the future. 

Professor Sheldon stood courageously to protect her First Amendment rights in the college classroom.  The settlement pays her $100,000 and exonerates her teaching record.  But the District’s unwillingness to embrace its proclamations of academic freedom is yet another example of the underlying hostility to free speech in the Academy.  Professor Sheldon is not the only professor to have been discriminated against for her speech, but the legal precedent she established and the settlement will no doubt cause administrators to think twice when they try to shut down the “marketplace of ideas” in the future.

I recently attended a faculty conference where any mention of the word “tenure” was met with a cynical chuckle and someone saying, “Tenure, ha!  It barely exists anymore!”  As one who sits off-campus looking in on the Academy the sentiment jolted me.  After all, tenure and the Academy go together like bread and butter.  But an article in the Chronicle of Higher Education demonstrates that my conference friends were not too radical in their retort.  In fact, the Chronicle reports that tenure may in fact be dead—or is at least dying.  And while this news troubles those looking for job security, it has also raised questions about whether professors are free to say what they want inside and outside the classroom.

The Chronicle reports the collegiate trend against tenure:

Over just three decades, the proportion of college instructors who are tenured or on the tenure track plummeted: from 57 percent in 1975 to 31 percent in 2007. The new report is expected to show that that proportion fell even further in 2009. If you add graduate teaching assistants to the mix, those with some kind of tenure status represent a mere quarter of all instructors.

“What’s so bad about the loss of tenure?” you ask.  “All it means is that professors are now employed at-will like the rest of us.”  But here is what worries the faculty:

For starters, some observers say that college faculties are being filled with people who may be less willing to speak their minds: contingent instructors, usually working on short-term contracts. Indeed, the American Association of University Professors says instructors need tenure to guarantee that they can say controversial things inside and outside the classroom without being fired.

This is cause for concern.  While tenure can entrench some wacky professors (thinking of the engineering professor at my alma mater who was an outspoken Holocaust denier), it also protects the lion’s share of professors who want to conduct cutting edge research and propose new theories without fear of government or institutional censorship.  Without tenure, professors will feel less free.  So where can they turn after tenure dies?

They can start with the First Amendment.  For years the Supreme Court lauded the important role the Academy plays in modern society.  In Keyishian v. Board of Regents, the Court said:

The essentiality of freedom in the community of American universities is almost self-evident.  No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.  To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust.  Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

The Court was onto something here.  The lifeblood of our national intellectual stamina is the training of our children and young adults through rigorous study and debate.  Though this blog has amply criticized the many faults of the modern public university, we recognize that the university is still a center of training and new discovery.  Thus, only a few years ago in Garcetti v. Ceballos, the Supreme Court reaffirmed its understanding of the Academy by specifically exempting it from a devastating decision that removed the ability of public employees to speak freely.  With that the Court renewed its commitment to protect free thought in higher education.

Yet some courts are attempting to erode those protections.  As my colleague, Travis Barham, wrote recently, “a federal district court in North Carolina ruled that Dr. Mike Adams’ nationally syndicated columns were not protected by the First Amendment.”  The court based its decision, in part, on deference to the university’s administration and decision making process.  It seems that when faculty need the First Amendment most, courts are increasingly—and wrongly—deferential to college administrators.  The Supreme Court’s decision in Christian Legal Society v. Martinez is just the latest example.

After tenure, where do faculty turn for the assurance that they can speak freely on campus?  For now, the First Amendment remains their friend.  But unless more professors like Dr. Adams stand up for their rights, after tenure, faculty may have nowhere to turn.

ADF ally Institute for Justice announced its new blog yesterday, Congress Shall Make No Law.  In one of the inaugural posts, IJ lawyer Steve Simpson wrote: 

Freedom of speech is one of the most important rights Americans enjoy, yet one of the least understood and most neglected. Like the air that we breathe, speech is so integral to our lives and so ubiquitous—think twitter, Facebook, blogs, cell phones, and email and much more—that most Americans take it for granted.

 …

But there is no guarantee that these legal protections will persist.

Censorship and speech regulations are common throughout the world, increasingly even in many Western nations. In America, byzantine “speech codes” regulate speech on college campuses. . .

Speech will remain free in America only if we take First Amendment rights seriously.

We agree.  The ADF Center for Academic Freedom takes the constitutional rights of college students and faculty very seriously.  That’s why we’re the only organization to have litigated multiple speech code cases against public universities over the past few years.  We have defeated speech codes in the California State University System,  and at Temple University, Penn State University, Shippensburg University, Georgia Institute of Technology, Los Angeles Community College District, Yuba Community College District, just to name a few. 

Free speech and religious liberty are our rights to claim.  We’re glad that IJ is adding its expertise to the blogosphere conversation and hope that liberty will expand on campus as a result.