Peter Wood has an interesting article today in the Chronicle of Higher Education discussing the AAUP’s efforts to encourage faculty advocacy in the classroom.  He writes:

In a series of recent reports beginning in 2007 with Freedom in the Classroom, the AAUP has staked out a position that aggressively expands the zone in which faculty members should be free to enunciate their personal opinions to their students. The AAUP has, in effect, found no appropriate limit on what professors should say or how they say it, other than to draw the line at “dishonest tactics” and outright attempts to “deceive students.”

Faculty members teaching a course on botany are, in the AAUP’s reckoning, free to digress on the perfidy of political leaders; faculty members teaching American literature are free to delve at whatever length they choose into issues of economics, social justice, or the environment. The freedom of faculty members, in this view, extends to “rhetorical intensity.” So faculty members are free to bully, humiliate, and rant—although the report genteelly avoids putting in plain language the various forms of intemperate expression its authors would countenance.

The AAUP is pushing for greater academic freedom in the classroom, according to Mr. Wood, because “any attempt to draw the line between permissible and impermissible forms of advocacy might well be seized as a pretext by those who are eager to silence certain views.” 

Yet in ADF’s experience, those “who are eager to silence certain views” are fellow faculty members and administrators.  Consider the case of June Sheldon, for example.  She was hired to teach a human heredity class.  When a student asked her about the relationship between heredity and homosexual behavior, she answered by referring the student to the textbook’s answer–that the question is being debated in the scientific community.  She then added some thoughts of her own based on her research.  Another student later reported that she was “offended” by Ms. Sheldon’s comments.  Did the college protect Ms. Sheldon?  Did it cite her academic freedom to add her own expertise to the classroom?  No.  It fired her. 

Or consider the case of Professor Mike Adams.  The University of North Carolina – Wilmington refused to promote him to full professor because he was a Christian and had written political commentary outside the classroom.  Indeed, those responsible for his promotion were his peers in the Department of Sociology and Criminal Justice.  They did not support his academic freedom, they trampled it.  (In the AAUP’s defense, it submitted an excellent amicus brief to a federal appeals court, supporting Professor Adams’ case of discrimination.) 

Mr. Wood blames the AAUP’s problem on the widespread bias in the academy.  A bias not necessarily of political nature, but of societal nature.  According to him:

The academic left has so far succeeded in its own domination of the means of intellectual production that most students never catch a glimpse of the alternatives. The exception may be in economics courses, where even liberal professors tend to take a positive view of free markets, but this exception does little to modify the overall proposition: Our universities teach from a standpoint of opposition to the society they are part of.

The AAUP explicitly regards this as a good thing, and it further regards “academic freedom” as the doctrine our society needs in order to keep “vested interests,” the “tyranny of public opinion,” and other threats of “interference” at bay (see pages four and five of the new report). We need academic freedom, in this view, to foster the progressive “long term” thinking and criticism that can flower in an academy that sets itself against the short-term calculations that are likely to prevail in the political and social world outside.

Perhaps the real reason we need robust academic freedom is not to protect American society from itself, as the AAUP believes, but to protect the “unpopular” or “politically incorrect” faculty from an academy in ideological lockstep.

A University of North Carolina–Wilmington professor’s speeches and columns are fully protected by the First Amendment, according to a published decision handed down Wednesday by the U.S. Court of Appeals for the 4th Circuit. Alliance Defense Fund attorneys contended that criminology professor Mike Adams was denied a promotion unconstitutionally because university officials were hostile to the religious and political views he espoused in his columns and speeches.

A lower court had said that Adams’ speeches and columns on matters of public concern were not protected by the First Amendment and instead constituted “official” speech as part of his job duties.  The 4th Circuit disagreed, finding that Adams’ columns and speeches constituted protected, private speech and that university officials could be held personally liable for damages should Adams ultimately prevail in the case.

“Christian professors should not be discriminated against because of their beliefs, and this decision thoroughly upholds that,” said ADF Senior Counsel David French, who argued before the court in January.  “The 4th Circuit’s decision is a ringing vindication of the academic freedom of public university professors.  Disagreeing with an accomplished professor’s religious and political views is no grounds for refusing him promotion.  Opinion columns are among the purest examples of free speech protected by the First Amendment.”

In its opinion in Adams v. The Trustees of the University of North Carolina-Wilmington, the 4th Circuit wrote that “no individual loses his ability to speak as a private citizen by virtue of public employment. . . .  Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality.  Such topics plainly touched on issues of public, rather than private, concern. . . .  The Defendants’ arguments to the contrary rest on the same fallacy engaged by the district court, and focus not on the nature of Adams’ speech at the time it was made, but on his inclusion of those materials in the ‘private’ context of his promotion application.  Nothing in the district court’s analysis or the Defendants’ contentions rebut the conclusion that Adams’ speech was that of ‘a citizen speaking on a matter of public concern.’”

A former atheist, Adams frequently received accolades from his colleagues after the university hired him as an assistant professor in 1993 and promoted him to associate professor in 1998. However, after his conversion to Christianity in 2000, Adams was subjected to a campaign of academic persecution that culminated in his denial of promotion to full professor, despite an award-winning record of teaching, research, and service.

The case now goes back to the U.S. District Court for the Eastern District of North Carolina for further proceedings consistent with the 4th Circuit’s conclusions on Adams’ viewpoint discrimination and retaliation claims.

That is the question that dominated the Society for Personality and Social Psychology at its annual conference, according to a fascinating article in today’s New York Times (also referenced by Inside Higher Ed).  But rather than looking at the usual litany of victims and rounding up the usual suspects, Dr. Jonathan Haidt of the University of Virginia argues that social psychologists discriminate against conservatives.  After polling the audience, over 80% of which self-identified as liberal, he commented: 

Anywhere in the world that social psychologists see women or minorities underrepresented by a factor of two or three, our minds jump to discrimination as the explanation. . . .  But when we find out that conservatives are underrepresented among us by a factor of more than 100, suddenly everyone finds it quite easy to generate alternate explanations.

And this leftist echo chamber has consequences on campus, especially for conservative students, who hide their political beliefs from colleagues who openly assume that everyone—or at least everyone who is considered “intelligent”—is liberal. 

Dr. Haidt’s diagnosis confirms what other studies—some of which the New York Times references—have shown:  that leftists and Democrats vastly outnumber conservatives and Republicans among university faculty.  And it confirms what professors like Dr. Mike Adams and students like Julea Ward have experienced:  if you merely express conservative or Christian views, you will face discrimination, in the form of lost promotions or even expulsion.  

But Dr. Haidt does not just diagnose the problem.  He also explains how it arose:  “social psychologists are a ‘tribal-moral community’ united by ‘sacred values’ that hinder research and damage their credibility—and blind them to the hostile climate they’ve created for non-liberals.”  And to break up this ideological monopoly, he prescribes some good medicine:  hefty portions of National Review and Thomas Sowell.  Hopefully, his message will catch on and the discrimination against conservatives and Christians in higher education will end.  Until then, perhaps we should call his prescription Chicken Soup for the Leftist Soul.

At the beginning of a new year, there is a valuable opportunity for reflection on the past year and what it means for the future.  While 2010 was certainly not without its major victories for free speech, it also suffered some challenges.    Here’s a quick look back at developments in ADF’s academic freedom cases in 2010 and what they mean for 2011:

Badger Catholic v. Walsh, et al. (University of Wisconsin):

Part of the ongoing battle against the University of Wisconsin for its discriminatory student fee program, Badger Catholic presents a challenge to the denial of student fee funding to a Catholic student group because its activities may involve student-led prayer, worship or proselytizing in violation of Rosenberger’s requirement of viewpoint neutrality.  In September, the Seventh Circuit handed down its opinion, reaffirming that the Establishment Clause does not require such discrimination against religious student speech.  The court ruled that the University must treat religious student groups equally to nonreligious student groups, in terms of granting them funding for their expression and allowing them space to meet on campus.

Badger Catholic was a huge win, but the battle isn’t over yet.  Attorneys for the University of Wisconsin filed a petition for writ of certiorari to the United States Supreme Court in November. 

Sheldon v. Dhillon (San Jose-Evergreen Community College District):

 June Sheldon was an adjunct professor at San Jose City College. While teaching her class on human heredity, a student asked whether homosexuality was genetic or environmentally influenced.  Ms. Sheldon responded that the issue was complex and referred the student to materials mentioned in the textbook, but one student was offended by her response and complained anonymously.  The college district responded by firing Ms. Sheldon.  At the end of 2009, the United States District Court for the Northern District of California refused to dismiss Ms. Sheldon’s First Amendment claims, holding that an instructor’s speech in the classroom is protected by the First Amendment, and in June 2010, a settlement was finalized with the District.  As a result of the settlement, the District agreed to fully expunge any allegations of wrongdoing from Ms. Sheldon’s employment record and pay her $100,000 in damages.  The Sheldon case represents a huge victory for faculty free speech, and its precedent can be used in the future to help protect professors’ rights.

Professor Kenneth Howell (University of Illinois):

Dr. Kenneth Howell, a well-respected and well-liked professor at the University of Illinois, was fired in July after teaching the Roman Catholic Church’s position on homosexual behavior in a class called Introduction to Catholicism, after a student (who was not even enrolled in the class!) complained.  But after a few letters from ADF, and facing a groundswell of support by students and media scrutiny, the University reinstated Dr. Howell.  Moreover, a few months later, a faculty committee issued a report on the situation and agreed that Dr. Howell was entitled to due process, that professors of religious studies may have a perspective in teaching their courses, just like any other professor, and that students don’t have a right to not to be offended.  While the Howell situation did not involve a court ruling, the University’s corrective actions should serve as an example to other universities in the future when they are given the opportunity to protect the free speech rights of faculty members.  The Howell situation should also serve as an encouragement to students to stand up for what’s right—the students who started the grassroots effort to get Dr. Howell reinstated played an integral role in this victory.

Indiana University of Pennsylvania

Despite the Third Circuit’s 2008 ruling in DeJohn v. Temple University, many public universities under that Court’s jurisdiction continued to retain unconstitutional speech policies which allowed a student to be punished for saying something that simply offended another student.  In an effort to bring these policies into compliance with DeJohn, ADF allied attorneys sent letters to several universities, notifying them that their policies ran afoul of the Constitution and offering assistance in changing those policies.  As a result of a letter sent by ADF allied attorneys Leonard Brown and Randall Wenger, IUP agreed to change their unconstitutional speech code.   Hopefully more universities follow their lead in 2011 and voluntarily give up their unconstitutional policies.

Despite these victories, 2010 also presented some challenges:

In CLS v. Martinez, the Supreme Court ruled that University of California Hastings College of Law could have an all-comers policy without violating the First Amendment, even though, as the justices rightly pointed out, it made little sense.  (Extensive analysis of the Court’s decision can be found here, here, here, and here, for a start.)  Importantly, however, the Court remanded the case to the district court to determine whether there was discriminatory enforcement of the policy—in other words, whether CLS was targeted for unequal treatment under the policy.  Given the evidence in the record regarding the other student groups that required their members and leaders to hold views in common with the purpose of the group, we are hopeful that CLS will get justice in the end.  And because the ruling was quite narrow (virtually no other schools have an all-comers policy, probably because they are silly and stifle the marketplace of ideas), it had a lesser impact on free speech and associational rights than anticipated.  In the words of Michael McConnell, we have lived to fight another day. 

In Lopez v. Candaele (Los Angeles Community College District) and Rock For Life v. Hrabowski (University of Maryland, Baltimore County), the Ninth and Fourth Circuits, respectively, went the opposite way of the Third and Sixth Circuits in holding that students lack standing to facially challenge policies that restrict their speech.   OSU Students Alliance v. Ray (Oregon State University) is currently awaiting an oral argument date at the Ninth Circuit after a district court judge dismissed the students’ complaint.  While these rulings were certainly disappointing, ADF was able to obtain positive policy changes in all three of these cases.  Adams, Ward and Keeton are also at the appellate level following disappointing district court rulings.  All of these cases are still ongoing, and will be ones to watch for developments in 2011. 

Finally, the Supreme Court heard Arizona Christian School Tuition Organization v. Winn, a case that has implications for associational rights in the educational context.  The opinion in this case is expected in Spring 2011, probably late March or April. 

Given what’s at stake, 2011 promises to be an incredibly crucial year for student and faculty free speech in the courts.

Since this is still the first week of the new year, it’s not too late to make some New Year’s resolutions.  Here are some suggestions for college administrators, based on what happened in 2010: 

10.  Surreptitiously confiscating an independent student newspaper’s bins and throwing them in a storage yard next to a dumpster is probably not a good idea.  Giving the independent paper access equal to other student publications is.

 9.  Stop the irrational prejudice against the Future Farmers of America.  You like diversity, remember?

 8.  Remember that forcing a student to change their religious beliefs to stay in school qualifies as indoctrination, not education.

 7.  Make your whole campus a “free speech zone,” as the First Amendment requires.  This would probably only work if you run a university for Smurfs.

 6.  Don’t treat pro-life students like criminals.  Praying on a college campus isn’t a punishable offense either.

 5.  Hire faculty based on their academic credentials.  Being “potentially evangelical” is not a disqualifier.  On that note, spend some time reviewing a little law called Title VII.

 4.  Don’t fire faculty members for teaching their subject matter.  Encourage thin-skinned students “offended” by said subject not to take the class.  Or alternatively, to grow up.

 3.  Repeal your speech codes without waiting to get sued, like the University of Virginia.

 2.  Re-read Supreme Court cases on student fees, especially if you work at the University of Wisconsin.

 1.  Realize that all-comers policies are as dangerous to the marketplace of ideas as Ford Pintos were to the highway.  Not to mention that they would effectively bar single-sex a capella groups, a decidedly huge blow to campus culture.