Charlotte Allen has posted a thoughtful essay about the aftermath of the Supreme Court’s unfortunate June decision in Christian Legal  Society v. Martinez (“More Wreckage from Ginsburg’s ‘Neutral’ Ruling,” September 7, 2010).  Very much worth a read.

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.

The Supreme Court’s recent decision in Christian Legal Society v. Martinez has, of course, caused a lot of people to spill a lot of ink (or in this era, clatter a lot of keys) over the past few days. And in the spirit of one-stop shopping, here are links to many of the articles discussing the decision, its meaning, its merits, and its consequences.

June 28, 2010.

• David French at Phi Beta Cons: CLS v. Martinez: My First Quick Take.
• David French at Academic Freedom File: Martinez Ruling: Ninth Circuit Affirmed, but with Remand.
• David French at Academic Freedom File: CLS v. Martinez: Roger Pilon Gets It Right.
• David French at Academic Freedom File: CLS v. Martinez: Further Thoughts.
• David French at Minding the Campus: CLS v. Martinez: A Curious and Mistaken Decision.
• Timothy Dalrymple interviewing David French at Patheos: “You Cannot be an Equal Participant in the Marketplace of Ideas.”
• Citizen Link: Supreme Court Decision on Religious Freedom “Narrow and Troubling.”
• Roger Pilon at Cato@Liberty: Undermining Freedom of Association.
• FIRE: In “CLS v. Martinez” Ruling, Sharply Divided Supreme Court Undermines Freedom of Association on Campus.
• Richard Epstein at Forbes Magazine: So Much for Religious Liberty.
• Bob Unruh at World Net Daily: Alito: Supremes Endorse “Viewpoint Discrimination.”
• Michelle A. Vu at The Christian Post: Supreme Court: Christian Group Can’t Bar Gays, Get School Funding.
• Mark Walsh at Education Week: Group Barring Gays Can Be Denied Recognition, High Court Says.
• Peter Schmidt at Chronicle of Higher Education: Supreme Court’s Ruling on Law School’s Anti-Bias Policy May Have Limited Impact.
• William Creely at The Torch: First Reactions to “CLS v. Martinez.”
• Erica Goldberg at The Torch: Kennedy’s Concurrence in “Martinez” Highlights Court’s Misguided View on Role of Student Organizations.
• Adelle M. Banks at Beliefnet News: Supreme Court Rules against Christian Legal Group.
• Chuck Donovan at The Foundry: Martinez Ruling a “Serious Setback for Freedom of Expression.”
• Roger Marus at Associated Baptist Press: Justices Say Christian Club Not Exempt from Non-Discrimination Policy.
• Angela Lu at World Magazine: Court Rules Against CLS.

June 29, 2010.

• David French at Townhall: Overstepping Their Boundaries: The Supreme Court Decides What’s Best for Christians.
• Hadley Arkes at First Things: Vast Dangers—Confirmed.
• Adam Goldstein at Huffington Post: Supreme Court’s CLS Decision Sucker-Punches First Amendment.
• Bill Bumpas & Jody Brown at One News Now: Christian Legal Society: It’s Not Over Yet.
• Scott Jaschik at Inside Higher Ed: New Venue for Anti-Bias Debate.
• Ted Olsen & Trevor Persaud at Christianity Today: Christian Legal Society Loses in Supreme Court Case.
• Howard Friedman at Religion Clause: Advocacy Groups React to CLS v. Martinez.
• Kathleen Gilbert at Life Site News: Some Conservatives Slam, Others Downplay SCOTUS Ruling against Christian Groups.
• Charisma News Online: Prayer Leader: Supreme Court Decision May Signal Onset of Church Persecution.
• Tom Strode at Baptist Press: Court Ruling Threatens Christian College Groups.
• Kris Alingod at All Headline News: Supreme Court Sides with School Against Religious Exclusion.
• California Catholic Daily: “Serious Setback for Freedom of Expression.”

June 30, 2010.

• David French at Human Events: Supreme Court Deals Blow to Liberty.
• Jordan Lorence at Washington Examiner: The CLS Case and the Mirage of “All Comers” Policy.
• Greg Baylor on Fox News: The CLS Ruling.
• Bob Ellis at Dakota Voice: Supreme Court Affirms Viewpoint Discrimination.
• The Observatorium: Homogenization.
• Staff at The Underground: Supreme Court Supports Hastings College of Law’s Student Groups Policy.
• Peter Schmidt at Chronicle of Higher Education: Ruling Is Unlikely to End Litigation over Policies on Student Groups.
• Azhar Majeed at The Torch: Dispute Over Scope of Hastings Policy Underscores Narrowness of “Martinez” Decision.
• Megan Grizzle at The Torch: In “Martinez,” Justice Ginsburg Disregards Serious Threat of Hostile Takeovers.

July 1, 2010.

• Casey Mattox on CBN News Video: CLS v. Martinez.
• Cal Thomas at Townhall: The Courts, the Clubs, and Discrimination.
• Mike S. Adams at Townhall: An Immodest Proposal.
• Erica Goldberg at The Torch: The “Subsidy” Is Not the Issue: The Incorrect Framing of “CLS v. Martinez.”
• Peter Bonilla at The Torch: SPLC’s Frank LoMonte Asks: How Might “CLS v. Martinez” Affect Student Press?
• John Leo at Minding the Campus: Long Before Hastings There Was Tufts.
• K.C. Johnson at Minding the Campus: What Now after CLS?

Over at Patheos, Timothy Dalrymple has posted his interview with David French on the meaning and impact of the Supreme Court’s decision yesterday in Christian Legal Society v. Martinez.  In this in-depth interview, David discusses free association precedent that the Supreme Court ignored in yesterday’s opinion.  He also highlights just how narrow the ruling actually is, thus correcting many media reports.  And since UC-Hastings’ policy is almost unique in the nation, he explains what impact the decision could have on Christian students at other schools, in both the short and long term.

Yesterday morning, the Supreme Court issued seven opinions, but Christian Legal Society v. Martinez was not among them.  The CLS case is now the only case from the Court’s April sitting that has not been decided.  There are still four outstanding decisions from cases heard this term—CLS, Bilski v. Kappos (patents), Free Enterprise Fund v. Public Company Accounting Oversight Board (Sarbanes-Oxley and separation of powers), and  McDonald v. City of Chicago (Second Amendment) .  The Court is expected to hand down the remaining decisions on Monday morning beginning at 10:00 a.m. EDT. 

We have previously engaged in a couple of games of Supreme Court Bingo to guess who will be writing the CLS opinion.  Jordan predicted that it would be Chief Justice Roberts, Justice Ginsburg, or Justice Stevens, as none of them had written an opinion from the April sitting. 

Now that we have more information, we can fill in our “bingo card” a little more, but the outcome is still far from certain.  Chief Justice Roberts wrote the 8-1 majority decision in Doe v. Reed, a case litigated by ADF ally Jim Bopp.  That means that the only two justices who have not written an opinion from the April sitting are Justice Ginsburg and retiring Justice Stevens.  It is not unheard of for a justice to write two opinions from one sitting–Justice Stevens wrote two opinions from the March sitting, for example–but the Court generally tries to distribute the burden of opinion writing evenly. 

It will be interesting to see who writes the CLS opinion–if it is Justice Stevens, he could be issuing his very last opinion as a Supreme Court justice, and given that he only asked one question during the oral argument, it is hard to predict what the outcome would be unless one looks at his prior opinions involving religious speakers.  (He has not frequently been favorable to religious freedom.)   Justice Ginsburg did not seem sympathetic to CLS during oral argument.  (Check here and here for analysis of the oral argument).  But it is also possible that another justice could be writing the opinion. 

ADF lawyers Greg Baylor, Jordan Lorence, and Casey Mattox will be present in the courtroom on Monday to hear the proceedings.  Please continue to pray for a just outcome in this case, and check back here on Monday morning for an update.  We will have coverage and commentary starting within 30 minutes of the opinion being issued.