Introduction to the AAUP and Academic Freedom

American higher education institutions have long practiced academic freedom for faculty. Academic freedom did not evolve over night and as this wiki will show, issues affecting academic freedom are still being debated in the court systems, on college campuses, and through professional organizations associated with educators and institutions. One of the largest organizations in support of faculty, the American Association of University Professors (AAUP) has a long and storied history supporting academic freedom. Below is a brief history explaining the professional principals adopted by the AAUP in relation to academic freedom.
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Edward Ross (1866-1951)


The AAUP formed in 1915 when professors Arthur O. Lovejoy and John Dewey met and formed a group to help protect faculty members after the firing of economist Edward Ross from Stanford University in 1900. Ross spoke out regarding the treatment of immigrant laborers and railroad monopolies; he was subsequently fired by Mrs. Leland Stanford because she disagreed with his viewpoint (AAUP, n.d.a). Remember, Jane and Leland Stanford earned their fortune through the railroad and created Stanford University in honor of their deceased son (Thelin, 2004; Stanford University, n.d.). The American Association of University Professors (AAUP) was formed to “provide assurance and redress for faculty members who claimed to have had their academic rights violated by irate presidents or cantankerous board members,” (Thelin, 2004, p. 128).

In 1915, a committee, as part of the AAUP, wrote and adopted the General Declaration of Principles which articulated the main goals of the AAUP and created general meaning and understanding of academic freedom, (AAUP, 1915) Specifically, the document described freedom of the student (Lernfreiheit) and freedom of the teacher (Lehrfreiheit) but focused more on Lehrfreiheit (German) to discuss the elements of academic freedom for the teacher. The General Declaration of Principles (AAUP, 1915) outlines three major elements of academic freedom for an instructor: 1) inquiry and research, 2) teaching, 3) “freedom of extra-mural utterance and action,” (AAUP, 1915, n.p.) The third element allows faculty to express their views outside of the university, to share their views at conferences and in publications, and to express their opinions as citizens outside of their capacity as faculty members.

From the General Declaration of Principles (AAUP, 1915) three principles recognized for the profession were: 1) basis of academic authority, 2) nature of academic calling, 3) and the function of the academic institution. The first principle, academic authority, helps faculty understand who the board of trustees or governing board is held accountable to. If the institution places restrictions on academic freedom of a faculty member the institution should proclaim itself to be a proprietary institution (AAUP, 1915). The second principle, academic calling, helps provide legitimacy and independence to teachers at a time when the profession was not necessarily seen as prestigious. The responsibility of a faculty member is to the public and their own professional field to increase knowledge and better the public good (AAUP, 1915). The third principle outlines the function of the academic institution, specifically to advance human knowledge, to provide instruction to students, and develop experts for public service (AAUP, 1915).

While the AAUP declared these principles in 1915 they are still relevant in today’s academy. The AAUP is an active professional organization and develops new strategies and ideas to address challenges facing the academy. In 1940, the AAUP held a conference with the Association of American Colleges (now known as the Association of American Colleges and Universities, (AACU)). At this conference the AAUP re-examined and modified a statement the organization had written at the 1925 conference on academic freedom and tenure. The new statement became known as the 1940 Statement of Principles on Academic Freedom and Tenure (AAUP, 1940).

The 1940 statement explains and promotes the need for academic freedom and tenure to the public and for the public to understand that the knowledge gained will not be for personal interests but rather for the common good (AAUP, 1940). The statement also explicitly states that teachers should be protected when introducing controversial material related to their course material, but teachers are not covered by academic freedom if they introduce controversial material that is irrelevant to the class subject matter. Teachers must also understand that they may be recognizable figures in the community and the public will judge not only them individually from their statements but also the institutions for which they work (AAUP, 1940).

The statement from 1940, like the statement from 1915, wanted to legitimize the profession. In 1940 tenure was described as “indispensable to the success of an institution in fulfilling its obligations to its students and to society,” (AAUP, 1940, p. 3). Academic tenure provides teachers a probationary period at an institution, up to a combined maximum of seven years. If after the probationary period the instructor is awarded tenure, the instructor can only be terminated for just and adequate cause with the exception of extreme financial exigencies. While an instructor is working in the probationary period, the instructor still should have academic freedom (AAUP, 1940). Tenure also creates a system of due process for faculty (Stripling, 2011a).



Academic Freedom in Private Institutions

In the world of higher education, public and private institutions are not always held to the same standards and regulations. Public institutions are seen as “acting under color of the government,” therefore being regulated by the same U.S. Constitution and common law as all other government entities (Bird, Mackin & Schuster, 2006, p. 42). Private institutions, however, essentially make their own rules and regulations, only having to follow what is promised in student handbooks and institutional policies. In California, only the speech of students at secular institutions is protect by special state legislation; on the other side of the country in New York, the courts have a unique state law the allows judges to probe the fairness of all chartered private entities (AAUP, 2009). As author and higher education administrator Rodney A. Smolla, as quoted in Jaschik (2011b), points out, “the influence of constitutional principles on private institutions is more cultural than legal,” (n.p.). He further explains that private institutions “borrow” constitutional ideas like due process and freedom of expression, though the borrowing is often formalized through processes involving faculty contracts. Though private institutions are not literally “bound” by the First Amendment, many policies are created using “the vocabulary of constitutional law” (Smolla, as quoted in Jaschik, 2011b, n.p.).

Case Examples
One example of private schools exercising their ability to limit academic freedom is seen in the court case of Connell v. Ammons. Lawrence J. Connell was a 26 year tenured law professor at Widener University School of Law in Delaware. In December 2010, despite his longtime career with the school, the university began attempting to fire Connell, claiming he violated the institution’s harassment code by using such terms as “black folks” and referring to other law school colleagues, such as the law school Dean Linda L. Ammons, as characters in hypothetical examples in class. Other faculty members at Widener refused to support the decision to fire Connell, however, Widener University has continued to push the situation. As of December, Connell was placed on administrative leave and in February 2011, Dean Ammons wrote a letter to recommend his dismissal from the university. In March, the Informal Committee of Inquire suggested that the case for dismissal be dropped. Dean Ammons, however, had two law students re-file their claims against Connell. Although it is a private institution, Widener University has publicly acknowledged its efforts to maintain academic freedom and freedom of expression. Therefore, in late March, the Foundation for Individual Rights in Education (FIRE) wrote a letter to the president of Widener University, James T. Harris III, asking that he respect the academic freedom of Connell (Connell v. Ammons, 2011).

Censorship is not only an issue at private institutions of higher education, but also in the K-12 world of education. Horace Mann School is a private school in the Riverdale section of the Bronx in New York. The teacher in question, Dr. Andrew S. Trees wrote a novel in 2006 entitled “Academy X". In his book which is set in a fictional, elite school, Trees mocks the quirks and needs of wealthy children and their oftentimes overbearing parents. Seeing as how Trees is a teacher at a private, elite school, some people feel his authorship of the book is eerily close to real-life situations dealt with at Horace Mann. After release of the book, Dr. Trees’ teaching contract was not renewed for the following year, infuriating many students and teachers. As an attempt to support Trees, two letters and an opinion essay were sent to Dr. Thomas M. Kelly, head of the school. Kelly, however, prohibited the editors of the student newspaper from running the letters and essay, claiming ‘personnel issues’ should not be scrutinized in the newspaper (Chan, 2007). While many people are outraged at this school’s decision to terminate a teacher for employing his right to academic freedom, being a private institution affords Horace Mann School with the ability to make administrative decisions that public institutions do not have the luxury to exercise.



Garcetti vs. Ceballos

The Case
In the case of Gil Garcetti vs. Richard Ceballos (547 U.S. 410), Ceballos worked as a deputy district attorney in the office of District Attorney Gil Garcetti in Los Angeles, California (Rosborough, 2009). In 2000, he reviewed an affidavit used to obtain a search warrant after it was brought to his attention that there were some inaccuracies in the document. After conducting his own investigation, he found that there were, in fact, falsities in the document. Upon bringing this to the attention of his employer, it was alleged that Garcetti, as well as two fellow employees, retaliated against Ceballos, asking him to transfer to another branch, to accept a job reassignment and by denying him a promotion. In this case, it was argued that the submission of the memorandum claiming falsehoods in the subpoena should be protected under the First Amendment.

The initial ruling in this case was handed down by the district court. It was found that Ceballos was speaking in a job-related capacity and not simply as a citizen. Because of this, it was determined that his speech presented in the memorandum was not protected. This ruling was appealed and the case was then heard in the Ninth Circuit Court of Appeals. At this point, the ruling was actually overturned, stating that the memorandum was protected because the content of the information was a matter of public concern. It was determined that the situation explained in the memorandum was more significant than the idea of avoiding workplace disruption (Lederman, 2006). Though the courts ruled in favor of Ceballos at this point, it was not a permanent decision. Upon hearing the case, the Supreme Court of the United States of America overturned the ruling of the appellate court, finding that the First Amendment did not prohibit managerial discipline in relation to an employee’s statements made in a job-related capacity (Garcetti v. Ceballos, 2006).


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Gil Garcetti
Implications
As a result of the Garcetti case, any public employee that is speaking in a job-related capacity is not protected by the First Amendment. According to Rosborough (2009), “Left unlimited, this new rule will have grave implications for academic freedom. Presumably, under the rule announced in Garcetti, a public university has the right to dismiss a professor solely because the administration disagreed with the content of his lectures, research, or publications because his speech would fall under the duties he was employed to perform,” (p. 589). Aside from simply restricting academic freedom, the Garcetti decision may also provide employers with the ability to encourage their employees to promote a certain opinion. Furthermore, it could prevent professors from speaking on controversial topics on which they are well informed for fear of being punished or terminated. The Garcetti decision not only stifles academic freedom, but could also result in a chilling effect on matters that are of public concern (Rosborough, 2009). Many people feel that the Garcetti ruling should not even apply to issues in the higher education setting. The original case involved the office of a district attorney and some individuals feel that the world of academics and higher education is a unique environment in which these same laws do not apply.

Applications
Since the Garcetti ruling, several cases have come about relating to unprotected speech in a job-related capacity. While some judges are aware that faculty speech may fall under different restrictions that those outline by the Garcetti ruling, some professors are finding themselves falling victim to the law. University of California at Irvine instructor, Juan Hong, sued the institution after claiming he was denied a merit raise because of comments he made in faculty meetings in the case Hong v. Grant. In this particular case, a federal district court dismissed Hong’s suit, claiming the discussions in the faculty meetings were “official duties” of the professors, making his comments “job-related”. Because of the job-related nature of his speech, the court ruled that it was not protected under the First Amendment. This case was appealed, but no final ruling has been made. As a result of this ruling, however, the American Association of University Professors issued a report last month claiming the Garcetti ruling was causing the erosion of academic freedom (Jaschik, 2009).

On the contrary, in 2007, San Jose City College professor June Sheldon (Sheldon v. Dhillon) lost her job as a result of a student complaint about comments made in her classroom when discussing the idea of “nature vs. nurture”. As a result of the termination, Sheldon sued the institution, claiming her First Amendment rights were violated by not allowing her to freely speak in her classroom. The ruling made by Judge Ronald M. Whyte does not necessarily determine whether or not Sheldon’s rights were violated; however, it does acknowledge that she does have rights, even when speaking in a job related capacity. In this case, the ruling reinforces that the application of the First Amendment in relation to a college professor’s instruction is “ill-defined and not easily determined” Furthermore, Judge Whyte noted that Garcetti does not explicitly address teaching-related speech and that the college district’s “heavy reliance on Garcetti is misplaced,” (Jaschik, 2009, n.p.).

Most recently, Mike Adams, a North Carolina professor, sued the university at which he was employed, the University of North Carolina – Wilmington, after claiming he did not receive a promotion making him a full professor because of his conservative, Christian views (Adams. University of North Carolina – Wilmington, 2010). When submitting the paperwork for his promotion, the controversial columns he had written as a criminal justice professor were provided as support for the promotion. He feels, however, he did not get the promotion because of the opinions expressed in those job-related writings. In early April 2011, the U.S. Court of Appeals Fourth Circuit ruled that the decision found in Garcetti v. Ceballos did not apply to faculty members of public colleges and universities (Jaschik, 2011a). While this ruling is only binding in the Fourth Circuit, it is a starting point for a ruling that has been controversial since its inception.





Threats to Academic Freedom and Faculty Response

Are academic freedom and tenure still as important today as it was in the 1940’s? Cary Nelson, a researcher and activist for scholars, and current president of the American Association of University Professors, debated David Horowitz, a conservative, and president of the David Horowitz Freedom Center. Both scholars are advocates for academic freedom but take drastically different viewpoints on how to protect it.

Academic freedom is such an important issue, and one in which the boundaries are constantly being challenged that the AAUP started a professional journal dedicated specifically to that topic in 2010 (Howard, 2010).

According to Nelson (2009) in his article The Fate of Academic Freedom there are 16 large threats to academic freedom and tenure. One of the largest threats to academic freedom, Nelson argues (2009) is the hiring of adjunct faculty. Even though the AAUP promotes academic freedom for adjuncts, teaching assistants and graduate students, adjuncts have no real job security and are contract employees. They are, generally, not part of the shared governance structure of an institution. On the other hand, some critics of tenure, an achievement adjunct faculty are not allowed to earn, say tenure makes it very “difficult to get rid of incompetent faculty,” (Stripling, 2011a, n.p).

Finance challenges facing institutions are also threating academic freedom (Nelson, 2009). Nelson, (2009) challenges institutions to closely examine what it pays its president and football coach. Is a football coach really that much more valuable than a professor in the humanities department? Based on salary alone, one may begin to think so. Not only does academic freedom protect the faculty, but it also allows institutions to determine its own curriculum without the government interfering in the process (Olson, 2009).

More and more institutions are hiring adjunct instructors and non-tenure track faculty members in an effort to reduce instructional costs (Weisbrod, Ballou, and Asch, 2008). Since instructional costs are the biggest cost to universities, it makes since that institutions are looking for ways to lower these expenses. “At public universities and four-year colleges, part-time faculty rose by half, from 20 percent of all faculty to 30 percent,” (Weisbrod, et al., 2008, p. 200) over a nearly 20 year period. Weisbrod, et al., (2008) also states that part-time faculty rose to almost 90 percent by 2006 at for-profit institutions. Rogers (2007) argues that with the rise in part-time faculty and those members not covered by tenure, the lack of job security and professional development opportunities for those instructors needs to be addressed to help preserve academic freedom. Not only is academic freedom in jeopardy for the rise in adjunct faculty, but shared governance is significantly jeopardized with the hiring of more part-time faculty, (American Federation of Teachers, 2006).

As a response to the hiring of adjunct faculty, and to create more equal pay among faculty, many faculty groups are voting to unionize. At Bowling Green State University in Ohio, faculty voted heavily in favor of creating a union (about 85 percent) with about 800 members including full-time faculty and those not on the tenure track (June, 2010b). The faculty at Bowling Green State University hope that with a union in place, improvement in salary, shared governance and job security for those not on tenure-track will be realized (June, 2010b).

At the University of Akron faculty created a union in 2003 and are represented by the American Association of University Professors, (Smallwood, 2003). “Union organizers have said that faculty members are concerned about salaries and benefits but their main concern is having a voice in decision making at the university,” (Smallwood, 2003, n.p.).

Faculty unions not only fight for better working conditions and pay for faculty they also provide a unified front and are changing the dynamic of shared governance in higher education. Shared governance and academic freedom are intrinsically linked. According to the American Federation of Teachers (2006) at times it appears that governing bodies at an institution such as a Faculty Senate group is in competition with a faculty union, however, the American Federation of Teachers believes that the groups complement each other, not compete against one another. Furthermore, the organization believes through collective bargaining collegiality is strengthened by adopting ground rules for everyone.

Graduate students are also increasingly voting in support of union representation. New York University, a private institution, first recognized a graduate-employee union in 2001. The union lobbied and was able to achieve a 40 percent pay increase for graduate student employees and paid health insurance through union bargaining (June, 2010a). The union contract, which also developed a grievance procedure for graduate student employees, ended in 2005 and the institution has not renewed it, citing a 2004 labor board ruling that graduate students were just that, students, and not employees and were therefore not able to join a union (June 2010a).

In 1994 the AAUP issued a statement on faculty governance and academic freedom, (AAUP, 2009). It is the goal of the statement of faculty governance and academic freedom that a faculty member will not be retaliated against because he or she voiced concerns or views that are different than those of the administration (AAUP, 2009). According to Gerber (2001) shared governance not only serves the good and interests of the faculty at an institution but now it “ultimately serves the needs of society,” (n.p.). Gerber (2001) argues that in order for faculty and institutions to “fulfill their educational mission, teachers and researchers need protections that other citizens do not require,” (n.p.).

According to a statement by the Higher Education Program and Policy Council, a division of the American Federation of Teachers (2006), shared governance between faculty and administration is important for three main reasons. First, the decisions that affect academic matters should not be made with political intentions or due to short-term managerial issues. Second, “faculty and professional staff are in the best position to shape and implement curriculum and research policy, to select academic colleagues, and judge their work,” (p. 1). Third and finally, those who work first-hand with students can provide a unique and important perspective into the needs of students when making important judgments. The American Federation of Teachers (2006) also recognizes the importance of all instructors and staff, whether the person is a full-professor in ranking or a student should have the opportunity to have their voice heard and participate in shared governance for the betterment of the institution.

Listen as University of Montana President, Royce Engstrom discusses the importance of shared governance.



Threats to Academic Freedom in the State of Wisconsin

In the state of Wisconsin a public debate ensued when a tenured faculty member, William Cronon, of history, geography, and environmental studies at the University of Wisconsin-Madison received an open records request into his university e-mail account (Hebel, 2011; Schmidt, 2011). In Wisconsin, the opposing views of collective bargaining and unionization of state workers (including faculty members) between the state legislature, governor, and state employees came to a head this year as the state passed legislation banning collective bargaining for state employee unions (Stein, Walker, & Marley, 2011). Republican Governor, Scott Walker, supported the bill which also proposed cutting retirement and health benefits as part of a larger budget repair bill (Stripling, 2011b).

Cronon criticized the Wisconsin Governor in a blog post and an opinion essay in The New York Times (Wood, 2011). Cronon believed the request was made to determine if he violated state law by using state resources, such as his university e-mail account, for partisan political use (Schmidt, 2011). It is feared that the request will have a negative chilling effect on academic freedom (Schmidt, 2011). The university complied with the open records request into Cronon’s e-mail but Madison chancellor, Carolyn Martin, indicated the university would not release private e-mails and those e-mails that involved students that would fall under the Family Educational Rights to Privacy Act (Hebel, 2011).

Interestingly, comparisons have been made to the statements Cronon made regarding the Republican Governor and his policies and another Republican Governor for the state of Wisconsin, Joe McCarthy (Nichols, 2011). While the current situation in Wisconsin has not resulted in a lawsuit, faculty and higher education institutions are taking notice on how the open-records law and written political opinions of faculty have affected academic freedom.



Further Issues and Court Cases

Following the U.S. Supreme Court ruling in Garcetti v. Ceballos (2006), the AAUP started a campaign to protect academic freedom, (Schmidt, 2009). According to Schmidt (2009) the campaign asks faculty unions and other professional organizations associated with higher education along with faculty and administrators to advocate for policies that protect “faculty speech dealing with academic matters, institutional governance, teaching, research, and issues outside the workplace,” (n.p.).

Lamb v. Booneville School District
In the case of Lamb v. Booneville School District (2010), a Mississippi special education teacher was denied a contract renewal because of her disapproval of the use of corporal punishment by a coworker. Kathy Lamb, the special education teacher, worked with eight students at Anderson Elementary School in Booneville, MS. One of her students, an autistic child referred to as C.J. was punished via paddling by another teacher, Ginger Murphy. Lamb expressed her displeasure with Murphy’s method of discipline, resulting in Murphy retreating to Principal Beverly Hill’s office, complaining and crying. Later that same day, Lamb’s presence was requested in Hill’s office, at which time it was explained that complaining to a fellow teacher about their actions within earshot of students was very unprofessional. It was also claimed that, prior to Lamb’s employment at the school, corporal punishment had worked well as a means of discipline. In April 2008, Lamb received a letter from School Superintendent Ricky Neaves, explaining her contract for the upcoming year would not be renewed. Lamb feels that she was unlawfully terminated as a means of retaliation for exercising her First Amendment rights.
This is a case in which the Garcetti ruling was applied in the realm of education. Summary judgment was granted to the District and it was concluded that, in this situation, Lamb was speaking as an employee, expressing her professional opinion that corporal punishment was not an effective means of discipline when dealing with an autistic child. The court then ruled that, because of the job-related nature of her speech, it was not protected by the First Amendment (Lamb v. Booneville School District, 2010).

Savage v. Gee
Scott A. Savage was the Head of Reference and Library Instruction at Ohio State University’s campus in Mansfield, Ohio from 2004 until the year of his resignation, 2007. Savage was a staff representative for the faculty-staff Executive Committee, a position for which he was elected. The idea was proposed to designate a book that all incoming freshmen would read. Seeing as how Savage described himself as an “original” or “conservative” Quaker, he was concerned that all the books suggested by committee members would be “lefty books,” indicating liberal ideals opposite of his own. Savage originally suggested Freakonomics, attempting to choose a book that was not “an ideologically or politically or religiously polarizing book” (p. 2). One committee member commented that they felt the university could afford to polarize on certain issues. Therefore, Savage recommended four more books. In his second list of recommendations, Savage proposed the book The Marketing of Evil.
In The Marketing of Evil, one chapter explains that homosexuality is “aberrant human behavior” that has gained acceptance in society because of an attempt to be politically correct. Seeing as how one of the committee members was, in fact, homosexual, this suggestion was not accepted with open arms. The book was characterized as being bigoted and homophobic in nature and Savage’s competence and professionalism was called into question. Following this suggestion and heated e-mail exchanges, discrimination/harassment “inappropriate behavior” charges were filed against Savage by coworkers. Savage retaliated by filing his own complaint citing false sexual harassment charges. Soon thereafter, Savage took a leave of absence that later turned in a resignation from his position.
In 2010, the federal district court in southern Ohio found that Savage’s recommendation of the book was made in a job-related capacity, therefore not protecting him under the First Amendment. Furthermore, situations involving curriculum and scheduling are usually not considered matters of public concern. While some Ohio courts had recognized Garcetti’s academic freedom reservation, the court did not feel his actions could be classified as “scholarship or teaching” in this situation (Savage v. Gee, 2010).

For your viewing pleasure....a "mostly" true video describing the Garcetti v. Ceballos court case. Enjoy!



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