ACE’s ‘Statement on Academic Rights and Responsibilities’

By June 23, 2005

Today the American Council of Education (ACE) issued an important new Statement on Academic Rights and Responsibilities. Over two dozen groups, including the American Association of University Professors (AAUP) and the National Association of Student Personnel Administrators (NASPA), joined the statement.
 
The statement is generally a positive development and ACE should be commended for organizing and issuing such a statement.
 
I do, however, have questions and comments about the language of the provisions.
American higher education is characterized by a great diversity of institutions, each with its own mission and purpose. This diversity is a central feature and strength of our colleges and universities and must be valued and protected. The particular purpose of each school, as defined by the institution itself, should set the tone for the academic activities undertaken on campus.
FIRE agrees with this statement with regards to the right of private colleges to define their own identities. Because the First Amendment and principles of free thought and academic freedom apply with legal force to public colleges, however, a public college could not, for example, decide that its “mission and purpose” was to promote a strictly defined understanding of “patriotism” or “social justice” and then expel any professor who does not agree with its definition.
 
In large part because of the constitutional guarantees of freedom of association, conscience, religion, and speech, private colleges are free to associate around certain ideas or faiths. Therefore, a private college could conceivably decide that its “mission and purpose” was to promote a narrow definition of “patriotism” or “social justice” in and subsequently teach, punish and censor accordingly. Such a school, of course, might not have the easiest time convincing students to attend or retaining professors who are willing to think for themselves.
 
What a private college may not do, either morally or, because of contract law, legally, is promise the free and open exchange of ideas and then deliver repression. Most of America’s top colleges promise their students and faculty free speech and academic freedom. They attract students, professors, and donors because of these promises. FIRE holds private colleges that promise free speech to these promises.
Colleges and universities should welcome intellectual pluralism and the free exchange of ideas. Such a commitment will inevitably encourage debate over complex and difficult issues about which individuals will disagree.
This is an essential element of why ACE’s statement is a valuable and an important step for academia. Too often, FIRE sees cases where truly dissenting points of view are punished or treated like they must be “unlearned,” as if the college administrations had a monopoly on truth. As Learned Hand captured so eloquently, “The spirit of liberty is the spirit which is not too sure that it is right.”
Such discussions should be held in an environment characterized by openness, tolerance and civility.
I am glad this is stated as “should” as opposed to “must.” John Stuart Mill provided the defining argument for why we should be leery of restrictions in the name of things even as seemingly uncontroversial as “civility and tolerance.” As we wrote in FIRE’s Guide to Free Speech on Campus:
For example, Mill addressed one of the major rationales for imposing constraints on free speech on campuses today, namely that speech should be “temperate” and “fair.” Mill observed that while people may claim they are not trying to ban others’ opinions but merely trying to banish “intemperate discussion…invective, sarcasm, personality, and the like,” they never seek to punish this kind of speech unless it is used against “the prevailing opinion.” Therefore, no one notices or objects when the advocates of the dominant opinion are rude or uncivil or cruel in their denunciations of their detractors.
 
Why shouldn’t their opponents be equally free to show their disdain for the dominant opinion in the same way? Further, Mill warned, it always will be the ruling orthodoxy that gets to decide what is civil and what is not, and it will decide that to its own advantage.
I understand the spirit of what ACE is attempting to communicate through this provision, but politeness is of secondary importance to meaningful debate and candor.
 
Academic decisions including grades should be based solely on considerations that are intellectually relevant to the subject matter under consideration. Neither students nor faculty should be disadvantaged or evaluated on the basis of their political opinions. Any member of the campus community who believes he or she has been treated unfairly on academic matters must have access to a clear institutional process by which his or her grievance can be addressed.
 
This is an important part of the statement. We have seen more than a few cases where students and professors have been punished for their political opinions or, worse, required to affirm opinions that may not be their own through coercive measures such as grade penalties (see Rhode Island College, Citrus College, and University of New Mexico for just a few examples).
The validity of academic ideas, theories, arguments and views should be measured against the intellectual standards of relevant academic and professional disciplines. Application of these intellectual standards does not mean that all ideas have equal merit. The responsibility to judge the merits of competing academic ideas rests with colleges and universities and is determined by reference to the standards of the academic profession as established by the community of scholars at each institution.
This is the only part of the statement that truly troubles me. My first question is, “Who is deciding the validity of ideas, why and how?” Yet the point I am more concerned with is this statement: “The responsibility to judge the merits of competing academic ideas rests with colleges and universities and is determined by reference to the standards of the academic profession as established by the community of scholars at each institution.”
 
I believe that academic freedom, properly understood, includes at least three levels. Roughly, the institution itself has the academic freedom to, among other things, decide what will be studied, which subjects will receive what funding, and whom they will hire. The second level of academic freedom resides with the faculty and their freedom to decide the relevant facts, how to teach, and which points are of greater or lesser importance. They also have the academic freedom to conduct research within their fields and follow their research where it leads them. The third and most often forgotten type of academic freedom resides with students. Students should, at very least, have the right to discuss, research, question, and dissent.
 
The concept of academic freedom explained in ACE’s statement seems to revolve primarily around institutional academic freedom. The fact that it mentions the “community of scholars” does not help the reader to understand what would happen to a scholar who truly dissents from the conventional wisdom of, say, the college president or the rest of the department. 
 
Earlier AAUP Guidelines put the matter correctly: students have the full right, if they demonstrate mastery of the materials of a course, to engage in reasoned dissent from their professors’ conclusions, and to withhold judgment, without penalty whatsoever. Professors who prefer disciples to open-minded and critically minded students betray the heart of education. Further, if colleges and universities err, let them err on the side of promoting greater debate and intellectual pluralism. That befits a free society.
Government’s recognition and respect for the independence of colleges and universities is essential for academic and intellectual excellence. Because colleges and universities have great discretion and autonomy over academic affairs, they have a particular obligation to ensure that academic freedom is protected for all members of the campus community and that academic decisions are based on intellectual standards consistent with the mission of each institution.
Perhaps what this is saying, combined with the previous paragraph, is that academic freedom belongs to the institution itself but then may or may not be granted by the institution to students and faculty. If so, this idea is incomplete. A private school could decide, as in my example above, that it will organize around principles it places higher than unfettered academic freedom, such as a religion or an ideology. A public college, however, cannot do that, and a private school that claims to value free speech and academic freedom has a duty to provide for the academic freedom of all.
 
I am still mulling over this statement and despite my long comments I see this as a very positive development. If this statement means that ACE and other groups recognize there are problems to be addressed than that is real progress.
 
But just when I was starting to get excited about this statement I read ACE’s press release about the statement:
“During the past decade, higher education has come under increasing criticism for a lack of commitment to political and intellectual pluralism─such criticism is based on information from a very few cases and ignores our general practices,” said David Ward, president of ACE. [Emphasis added.]
Because I would say that censorship both on and off campus usually involves “a lack of commitment to political and intellectual pluralism,” I find the idea that this concern arises from “a very few cases” ridiculous and insulting. FIRE gets hundreds of complaints every year, and of those we take dozens of outrageous cases public every year. A quick look at our case archive chronicling our short history should demonstrate that the concerns about repression on campus are hardly imaginary. Human beings are so good at seeing abuse of power by others and so bad at seeing their own abuses. The first step to solving a problem is admitting you have one.