Strengthening Constitutional Self-Government

No Left Turns

Political speech in higher ed

I can’t believe that anyone is supporting the proposal described here. And I can’t believe that it would survive a lawsuit, which it shouldn’t.

Update: Stanley Kurtz calls it "one of the worst pieces of legislation I have ever heard of." John J. Miller calls it "an extraordinarily bad idea." David Horowitz doesn’t like it either. David French thinks that that the constitutional issues are more complicated:

[T]he university itself has the academic freedom to order its professors to stick to their subjects (i.e. the university can prevent professors from taking time out from English Literature for a discussion of the Iraq War), but it cannot interfere with the “instructor’s freedom to express her views on the assigned course.” In other contexts, the ability of the state to limit the explicit, on-the-job political activity of its employees is unquestioned.


For many years, university professors have enjoyed a measure of academic freedom that is actually greater in scope than the rights guaranteed by the First Amendment. Persistent and arrogant abuse of that freedom is going to invariably lead legislatures and universities themselves to begin to roll back professors’ expressive autonomy. Sadly, the university establishment seems oblivious to the fact that their own abuses are leading them down the road of regulation, and they seem blissfully unaware that their employers have far more power over their expression than they dare to think.

Discussions - 20 Comments

I don’t know, Joe. Aren’t there all kinds of such restrictions on civil servants? And why should government "by the people" allow professors a publically-funded platform to spew forth on partisan issues? I’m not as dismissive of this as you seem to be. Even in political science courses, endorsing candidates to captive undergraduates isn’t professional...why not make it illegal?

Dain,

I think it’s harder to distinguish between "on" and "off" the job for faculty, which makes this much more chilling than restrictions placed on civil servants. In addition, there are considerations of academic freedom, and on the way in which analysis might be misconstrued as advocacy. Also chilling.

I don’t approve of the politicization of the classroom, and I believe that professors should be even-handed, but that doesn’t mean that they shouldn’t be permitted to offer their opinions or best judgments. In the end, the best antidote for partisan professors is publicity and criticism, rather than legislation. And the best way for colleges and universities to avoid stupid legislation like this is to police themselves. This includes, by the way, being more open to conservatives, so that, for example, there are folks like me with experience in higher education who can tell Republican legislators why their proposals are wrong-headed.

Joe, the presumably fair-handed self-policing you suggest as an alternative has been hijacked, no longer exists, or at best has atrophied severely. Reasoned discourse and logic have been pushed to the sidelines. Please consider the Harvard A&S faculty’s response to Summers, and the Duke Group of 88. Where is the self-policing? Yes, at Duke the econ dept eventually countered with a reasoned, highly laudable statement, but that has not bridled the Group.

Tom,

The response of the marketplace to this should be for students and donors to look elsewhere. Those colleges and universities whose faculties are "out of control" should feel the pinch in their pocketbooks.

I may be crazy, but I think that 501(c)(3) of the Tax Code already has this covered. I know there was a case where the IRS had to determine whether a University should lose its tax exemption for supporting a candidate when a class required students to participate in campaigns. The IRS determined it was acceptable, but only because the students did it, and were free to chose who they helped.

Universities would be engaged in campaign intervention, and in violation of 501(c)(3) if professors spoke in favor of candidates, etc. through the principles of agency law. Churches already face this threat when ministers speak about candidates.

You can bet that threat of loss of exemption, and or sec. 4955 fines would make the University clamp down on professor’s in class political speech. As for being Constitutional, if Churches can be controlled regardless of the 1st amendment, I do not see Universities could not be controlled.

In my observation, most students are more conservative and more skeptical than the professors Arizona is worried about. Pontificating professors are ignored and made fun of. If necessary, students just "discount" for the sake of a grade. They are cheated but not brainwashed. Student opinion websites bear this out, I think. Of course, some professors win an ideological following of like minds, but there’s not much to do about that. Do we really want the "rights revolution" to triumph still further in the colleges and universities?

It’s certainly "believable" that some people would support this proposal.
There should be nothing surprising about it at all -- except, perhaps, that a state legislator had the guts to introduce it. There is a widespread -- and 100 percent justified -- sense of grievance among conservatives about politicized classrooms. The problem is a terribly serious one. And inevitably, in politics, grievance will lead to proposals that overreact and take a meat-axe approach.
Rather than ritualistically sniping at the well-meaning but mistaken sponsors of this bill, why not suggest a constructive alternative? Surely the problem is far, far worse than the fact that one bill taking the wrong approach to it has been introduced.

David,

Sunshine is a disinfectant. People voting with their feet is a deterrent. These are ways to get colleges and universities to police themselves. They presume, of course, that parents, students, and donors actually care about what actually goes on intra the murals.

Genuine self-policing may be possible here and there. But it seems impossible at most institutions. The leftist tail wags the dog. I’ve always thought "voting with your feet" was a poor political strategy. It is a last resort when one can’t do anything else. It seems active, but is in fact passive, because it runs away from the problem rather than solving the problem. Why should we allow abusive liberals to circumscribe our options for us? The cancer in academe will spread to the institutions we choose "with our feet," if it hasn’t already. As for "sunshine," that’s another Jeffersonian cliche. It’s a myth if people don’t pay attention AND do something about their knowledge -- or, alternatively, those who are exposed to the sunlight don’t react appropriately, i.e., in the light of conscience and self-interest. Unless there are very strong incentives to do the right thing, the people in question won’t. And here is where your overconfidence in "parents, students and donors" comes in. They have had decades to do something serious about this problem. Have they? I don’t think so. Really, your argument seems to knife itself in the gut by raising this central question.

David,

So you’re proposing the paternalism of state legislatures to the problem of the alleged incapacity of parents, students, and donors (through ignorance or indifference) to do anything?

By the way, the very rapid growth in "Christian" colleges is one response to this phenomenon, as is the growth, frequently noted at this site, of centers like those encouraged by these two organizations.

I’m not proposing it. I’m saying legislators should not be ritualistically condemned, in a way (admittedly more restrained) that we could find on any liberal website, for recognizing the problem and trying to create a countervailing power at these tyrannized institutions. I don’t allege "incapacity" on the part of students, parents, and donors. I allege a very poor track record for effective action. The "rapid growth in Christian colleges" can be seen as essentially running away from the secular schools -- i.e., the more prestigious and powerful schools which produce the more prestigious and powerful graduates and scholarship. It is certainly justified, but it doesn’t represent any kind of political progress. And again, why wouldn’t the same thing happen sooner or later, perhaps sooner, at many Christian schools. I do think limited legislative action is ABSOLUTELY called for. Any use of authority can be called "paternalism." I’m not particularly interested in, or impressed by, the scare words that might be attached to something. The hour is simply too late and the stakes are simply too high.

Joe - Who’s this Horowitz guy? Another loony left-winger, I suppose? Amazingly, I think we are in agreement here, at least for the most part.

Craig,

If you go back through the NLT archives, you’ll find that I’ve frequently criticized Horowitz’s so-called academic bill of rights. I think the cure is at least as bad as the disease.

David,

My snippiness was a response to your (to my mind, at any rate) rather intemperate response to my arguments. I don’t have time to work through all the analyses now, but I will say this. The biggest and wealthiest institutions are the least vulnerable to any sort of pressure. The best thing for those institutions are centers of excellence such as those I mentioned earlier. In addition, I do think that, over time, excellent alternatives can be cultivated--Wheaton, Calvin, Pepperdine, and Baylor are among the most prominent, but hardly the only ones. The problem here is less undergraduate than graduate education, But the good news is that graduate education is more of an apprenticeship dependent upon a relatively few faculty members than something comprehensive dependent upon the character of the whole institution.

State schools are a different kettle of fish. They’re vulnerable to legislative pressure, but legislators often care all too little about the liberal arts. They’re interested in the state schools as engines of economic development for their districts and for the state as a whole, and as generators of feel-good sporting success. What they need to do is be less friendly to appropriations requests as long as faculty keep fouling their nests (compelling the schools either to clean up their own acts or raise tuition) and to support vouchers as a form of competition in higher ed. But what I don’t want is people with a casual or merely political relationship with higher education interfering with the self-governing autonomy of the faculty. That’s my objection to the assessment craze, to the academic bill of rights, and to this silly measure in Arizona. As one of my teachers--a card-carrying conservative--once put it, we don’t want the rug merchants running the university.

Professors at state universities are paid by the taxpayers. As such, they should be required to meet certain minimal standards of decency in terms of viewpoint discrimination. What exactly those are, or how imposed, is a matter for deliberation. Your confidence that things will work out "over time" is of no help to current students, or their parents, now or in the near future. This is not a matter of "running the university." It is a matter of asserting a public interest that goes beyond the sorts of vulgar concerns you rightly identify as being the main interest of state legislators in regard to universities. Just because this is the typical attitude doesn’t mean that a majority in some legislatures isn’t capable of appropriate legislation.

Show me the appropriate legislation and the appropriate legislature.

Appropriate legislation would be to create a right for students enrolled in a class to tape-record lectures and use this as evidence of professorial malfeasance. Students would be able to complain about this -- just as they are able to complain about "discriminatory" or "degrading" environments in regard to gender, race, and sexual orientation. Political discrimination should be forbidden, just as the other forms of discrimination are. Student complaints about mistreatment or differential treatment based on the content of a student’s viewpoint, in class or
in an assignment, would have the same standing as other discrimination complaints.

Now, show me a case where an entire university or college -- not just one professor -- has successfully addressed this issue, by which I mean, successfully changed things, on its own.

Professors have enormous privileges and luxuries not available to most in our society. A modest codification of their obligations to students and taxpayers, in public universities, is simply a matter of fairness to the students who are under their thumb.

To me, the heavy use of end-of-semester evaluations by students ("Nielsen Ratings") is a much greater affront to academic independence and academic dignity than some (I don’t say all) of the things the heroic David Horowitz is suggesting. Oddly, I never hear of complaints about this from the staunch defenders of professorial autonomy. Maybe because it doesn’t offend or harm the left-liberal Blob?

I agree with David about student evaluations. While I agree that "the customer" should have a say in quality control, do students know enough to accurate "rate" their teachers? I read an article a while back (sorry, can’t remember the venue) that suggested student rates where driven by grades and perceived "entertainment" value of the prof. And do profs in return modify their messages and styles to improve those ratings? Any comments from our academically inclined?

I agree with you about the problems with student evaluations. At small places, people can for the most part see through them, using their personal knowledge and trustworthy "word on the street" (or quad).

I think that even more pernicious is evaluation by headcount, where faculty and departments are rewarded for the number of credit-hours they generate. In many (but not all) places, that encourages a race to the bottom.

On David’s point, my big problem is that "weapons" created to promote academic integrity will be used more frequently by the unscrupulous for their own ends.

Interesting conversation. As one who believes the "self policing" of the academy (especially tenure) is an abject failure (producing the exact opposite it’s supporters contend) I support actions by the legislature to control public funded militant liberalism (i.e. the modern academy). While I am sympathetic to Joe’s concerns, I think we are way past that now. In other words, a much more heavy handed approach (at the state schools at least) are necessary...

18: It is probably true that any weapon created to promote academic integrity can be used by its enemies, or by "the unscrupulous" more generally speaking. An important point, but it must be weighed against the unacceptability of the status quo.

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