Kudos to the AAUP
August 4, 2011
by Peter Wood
The Chronicle of Higher Education
As someone who has criticized the AAUP on a number of occasions for diluting the definition of academic freedom, I want to note three recent cases in which the AAUP has taken commendable positions.
First, the AAUP, like the Foundation for Individual Rights in Education, has opposed an action by the U.S. Department of Education’s Office for Civil Rights that would lower due-process protections in adjudicating student allegations of sexual harassment or sexual violence.
Second and third, the AAUP has issued a report criticizing Louisiana State University for its 2009 firing of Ivor van Heerden and its 2010 treatment of Dominique Homberger.
The AAUP’s actions in all three instances are warranted and welcome.
The Van Heerden Case
Van Heerden was deputy director of the LSU Hurricane Center who had been outspoken in faulting the U.S. Army Corps of Engineers. Dr. van Heerden had warned long in advance of Hurricane Katrina that the Army Corps’ steps to protect the Louisiana coastline were inadequate, and after Katrina (2005), he held the Corps responsible for the mis-design of levees, the collapse of which flooded New Orleans. LSU, perhaps fearing “loss of the revenue controlled by the Corps,” denied him further appointment. LSU denies the charge, saying that van Heerden’s non-tenure track position was terminated as part of a budget cut.
But van Heerden filed a lawsuit claiming that he was fired because the LSU administration was upset about his criticisms of the Army Corps, and the Times Picayune reports that U.S. District Judge James Brady has permitted the case to proceed and added a comment to the effect that LSU may have violated Louisiana’s whistleblower protection law by trying to silence Dr. van Heerden.
The AAUP report is even more forceful. Based on “documentary information, supplemented by interviews with members of the LSU faculty and additional conversations, correspondence, transcripts, and news accounts,” the AAUP investigators found that LSU administrators, in dismissing van Heerden, played fast and loose with university’s established policies. The university administrators claimed, for example, that van Heerden’s position was defined as “100 percent research” but the AAUP investigators determined “either the claim is false or ‘research’ is so broad a term as to cover most of Professor van Heerden’s professional activities.” (See page 16 of the report.) This is, of course, a “due process” complaint, but it comes surrounded with circumstantial evidence that the university wasn’t just sloppy with procedures. Thus:
Two members of the review panel performing the department’s reappointment evaluations told the investigating committee that the assessment of Professor van Heerden’s record had not begun when word was received that the dean had already acted to terminate the position, effective one year hence. (p. 17)
It is easy to get lost in the detail of this finely detailed account, so let me back out to the AAUP’s own summary of how LSU’s claim seems pretextual:
Administrators, anticipating cooperation and support from the Corps in hurricane recovery projects, did not appreciate being linked in the newspapers with these findings. They took steps to restrain van Heerden’s public activities, to distance LSU from those activities, and, eventually, to deny him further appointment.
Van Heerden was speaking out publicly on a matter fully within his scholarly expertise. It is difficult to think of an instance that better fits the original reasons for academic freedom as set forth by the AAUP’s founding document, the 1915 Statement of Principles:
[T]he scholar must be absolutely free not only to pursue his investigations but to declare the results of his researches, no matter where they may lead him or to what extent they may come into conflict with accepted opinion.
Van Heerden was not indulging in speculation about matters beyond his scholarly competence but, rather, addressing an issue at the center of his scholarly research. Louisiana State University badly mis-stepped when it removed him from his position.
The Homberger Case
Homberger is a biology professor who was removed from teaching mid-semester after students complained that she graded too harshly.
Her case involves another core principle: the inviolability of a professor’s determination of grades. Professor Homberger is a strict and no-nonsense teacher who presented her students with quizzes that by all accounts presented non-trivial questions on topics that had either been covered in class or in assigned readings. The university’s decision to remove her from teaching presumably reflected the worries of administrators that the low grades of some students on these quizzes would lead to student attrition. But by removing her from the course mid-semester, the university signaled its own fundamental lack of seriousness about the integrity of its instructional programs. Short of malfeasance by a professor in assigning grades, the university administration has no legitimate role in coming between between students and a faculty member’s evaluation of their intellectual progress. Again, LSU badly mis-stepped.
The Schaefer Case
I am struck all the more by these cases in light of LSU’s complete inaction in the 2010 case of Bradley E. Schaefer, the astronomy professor who took the occasion of an introductory course on “The Solar System” to berate students he had singled out for holding opinions on global warming that differed from his own. A videotape was released by an organization called CampusReform.org showing the class in question. (Full 40 minute video here). After stories appeared in The Chronicle and Inside Higher Ed, Ashley Thorne, director of communications at the National Association of Scholars, wrote to Dr. Michael Cherry, director of the LSU physics and astronomy department at Louisiana State University, urging him to suspend “Professor Schaefer from teaching until such time as he shows himself ready to teach in a manner appropriate to his position.”
Dr. Cherry never replied, but John Maxwell Hamilton, the executive vice chancellor and provost of LSU, did. Ashley posted Provost Hamilton’s reply along with a running refutation of his excuses. As far as we can tell—and we’ve made inquiries—the provost’s letter was LSU’s last word on the subject and Schaefer remains unapologetic.
This account of the affair differs from that of The Chronicle, which reported Schaefer’s complaint that the video (in the Chronicle‘s words) “was heavily edited to make it look like he had an agenda that he insists he doesn’t have.” But the unedited tape shows exactly what Ashley Thorne reported: Professor Schaefer berating and badgering his students—both those who were skeptical of man-made global warming and those who were ardent proponents of AGW.
In Schaefer’s case, the AAUP unfortunately demonstrated its one-sidedness in matters of academic misconduct. The AAUP officially said nothing, but AAUP president Cary Nelson defended Professor Schaefer, telling Inside Higher Ed:
academic freedom and completely honest communication in the classroom requires a certain degree of privacy for all the people there, that they need to be able to be frank, that they need to express their emotions honestly, that the classroom is not a stage, that it’s not designed to be a public performance.
This is the heads-I-win-tails-you-lose version of academic freedom that the AAUP has all too often served up in recent years. It weakens academic freedom by stretching it to cover cases in which faculty members veer far outside their areas of competence, engage in bombast, and violate the freedom of students to study and to learn safe from ideological coercion. The AAUP these days simply doesn’t concern itself with transgressions by faculty members, apparently under the supposition that the defense of academic freedom requires no vigilance at all towards the possible misappropriation of the doctrine by those who would use it to excuse faculty misconduct.
To be sure, few of us would welcome surreptitious videotaping of our classes, as happened to Professor Schaefer. But there was a reason that some of his students resorted to this measure.
But let’s leave the AAUP aside for the moment. LSU’s inaction in the case of Professor Schaefer may look like it is at the other end of the spectrum from its heavy-handed firing of Dr. van Heerden and its lightning fast intervention when Professor Homberger gave some F’s on weekly quizzes. But in truth, LSU’s lethargy in one case and its haste in the other two are cut from the same cloth. Indifference to the infringement of the academic freedom of students in one case, while infringing on the academic freedom of faculty members in two other cases shows an administration that is robustly disdainful of academic freedom generally.
In all three instances, the LSU administration chose expediency over principle, and treated the genuine educational needs of its students as a superfluity. The right and necessity to speak out on matters within one’s intellectual expertise? The right to a fair and honest assessment of one’s intellectual progress? The right to take a class that stays on subject? The right to instruction that is delivered in a manner, as the AAUP used to say, consistent with “a scholar’s spirit” and with “restraint” and “discretion”? Respect for any of these rights is not much in evidence in these three cases.
I wish LSU would mend its ways. I also wish the AAUP would adopt a more rounded understanding of what academic freedom really entails and that it is not a doctrine to be invoked exclusively in defense of faculty members.
On the matter of OCR’s lowering the standard of evidence in cases involving allegations of sexual harassment or sexual violence, however, the AAUP has come out on the right side. The Office of Civil Rights has set the stage for a great many civil wrongs that, unless the policy is reversed, will unfold on college campuses across the country in the next few years. The new “preponderance of evidence” standard means that students and faculty members will find it extraordinarily difficult to defend themselves against false or exaggerated charges. We’ve been through this before. In the early 1990′s, numerous colleges and universities drew up sexual-harassment codes that went overboard in the direction of convicting people almost on accusations alone and often by means of codes that transformed some kinds of ordinary and socially acceptable behavior into violations. The National Association of Scholars issued a statement in 1993, Sexual Harassment and Academic Freedom, that unfortunately has become timely once again.
The rules that many colleges and universities established in that era never went away. In some states, such as Massachusetts, legislatures enacted laws requiring colleges and universities to establish sexual harassment policies that set the bar for allegations very low, put the accused at procedural disadvantage, and rode roughshod over First Amendment rights. In other states, such as New Jersey, many colleges and universities have seized state laws enacted to protect workers from sexual harassment as grounds for imposing draconian speech codes that go far beyond common sense understanding of what sexual harassment really is.
Nationwide, there is a dreary record of faculty members, almost always men, whose careers have been ruined by accusations alone. In 2008, two University of Iowa professors in separate instances killed themselves after being accused of sexual harassment. One was almost certainly guilty; the other almost certainly innocent. That each would choose suicide rather than face the university’s inquiry speaks to how many faculty members have come to see sexual-harassment allegations as a zone where defendants have few legal rights and face extremes of condemnation regardless of the facts.
OCR’s new rules come with the full weight of the Department of Education’s authority to cut off funding from non-compliant institutions. In other words, the already very weak safeguards against prejudgment and the already tenuous protections of due process will have to be lowered still further. Failure to do so can mean a college or university loses its access to students’ Pell Grants and Title IV student loans.
The NAS and AAUP often find themselves on opposite sides of important debates, but not this time.