Stanley Fish Misunderstands FIRE on Illinois ‘Buttons’ Controversy
October 14, 2008
by Adam Kissel
Although Stanley Fish says he agrees with FIRE most of the time, in his New York Times blog on Sunday he disagreed with us on the issue of a memo from the University of Illinois that banned university faculty from engaging in political activity on campus such as attending political rallies—even when they were off the clock. After widespread condemnation of the new policy including serious concerns expressed in a letter from FIRE, President B. Joseph White reversed the most serious violations in the policy, once again permitting faculty and staff to exercise most of their political rights on campus. For instance, faculty and staff now can wear campaign buttons on campus, so long as they are not "in the workplace of the University," whatever that means.
Actually, Fish agrees with most of what we argued—for example, that a ban on something like political bumper stickers on cars is silly. Moreover, as he states, "it is unreasonable to require that students be shielded from any knowledge of professors' political views, unless you want to say that faculty members can't write letters to the editor because students might read them, and no one wants to say that."
As for the campaign buttons, Fish argues that if anywhere is the university workplace, it's the classroom. (I would say that a professor's office is a pretty close second-and why may professors without authority over one another, peers, not encourage one another to vote a certain way when they visit one another's offices?) For this reason, a professor's campaign buttons (for an active campaign) are still banned while a professor is teaching a class. We wrote:
[I]t is absurd to argue that faculty partisan political speech as obviously and transparently personal as buttons and bumper stickers may be banned outright.... When a faculty member wears a political button on campus, there is little chance that any reasonable person would assume that the faculty member is speaking on behalf of the university. The content of the button, whether or not it is political in nature, reflects the personal opinions and views of that individual, not the university as an institution. The university cannot credibly argue that allowing faculty to wear political buttons or affix bumper stickers to cars as a means of expressing themselves on political issues in any way endangers the university's obligation of political neutrality or its tax-exempt status. [Emphasis added.]
Unfortunately, Fish seems to have confused the first, unmodified policy with the second, modified policy when it comes to our objections. He writes:
FIRE castigates Illinois for denying its faculty "the right to engage in simple political speech like wearing campaign buttons."
But the university does no such thing. When faculty members are not in class, they remain free to sport their buttons (White remarks that "many parts of campus are not workplaces"), and when they leave the campus, the university has no say at all about what they do or do not wear. The university's judgment is that political speech does not belong in the classroom, which no more denies a teacher's constitutional rights than a hospital would deny a nurse's rights if it disciplined her for advocating for better working conditions in the middle of an operation.
Fish's assertion that "[w]hen faculty members are not in class, they remain free to sport their buttons" is only true of the modified policy, not the unmodified one to which FIRE objected. In our letter we cited the fact that the ethics policy, as first promulgated, prohibited "political activity" like buttons and bumper stickers "while working, when on University property, while using University resources (e.g., phone, fax, paper, email, etc.), or when acting as a representative of the University." (Emphasis added.) Only after President White modified the policy did faculty members become able to wear buttons and exercise most of their political rights while at the university but not in class.
Fish cites constitutional scholar William Van Alstyne in support of his belief that a university can prohibit professors from wearing campaign buttons during class time. We also suspect this is true. But we did not argue that UI must permit faculty to wear campaign buttons when they are teaching in the classroom. We argued, during the time that faculty campaign buttons were banned everywhere on campus, that the universal restriction went much too far.
Thus, I am not sure that Fish really disagrees with us on this issue after all.