Lea Bishop
Denial of tenure for suspected political views. At-will
termination. Ideological reviews. Classroom surveillance. Bans on expression of
“political or ideological views and opinions.” Students trained to report
violations to state officials.
This is the bill on the
desk of Indiana Governor Eric Holcomb. Indiana’s pending “tenure reform”
legislation is a First Amendment parade of horribles. Political orthodoxy. Viewpoint
discrimination. Arbitrary dismissal. Vague standards. Chilling effects. Public
discourse. Pure speech.
So why is no one talking about the Constitution?
First Amendment jurisprudence has long recognized that
constitutional protection of counter-majoritarian viewpoints is the most
essential bulwark of democracy. Ironically, tenure is precisely what that empowers
judges to do so.
To realize this potential, however, legal scholars must offer
the courts a justiciable theory of academic freedom. My proposed
solution is to reframe university independence, academic research, and
pedagogical autonomy as part and parcel of freedom of the press.
Law professors easily spot the interplay between academic
freedom and the First Amendment, yet courts have avoided reading the former
into the latter.
Specialists meticulously distinguish the two concepts. The
leading scholar, Bob Post, persuasively cautions that on current doctrine, the
two norms conflict—though reconciliation is possible. The nuance is likely to
elude judicial arbiters.
Public discourse defines “academic freedom” as a set of special
privileges accorded to professors. This framing presents an inviting target to
conservative criticism of “special rights,” and alienates libertarians who
would otherwise be allies of free speech. A
All of this bodes poorly for the possibilities of judicial
review to protect First Amendment interests in university autonomy. Unfortunately,
constitutional review is urgently needed.
* * *
I propose doing so through via the doctrinal framework of press
freedom.
The fit is surprisingly easy. Investigation and publication are
the central job description of tenure-track faculty. Professors
research and report on matters of public concern, educate the public, sponsor debate,
air dissent, and expose corruption.
Journalists seek out our commentary on every social and policy
issue. We can do so with unique independence from corporate and political
influence, because of university autonomy and tenure.
The professional norms of scholarly journalism continue to
prioritize truth-seeking, empirical evidence, analysis, critical thinking and
expertise. With the long erosion of traditional journalism, and declining
confidence in mass media, the free-press university has never been more vital.
* * *
The core mission of the modern research university has always
been investigation and publication. This insight should
transform how we talk about academic freedom.
No one suggests that press freedom is about job security for
journalists. We do not defend its utility as a means to recruit and retain reporting
talent, or to promote the outlet’s national reputation.
Instead, two centuries of political thought emphasize the value of
a free and independent press to a free and democratic society. Defenders of
academic freedom must do the same, emphasizing voters’ interest in access to reliable
information, the watchdog role of politically independent scrutiny, and defense
of liberty.
In doing so, faculty the accusation of financial self-interest and
regain the moral high ground.
* * *
My proposal goes beyond rhetorical analogy.
Judicial review of state intrusions on university autonomy and
academic speech is urgently needed. Freedom of the press moors the
misunderstood and endangered social value of academic freedom to an enduring
constitutional anchor.
The central conceptual necessity is to emphasize the value of
university independence to insulate academic reporters from state efforts to
censor and punish political criticism. Framing academic autonomy as freedom of
the press can accomplish this.
Helpfully, it highlights the need for strict scrutiny of means of
controlling politically controversial scholarship, even when the legislation is
viewpoint neutral on face.Press freedom doctrine has long rejected government
demands for ideological “balance” or “equal time.” The government may not “put
its thumb on the scale.”
Conceptually, this reframing can accommodate the collective nature
of the right to university autonomy that Post emphasizes. At the same time, it centers
the interests of the ordinary individual citizen in freedom of access to uncensored
political information.
Most importantly, the free press framing preempts the deadly argument
that faculty speech at public universities should be treated as “government
speech,” entitling the state to regulate its content. When journalism is
subsidized by state funding—as it is in many constitutional
democracies—editorial independence is obviously essential.
* * *
It is not necessary this year to resolve (or ignore) the ongoing
debate about the best approach to academic freedom within the university. This
year’s urgency is to cut short the mounting effort to silence political
criticism through prescription, prohibition, punishment, and political capture.
Courts must call an end to the dangerous trend of political interference
and censorship in universities. They can easily do so, simply by appreciating
that eternal research, publication, and education missions of universities go hand-in-hand
with free and independent journalism.
Lea Bishop is Professor of Law at Indiana University Robert H. McKinney School of Law. You can reach her by e-mail at lea.bishop@gmail.com.