A faculty first aid kit for your free speech crisis
Calls to discipline – and even fire – professors for saying controversial things have become disconcertingly frequent. Students, administrators and sometimes even fellow faculty members demand that a professor be punished for publicly – and even privately – expressing disagreement with some widely held views on campus. Politicians and political activists have also taken action, sometimes insisting that a professor be fired before sunset.
Apparently, it is not enough to criticize or ignore comments that are considered offensive or inflammatory. The sinner must be taken to court, forced to retract, disciplined, or even kicked off campus.
Many teachers have no idea what to do when a crowd is screaming for their heads. They have never experienced such an ordeal before and are understandably afraid and shaken. Fortunately, many American colleges and universities have policies in place to protect the academic freedom of researchers and teachers. In addition, some professors benefit from land tenure protection that can hamper administrative attempts to summarily dismiss them, if only to appease the crowds.
But these protections are not enough if academics don’t know how to use them, or if they make mistakes in the heat of the moment that can undermine their legal position. And the rules only apply to the people who apply them.
Faculty members who find themselves in this uncharted territory need a first aid kit to minimize damage until they are able to obtain legal assistance to help them overcome the dangers of a controversy over freedom of expression. In some cases, self-help will be enough to weather the storm. In others, teachers will have to prepare for a longer struggle to maintain their jobs and professional status.
We offer the following guidance as members of the new Academic Freedom Alliance, made up of over 400 faculty members who span the nation and the ideological spectrum. The group exists to provide moral, policy and legal assistance to faculty members whose academic freedom and / or professional status has been infringed or inappropriately compromised for something they have said or written. We’ll start with some general principles, and then some practical advice, for all faculty members – regardless of their policy – who run into issues after expressing their point of view.
Don’t lose confidence in yourself and give up on your beliefs. You have every right to think for yourself and to say what you think. Don’t rush to apologize if you haven’t done anything wrong and therefore have no reason to apologize. Those who have referred to themselves as the Thought and Language Police know that they may put psychological / emotional pressure on you to do so, but apologizing won’t help and will almost certainly make matters worse. So don’t give in to the temptation in the futile hope that a quick apology will calm the storm.
Likewise, think clearly about the situation and what you said. Apply reason, not impulse and emotion, to the best of your ability. A clear-headed attitude is essential for a correct assessment of the situation and will impress – and give confidence to – allies and potential supporters.
So take a few deep breaths and don’t react in a rush. Know that you are not alone, that good advice and help are close at hand. Be patient and realize that you will get justice if you take the right steps.
Do not respond to public attacks until you have sought and received good advice. If you admit to an offense that you did not commit, or if you acknowledge an allegation or charge that is factually inaccurate or that is not really an offense (but simply an exercise of your right to say what you believe) , the confession can and will be used against you. Recovering from such a mistake is extremely difficult at best.
Good advice can come from several sources:
Be prepared to accept a difficult fact: your institution may abandon you. Unless you’re in a pretty special college or university, administration isn’t necessarily – or even normally – your friend in matters like this. Institutions have their own interests distinct from yours – a trend that has intensified in recent years with the burgeoning bureaucratization of higher education. New or expanded offices dedicated to programs other than academic freedom have proliferated on campuses, including Student Deans, Bias Response and Diversity and Inclusion units, Alumni Relations divisions and human resources, public communications offices, general counsel and campus life offices. Such offices have violated the academic freedom of faculty members both left and right when it conflicts with how they interpret their assignments.
When controversy over campus speech erupts in public view, presidents are more likely to consult with their fundraising and public relations officers than with campus lawyers or faculty heads. When a professor’s speech is seen as going against institutional interests, deans and provosts are no longer your professional colleagues but often your prosecutor and judge. You need supporters whose only obligation and purpose is to protect your rights.
Now, some more concrete advice:
- The first thing you need to do is clarify what you are accused of doing. Campus administrators will often only give accused professors vague accusations or overly general presentations of the alleged facts. Sometimes they won’t tell you who your accuser is.
- Obviously, this information vacuum makes it difficult to develop a defense and a response. If possible, access all formal complaints, including the identity of the person making them. Determine the charges and the relevant circumstances behind them. If the institution is unwilling to provide these documents and details, consider refusing to cooperate with any investigation or investigation. Seek legal help immediately.
- If the institution wishes to meet with you, do not go alone. Immediately consider bringing a friend, colleague, or (ideally) a lawyer – someone you can trust completely to support you, even when the going gets tough. A trusted advisor and advocate is especially essential if the discussion becomes emotional or confusing, and can also be helpful in remembering and subsequently assessing what happened during the meeting. What if your institution does not want to allow your advisor to attend? This is a sign that he is not acting in good faith and that you should not participate yourself.
- To survive what could become a protracted and emotionally draining fight, you will need a support network ready to support you as the pressure builds. Frankly assess your own network, identify and prepare your allies for battle. If necessary, look beyond your familiar associates and make new contacts that can help you get through the controversy. Ask those you trust for the names of people who would make good and reliable allies. Potential support is there to be exploited.
- Find out the relevant campus policies under which you have been charged and what your rights are. You will need to determine if there is a credible case against you. Apparently you actually violated campus policies? If you’ve broken a rule, you’ll want to know if there are any compensatory considerations. Does the rule conflict with other policies, including professors’ word protections? If you are in a state college or university, does the rule violate constitutional, state, or federal statutory protections? Is the proposed sentence proportionate to the alleged offense?
- Educational institutions have specific rules regarding academic freedom, harassment, discrimination, etc. They also have public principles on institutional mission and the paramount importance of intellectual freedom and the search for truth. Take advantage of these rules. Check them out in public (assuming you go public in some way) and in any private meeting with administrators. The public still believes in these principles and has also become more suspicious of higher education’s commitment to them. This combination can serve as a tactical weapon.
- Decide what result you hope to achieve and how you are prepared to achieve it. Some teachers hope for nothing more than to calmly resolve the dispute under conditions they can live with. Others want a total exoneration and, to obtain it, are ready to engage in a long public fight. A lawyer can help you determine the options and the likelihood of success for each. We personally hope that if you are a victim of a violation of your rights, you will fight for your rights.
- The sooner you seek legal advice, the better able you will be to consider a possible resolution. Campus administrators are most often not your allies in these controversies. You need a lawyer who only has your best interests in mind. Preferably, you will have a lawyer who shares your vision of what you want to accomplish and who understands the context of higher education.
- Making your case public can be helpful, but it is not without its drawbacks. If you’d rather avoid the spotlight, you’ll have to consider whether you can keep a controversy out of the public eye. Advertising can be inevitable. While advertising can damage your professional reputation and create a more adversarial relationship with your institution, it can also be a way of responding to misinformation and putting pressure on administrators. Don’t assume that advertising is a bad thing. Accusing the institution of betraying its principles and historical mission can be a good tactic if you decide to be more confrontational. Be aware of yourself when deciding to discuss your case in public. A good advisor or lawyer can be invaluable on this aspect of your situation.
When a free speech controversy arises, you cannot control the course of events. But you can be clear-headed about the decisions you make and the trade-offs involved. Mistakes made at the initial stage can have catastrophic consequences. Proceed deliberately, apply first aid and call for help. If you are indeed the victim of an infringement of academic freedom, your legal advisor will help you move from a defensive to an offensive posture.
One final point: remember that defending your own rights to think and speak freely, to seek the truth, and to speak the truth as best you can understand it, you are not only protecting yourself; you also defend the rights of other academics (and students) and the integrity of the academic vocation. When you prevail in defending academic freedom for yourself, as you will when you stand firm and get good advice, your victory benefits the entire academic community – a community in which academics freedoms which are the oxygen on which it flourishes are very threatened today.