Bruce Barry, a professor of management and sociology and a board member of the Tennessee ACLU, has an informative take on whether or not academic freedom is a license to provoke without consequences.
The rules are different depending on whether the university is public or private; academic at public universities have more protections.
After having his job offer rescinded, Salaita filed a federal lawsuit claiming that his rights to free speech and due process had been violated; a judge’s ruling on whether Salaita’s lawsuit can go forward is expected any day.
That kind of constitutionally based lawsuit isn’t available to Grundy at Boston University or to Hough at Duke since their appointments are at private institutions.
Although Grundy and Hough cannot claim a constitutional infringement on their rights, they can appeal to the principle of academic freedom.
Which sounds like saying they can make grand rhetorical claims and hope that gets them somewhere, but actually it’s more concrete than that.
This is what distinguishes the occupation of professor from other kinds of employment: universities pledge (in the form of an implied contract) to respect professors’ free speech rights beyond what typical private sector job holders can expect, when they make academic freedom a foundational principle.
I didn’t know that about the implied contract. The link takes you to only the first page of the article, and the first page doesn’t discuss the implied contract, so I don’t know more than I did before I clicked it. An implied contract sounds like just another rhetorical claim, but the link seems to imply (there’s that word again) that it’s not. What Barry says next seems to confirm that:
Universities are happy to ordain and celebrate the lofty ideals of academic freedom, but they are also quick to couple them with cautionary caveats.
At Duke (where Hough is), the faculty handbook cedes to professors the right “to speak in his or her capacity as a citizen without institutional censorship or discipline.” Duke warns, however, that the right to “espouse an unpopular cause” carries with it “a responsibility not to involve the university.”
Making a similar pledge, the handbook at Boston University (where Grundy is) adds that a professor’s right to speak as a citizen carries “special obligations” to be accurate, exercise restraint and respect others’ opinions.
With reasonable-sounding but rather vague conditions like these, universities (both public and private) have reserved the ability to impose boundaries on “outrageous expression” that the professor might assume is protected by academic freedom.
Tricky, isn’t it. Difficult. A mine-field. An “implicit contract” to a lofty abstraction coupled with vague stipulations…wear protective gear.
The question of when a professor’s provocation becomes actionable cause for termination is a hornet’s nest of subjectivity around the meaning of words like “offensive” or “bigoted” or “harmful” or “restraint.” A university that chooses to act against the professor – as Illinois did against Salaita – puts itself in the uncomfortable position of having to explain what these terms mean and where lines are drawn.
Instead of appeasing offended stakeholders by drawing lines in shifting sand, a more enlightened approach prioritizes a free exchange of ideas over the “dubious judgment” of a free-speaking professor.
That’s the path Duke and Boston University are following: condemn the objectionable remarks while preserving the professor’s freedom to make them, leaving a verdict to the court of public opinion.
This of course is to do with actual jobs, paid tenured contractual jobs. The bar is high for actual jobs; it’s not as high for honorary and/or pro bono positions.