Collateral Damage: Faculty Free Speech in America After 9/11
by Patricia Somers & Susan B. Somers-Willett - August 01, 2002
Historically, in times of national crisis, political dissent has been stifled. In the wake of September 11, faculty members across the country have been involved in conflicts with campus administrators and the public over freedom of expression. This article explores the changing terrain of academic freedom in the post-9/11 U.S. by examining three critical cases in which the extramural free speech rights of faculty members have been threatened. In all cases, university officials punished employees who voiced “unpopular” or “unpatriotic” sentiments which led to potential problems with donors, corporate partners, and consumers of the university. Given that more and more universities are adopting corporate models, these cases indicate a disturbing trend of favoring profit margins over academic freedom. We conclude that the current incursions will be challenged only through collective action by academic unions, faculty senates, and cultural workers.
“At a moment of crisis, there are many things that people don’t want to hear,” according to Peter Stanley, president of Pomona College (Schodolski, 2001). And so it was after September 11, whose events proved a psychological watershed for many Americans. In higher education, diversity of faculty opinion was tolerated, even encouraged prior to this date. But that quickly changed according to Mary Burgan, general secretary of the American Association of University Professors: “At times of crisis, our tolerance of such diversity fades, and the words of any one faculty member may be taken to be the words of all” (2001, p. 1).
Such intolerance is not new. Faculty members have lost jobs for their opposition to railroad monopolies (Hofstatder & Metzger, 1955), the McCarthy hearings (Vernon, 1996-97), segregation (Vernon, 1996-97), the two World Wars, and more recent military actions (Schodolski, 2001).
This article explores the issues of academic freedom and free speech in order to analyze post-September 11 incidents involving the criticism of faculty speech. We conclude that incursions of academic freedom following September 11 are not isolated incidents but can be located in a broader discourse of the commodification of higher education.
Analytical Framework: Commodification of the University
According to Shumar, commodification is “the model to discuss the process by which the economic overtakes other institutions and aspects of social life” (1997, p. 24). In relation to universities, issues of commodification include the application of a corporate model to the intellectual life of the university, the increasingly popular notion of “bounded knowledge,” the bundling of education for specific vocational purposes, the development of corporate and university partnerships, and the downgrading of the status and rights of cultural workers  in the academy. All lead to a view that knowledge is a strategically-packaged product sold to consumers (students) and delivered by an interchangeable series of customer-service representatives (graduate assistants, adjuncts, contingent faculty, and decreasing ranks of tenured faculty), none of whom should offend consumers or potential consumers in any way. The comments of one contingent faculty member proves that this model is already popular, even requisite, amongst students:
Submitting students to the rigors of learning seemed only to incur the wrath of many of them, which entered the record as my teacherly shortcoming. . .The business model has taught me that the customer is always right. But maybe a few more dissatisfied customers would mean a better learning experience (Buck, 2001, p. 20).
The first aspect of commodification, according to Giroux, is that the defining principles of higher education today are “. . .creeping vocationalism and the subordination of learning to the dictates of the market” (2001, p. 34). Because of this shift to a corporate model, what business leaders say about higher education can often carry more weight than faculty views. For example, comments from two business leaders involved in educational reform received wide dissemination. Louis Gerstner, Jr., Chairman of IBM, remarked that “schools are ordinarily insulated from marketplace forces and the discipline that drives constant adaptation, self renewal, and a relentless push for excellence” (1998, p. 13A). Likewise, James Carlin, Chairman of the Massachusetts State Board of Education, extolled, “At least 50 percent of all non-hard sciences research on American campuses is a lot of foolishness and should be banned” (Honan, 1998, p. 33A).
With the sharp reduction in state aid and the decrease in large federal government defense contracts, it is no surprise that universities have increasingly turned to the corporate model. Universities now often focus on efficiency, accountability, flexibility, competition, “lean production,” and profit maximization. Any department that can’t become a “profit center” is ripe for gutting. According to Giroux (2001), “the problem with the university being governed by the profit criteria . . . is that the quantified measure of billable student hours is a noncommensurate criteria by which to measure the more intangible qualitative category of actual education…the imperative to decrease expenditures through generating more billable hours functions adversely on teachers and students alike …” (p. 25).
Underscoring the popularity of the corporate model is the fact that while universities view students as consumers, these consumers also prove a captive market (Slaughter, 2001). Universities have privatized bookstores, food services, and other campus services to maximize profits from existing student consumers. Thus, universities have learned to profit from tuition and other student revenues and many have adopted corporate models for both.
Second, the demand to cut costs, be more efficient, and generate more student credit hour production with fewer faculty pressures departments to make adjustments that undermine educational quality. Why, for example, would a university assign a course to a full professor when using an associate professor can generate more profit? Even better, why rely on permanent faculty at all? Surely an adjunct or a teaching assistant – both of whom usually teach larger classes for less pay - will produce more revenue and profit. Indeed, at some institutions summer sessions are almost entirely run by cheaper adjuncts; regular faculty may teach but are only paid the adjunct rate. In a related trend, minimum course enrollments for permanent faculty at some institutions are tied to a formula based on salary. In these cases, a more senior faculty member with a higher salary is required to generate more student credit hours via larger classes. While the number of students per section added may be modest, these incremental changes eventually can alter the educational experience, according to Giroux (2001).
The selling of knowledge is an integral part of a market-driven model. Universities invariably choose the market niche of “credentialism” as opposed to education. These credentials are, in free-market terms, the “value added” to an education, the premium product line. In Lyotard’s (1984) terms, this is “bounded knowledge”: knowledge that is packaged and sold as a product. Since the “market” embraces specific technical knowledge (bounded knowledge), the unfettered search for knowledge and the accompanying academic freedom are unnecessary. In a credential-oriented business model, academic freedom is an unintended byproduct to be discarded with the rest of its industrial “waste.” By this model, not only is academic freedom outdated, it might offend potential consumers. Universities cannot afford to offend the market; therefore, unbounded knowledge and its notions of academic freedom are rejected as economically inefficient.
The third issue in the commodification of higher education is the development of entrepreneurial partnerships. Slaughter and Leslie (1997) use the term “academic capitalism” to signify “institutional and professorial market or market-like efforts to secure external funds” (p. 209). Some faculty become “stars” and are granted tenure, promotion, or lighter teaching loads “because they can generate external funds with high overheads, corporate partnerships, or stock holdings for themselves and their institutions. These faculty can negotiate compensation “packages” that include secretarial help, reduced teaching loads, early sabbaticals, computers, technicians, graduate assistants, laboratories, and summer stipends” (Slaughter, 2001, p. 24). Further, these “stars” can become “free agents,” searching for better “packages” from other universities in return for relocating their grants lock, stock, and barrel to other institutions.
At some point in the future, Slaughter and Leslie suggest, the push for external funds, partnerships, and other external activities may “reshape the academic core definitively” (1997, p. 210). They report that academic capitalism is thriving in the U.K., U.S., and Australia, with only faculty and institutions in Canada resisting this application of the free market model to higher education.
Finally, the commodification of knowledge has indelibly reshaped the relationship between cultural workers and the academy. In a study of faculty unionization, Rhoades (1996) discusses a 25-year trend in the increased numbers of part-time faculty:
Managers in higher education have hired and used more part-time workers to minimize costs and maximize managerial control in providing educational services. The professional position of faculty is being renegotiated, with an increased emphasis on managerial flexibility in relation to the academic workforce (p. 626).
Rhoades studied 183 college and university collective bargaining agreements and concluded that there is “extensive managerial discretion built into the [part-time faculty] contracts” (p. 650). Such provisions were determined by market-driven reasons such as part-time workers’ flexibility, lower salaries, and potential increases to revenues.
The move toward academic capitalism reflects local and transnational trends. At the state and federal levels, competition for university funds has become more intense. At the state level, funds for higher education have became more limited due to the competing interests of K-12 education, Medicaid, and prisons which have had minimum funding levels mandated by legislatures or court orders in some states. The remaining state services, including those of higher education, have had to compete for fewer dollars. Discretionary and research dollars also have become much more competitive at the federal level. The reduced funding for higher education has left academe vulnerable to “reforms” such as performance funding that use corporate models for rewarding improvements.
A transformation has also occurred on a more global level. The information age has transplanted the American corporate model to the world. According to LaFeber (1999), in this new era, the emphasis is “on acquiring vast, fresh markets” (p. 156). One such market has been education, where corporations have invested in charter schools, online education, and distance learning. Thus, although technology has afforded universities true global classrooms, this technology has often reflected U.S. corporate models and profit motives (which can limit the free expression of ideas).
Academic Freedom and Free Speech
Academic freedom has several meanings according to Kaplin and Lee (1995). Professors use the term to define the customs and practices that allow faculty to pursue critical inquiry in teaching, research, and service without constraints by those who govern the institution or outside constituents (consumers and business partners). These rights are outlined in more detail in the AAUP Policy Documents and Reports (American Association of University Professors, 2001). The AAUP statements are often adopted in public and private postsecondary faculty handbooks in whole or part.
The 1940 Statement on Principles in Academic Freedom and Tenure (American Association of University Professors, 2001) has three relevant clauses on academic freedom, referred to as a, b, and c  The first clause, paragraph a, states that faculty members are entitled to “full freedom” in research and publication. The second, paragraph b, elaborates on academic freedom in the classroom. The final clause, paragraph c, involves extramural speech (i.e., outside of the classroom), “When they [faculty members] speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations” (p. 1). These “special obligations” may be open to interpretation.
Public employees, including faculty and staff in public colleges and universities, have protection under the First Amendment, which provides that government shall not abridge the free speech rights of citizens.  Since public colleges and universities are considered “government” agencies, the administration and governing board, as agents of the government, cannot limit the speech of faculty, staff, or students.
However, there are certain narrow restrictions of free speech which include “clear and present danger” to national security (Brandenburg v. Ohio, 1969) and “fighting words” (Chaplinsky v. New Hampshire, 1942), neither of which applies to the post-September 11 cases considered here. For certain public fora, university administration can prescribe the “time, place, and manner” of student or faculty speech, but not the content (Clark v. Community for Creative Non Violence, 1984; Ward v. Rock Against Racism, 1989). Further, symbolic or expressive action such as wearing a black armband (Tinker v. Des Moines Independent School District, 1969) or burning the flag (United States v. O’Brien, 1968; Texas v. Johnson, 1989) is considered protected speech. Moreover, speech cannot be limited if it is considered hateful (R.A.V. v. City of St. Paul, Minnesota, 1992); the Supreme Court has protected such language as “viewpoint speech” (discussed below).
Several cases dealing with the First Amendment set the precedent for post-September 11 free speech cases. These cases represent three eras of judicial interpretation which shift from a powerful endorsement of academic freedom and the notion of unbounded knowledge to knowledge bounded in some way for the perceived economic or public good.
The strongest endorsement of academic freedom occurred in 1967. Keyishian v. Board of Regents (1967) draws on two previous cases (Sweezy v. New Hampshire, 1957; Shelton v. Tucker, 1960) and all were the result of state McCarthy-style hearings into membership in “subversive” organizations:
Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom … The classroom is peculiarly the ‘marketplace of ideas.’ The nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discerns truth ‘out of a multitude of tongues’ [rather] than through any kind of authoritative selection (p. 603).
Court cases and articles on free speech often cite the “marketplace of ideas” metaphor—the notion that all ideas have equal access in the public arena and that some thrive while others have no “buyers.”
Pickering v. Board of Education (1968) inaugurated a second era of academic freedom and interjected the consideration of “efficiency” into free speech cases. Pickering was a public high school teacher who was dismissed for criticizing the Board of Education in a letter to the editor published in the local newspaper. The court developed a “balancing test” of free speech against the school board’s interest in maintaining an “efficient” educational system. The Pickering court found “in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment” (Kaplin & Lee, p. 304). Although the court upheld Pickering’s right to free speech, the efficiency argument indicates a shift to a more corporate model.
Waters v. Churchill (1994) added a troubling new layer of interpretation to Pickering, representing the third era of judicial interpretation. Churchill was a nurse in a public hospital who voiced concerns about patient care policies to a co-worker during a coffee break. The hospital administrator dismissed Churchill without speaking to her or further verifying the story.
In Waters, the majority opinion of the Supreme Court reaffirmed the Pickering balancing test, but added a new due process requirement (Tepker & Harroz, 1997). The court determined:
Constitutional review of government employment decisions must rest on different principles than review of speech constraints imposed by government as a sovereign . . .The key to the First Amendment analysis of government employment decisions, then, is this: the government interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as a sovereign to a significant one when it acts as an employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving goals, such restrictions may well be appropriate (pp. 674-75, emphasis added).
It is significant that the court used efficiency of government operations as its exemplar, thereby limiting First Amendment rights in deference to business interests.
Two typical legal analyses the courts use are “balancing tests” and the rights/privileges doctrine (Smolla, 1992). Both are flawed because they privilege corporate values (such as efficiency and effectiveness) over free speech.
Balancing tests are an ineffective protection of free speech because the “weight” assigned to speech fluctuates. Often, with many competing interests, the free speech falls by the wayside in favor of government interests. In the final analysis, the deficiencies with balancing tests are “overwhelming” according to Smolla because the tests pit individual civil liberties against other rights and individual interests against government interests.
If one uses social contract theory to analyze free speech, the “rights/privileges” doctrine asserts that all citizens are imbued with natural liberties such as free speech. Recipients of public largesse such as government employees, university faculty and staff, federal grant recipients, and students at public universities, however, have traditionally received less protection of their civil rights, including free speech. For example, John McAuliffe was fired from his job as a police officer in 1892 (McAuliffe v. Mayor of New Bedford) for “talking politics” on the job. The Massachusetts Supreme Court decreed, “the petitioner may have a Constitutional right to talk politics, but has no Constitutional right to be a policeman” (p. 715). If every court applied this same logic to all First Amendment cases academic freedom in public institutions would be extremely limited.
Unfortunately, both balancing theories and the rights/privilege doctrine advantage government operations over individual free speech rights. Thus, just as in higher education, U.S. courts have adopted the corporate model; as we have seen, the First Amendment is subordinate to efficiency, effectiveness, and the “bottom line.”
With these economic and legal models in mind, we analyze and discuss three free speech incidents which occurred after 9/11 involving extramural speech (i.e., speech conducted outside of the classroom).
One hundred and fifty complaints of campus free speech violations were reported in the two months following September 11 (Foundation for Individual Rights in Education, 2001). The three discussed here are the most high profile, involve public institutions, and entail extramural speech, which has the highest level of legal protection.
First is the case of Jonnie Hargis, a library employee at UCLA. On September 12, 2001, a colleague of Hargis sent out a patriotic e-mail to co-workers in the library. Hargis responded the same day with an e-mail that criticized the U.S. for killing “hundreds of thousands of non-combatant Muslim civilians” by bombing Iraq (Foster, 2001, p. A37). On September 14, Hargis was reprimanded by his supervisor for the e-mail based on a policy allegedly created on September 12 but not previously announced to employees that “prohibits the sending of unsolicited e-mails containing political, religious, or patriotic messages to library department lists” (Salonza, 2001, p. 1). Hargis was suspended without pay for five days. No action was taken against his colleague. Hargis consequently filed a grievance through his union, the Coalition of University Employees. On October 15 he was restored to full status with back pay and benefits, had the incident expunged from his personnel record, and received an apology from the administration (“Should,” 2001).
This incident illustrates the changed relationship between cultural workers and the academy. Lacking the academic freedom guaranteed a faculty member, Hargis was protected only by the First Amendment and his union contract. Ironically, his union forced the university to provide him with the Constitutional free speech rights guaranteed to all government employees.
A similar incident occurred at the same time in a much more public forum. On September 12, Robert Jensen , an Associate Professor of Journalism at The University of Texas at Austin, wrote an Op/Ed piece for the Houston Chronicle (Jensen, 2001). He opened the article by describing his deep sadness as a result of the September 11 attacks, and he indicated that defending those acts of terrorism would “be to abandon one’s humanity”. The question on everyone’s lips was “When will the United States…retaliate?” Instead, he wished the question were more basic: “Will the United States retaliate?” He observed that any type of massive retaliation “… will kill innocents. Innocent people, just like the ones in the towers in New York and the ones on the airplanes that were hijacked.” He ended with a plea to “let the insanity stop here.”
The response to Jensen’s commentary was immediate. By September 21, Jensen had received 1,300 e-mails on the topic. Larry Faulkner, President of The University of Texas at Austin, indicated he was under considerable pressure to respond (“Undiluted attack,” 2001) and that he had received “a large volume of outside inquiry by e-mail, phone, and letter after Jensen’s column was published, asking if Jensen’s view was also the University’s official position” (“Faulkner disassociates,” 2001). Considering the opposition to Jensen’s anti-war views from potential university consumers and business partners, it is no wonder that Faulkner crafted a response to appear in the very same public venue. The letter acknowledged Jensen’s First Amendment right to speak, but the remainder of the letter was an ad hominem attack on Jensen, calling him an “undiluted fountain of foolishness.”
Reactions to Faulkner’s letter came immediately. UT faculty member Dana Cloud responded in a letter to Faulkner:
It is your privilege, of course, to disagree with Professor Jensen. . .While you frame your response in terms of his and your individual rights to free speech, I believe that you also have a responsibility to recognize that, coming from someone in your position, this kind of response can have a chilling effect on the intellectual climate of the university (Cloud, 2001, p. 1).
In a September 21 editorial, the student-run Daily Texan agreed:
Discrediting a professor at your own university not only compromises the image of the university, but it creates a chilling effect on professors and employees who in the future might wish to exercise their constitutional right. Questioning Jensen’s views would have been entirely appropriate, but attacking his credibility was damaging to Jensen, Faulkner and the University (“Faulkner Disassociates, 2001).
The most extreme incident regarding academic freedom involved Sami Al-Arian, a tenured Computer Science Professor at the University of South Florida (USF). Al-Arian was put on paid administrative leave after appearing on the Fox News Network’s “O’Reilly Factor” on September 26. On the program, O’Reilly grilled Al-Arian about his past association with three alleged terrorists and their relationship to a now-defunct Islamic Studies program developed by Al-Arian at USF (“Behind,” 2001). O’Reilly also repeated a decade-old comment by Al-Arian, “Death to Israel.”
Following hundreds of threatening phone calls and at least 12 death threats (Klein, 2001) the university put Al-Arian on a paid leave of absence. He was also banned from returning to campus. USF claimed that fundraising, student recruitment, and faculty grants were affected by Al-Arian’s remarks.
The university asked an outside legal counsel, Thomas M. Gonzalez, to review Al-Arian’s actions (Gonzalez, 2001). Gonzalez indicated that Al-Arian was subject to discipline because the contract between the United Faculty of Florida and the university states that “academic freedom is accompanied by the corresponding responsibility to. . .indicate that one is not an institutional representative [and] contribute to the orderly and effective function of the employee’s academic unit. . .and/or university” (p. 1). Gonazlez concluded that Al-Arian had done neither.
Gonzalez’s analysis refers to several court cases involving extramural speech. While he mentions Pickering, Gonzalez relies heavily on the controversial Waters case. He says:
In Waters, the plurality [of the Supreme Court] instructed that an employer may act before the employee’s speech has actually been disruptive. In other words, the employer may act on its belief that the speech, albeit protected, threatens disruption to the employer’s operations. The employer may act on the evidence it has, even if that evidence consists of hearsay. The factual material I have reviewed leads me to conclude that Dr. Al-Arian has caused a substantial disruption to the University’s operations. The University is entitled to act on that disruption. In short, the Constitution allows public employers to manage their operations (emphasis added) (Gonzalez, 2001, p. 4).
After Gonzalez’s legal opinion, the USF Board voted to fire Al-Arian. Instead, President Judy Genshaft put Al-Arian on a paid leave of absence.
Al-Arian and his supporters have pointed out several errors in USF’s process. First, a 1996 investigation by Tampa lawyer William Reece Smith found “no evidence” that either Al-Arian or the center supported terrorism (“Behind,” 2001). Second, Al-Arian’s statement “Death to Israel,” is protected speech since “people cannot be punished for advocating criminal acts unless. . .their speech is intended and likely to incite imminent lawless action,” according to Robert Cole, Professor of Law at Georgetown Law Center and a Constitutional law expert (O’Donnell, 2002). Al-Arian’s statement was symbolic, not a literal threat. Third, it is a common practice in the media to identify faculty members by their employing institution, although this certainly does not indicate endorsement by the institution. Indeed, Al-Arian told O’Reilly’s staff not to identify him as a USF faculty member. Finally, according to Cole, Al-Arian was put on leave
because, according to the university, he is a disruption; because controversial statements that he made a decade ago have led to other people threatening his life...Instead of going after the people who have threatened his life, the university has decided to go after the victim (O’Donnell, 2002).
Al-Arian has been supported by his union, the United Faculty of Florida . In addition, the AAUP sent an investigating committee to USF headed by First Amendment expert and Duke University Law Professor William Van Alstyne. The committee’s report will be available in mid-2002, and if violations of AAUP rules regarding academic freedom are found, the school would be the subject of a censure vote at the AAUP’s 2003 meeting .
Al-Arian was still on a paid leave of absence when this article went to press. President Genshaft indicated that a decision on Al-Arian’s future would be made by August 2002.
These three incidents engage several of the issues discussed earlier related to the commodification of higher education and free speech violations. These have manifestations as self-imposed controls on free speech, hate speech, violations of due process, and punishment for offending consumers.
A major limit to faculty speech has proven pre-emptive and self-imposed: faculty avoid expressing unpopular ideas out of fear of losing their jobs or professional status.
There are certainly non-tenured faculty members, graduate assistants, students, and staff who have not spoken out because they are powerless. Instead, these individuals, who may have innovative ideas on fighting terrorism or unique understandings of Arab/American relationships, have held back in fear of professional retribution. Still others, including tenured faculty members, have witnessed the institutional isolation and nullification of Al-Arian and Jensen and have chosen not to speak in order to avoid professional and personal defamation.
Key to understanding the legal implications of the three incidents is the issue of hate speech. While some would consider Hargis’ and Al-Arian’s remarks anti-Israeli or anti-Semitic and Jensen’s remarks hurtful, the Supreme Court is very clear: government attempts to control so-called “hate speech” virtually always privilege certain viewpoints over others, which is impermissible under the First Amendment. In the Hargis case, for example, the fact that no action was taken against his colleague who wrote what was considered a “patriotic” e-mail proves that Hargis’ post was considered “hate speech” to a degree. This is a clear violation of the viewpoint speech standard handed down by the Supreme Court, in R.A.V., which stipulated that hateful actions (assault, destruction of property, etc.) are not protected and can be prosecuted to the full extent of the law but hate (or “viewpoint”) speech is protected under the Constitution. The Supreme Court did allow that a hate speech code that is very narrowly tailored might pass Constitutional scrutiny. However, as a practical matter such narrow tailoring would be difficult because it would rely entirely on the values and viewpoints of those composing the code.
Debate over the free expression of unpopular ideas is not new. Judge Bernard Decker of Chicago commented in the case of a 1977 parade permit for the Nazis in Skokie, Illinois:
The ability of American society to tolerate the advocacy of even the hateful doctrines espoused by plaintiffs without abandoning its commitment to the freedom of speech and assembly is perhaps the best protection we have against the establishment of any Nazi-type regime in this country (quoted in Hentoff, p. 67).
The American Civil Liberties Union defended the rights of a small group of Nazis to march in Skokie, with its large Jewish population and nearly 3,000 Holocaust survivors. No other group supported the ACLU position. Nationally, 15-20% of ACLU members resigned; 30% of those in Illinois did so. Hentoff observes, “The furor over Skokie, therefore, was instructive—a blistering reminder of the selective belief in the First Amendment that characterizes many Americans” (Hentoff, p. 251).
Like Skokie, 9/11 ignited emotions of many Americans, especially in the critical first weeks after the attack. Fear, grief, media attention, and paranoia combined to stir the patriotic passions of Americans. Some Americans believed that retaliation in kind was the only appropriate course of action for the country. Because of the emotional stress and patriotic swell that overcame America during this period, individuals such as Jensen, Hargis, and Al-Arian who opposed war or supported Arab causes were singled out and criticized for their views.
These three incidents demonstrated the precariousness of the legal protection of due process for both faculty and staff members in public higher education. Despite all of the incidents occurring at public universities, the due process mandated by the Constitution was often ignored or set aside during this period of patriotic fervor. Hargis, for example, was disciplined based on a rule announced two days after his “offense.” The University of South Florida Board of Trustees voted to dismiss Al-Arian after the fall 2001 semester without a hearing. Jensen was never charged with any offense. Instead, he was subject to an ad hominem attack by the President of his university, an action that possibly stifled further or wide-scale dissent. Much of the reasoning used to dismiss or reprimand in all cases consisted of e-mails, letters, and phone calls by persons outside the institution.
These three cases all illustrate the effect of the commodification of academe. Hargis, Jensen, and Al-Arian all violated the corporate model—they went beyond their assigned tasks of selling “knowledge packets” to consumers and asked pointed, if unpopular, questions.
USF’s charge that Al-Arian obstructed university “operations,” for example, is another way of saying that he disrupted the corporate university model. Al-Arian’s speech allegedly affected student recruiting, fundraising, and grant activities – activities not directly invested in learning, but activities that affect the university as a business. In this sense, Al-Arian had offended many potential consumers and business partners. Even if justifying Al-Arian’s dismissal due to economic repercussions were acceptable, other sources indicate that Al-Arian’s actions had no effect on operations. Applications for admission at USF are up 15% and no candidate for faculty or administrative positions has mentioned concerns about academic freedom (Brannon, 2002). Fundraising is running $6 million ahead of last year, according to Vicki Mitchell, Associate Vice president for USF Foundations (Agostin, 2002). Further, a potential censure of the university by the AAUP due to the university’s corporate stance could adversely affect faculty recruiting, retention, and the university’s application for a Phi Beta Kappa chapter (Meehan, 2002).
Al-Arian’s case points out the inherent tension between the corporate model and academic freedom. The loss of academic freedom is a byproduct, an unintended consequence of commodifying higher education. Here, Al-Arian’s extramural free speech was not purposeful and clearly affected the “bottom line” of the university as a corporation. His case suggests that academic freedom is expendable to the corporate university and that faculty speech is protected only as long as it doesn’t prove bad for business.
Likewise, the corporate model was used at the University of Texas. According to Dana Cloud, Associate Professor of Communications,
It’s pretty clear to me that after Bob Jensen published his Houston Chronicle editorial…that Larry Faulkner received some flak from people in Houston…I would imagine a lot of the flak came from people with big money: oil money, potential donors to the university or existing donors to the university…he wrote his response which trashed his own faculty member…for saying something that was perfectly logical—had evidence behind it, was reasonable, just not popular—because he felt that the donor base to the university was being threatened by Bob’s remarks.
I think it’s a real shame that in an allegedly public university—the only space we have remaining to discuss ideas critically, to discuss a range of points of view, to offer students and the public multiple narratives of how things are—is being impoverished and shrunken by these financial imperatives (Personal interview, April 27, 2002).
No charges of misconduct were ever filed against Jensen. Rather, he was charged and tried for his objections to military action in Afghanistan in the press. He had offended consumers and business partners of the University of Texas at Austin with so-called “anti-American” views. The consequences for his extramural speech were to endure public insults from the President and harassment from some of the university’s potential customers.
The USF chapter of the United Faculty of Florida (UFF) released a statement which expresses a similar sentiment in response to the Al-Arian crisis. The statement emphasized the dangers when the public begins to censor protected academic speech:
Academic freedom is essential in good times when holding to high principles is popular. But it is imperative in a crisis, when principles might be sacrificed out of a false necessity or momentary experience.
When the public itself suppresses academic speech, it commits a folly as great as slapping a band aid on a lump and hoping it is benign … When academic colleagues or administrators censor academic speech, they betray the trust that the community places in them. And when principles are abandoned out of fear and fury, the damage done so quickly takes decades to heal (“A statement on,” 2001, p. 1, emphasis added).
Having a strong faculty senate or union lends much more support to a faculty member caught in the crossfire of free speech debates. In Jensen’s case, both the Faculty Senate and the Progressive Faculty Coalition came to his defense. Al-Arian has backing from his union, the United Faculty of Florida, and the AAUP . Hargis’ union backed him. The cases demonstrate that the guarantees of free speech or academic freedom alone are not enough. The vigilance of unions, faculty senates, and individual faculty is necessary to enforce such Constitutional and contractual guarantees.
In this era of higher education’s embrace of all that is corporate, making academic freedom a priority seems, unfortunately, less important than turning a profit in today’s university. Academic freedom’s status in the corporate model becomes clear only when the exercise of it leads to problems with donors, supporters, and consumers, as illustrated by all the incidents.
Troubling too is the reliance on “efficiency” in court cases addressing the parameters of free speech. Combined with the corporate model’s emphasis on effectiveness and production, this suggests that academic freedom and the First Amendment can be ignored if they cause disruption or the potential for disruption to the business model of college campuses. In the extreme, the precedents of these cases suggest that all comments of faculty, staff, and even administrators should be weighed against public reaction. This evokes the image from the movie Gladiator of the Roman emperor giving the “thumbs up” or “thumbs down.” If certain speech offends potential consumers or business partners, they can encourage administrators to sentence the academic to a professional “thumbs down” and to replace individuals who threaten the business model of the university with cheaper contingent employees in order to turn a profit. Indeed, replacing tenured faculty with contingent faculty to cut costs has already become a formidable trend in academe.
The three incidents examined here provide a reminder to academics of the fragility of academic freedom. Rather than a frontal, McCarthey-esque attack, the challenge to academic freedom is couched in terms of “efficiency,” “profit,” “bottom line,” and other corporate buzzwords. As with previous attacks on academic freedom, the current incursions will be challenged only through collective action by academic unions, faculty senates, and cultural workers.
The authors would like to thank Jim Walter, Chuck Fazarro, and Janine Duncan for their comments on previous drafts of this article.
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 Cultural workers refers broadly to individuals involved in the production of knowledge at the K-12 and postsecondary levels of education. The term is used in this paper to mean faculty and staff in higher education.
 The 1970 AAUP Interpretive Comments (AAUP, 2001) contains ancillary information for all three paragraphs
 The First Amendment includes five freedoms: freedom of religion, of speech/press, from libel, to assemble/associate, and to redress grievances.
 Jensen is a well-known peace advocate and has himself written on the First Amendment (Jensen, 1995).
 The United Faculty of Florida has a website devoted to his situation, http://w3.usf.edu/~uff/AlArian/Links.html
 Al-Arian is rumored to be under FBI investigation. USF/UFF president Roy Weatherhead said at a March 20 Faculty Senate meeting that UFF’s involvement was limited to the academic freedom issue, “If he [Al-Arian] has engaged in misdeeds in his private life, that’s his problem . . . if the university proceeds against him without due process and just cause, it’s a terrible precedent” See http://w3.usf.edu/~uff/AlArian/Links.html
 The AAUP investigating committee released an Interim Report on the Al-Arian affair. In part, it stated "The investigating committee believes that Professor Al-Arian's statements fell well within the ambit of academic freedom. Other currently pending charges against Professor Al-Arian have been characterized by the investigating committee as too insubstantial to warrant serious consideration as adequate cause for dismissal." Retrieved from http://www.aaup.org/newsroom/press/2002/02-6usf.htm