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State Universities Confront Limits to Their Intolerance

The tension between academic autonomy in state-run and state-funded universities and democratic accountability is back on the table with a vengeance. Laws against teaching “critical race theory” are on the agenda for at least twelve state legislatures, the popularly elected Board of Regents at the University of Colorado—coming under Democratic control for the first time in forty years—reportedly pressured the CU president (a former GOP congressman) to resign. And the University of North Carolina-Chapel Hill’s Board of Trustees offered journalist Nikole Hannah-Jones, creator of the 1619 Project, a five-year fixed-term appointment at the university, rather than one with tenure which the faculty recommended for her.

Reflecting the concerns of many academics, the Chronicle of Higher Education’s on-line newsletter devoted a recent edition to “political meddling in college leadership.” Even two academics who challenged Hannah-Jones’ 1619 Project on its merits nonetheless criticized the UNC-Chapel Hill Board’s decision on the grounds that it violates hard-won principles of academic freedom and faculty autonomy. They argue that university governing boards “retain the power to approve of faculty-hiring decisions in the same way that the queen of England retains the power to approve legislation passed by Parliament—as a ceremonial formality only.”

Yet is this situation that cut and dried? In his 2011 presidential address to the Association for the Study of Higher Education, William Zumeta argued that the relationship between “academic autonomy on the one hand and higher education’s public accountability on the other” is a “social construction and thus prone to vary from place to place and time to time.”

Many academics fear what they see as increasing “political interference” in faculty governance and assert faculty autonomy and academic freedom as absolute principles to stave off this interference. Yet in asserting these as absolutes, they deny any role for democratic accountability of higher education to state citizens, even in state-run, state-supported universities. In doing so, faculty may be setting themselves up for even greater “interference” in the future.

Taxpayers as Stakeholders

State legislators and university governing boards are easy to vilify. But their actions do not appear out of nowhere. Legislatures and boards are channeling a growing and real unease among a broad swath of non-academic citizens. An unease at what they perceive is going on at universities and, particularly, at state-supported universities which they think of as “theirs” more than private universities. While academics may think they are protecting their turf from the ignorant “deplorables,” a concern is that the use of “academic freedom” to shut down a broader consideration of what’s going on in universities will be viewed not as principled, but rather as an academic power play. In doing so, academics will cut the ground from under their appeal to academic freedom.

There are weighty arguments for academic freedom, and the principle is as likely to protect conservative faculty as it is liberal faculty, perhaps even more so going forward. At the same time, simply appealing to academic freedom as an absolute that cuts out any broader accountability misses the concerns of many non-academics. This worry did not develop simply from the sense that faculty members—particularly in liberal arts and the humanities—and administrators are increasingly hostile to the lives and beliefs of non-academic citizens, but it explains some of it. Beyond that, however, a broader concern has developed that the internal environment of universities may no longer reflect the same dynamics as they did for most of the last century. The concern is that, today, “faculty autonomy” may protect non-creative groupthink among faculty as much as it promotes it. This faculty groupthink, the thought goes, has affected the relationship of universities to broader society, particularly state-run and state-supported universities founded to provide public goods to society. The sense is that this groupthink has transformed faculty and administrative culture into a largely monochromatic intellectual culture hostile to, and contemptuous of, the life and aspirations of the broader society.

This public concern focuses particularly on the humanities and liberal arts (both because they are less mathematical than many other disciplines, but also because they often address questions central to human life). But, increasingly, public concern also focuses on the administrative culture fostered at most universities and colleges. This focus reflects a widening gulf between the lay population and the universities that hypothetically exist to educate them.

To be sure, as a 2019 Pew survey reported, these concerns are disproportionately shared among Republicans. Yet according to the study, even one out of five Democrats say that universities and colleges have a negative effect on the way things are going in the U.S. Yet even among Republicans, this dramatic increase in skepticism toward higher education occurred only recently. Prior to 2015, the majority of Republicans believed universities had positive effects on society.

The point is not that these concerns by non-academics are all necessarily well founded. Rather, answering public concerns requires more than a perfunctory appeal to academic freedom or scholarly expertise. It requires argument and evidence. It requires that academics engage—and even educate—a broad segment of the public.

To do this, however, requires that academics first seek sympathetically to understand the concerns of these critics rather than dismiss them out of hand. And dismiss them they do. As one academic wrote recently in the Chronicle of Higher Education, “the merit of a scholar’s work cannot be judged by a boat salesman, however fine a human being that boat salesman may be.” (And lest the writer’s dismissal be taken as too generous, the academic added, “I am not suggesting that the boat salesman in question is a fine human being.”) Too often the attitude of academics seems to be that the concerns of Hillary Clinton’s “deplorables” do not require the sympathetic understanding of academics. Yet they refuse it at the longer-term peril of the university. As T.S. Eliot explained in a letter to Stephen Spender (in a different context), sympathetic understanding does not entail agreement, but criticism—true criticism—cannot occur without it.

The thing is, even non-academic citizens of a state believe they have an investment in what state-run and state-supported universities do. While the proportion of tax dollars comprising university budgets has been decreasing as a percentage of university revenues in recent years, it is still a non-trivial amount of support. (Public parks, for example, don’t cease to be public parks simply because user fees generate substantial revenues for those parks.) Further, we need not look simply at current appropriations. There is both the past and the future. State-run universities are “going concerns” of state governments and of the state’s people.

While academics may want to compare the work of state university Boards of Trustees with figureheads like the Queen of England, that the members of a Board are appointed by the elected representatives of the people, or even directly elected, may make a crucial difference in the role each allowably plays in their institution.

Keeping Democratic Accountability and Academic Freedom in Tension

Indeed, an academic’s “political interference” might be a non-academic’s “democratic accountability.”

There is, to be sure, a process argument in favor of granting protections (like tenure) to faculty: it shields faculty whose work might pursue unpopular lines of research from the truth-denying pressures of majoritarian conformity. Tellingly, almost two centuries ago Tocqueville made the bracing observation that he knew “of no country in which there is so little independence of mind and real freedom of discussion as in America.” This is still a problem across the political spectrum.

Academics tend to see this problem only when the university is held accountable to non-academic stakeholders. Non-academics, however, increasingly point right back at academic culture. Growing numbers of non-academics today do not see universities as exceptions to the problem of majoritarian conformity. Rather, they see today’s universities as exemplifying the problem of majoritarian conformity, albeit simply at a different level of decision-making. Indeed, many non-academics hear the invocation of academic freedom and faculty autonomy as little more than a rhetoric of power calculated to protect majoritarian control of the institution by faculty majorities that are hostile and antagonistic toward popular majorities.

The perception among a large swath of the U.S. population is that university faculty, particularly administrators and faculty in the humanities and liberal arts, reflect a stifling sort of group-think in their relevant institutional community. Faculty autonomy in this view merely protects the power of the majority of this elite social group, allowing them to suppress dissenting voices within the academy rather than foster them.

The truth of this perception can be debated. Nonetheless, the significant predominance of Democrats in elite academic institutions, and in the humanities, prompts part of perception.

Further, just as academics may suspect the motives of non-academics who desire to “interfere” with academic governance, academics might recognize that non-academics suspect motives of academics as well. After all, academic autonomy combined with the view that “the merit of a scholar’s work cannot be judged by a boat salesman, however fine a human being that boat salesman may be” can tempt academics to offer mere opinion under the guise of scholarly expertise. If a non-academic then challenges the opinion, the academic can dismiss the challenge. “You cannot judge a scholar’s work.”

If broad swaths of the public believe that academics are increasingly taking advantage of their claim to unquestionable “expertise,” and are instead proffering contestable political judgments under the guise of “expertise,” we shouldn’t be surprised if non-academics are increasingly skeptical and become increasingly willing to call their bluff. Even further, when scholars teach that “everything is political,” they can’t really be surprised when the same lens is turned to assess their own work.

At its best, “academic freedom” serves the ideal of testing ideas against other ideas. It seems consistent with the goals of public universities—particularly in democracies—that faculty be able to explain and account for their expert conclusions to interested members of the public. Such a process of explanation and accountability could even be called “education.”

By analogy, if university boards “intervene” in the workings of state universities only when the process of “faculty autonomy” fails to protect or provide for academic freedom, that intervention would reflect democratic accountability in service to ensuring universities promote both academic freedom and the public good.

Further, there is a second, countervailing principle to set alongside academic freedom in state-run and state-supported universities in democracies: Whether academia is an exception to a belief, as James Madison put in Federalist 39, in “the capacity of mankind for self-government.”

To be sure, “self-government” need not be—cannot be—a form of blind majoritarianism. At the same time, the appropriateness of self-government cannot be no more than a cynical proxy for whose ox is getting gored, as if self-government is commendable when its outcomes accord with my preferences, and is discreditable when it is inconsistent with my own preferences.

To reduce the role of governing boards for state-run and state-supported universities to serve nothing more than the role of figureheads would seem inconsistent with the broad principle of democratic accountability.

The End of Ceremonial Boards of Trustees?

There would seem to be at least two possible responses. First, academics might engage more vigorously with educating the public regarding the value of academic freedom. Rather than make an appeal to authority—”academic freedom” means state citizens need to stay quiet about what state-supported universities do with tax dollars—they could appeal to evidence and reason, and attempt to persuade the public—even skeptical segments of the public—that academic freedom serves the public’s interest.

Secondly, they might craft a moderate and principled position, one that nods to democratic accountability as well as respects academic freedom, and acknowledges that boards in public universities and colleges have responsibilities beyond rubberstamping decisions faculty have already made.

For example, there is the famous “process rationale” for heightened judicial review of legislative and executive actions discussed in footnote 4 of the Supreme Court’s Carolene Products decision. What it provides is that when a legislature or executive engages in actions that short-circuits the self-correcting nature of democratic process—for example, by suppressing political speech, or imposing unfair restrictions on minorities—judges can apply heightened review of those actions. In that way, courts can serve as a democracy-enhancing institution that promotes pluralism rather than serving only as a countermajoritarian institution.

By analogy, if university boards “intervene” in the workings of state universities only when the process of “faculty autonomy” fails to protect or provide for academic freedom, that intervention would reflect democratic accountability in service to ensuring universities promote both academic freedom and the public good. I recognize the possibility of a “camel’s nose” objection to this suggestion. Nonetheless, consigning university governing boards to mere figurehead status no matter the circumstances in state-run and state-supported universities seems as unwise as it is inconsistent with democratic accountability and the purpose for which these universities were created and sustained.

Academic freedom—and faculty governance—are hugely valuable principles that can importantly serve the public interest. It is nonetheless fair for the public, and their agents, whether directly elected or appointed by other elected officials, to ask for evidence-based accountability of the claims made for these principles. It is consistent with the spirit of academic freedom for academics to provide evidence to the public that the principles are in truth serving the public’s interests, rather than insisting that the public defer reflexively to a blind faith in academic claims.

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