Using the Emoluments Clause to sue the President reinforces congressional weakness, and there is a better way.
President Trump has issued an executive order requiring colleges and universities to respect and protect free speech on their campuses or lose federal monies. Conservatives have been looking for some way to address this problem, but an executive order is an unfortunate way to do it. Not only does it perpetuate the nationalization of all issues, it overlooks the possibility of a truly federalist possibility in higher education.
The political imbalance in American higher education is no secret, but the scale is staggering. There are whole disciplines in the academy with so few conservatives they don’t even appear as a rounding error. A recent study of liberal arts colleges found that almost 40% do not have a single registered Republican.
These numbers do not reflect the population of the country, obviously. National polls show a much more evenly divided America than its campuses. There are two general explanations for the imbalance. One explanation on the left is that conservatives as a group lack the intellectual qualities to succeed in academia. As one author explained it in The Chronicle of Higher Education, professors “are liberal, in other words, by deliberate and reasoned choice, based upon the best available evidence.” A corresponding explanation on the right is that they are a persecuted minority who are targeted for their views. Each has its self-serving version: “Oh, we are so much smarter than they;” “Hey, we are a victim group, too!”
Yet each explanation also has a grain of truth. Conservatives really are singled out on American campuses. Conservative speakers are disinvited or, if allowed to speak, shouted down and protested. It is hard to believe that Middlebury College could treat Charles Murray as it did and then hire someone sharing his scholarly interests in their Sociology department. Conservatives are treated differently. It is not paranoia to point this out.
On the other hand, many academic fields reward novelty above all else. Exploring queer or trans themes in Shakespeare is going to get more attention, for instance, than tracing the republican theories explored in the Roman plays. If every English instructor at all three-thousand some odd institutions in the country must produce “cutting edge” research, only the unbroken fields are left for tilling and that soil must be fertilized somehow. Such a perspective allows the author of that Chronicle piece to state: “Conservatives, who tend to evoke the need to preserve traditional connections with the past, have nonetheless contributed least to any detailed or thoughtful study of history.” Indeed!
There are a few excellent programs promoting conservative themes and academics at major institutions, such as the Program on Constitutional Government at Harvard and the James Madison Program at Princeton. But these are largely tied to the fate of one man at each institution, Harvey C. Mansfield at the first and Robert P. George at the second. Would either program survive the departure of its benefactor? It seems unlikely. We might have more hope if programs such as these were more common. They aren’t.
A bold and provocative response by some conservative academics has been to mimic Coriolanus’ response to the Roman people: “I banish you!” The think tanks, from the most prominent such as the American Enterprise Institute and the Heritage Foundation, to smaller, local efforts are one way of doing this. If no college or university will hire that bright young PhD, these places might. Another would be to start a whole new university.
In “An Ivory Tower of Our Own,” Frederick M. Hess and Brendan Bell provide exacting detail on how such an institution could be founded. They account for the purchase of land, the building of the physical structures as well as maintenance; a suitable location near but not in a major metropolis; appropriate salary structures for both senior and junior faculty; the necessary size of an endowment in order to keep it all going, and everything else besides. They conclude that the project would require an initial investment of $3 billion to $3.4 billion. Would it work?
Combining both of these conservative responses we have Peter Berkowitz, a Nietzsche scholar who taught at Harvard and is now at the Hoover Institution, who has his doubts about a new multi-billion dollar university. He points to the problems of accreditation, the process by which institutions of higher education are approved to receive federal financial aid targeted at students such as Pell grants. Given how many students are dependent upon grants and federally backed loans, accreditation is akin to a business license. He also points to the fact that major conservative donors prefer to give their money to more explicitly political causes.
He might have also pointed out that most donations go to proven entities, not new ones. A list of major donations compiled by The Chronicle of Higher Education since 1967 shows that most money goes to well-established institutions such as Harvard, Princeton, and Yale. I could find only two instances of wholly new universities being established through a gift. Vedanta University was founded in India with a $1 billion endowment from the Anil Agarwal Foundation in 2006, and Ave Maria University was founded with $200 million from Thomas S. Monaghan in 2002. We can wish these efforts success, but starting something new is a difficult business.
The case of Thomas Aquinas College is instructive. Founded in Santa Paula, California, in 1971 as a great books college, it was recently given property in Northfield, Massachusetts. Its east coast campus will open this autumn, but it has not been easy. In order to free itself from some of the employment regulations the state requires and accreditors would also demand, it has had to open as a confessional institution, admitting only professed Catholic students. How might Hess and Bell’s conservative university get around this? Catholics can point to parish records of baptism and confirmation. What sort of conservative record would suffice? Any leftwing antidiscrimination lawyer would be licking his chops at the prospect of a $3 billion institution trying to hire only conservatives.
While Hess and Bell are undoubtedly serious about their proposal and would certainly be willing to speak with anyone interested in their project, they have to admit it is a long shot. Might they also admit that the very idea of founding a unitary institution is troubling from a conservative view? Academia, like the country itself, needs more federalism.
First, the idea of starting such an institution with angel investors who may or may not know anything about how colleges and universities work defies everything Tocqueville admired about America. Hess and Bell might not be talking about a government program, but the size and scale is indistinguishable. Moreover, it has the hallmarks of French peasants petitioning Paris for a bridge rather than townsfolk solving a problem on their own. I am willing to concede that what they want to do will necessarily be something beyond the capabilities of a few academics (imagining that academics have capabilities). Tocquevillian efforts such as Thomas Aquinas or Thomas More College are and, it seems, must remain small-scale endeavors. But Hess and Bell might also want to reconsider the structure of the institution they propose.
The assumption underlying the proposal, as well as that of almost every American institution of higher education for the past two-hundred years is, explicitly or not, that of Wilhelm von Humboldt. Not only did he found his university with the idea of combining research and teaching, it was a single institution divided into disciplinary divisions or departments. Apart from the small institutions already mentioned or other great books colleges like St. John’s, this is how American universities are organized. They are divided by field, first and foremost. This is not the only way to do it.
Higher education in Western Europe started with small colleges joining together to become universities. Initially, the colleges were responsible for the teaching and the universities for the examinations and conferral of degrees. Each college offered instruction in all or almost all fields. They were academic versions of what Montesquieu described as “confederate republics.” This structure has largely been abandoned to the point that even Oxford and Cambridge just barely hold on to a remnant of this system. However, for conservatives wishing to reform and found universities—and especially American conservatives—this opens a host of possibilities.
Conservatives are generally fond of federalism. American conservatives have the benefit of the Constitution that Madison described in Federalist 39 as being both national and federal. Universities could learn a lot from this.
Imagine several colleges, each one confessionally distinct and legally separate from one another, like the states at the time of ratification. The “university” would be an examining body with enumerated powers, taking the role of the federal government. Each college would agree to award degrees to only those who pass the university exams even though they, individually, would be responsible for educating the students. Think of it all as more in the direction of the Anti-Federalists.
The character of the colleges could cover a wide range. Jewish colleges, for instance, might make a great deal of sense. One or more secular colleges could also be included, although they might have more legal problems maintaining a philosophical consistency. But that is a problem with the law that any “conservative” university would have. On the other hand, the secular colleges could follow the usual drift and become liberal, but that wouldn’t be all bad. The structure I am suggesting would actually achieve the intellectual diversity the system now lacks.
One of the greatest promises of this type of institution would be pedagogical. Conservatives normally complain of academics teaching obscure topics of little interest to anyone but themselves. Either that, or the complaint is they teach major topics in an ideological fashion. What if students were trained and housed in their particular colleges yet examined by the university? Instructors and colleges would be in competition with each other to produce the best students with the best results. That race/class/gender analysis of everything under the sun will do your students no good at the exam. And it will be quickly known who is and who is not preparing students. Ambition would be made to check ambition.
We often think the sciences are immune to politicization because of the subject matter. Think again. They tend to be kept honest because anyone instructing their students in faddish notions of math or science will soon be caught out. That sense of “academic freedom” does not exist in a math or biology class. The same incentive doesn’t apply in the rest of the academy. But it could.
Developing a system of “examiners” might be criticized for merely pushing the problem to a different level. Instead of the individual instructors on the faculty of the university grading according to their preferences, the examiners will. True, but those examiners could be more closely monitored, better known, and have shorter contracts than the faculty. If they were senior scholars, their positions on a host of issues would be available to all. More to the point, they would be hired to grade, not to teach. While the bent timber of humanity might never be straight, the opportunities for mischief are greatly reduced by dividing these roles.
I have written elsewhere that colleges and universities can learn from the lessons of our great cities. They could also learn from the federal structure of the Constitution. It might be time to found a new university, as Hess and Bell claim. The current ones are becoming parodies of themselves and, as Clay Christensen has argued, as many as half of all colleges and universities will probably close within the decade. Whether this will be from increased use of on-line education, as he claims, or the massive weight of debt on the part of both colleges and graduates, it does seem like a bubble is about to burst.
If it does burst, someone will need to put things back together again. It could be a great opportunity or a disaster. On-line classes are not going to preserve the knowledge we need to pass down to future generations. Recreating the current institutions will do no better. The good news is there will be a lot of properties for sale and a lot of experienced labor looking for employment. Having a plan for what to do is a good idea.