Academic journal article Texas Law Review

Neo-Orthodoxy in Academic Freedom

Academic journal article Texas Law Review

Neo-Orthodoxy in Academic Freedom

Article excerpt

Neo-orthodoxy in Academic Freedom FOR THE COMMON GOOD: PRINCIPLES OF AMERICAN ACADEMIC FREEDOM. By Matthew W. Finkin and Robert C. Post. New Haven, Connecticut and London, United Kingdom: Yale University Press, 2009. 263 pages. $27.50.

SAVE THE WORLD ON YOUR OWN TIME. By Stanley Fish. New York, New York: Oxford University Press, 2008. 189 pages. $19.95.

A robust system of academic freedom protects the most important values and functions of higher education. The scholar's freedom to choose topics and methods of investigation and the teacher's ability to shape assignments and pedagogy, subject to the criteria of their fields and the evaluation of their peers, have provided the necessary conditions for the intellectual success of American higher education. Yet, how poorly understood and feebly defended has been this indispensable norm of academic life! Smug indifference of professors, extravagant claims by defenders, bad faith or paranoid criticisms by outsiders, epistemological skepticism, and the boom and bust economic fortunes of our many and various colleges and universities have combined to cast a pall of doubt and distrust over this signal achievement of our intellectual culture.

These two books, so different in tone and moral orientation, embrace a common strategy: they protect academic freedom against contemporary threats by grounding it in its original function of protecting professorial control over the evaluation of teaching and scholarship. Stanley Fish, literary theorist, Milton scholar, polymath academic controversialist, dean, and now columnist, argues colorfully and vigorously for professors to fulfill only their jobs of instruction and scholarship, leaving political persuasion and moral guidance to others, or at least to their own spare time. Matthew Finkin and Robert Post, eminent law professors and veteran leaders in the American Association of University Professors (AAUP), calmly explain and defend the AAUP' s approach to protecting the academic freedom of professors through investigation and judgment. Both books take as foundational the AAUP's famous 1915 Declaration of Principles on Academic Freedom and Academic Tenure,1 although they take different interpretative stances toward the 1915 Declaration 's prim defense of professorial competence against meddling trustees. Both books react to external critics and gesture toward internal reforms of our vast, wonderful, and paradoxical structure of higher education. I term their positions "neo-orthodoxy" because they reground academic freedom in the original AAUP tradition, updating its rationale to some extent for current intellectual assumptions and defending it against rival contemporary accounts and external criticisms.2 As will be seen, I largely agree with this move but have concerns about how to give it effect within the law.

This Review seeks to both celebrate and criticize these books. Curiously, these books that praise the norms of scholarship cannot be considered themselves to constitute scholarship. Though smart and learned, they do not place themselves within the existing literature or confront recalcitrant data. Rather, they make arguments to persuade general readers, even if ones within the academy. Indeed, they stimulate a discussion that all who care about universities should join. This Review first provides some background about academic freedom and the tradition these books revive. Second, it assesses how well they address internal doubts and external criticisms. Third, it considers the implications of their arguments for ongoing and looming questions about the constitutional status of academic freedom. My goal, like theirs, is to strengthen academic freedom for an uncertain future.

I. Academic Freedom as a Professional Norm

Academic freedom exists both as a reasonably determinate academic norm and as some kind of constitutional right. The norm has grown from the crucial pronouncements of the AAUP and the commitment to it by nearly every entity within the world of higher education. …

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