Posted by Eugene Volokh:
The Ward Churchill Controversy Is Not About Tenure as Such:
[1]Jim Geraghty (The Kerry Spot, at The National Review, quotes Newt
Gingrich on Ward Churchill:
Ward Churchill is a viciously anti-American demagogue. He has every
right to free speech, and I support his free speech . . . . We
should give him free speech by not paying him.
You don't need tenure in this country anyway. The idea that he
would be oppressed without tenure is nonsense. There are 75
whacked-out foundations that would hire him for life. Dozens of
Hollywood stars would hold fundraisers for him. His life will
become a film by Michael Moore.
The question here, is "What obligation does society have to fund
its own sickness?"
We ought to say to campuses, it's over . . . . We should say to
state legislatures, why are you making us pay for this? Boards of
regents are artificial constructs of state law. Tenure is an
artificial social construct. Tenure did not exist before the
twentieth century, and we had free speech before then. You could
introduce a bill that says, proof that you're anti-American is
grounds for dismissal. . . .
The Ward Churchill issue is not about tenure as such. The Supreme
Court has held that even government employees, including ones who are
untenured, have a right to free speech; and courts have applied this
especially strictly to scholarship and speeches by public university
professors (and professional standards have generally reinforced this
rule and applied it to private universities). If you're untenured, you
may be fired for any reason except your exercise of your
constitutionally protected free speech rights (and your race, sex,
religion, and the like). And a law that says "proof that you're
anti-American is grounds for dismissal" would violate the First
Amendment, as the Court has interpreted it for roughly half a century,
just as a law that says "proof that you're pro-life is grounds for
dismissal" or "proof that you're anti-affirmative-action is grounds
for dismissal" would violate the First Amendment.
Tenure is an extra protection beyond that given by the First
Amendment: It's a contractual (or perhaps a statutory) guarantee that
professors can't be fired without good cause, which is interpreted
quite narrowly. This means not just that a professor can't be fired
for his viewpoints, but also, generally speaking, that he can't be
fired if he's a bad teacher (perhaps unless he's an awful teacher), he
can't be fired if he produces virtually no scholarship, he can't be
fired if he's unpleasant to be around, and so on.
Now tenure does in practice protect professors' academic freedom.
Under the First Amendment, a university can't fire a professor because
he expresses anti-American, pro-life, anti-war, or
pro-biological-gender-differences views. But if the university is free
to fire professors for other reasons, then it can come up with some
pretext (we aren't really firing this professor because he's a
Republican; it's just that we think we can get someone more productive
instead), and thus fairly easily get away with the First Amendment
violation.
But even if tenure is abolished -- and there are good arguments for
it, since perhaps its costs (e.g., retention of some people who are
bad teachers or unproductive scholars) exceed its benefits (e.g.,
protection of academic freedom) -- the First Amendment academic
freedom principles would still remain. Perhaps universities could try
to push the envelope; public employers can sometimes fire employees
because their public speech sufficiently alienates the public, and
maybe universities could argue that university professors should be
treated more like other government employees this way. But certainly,
as I mentioned, a "proof that you're anti-American is grounds for
dismissal" law would be unconstitutional even in the absence of
tenure.
Finally, if tenure is abolished, and universities cut down academic
freedom protections to the minimum that the First Amendment demands
(or the Supreme Court reverses its First Amendment protection for
government employee speech), do we really think that only extreme
anti-Americans will be fired? Or would it be likelier that the
overwhelmingly left-wing faculties and administrations will fire lots
of professors on the right -- including people who express eminently
legitimate views, just on topics that are unpopular with the left?
References
1. http://www.nationalreview.com/tks/057019.html
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