Academic Freedom and Shared Governance: Does one protect the other?

In 2004, Delaware State University President Allen Sessoms suspended and initiated dismissal proceedings against Wendell Gorum, a tenured professor in the Mass Communications Department.  During a routine audit the university registrar had discovered that Gorum, “without the professor-of-record’s permission, had changed withdrawals, incompletes, and failing grades to passing grades for 48 students in the Mass Communications Department,” which he chaired from 1997 to 2004 (Gorum v. Sessoms, 2009, p. 182).  While Gorum admitted making the changes, he asserted that he had sufficient authority to do so and that such alterations by department chairs were common practice at the University (Gorum v. Sessoms, 2009).  After further investigation and multiple hearings, an ad hoc disciplinary committee concluded that “Dr. Gorum’s actions undermine the very tenets of the educational profession and rise to a level deserving condemnation by the academic community” (Gorum v. Sessoms, 2009, p. 183).  The group proposed that Gorum be severely disciplined, but not fired. President Sessoms, citing Gorum’s “unprofessional” and “highly reprehensible” conduct, nevertheless recommended to the University’s board of trustees that the professor’s employment be terminated, and the board unanimously approved the action and dismissed him (Gorum v. Sessoms, 2009, p. 183).

Gorum subsequently filed suit in federal district court alleging that his firing “was a retaliatory action to punish him for engaging in speech … protected by the First Amendment” (Gorum v. Sessoms, 2009, p. 183).  Specifically, Gorum claimed that Sessoms retaliated against him not for the acts investigated, but instead for three unconnected speech-related actions:

  • For his objection to Sessoms’ candidacy and selection to the university’s presidency;
  • For his actions as an advisor to a student athlete facing suspension; and
  • For his withdrawal of an invitation for Sessoms to speak at a fraternity’s prayer breakfast, for which committee he had served as chair (Gorum v. Sessoms, 2009, pp. 183-184).

When the federal district court granted summary judgment for Sessoms concerning these allegations, Gorum appealed to the U. S. Court of Appeals for the Third Circuit.  Even though it considered the professor’s arguments unrelated, “makeweight attempts to counter his dismissal for doctoring student grades,” the appellate court nevertheless examined the professor’s speech-related claims (Gorum v. Sessoms, 2009, p. 188).  Applying analysis described by the U. S. Supreme Court in the Pickering-Connick-Garcetti (1968, 1983, 2006) line of cases, the appellate court upheld the district court’s judgment, arguing that Gorum had not engaged in speech protected by the First Amendment in the three matters under consideration, since he did not speak “as a citizen” on “a matter of public concern” in any of them (Gorum v. Sessoms, 2009, p. 185).  Put another way, the Appeals court concluded that Gorum’s speech related to internal university matters, those remarks directly related to his “official duties” as a professor and department chair, and “the First Amendment does not shield the consequences of ‘expression employees make pursuant to their professional duties’” (Gorum v. Sessoms, 2009, p. 185).  In short, the professor’s claim failed.  Relying particularly on the Supreme Court’s decision in Garcetti v. Cellabos (2006), the appellate court reasoned that the

official duty test [applies] because Gorum’s actions so clearly were not ‘speech related to scholarship or teaching,’ and because we believe that such a determination here does not ‘imperil First Amendment protection of academic freedom in public colleges and universities’ (Gorum v. Sessoms, 2009, p. 186).

Because of legal decisions such as Gorum, professors at some public colleges and universities in the United States question whether speech expressed in their governance role(s) is protected by academic freedom. That is, scholars within the profession differ concerning whether academic freedom affords protections to professors’ intramural speech undertaken as part of their responsibilities for governance of their institutions. Notably, the Supreme Court has not ruled on this issue, and so the question of whether academic freedom reaches shared governance remains unaddressed.

This essay examines the literature that has investigated the question of whether academic freedom protects intramural speech that arises as a result of a faculty member’s exercise of responsibilities on behalf of institutional governance.  The literature is, at best, mixed concerning this issue. Some analysts have contended that such professional activity is “inextricably linked” to academic freedom (Gerber, 2001, p. 22).  Other authors have refuted that argument, suggesting that expanding the concept of academic freedom to include shared governance goes too far and renders the construct meaningless (Yudof, 1988). At this writing, the issue remains far from settled.

Defining Academic Freedom and Shared Governance

In the United States, academic freedom is almost universally accepted as a valued principle of higher education (Kaplin and Lee, 2007).  However, “there is little consensus regarding the meaning of [the concept] although there is agreement that it is something worth protecting. … It is, at best, a slippery notion, but a notion worthy of analysis” (Kaplan, 1983, p. 6).  Indeed, Fish (2014) recently argued that five “schools of thought” concerning academic freedom exist and each defines the character and scope of the idea differently.

Scholars have determined the meaning and reach of academic freedom by examining norms related to it that have been established through custom and usage and by analyzing the public statements concerning it developed by relevant professional organizations, such as the American Association of University Professors (AAUP) (Kaplin and Lee, 2007).  For example, the AAUP has sought to describe and ensure academic freedom throughout its long history as an organization representing the academy in the United States (AAUP, 2015).  In its 1940 Statement of Principles on Academic Freedom and Tenure, for example, the Association declared that faculty are:

(a) entitled to full freedom in research and in publication of the results, … (b) entitled to freedom in the classroom in discussing their subject, … and (c) are citizens, members of a learned profession, and officers of an educational institution.  When they speak, or write as citizens, they should be free from institutional censorship or discipline (AAUP, 2015, p. 14).

In short, the AAUP has suggested that faculty capacity to research, publish and teach as they wish, within very broad boundaries, as well as enjoy free speech as citizens constitute core elements of academic freedom (AAUP, 2015). The AAUP’s 1940 Statement did not address the question of intramural speech—i.e., professorial speech linked to a university’s internal affairs or governance.

Universities typically operate two systems of governance simultaneously:  one is legal: it grants authority to trustees and the administration; the other is academic: it rests on the professional authority of the faculty (Birnbaum, 2004).  The term “shared governance” denotes “a tripartite arrangement among three major stakeholders—governing boards, administration, and faculty” (Austin and Jones, 2016, p. 138).  According to Hirsch, “Ideally, shared governance in universities assigns specific rights and responsibilities to its three stakeholders i.e., provides for a separation of powers, and establishes a structure and process for stakeholders to interact in specific undertakings” (2001, p. 147).

As with academic freedom, the AAUP has articulated what it considers to be a compendium of best practices of shared governance in its Statement on Government of Colleges and Universities, adopted in 1967 (AAUP, 2015).  The Statement addressed each of the three major stakeholders involved—governing boards, administration and faculty—and suggested, “The variety and complexity of the tasks performed by institutions of higher education produce an inescapable interdependence” among these stakeholders (AAUP, 2015, p. 118).  Within this arrangement, faculty maintain primary responsibility for core academic matters such as curricular quality, rigor and content, teaching methods, faculty personnel matters and student-related issues directly related to the educational process (Dill, 2014).  The governing board and administration are obliged to secure and maintain adequate financial resources and to implement institutional policy and procedures effectively and equitably. Faculty, board members and administrators share responsibility for strategic planning, budgeting, establishing immediate and long-term program goals and participating in the presidential selection process (Dill, 2014).

Yes and No:  Scholars Debate Academic Freedom and Shared Governance

The AAUP’s position on academic freedom and shared governance notwithstanding, scholars have continued to debate whether that principle protects faculty members engaged in shared governance activities.  Some analysts, such as Gerber (2001), Finkin (1988, 1993) and Finkin and Post (2009), have argued that academic freedom necessarily includes professors’ role(s) in institutional governance.  According to these scholars, academic freedom protects faculty members from administrative discipline for their speech concerning internal university concerns.  Other analysts, such as Brest (1988), Fish (2014), Olivas (1993) and Yudof (1988), are not so sure. They have argued that academic freedom shields only the “core” scholarly activities of teaching, research and publication and faculty member rights of public speech as citizens.  Thus construed, the construct falls short of protecting professorial engagement in shared governance and intra-institutional (intramural) speech. I turn next to an examination of these competing perspectives.

Academic Freedom Protects Intramural Speech and Shared Governance

Intramural speech refers to faculty remarks that concern any action, policy or personnel decision of their university (Finkin and Post, 2009).  The term is frequently linked with the idea of shared governance, as Gerber employed it in a widely-read essay: “It is hard to imagine effective governance if faculty do not enjoy the right to speak freely without fear of reprisal on issues related to their own institutions and policies” (2001, p. 23).  For its part, the AAUP in a statement approved by its Committee T on College and University Governance in 1994, asserted that shared governance and academic freedom “are closely connected, arguably inextricably linked” (2015, p. 125).

One argument scholars assert for viewing the faculty role in institutional governance as protected by academic freedom involves whether professors are employees or enjoy another status in relationship to the university (Finkin and Post, 2009).  Since issuing its 1915 Declaration of Principles on Academic Freedom and Academic Tenure (AAUP, 2015), the AAUP has contended that faculty members are more than mere employees with limited rights, but also appointees with broad freedoms, including academic freedom and its twin protections, tenure and a role in institutional (shared) governance.  In this view, as appointees and not employees, scholars possess a status independent of the university’s trustees and administration: in a university, “trustees hold an essential and highly honorable place, but … the faculties hold an independent place, with quite equal responsibilities—and in relation to purely scientific and educational questions, the primary responsibility” (AAUP, 2015, pp. 6-7).  Such standing “renders any institutional policy or decision a fair subject for faculty comment or criticism” (Finkin and Post, 2009, p. 124). In short, in this view, the status of faculty as independent appointees ensures their freedom of speech when engaged in university governance.  While not explicit in the 1915 Declaration and the 1940 Statement, the AAUP nevertheless sought to establish this contention through its committees’ investigations and via reports it issued throughout the 20th century (Finkin and Post, 2009, p. 116).

Another argument for including a broad conception of professorial speech under the protection of academic freedom suggests that faculty members may be seen as modern-day professionals analogous to the journeymen artisans of the early American Republic who were highly skilled, independent, professional and self-governing (Finkin, 1993). These early artisans, the argument states, practiced their craft in complete freedom, including the exercise of freedom of speech, intra- or extramurally.  College and university professors began to organize their profession at the turn of the 20th century, forming associations such as the AAUP that sought to codify and assert similar freedoms for the professoriate. Indeed, in 1940 faculty achieved a standing that journeymen artisans enjoyed in the early Republic with publication of the Statement of Principles on Academic Freedom and Tenure (AAUP, 2015) jointly issued by the AAUP and the Association of American Colleges.  Thus, just as “the mechanic of the new Republic asserted simultaneously an independence of craftsmanship that brooked no supervision, a vigorous defense of workplace rights—of artisanal dignity and self-respect—and a robust liberty of political association and expression” (Finkin, 1993, pp. 378-379), faculty now argued for their right to academic freedom: to teach, research and publish, speak as private citizens and engage intramurally as “officers of an educational institution” (AAUP, 2015, p. 14).   Accordingly, “the 1940 Statement resonate[d] against an older ideal” (Finkin, 1993, p. 379).

A third argument concerning affording academic freedom protection to intramural speech and shared governance asserts that American faculty are citizens not only of the nation, but also of the university with which they are affiliated (Finkin, 1988).  Within both realms, residents enjoy certain rights.  Much as a national citizen enjoys freedom of speech, a university faculty member enjoys academic freedom, including in their activities linked to institutional governance. Those pressing this view contend that since that right is a scholarly professional prerogative, professors enjoy protection for their intramural speech, the core claim of which, “concerns … freedom of professional utterance not shared with the citizenry at large” (Finkin, 1988, p. 1323).  As such, these advocates suggest that academic freedom protects faculty speech related to any matter of professorial concern, including, but arguably not limited to, admission standards, administrative leadership, appeals to accrediting agencies, awarding degrees, athletic policy, library policy, salary policies, presidential selection and petitions to the AAUP.

Furthermore, in this view, conceding that academic freedom did not cover intramural speech and “reserving the profession’s claim of freedom of expression only to narrowly defined disciplinary discourse, [i.e., only to teaching or research and publication,] … would produce a profession in a sense ‘half slave and half free’” (Finkin, 1988, p. 1341). Moreover, these analysts contend that the academic freedom of intra-institutional speech also flows from the principle of equality:  faculty are peers with and ought to share the same freedom of speech that trustees and administrators enjoy.  Additionally, limiting faculty speech within the organizations in which they work would inhibit institutional operations, since universities seek not only truth, the focus of research, but also wisdom, the object of governance.  The administration cannot possibly possess all knowledge when developing and implementing its educational policies.  Therefore, faculty engaged in governance-related speech ought to be considered “institutional citizen[s]” and not “officious intermeddler[s]” (Finkin, 1988, p. 1342).

A final argument some commentators have offered states that shared governance serves the needs of civil society and is necessary for two special reasons. First, it enables the discovery and dissemination of knowledge. Second, it provides a liberal education.  Notably, citizens require both such understanding and capabilities to engage actively in democratic civil society (Gerber, 2001). As a result, this perspective suggests that academic freedom and shared governance are “inextricably linked” and faculty members should enjoy the same protection in their workplace speech that they do when engaged in teaching, research and publication and their roles as private citizens.  Furthermore, these analysts argue, effective institutional governance requires that faculty have the freedom to speak “without fear of reprisal on issues relating to their own institutions and policies” (Gerber, 2001, p. 23).  Additionally, in the absence of a shared faculty role in university governance, especially in academic affairs, “liberal education, with its emphasis on the development of critical thinking and humane values, may eventually become an arcane concept” (Gerber, 2001, p. 24).

Academic Freedom Only Includes and Protects Core Scholarly Activities

However, some commentators do not accept these arguments.  They contend instead that faculty speech linked to internal university governance should be seen as separate from academic freedom and beyond the protections that construct affords faculty.  Brest (1988), for example, has suggested that “the claim that the penumbra of intramural speech is inextricably linked to the core of true academic freedom of inquiry needs a stronger argument” (p. 1361).  For Brest, employing a core and penumbra approach used in some legal arguments has been stretched too thin when applied to academic freedom and intramural speech.  Despite the “tendency to travel further and further from the core [scholarly activities]” that academic freedom protects (e.g. teaching, research, and publication), “at some point, most of us get off the train” (Brest, 1988, p. 1361). Analysts, such as Brest, contend that there is a significant difference between criticizing a university president “for her parking policy or the paint color she chooses” and making an unpopular or controversial argument within one’s scholarly discipline (Brest, 1988, p. 1361).  Engaging in the former encroaches on administrative rights and responsibilities, while the latter represents an appropriate focus, well within the realm of the professional activities of a scholar.

Some analysts have contended that extending academic freedom to the faculty governing shields “the scholarly enterprise from outside interference …, but only grants limited protection to professors’ intramural speech … against institutional interests” (Olivas, 1993, p. 1837).  This is so, these scholars argue, because academic freedom applies only to professorial speech that adheres to professional standards and is the product of “training, developed expertise, and scrupulous care” (Olivas, 1993, p. 1835).  That is, for these analysts, academic freedom should apply only to speech related to “scholarly” matters.  Furthermore, when protected, “non-professorial” speech should be shielded for all—scholars and staff alike.  In this view, professors engaged in non-academic speech should not be able to claim any more or less protection for such communication than can any other member of the university community (Olivas, 1993).

Similarly, another group of scholars has suggested that a conceptualization of academic freedom that includes intramural speech separates the idea from its conceptual moorings to the point of rendering it meaningless (Yudof, 1988).  In other words, placing all speech within the university under the shelter of academic freedom corrupts that umbrella concept by making it more about professional autonomy than pursuit of truth. Regarding this conceptual extension of the construct, one commentator has asked, “why [do] academics, with respect to matters not directly related to teaching and scholarship, have a higher order of liberty in the workplace than others?” (Yudof, 1988, p. 1355).  Questions about salary, working conditions, office space, parking and many other concerns are necessary to sustain a university.  But why, this argument continues, should faculty have a right to protected speech on these intramural affairs when others do not?  This question leads to the logical suggestion that any group claiming a professional status should also be accorded the measure of autonomy analogous to faculty academic freedom (Yudof, 1988).  Seen in this way, assertions of academic freedom become just one more way to promote “a progressive view of labor-management relations” (Yudof, 1988, p. 1355). That said, these commentators also caution that professors enjoy “academic” freedom because of their unique professional roles—discovering new knowledge and disseminating analyses of existing understandings—that require freedom that other occupations do not.  Therefore, “the temptation” ought to be resisted, “to bring all talk about conditions that have an impact on professional autonomy, no matter how far removed from teaching and research, under the umbrella of academic freedom” (Yudof, 1988, p. 1356).  To summarize this argument, “Academic freedom is what it is. … If academic freedom is thought to include all that is desirable for academicians, it may come to mean quite little to policy makers and courts” (Yudof, 1988, p. 1357).

Finally, some scholars have argued that the attempt to afford the protections of academic freedom to shared governance represents an assertion of faculty supremacy (Fish, 2014).  According to one such analyst, “professors cling to medieval privileges while demanding modern trade union benefits,” the effect of which creates “a status with the autonomy of a community member, the security of a corporate employee, and the obligations of neither” (Keller, 2004, p. 169). Furthermore, in this view, whether the management of university governance is top-down, shared or bottom-up is immaterial to the production of quality scholarship.  Rather, “teaching and scholarship could flourish or fail” regardless of the nature of the system of university governance (Fish, 2014, p. 41).  That is, for these critics, faculty members rightly have a responsibility for participating in governing the affairs of their profession and the institutions with which they are aligned, but the scope of those activities is limited as they relate to organizational governance.  Administrative decisions related to the greater university environment may affect academic work, but such decisions are secondary to faculty responsibilities and are appropriately the province of the administration (Fish, 2014).  It is enough for professors to engage in the academic work of their profession through teaching, conducting research and publishing (Fish, 2008).

Conclusion

Overall, commentators favoring the separation of intramural speech and shared governance from academic freedom appear to have a stronger case than those arguing that intramural speech and shared governance fall under the protection of academic freedom.  This is so in good measure because the claims for including intramural speech and shared governance under the rubric of academic freedom raise difficult questions. Two examples suffice:  Must all speech protected under academic freedom be academic?  If, as university citizens, intramural statements are protected for faculty, why not protect them for other university citizens, especially students and staff?  Moreover, while it may be laudable for faculty to enjoy freedom of speech as they participate in shared governance, that right can and should stand on its own, apart from academic freedom.  Free speech and participatory democracy are touchstones of American government.  Perhaps these freedoms should also be accorded to faculty (and others) within the university community, but it is not necessary to attach them to the concept of academic freedom to do so.

Given this reality, it would be better to declare that faculty have a general right of free speech, including intramural utterances, or a delimited freedom of speech when fulfilling a specific role in university governance and discharging their governance responsibilities.  By securing these freedoms separately, in addition to, but apart from academic freedom, faculty would avoid muddling important distinctions. Ensuring these rights independently would also provide stronger support for claimants such as Gorum, who argued that the administration retaliated against him for his activities while engaged in intramural speech and university governance.  As Gorum discovered, judges currently decide such cases in accord with existing First Amendment jurisprudence.  Under these precedents, judges are inclined to view faculty members at public colleges and universities as they do other public employees, who neither benefit from academic freedom nor freedom of speech when speaking or acting within the scope of their “official duties,” leaving faculty intramural speech and shared governance unprotected.  Today’s faculty seeking to protect speech offered in their governance role can surely articulate mechanisms that would afford such protection, but stretching the concept of academic freedom to do so should not be among them.

References

American Association of University Professors [AAUP]. (2015). Policy documents and reports. Baltimore, MD: Johns Hopkins University Press.

Austin, I., and Jones, G. A. (2016). Governance of higher education: Global perspectives, theories, and practices.  New York: Routledge.

Birnbaum, R. (2004). The end of shared governance: Looking ahead or looking back. In W. G. Tierney and V. M. Lechuga (Eds.), Restructuring Shared Governance in Higher Education (pp. 5–22). doi:10.1002/he.152

Brest, P. (1988). Protecting academic freedom through the First Amendment: Raising the unanswered questions. Texas Law Review, 66, 1359-1362.

Connick v. Myers, 461 US 138 (1983).

Dill, D. D. (2014). Academic governance in the U.S.: Implications of a ‘commons’ perspective. In M. Shattock (Ed.), International trends in university governance: Autonomy, self-government and the distribution of authority (pp. 165-183). London: Routledge.

Finkin, M. W. (1988). Intramural speech, academic freedom and the First Amendment. Texas Law Review, 66, 1323-1349.

Finkin, M. A. (1993). “A higher order in the workplace”: Academic freedom and tenure in the vortex of employment practices of the law. In W. W. Van Alstyne (Ed.), Freedom and Tenure in the Academy (pp. 357-380). Durham, NC and London: Duke University Press.

Finkin, M. W. and Post, R. C. (2009). For the common good: Principles of American academic freedom. New Haven and London: Yale University Press.

Fish, S. E. (2008). Save the world on your own time. Oxford: Oxford University Press.

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Garcetti v. Ceballos, 547 U.S. 410 (2006).

Gerber, L. G. (2001). “Inextricably linked”: Shared governance and academic freedom. Academe, 87(3), 22-24.

Gorum v. Sessoms, 561 F. 3d 179 (3rd Cir. 2009).

Hirsch, W. Z. (2001). Initiatives for improving shared governance. In W. Z. Hirsch and L. E. Weber (Eds.), Governance in Higher Education: The University in a State of Flux (pp. 143-154). London: Economica.

Kaplan, C. (1983). Introduction. In C. Kaplan and E. Schrecker (Eds.), Regulating the intellectuals: Perspectives on academic freedom in the 1980s (pp. 1-13). New York: Praeger.

Kaplin, W. A., and Lee, B. A. (2007). The law of higher education, student version. San Francisco, CA: Jossey-Bass.

Keller, G. (2004). A growing quaintness: Traditional governance in the markedly new realm of U.S. higher education. In W. G. Tierney (Ed.), Competing conceptions of academic governance: Negotiating the perfect storm (pp. 158-176). Baltimore, MD: Johns Hopkins University Press.

Olivas, M. A. (1993). Reflections on professional academic freedom: Second thoughts on the third “Essential Freedom,” Stanford Law Review, 45, 1835-1858.

Pickering v. Board of Education, 391 U.S. 563 (1968).

Yudof, M. G. (1988). Intramural musings on academic freedom: A reply to Professor Finkin, Texas Law Review, 66, 1351-1357.

Jerald H. Walz completed his PhD in Higher Education at Virginia Tech in May 2017.  His dissertation research focused on academic freedom in colleges & universities.  He has earned a B.A. from Asbury College, a M. A. from the Johns Hopkins University, and two graduate certificates from Virginia Tech.  While serving as the Vice President of Operations at the Institute on Religion and Democracy, Jerald taught public policy in Pepperdine University’s Washington, DC program.  With his wife, Anita, he enjoys reading, classical music, light gardening, travel, and activities at The River Anglican Church.

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