Academic Freedom: Wrong 'Bill of Rights'

OPINION
The National Law Journal
June 12, 2006

ills of rights" have become an increasingly popular phenomenon. A quick tour of the Internet yields charters for consumers, charitable givers, hospital patients, library users and software customers, among many others. A misnomer because they ordinarily confer no new rights, or at least no legally enforceable ones, they are mainly aspirational: provocative at best, innocuous at worst.

An exception is the so-called Academic Bill of Rights (ABOR). Authored by prominent neo-conservative David Horowitz and touted by right-wing campus groups like Students for Academic Freedom, it undergirds proposed legislation in a number of jurisdictions. While about a dozen states have rejected such laws and none has thus far been enacted, provisions modeled on the ABOR, H.R. 609, passed the House of Representatives on March 30. A wolf in sheepskin, this bill and similar proposals should be permitted to die or, if necessary, voted down.

The ABOR consists mainly of 'Mom and apple pie' bromides. Who could disagree, for example, that at colleges and universities 'no political, ideological or religious orthodoxy will be imposed on professors and researchers' through the hiring, firing or tenure process? Or that '[s]tudents should be free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion'? The devil is in the details, however, and in the true agenda of ABOR proponents. They have co-opted the language of academic freedom in an effort to ram 'equal time' for conservatives down the throat of an alleged left-wing educational monolith.

A phony even-handedness

In several places, the ABOR stresses "intellectual diversity." It posits, for instance, that faculty in the humanities, social sciences and arts-purportedly, bastions of liberalism-shall be hired, dismissed, promoted and tenured with the aim of "fostering a plurality of methodologies and perspectives," and that curricula in these fields shall offer students "dissenting sources and viewpoints where appropriate." The federal bill contains similar but broader rhetoric, omitting both the field limitations and the vague appropriateness phrase.As some critics have pointed out, heavy-handedly pushing competing views in the classroom plays to the notion that there are two sides to every issue and one arrives at the truth by pitting them against each other. While scholars should always remain open to fact-based arguments inviting revision of their conclusions, in the real (as opposed to Crossfire) world, some things are settled: The Holocaust occurred; the Earth is not flat.

This is especially true in the sciences, to which the proposed federal law presumably applies. The sponsor of ABOR legislation in Florida promoted it by saying that it would advance the teaching of alternatives to evolution. Such a result would be likely to further the imposition of religious orthodoxy on campuses-garbed in the mantle of pseudo-science. Indeed, the proviso that professors "will not use their courses for the purpose of . . . religious or anti-religious indoctrination" furnishes a typical instance of the ABOR's phony even-handedness, used to cover a right-wing agenda.

H.R. 609 and the ABOR also call for, among other things, promoting intellectual pluralism in selection of speakers and in funds allocation for student activities. Enhancing choice and opportunity in such areas does tend to enrich university life. But the First Amendment already forbids public institutions from discriminating on the basis of viewpoint in granting money to student groups. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). Moreover, not every good idea benefits from being made a right. Should colleges have to defend lawsuits challenging the failure to invite a pro-Zionist speaker to "balance" a Palestinian one? Must an atheist be countered with Reverend Jerry Falwell?

Although the ABOR-clone statutes use purely precatory terms ("should," in H.R. 609) and contain no enforcement mechanisms, if they are passed, who can say that no court will imply a private right of action? (At least, they will likely spawn litigation.) Or that the U.S. Department of Education will not investigate claimed breaches of the federal provision? If nothing else, such laws would exert a chilling effect on professors and administrators, since the ABOR sends a clear message that bodies outside the university will police the new "academic freedom."

If universities at times abridge legitimate interests, public institutions may already be sued under the First and 14th amendments, and private ones are not immune from media, donor and other pressures. Whether or not political correctness constitutes a genuine problem, the ABOR is the wrong solution.