Showing posts with label first amendment. Show all posts
Showing posts with label first amendment. Show all posts

Friday, October 30, 2009

Thoughts on Academic Freedom and
the Role of the University


“Never discuss religion or politics.” How many times has this admonishment been tossed around, yet how often do we heed it? Perhaps in the business context we are more careful to avoid such “touchy” subjects, but what about social settings? What about the academy? The ideals of academic freedom serve to foster and protect all opinions about potentially divisive issues, yet does this protection rooted in the penumbra of the First Amendment really achieve the results of open and honest dialogue?[1] Does it even matter?

In a recent address at Columbia University, University of Chicago President, Robert Zimmer discussed the purpose of academic freedom. He said the following:

“[I]t is universities’ openness to ideas, to analytic debate, to rigor, and to questioning, and the provision of an umbrella, and in fact a safe haven, for clashing thought and perspectives, that best illuminate societal, scientific, and humanistic issues. . . The greatest contributions universities can make to society over the long run are the ideas and discoveries of faculty and students that emanate from the resulting intellectual ferment [] . . . If this is the purpose of universities, the purpose of academic freedom is precisely to preserve this openness of inquiry and freedom of thought. In other words, academic freedom is designed to protect and preserve for the long run the unique capacity of universities to contribute to society.” (emphasis added)

President Zimmer’s thoughts are noble. My question is not about their veracity, for I sincerely believe he is absolutely correct. My question is whether the university environment is truly living up to the model as a “safe haven for clashing thought and perspectives”? I hesitate to say, but my feeling is that they do not.

I do not purport to speak for everyone, but only to relate my own experiences and perspective. In any context where I am under the authority of another, I am reticent to offer an ideological opinion which sharply diverges from my authority-figure. This is not always the case, but more often than not, it is. The reason is simple; ideology is the foundation upon which we construct our worldviews, and a professor’s worldviews –naturally – animate his conclusions about his subject matter. More to the point, if my opinions are perceived as flawed in their reasoning, which could easily be the case when my opinions are stemming from an ideology that deviates from the professor’s, what will the conclusion about my scholastic aptitude be? Whether science, law, business, etc., we are all subject to bias. Even in our modern enlightened era, there is cause for caution.

Maybe this caution is healthy. Maybe cautious and guarded opinions serve to encourage quiet reflection before speaking. This is a worthy end, is it not? Unfortunately, I do not think the bias within the academy is an even split down the ideological middle. If it were, then the opportunity for reflection would be given fairly consistently to students of all worldviews. However, in many areas of the academy, there is a perceived “politically correct” worldview which garners dominant support. This trend may foster open dialogue amongst those who find themselves in the majority, but is the minority voice likewise fostered? Is there anything that can be done to encourage a true safe haven?

Perhaps a benefit of such a reality is that individuals who seek to develop new ideas will find mentors with whom they share ideological views. Within this context, there can be a mutual sharpening of minds and arrival at ideas or innovations which will contribute to society. This begs the question, though, of what role the university should play. Is the university about benefitting the student-consumer, in which case the student comes to the university with his ideas and seeks guidance as to how to achieve his goals? Or, does the university primarily serve society, in which case the student should come to the university as tabula rasa for the purpose of forming ideas which will provide the best outcome to society? Of course, the answer could be a blend of these two ideas.

President Zimmer noted the German model of the university is the modern research institution we know today. This model comprises three principles: 1) the goal of education is to teach students how to think (not simply master a craft); 2) integration of research and teaching is central to teaching students how to think; and 3) the university must be independent from the state. These principles suggest, to me, that the primary purpose of a university is to serve the student as an individual. This educated student will be in the best position to benefit society as a critically-thinking-citizen. Society ultimately derives the benefit of the education experience, yet the party immediately served is the student, not society. If that is the case, my mentor-model makes sense. It does not result in a truly free and open forum for clashing ideas, but it does give the student as a consumer the product sought.

If the university is primarily serving the student-consumer as an individual, what happens to academic freedom? Does it lose some of its importance? I think the answer is a quiet “yes.” The principles of academic freedom are still of paramount importance in many contexts, but perhaps the principles merely provide the safe-guard wherein a member of the university community has recourse should he endeavor to challenge the status quo. This protective mechanism is, I believe, a far cry from an umbrella sheltering the exchange of differing perspectives.



-----------

[1] See Griswold v. Conn., 381 U.S. 479, 482-83 (1965) (“[T]he state may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . and freedom of inquiry, freedom of thought, and freedom to teach . . . indeed the freedom of the entire university community. Without those peripheral rights the specific rights would be less secure.”).

Friday, February 8, 2008

Free Exercise, Free Speech, and "Mere Religious Worship"


I am admittedly fond of Justice Clarence Thomas and the unique role he plays on the Court. He's the only Justice who feels no need to ask questions from the bench during oral argument and doggedly continues to argue for a strict interpretation of the Commerce Clause. As with the other eight Justices, he is no doubt a substantive player.

With that said, as I researched and wrote a recent article I found myself asking, "CT, what were you thinking?!" The case is Good News Club v. Milford Central School, 533 U.S. 98 (2001). The issue was whether a religious club could conduct its activities after school on school premises. The Court held under the Free Speech Clause that the Club's speech (focused on, inter alia, the teaching of moral values) was allowable content within the forum, and that denying the Club access to the space was unconstitutional viewpoint discrimination.

Okay, so far so good, but in Footnote Four things got sticky. Justice Thomas, writing for the majority, made the following statement: "In any event, we conclude that the Club's activities do not constitute mere religious worship, divorced from any teaching of moral values." Id. at 112 n.4 (emphasis added). This statement raises the unspoken question: What if the Court HAD found the Club's activities to be "mere religious worship?" What a can of worms has been opened! Who gets to determine what is allowable religious speech and what is forbidden "mere religious worship?" What will be the effect of this brief, yet provocative and potentially powerful statement?

One need look no further than the Second and Ninth Circuits to see that courts are seizing upon this language. They are at least flirting with relying on FN4 to uphold state regulations and procedures that forbid the exercise of "religious services" and "religious worship services" in public spaces. See Bronx Household of Faith v. Bd. of Educ. of N.Y., 492 F.3d 89 (2d Cir. 2007); Faith Ctr. Evangelistic Church Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007). The trend emerging from these two cases puts religious groups in a quandary as their protection under the Free Speech Clause is eroded by application of FN4 in Good News Club.

Perhaps I will address my suggested solution in a later post. For now, chew on what you, as a lower court judge, would do with FN4 and how you would define "mere religious worship." Talk about a hot potato, but is it too hot to touch? Apparently some judges are willing to take the risk that when the music stops playing they will be the one holding the potato.

See my working paper on this topic.