The American Association of University Professors may support academic freedom for left-leaning academics, but it does not do so with any consistency for conservative faculty or schools.
The head of the AAUP at George Mason University, Professor Bethany Letiecq, recently endorsed a call by UnKochMyCampus for a “Congressional investigation” of its law school’s hiring of Supreme Court Justice Brett Kavanaugh as an adjunct faculty member. There were no legitimate grounds for an investigation. Judges often teach at law schools. Liberal Supreme Court Justice Stephen Breyer taught many classes at Harvard Law School when he was a judge on the appeals court in Boston. Yet an AAUP official found it beyond the pale for a conservative justice to teach about law. A law professor responded, “Prof. Letiecq, the law school chose to hire him, it has nothing to do with Koch, and you are advocating a gross violation of our academic freedom.” In the face of such criticism, Letiecq deleted her foolish tweet endorsing the call for an investigation. But she later approvingly tweeted a link to an article titled, “I don’t want Justice Brett Kavanaugh teaching at my alma mater.”
The AAUP has a disturbing ideological double standard. It supported intrusive public-records requests aimed at a conservative academic in Kansas, even while denouncing similar requests aimed at liberal academics in Wisconsin and Virginia. When liberals are targeted, it claims they have “academic freedom.” But when the conservative Kansas instructor was targeted, it claimed that was “an issue of academic integrity, not academic freedom.”
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The First Amendment guarantees “freedom of speech,” not freedom “from” speech. The AAUP seems to have forgotten this, in its recent endorsement of certain forms of campus censorship.
Last year, the AAUP criticized campus free-speech legislation because it would disproportionately benefit conservatives, who are often subjected to campus censorship. Free-speech bills, it complains, “are tailored specifically to respond to the kinds of incidents that have affected conservative speakers,” and “rarely address other constraints on campus free speech, such as the recording of professors in classrooms or professor watch-lists.”
What it characterized as “constraints” on speech are actually exercises of free speech rights. Courts have consistently ruled that recording an incident is itself a form of expression for First Amendment purposes. As an appeals court observed in Fields v. City of Philadelphia (2017), “every Circuit Court of Appeals to address this issue … has held that there is a First Amendment right to record police activity in public.” Similarly, criticism of professors — such as professor watch-lists — are forms of protected speech. Criticism of college officials is protected speech, unless it contains “overt threats,” as courts have made clear in decisions like Barnes v. Zaccari (2012) and Bauer v. Sampson (2001).
It may be true that free speech on campus disproportionately benefits conservatives. After all, they are more likely to be censored, due to the unpopularity of conservative views among college administrators, who are overwhelmingly progressives. But that is not a valid argument against protecting such speech. As a journalist observed, “Free speech is meant to protect unpopular speech. Popular speech, by definition, needs no protection.” As the Supreme Court explained in NAACP v. Button (1963), whether speech is protected does not turn on whether it lacks “popularity.”
The AAUP claims treating conservatives equally will “disempower public higher education.” Rather than laws stiffening penalties for First Amendment violations, which will supposedly create a “litigious atmosphere,” America’s “colleges and universities should decide their campus policy,” without any “interference.”
The AAUP was wrong to suggest that the First Amendment leaves state “colleges and universities” free to “decide their campus policy” about free speech, such as whether to protect the rights of conservative speakers. As the Supreme Court noted in Healy v. James (1972), “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”
The AAUP’s president, Rudy Fichtenbaum, often complains about conservatives making earmarked donations to support higher education and scholarly research, which he views as undermining left-wing control of higher education. In his mind, such laudable activity should be squelched in the name of “shared governance,” as he put it in a commentary in which he also denounced a 2010 Supreme Court decision vindicating First Amendment freedoms
