Academic Freedom and Academic Duty
The theme for the 2012 Annual Meeting centers around academic freedom and academic duty – including threats to tenure and to academic freedom, and the concomitant academic duty obligations that arise out of our status as tenured professors. There have been many serious threats to academic freedom arising from the environment and the polity: a law faculty member arrested in Rwanda for his pro bono representation of an opposition candidate in an election matter there; a law faculty-journal editor sued for criminal libel in France for publishing a book review; law school clinics reviled for their work as well as threatened legislatively and in the courts in Maryland, Louisiana, Michigan, New Jersey, and in several other states; a law scholar sued for her research on family law, whose university chose not to indemnify her; a law review that pulled a piece from publication, following threats from the company criticized in the article; and other law faculty and non-law faculty punished for their views.
The zone of protected professorial speech is shrinking. In the 2006 Garcetti v. Ceballos case, the Supreme Court ruled that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” regardless of whether or not the speech involves a “matter of public concern.” Almost immediately, this limited decision was used by lower courts to allow public colleges to sanction faculty who would not have been punished for their views before Garcetti. Legal scholars and the academy have begun to recognize that this case will likely negatively impact college governance policies and practices.
The academy must identify and contend with these external threats as they arise both in legal education and in other fields of study. These programs will draw additional attention to international threats to law professors and academics around the world, as exemplified by the admirable work conducted by Scholars at Risk, who try and rescue these imperiled colleagues to safer situations. Attention must be paid to these examples, which are too common and which diminish us all, even when seemingly-remote threats arise; the bell tolls on behalf of us all. In addition, sessions will spell out the correlative obligations to undertake service and draw attention to the features inherent in academic duty.
There are many other threats as well, such as law school accreditors considering de-coupling their tenure requirements from their insistence upon academic freedom, and no longer requiring a system of tenure or security of position. It is difficult to square these developments with the increased attention we at AALS have paid to our core values. Arguments for tenure include that the promise of continual employment gives faculty an incentive to work on behalf of the institution and that good faculty governance requires a tenure system. Even at major institutions, particularly public universities with the decline of state support so evident, faculty governance is rapidly eroding as changed economic conditions are undermining longstanding governance structures.
Part of our social contract is that we contribute, particularly to legal reform—however defined—and not just work for hire and pay. In fair exchange for extraordinary discretion and deference accorded us, we must repay these privileges with our academic duty. We need not merely speculate about this responsibility, as it is explicated in substantial detail in the Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities (“Responsibilities to the Bar and General Public”), available at your AALS website. These are aspirational, but lay out the premise of Academic Duty.
The 2012 Annual Meeting’s presidential sessions in Washington, D.C., will examine these and related issues of legal education in this new century. Those crucial issues are: financing legal education and its implications on financial aid and student debt; the restructuring of the professoriate; the institutional balance of instructional technology, distance learning, and asynchronous faculty-student interaction; service learning and skills training issues; and more creative curricular developments in the third year of the J.D. Moreover, GATS and other international negotiations will affect bar membership and legal practice eligibility, in ways not yet divined. All these issues and others are worthy of attention in our deliberations and ongoing dialogues. We do not have a single answer for any of these complex and interlocking issues, but we feel that these likely are among the right questions.
-Michael A. Olivas
2011 AALS President
University of Houston Law Center