First, a disclaimer: I don’t know much of anything about this controversy surrounding Guillermo Gonzalez, but I do know a fair amount about academic freedom. I wrote an article several years ago on legal protection for professors’ speech. Legally, professors have the same rights as ordinary public employees, and so only a small spectrum of academic speech is protected by the First Amendment. As a result, many institutions have been successful when they decided to fire a professor based on their expression.
Of course, most of these disputes never make it to the courts. Internal rules at institutions, both substantive and procedural, guided by principles adopted by the American Association of University Professors (AAUP), and norms that are tolerant of professors’ activities are the real law of academic freedom. Legally, academic freedom is too narrow for my taste; in the setting of the institution, it’s much broader, but not limitless. If it had no limits, no institution could made tenure decisions without accusations of discrimination.
It’s worth considering AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure in thinking about these situations. AAUP, a strong advocate of free expression, recognizes that academic freedom is contextual, and that it has its limits. Specifically, note how AAUP’s statement provides the greatest shield in contexts where the professor is speaking in her area of expertise, and less protection for comment on unrelated (“extramural”) matters:
Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.
College and university teachers 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, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.
Interpretative comments to this second paragraph note that an institution can fire a professor for extramural activities under certain circumstances and through exercising adequate due process:
If the administration of a college or university feels that a teacher has not observed the admonitions of paragraph 3 (quoted above) of the section on Academic Freedom and believes that the extramural utterances of the teacher have been such as to raise grave doubts concerning the teacher’s fitness for his or her position, it may proceed to file charges…In pressing such charges, the administration should remember that teachers are citizens and should be accorded the freedom of citizens. In such cases the administration must assume full responsibility, and the American Association of University Professors and the Association of American Colleges are free to make an investigation.
However, circumstances where extramural activities can result in dismissal are rare:
Paragraph 3 of the section on Academic Freedom in the 1940 Statement should also be interpreted in keeping with the 1964 Committee A Statement on Extramural Utterances, which states inter alia: “The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position. Extramural utterances rarely bear upon the faculty member’s fitness for the position. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.”
Some other observations:
These standards are usually viewed from the perspective of an institution trying to discipline a professor for political activities; a different set of procedural standards are used to evaluate nonreappointment, which is apparently what happened to Gonzalez. Academic freedom is part of reappointment decisions, of course, but the institution still can evaluate intramural work and determine for itself whether it is worthy of tenure.