Constitutionalizing

Sep 07, 2010 |  Steve Balch

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Constitutionalizing

Sep 07, 2010 | 

Steve Balch

Many proponents of academic freedom want to see its principles “constitutionalized,” that is to say, not just maintained within universities and colleges as good intellectual practice, but placed under the protection of judicial writ. Beginning about fifty years ago the judiciary began gradually to oblige, Chief Justice Warren’s observation in Sweezy v New Hampshire (1957) that “the essentiality of freedom in the community of American universities is almost self-evident” and Justice Brennan’s announcement in Keyishian v Board of Regents (1967) that academic freedom “was a special concern of the First Amendment” being early instances. The most spectacular recent example was Justice O’Connor’s opinion in Grutter v Bollinger that narrowly tailored racial discrimination in university admissions was permissible, the Equal Protection Clause notwithstanding, because the University of Michigan, in its academic wisdom, had determined “diversity” to have educational value. Constitutionalizing new rights, apparently, can help deconstitutionalize old ones. 

The consequences of extending an unthinking judicial deference to academic decision-making are now, even more ironically, also starting to produce infringements on free speech and conscience. Take, for instance, two federal court rulings handed down this summer that are essentially gag orders. In both cases, one at Augusta State University in Georgia, and the other at Eastern Michigan University, students training to be professional counselors were ejected from graduate programs for refusing to adopt a professionally nonjudgmental stance toward homosexuality. In each instance the student cited religiously derived moral conviction as her reason and, as Eastern Michigan and Augusta State were public institutions, claimed First Amendment protection for so doing.

Neither Eastern Michigan nor Augusta State insisted that the students abandon their beliefs, but held that as a requirement for remaining in the program they had to pledge to refrain from expressing their disapproval, or referring clients to another counselor, when dealing with homosexuals. At Augusta State Jennifer Keeton, who indicated she would recommend “conversion therapy” to gay clients, was directed to engage in “remediation activities” which included “interaction with gay populations” at gay pride parades or similar events, as a condition for retention. Rather than comply the students went to court.

The decisions against them were, as in Grutter, based on deference to academic expertise, which was held to trump the normally sacrosanct First Amendment. To achieve this inversion of normal priorities Judge J. Randall Hall, in the Augusta State suit, had to reason that the case was not actually about religion, asserting that “this is not a case pitting Christianity against homosexuality,” and that “matters of educational policy should be left to educators and it is not the proper role of federal judges to second guess an educator’s professional judgment.” Fundamental to both rulings were the dependence of the curricula in question on the ethics code of the American Counseling Association, which enjoins respect for diversity and forbids bias based on cultural difference and sexual orientation. Through that code the experts had been deemed authoritatively to speak.

Inside Higher Ed’s coverage of the Eastern Michigan case closes with a brief exchange between IHE editor Scott Jaschik, and David French of the Alliance Defense Fund, which backed the defendant Julea Ward. Jaschik asked French whether, reasoning along the same lines the Alliance had chosen for Ward’s defense, a medical school would be justified in blocking the graduation of a Christian Scientist, who although otherwise doing well, refused to recommend medicine or surgery on religious grounds. French replied that the medical school might in fact be so justified, but that it is was “a different situation.” By abruptly ending the article at this point, without further elaboration, Jaschik probably intended to leave the implication that French’s attempt to distinguish the two situations was rather lame. Actually, it was spot on.

Until not very long ago, leading secular professions were defined almost entirely by factual knowledge and skill sets. Since they serviced human needs they ultimately had a moral basis, but the moral values in question were so broad as to command nearly unanimous assent. Medicine was about alleviating illness and injury; the practice of law – given our adversarial system – about preserving a client’s liberty, assets, and reputation; engineering about designing sturdy and functional structures. To be sure, many had ethical codes, but these, for the most part, pertained to honest, fair, and confidential dealing rather than endorsing controversial social goals or moral postures. Gaining mastery of knowledge and skill sets, and abiding by a variety of procedural norms whose content, though sometimes complex in application, was usually unexceptional in essence, pretty much exhausted the conditions of entry. Conservatives and radicals, devout and heathen, straight-laced and sensualist could be equally successful and respected in medicine, at law, or in the raising of buildings.

The natural sciences also conformed to this pattern. So long as one concurred that “knowledge is good” (and that the scientific method was the best way of finding it), practice wasn’t defined by values, apart from the usual procedural ones. A physicist could put his work to use for any cause. His choices might lead to his being condemned as a human being but not as a physicist. Science could be perverted, but it nonetheless remained science.

The university prepares students for careers in the sciences and houses a panoply of scientific research activities. And it is from science, with its immense powers and prestige, that American academic freedom derived its original rationale. The founding document of the American Association of University Professors, its 1915 Declaration of Principles, is quite unambiguous in this regard, stating starkly that ”only those who carry out their work in the temper of the scientific inquirer” can claim “freedom of teaching.”

Giving deference to scientific expertise makes a lot of practical sense – let scientists determine what is good and bad science, and by extension, let those in the applied sciences, like engineering and medicine, determine who is equipped to practice them and who isn’t. Even in professions like law, crafts rather than sciences, it makes sense to accord the established authorities the right to determine competence. There are clear, fairly objective standards as to knowledge and skill, which one can generally expect to be neutrally applied. This, no doubt, was the assumption the judges in the Eastern Michigan and Augusta State cases vaguely thought they could make about counseling as well. But given what professions have come to be in our over-professionalized society, it was a mistaken one.

Today, all sorts of activities once simply considered trades, or understood as forms of casual social support, like undertaking, cosmetology, and, to the point at issue here, counseling, have been jumped up into professional status. These elevations have some warrant; much more technical knowledge is currently involved in pursuing them than was historically true, but credentialism, eagerly embraced by revenue-hungry educators, bureaucratization, and social atomization have also played important roles. The last two factors are particularly relevant to counseling, which, outside the ministrations of clergy, was once expected and received solely from parents, family, and friends. These still give it, of course, sometimes in overabundance, but for those cast adrift in the anonymity of mass society, or left confused by a maze of agencies and government requirements, that is often not enough.

The problem is that a profession like counseling requires that its practitioners bring some notion of right and wrong to the advice they give and these notions are readily contestable. Facts, to be sure, also come to play in counseling and social work; a counselor or social worker, for instance, advising someone with a drug or alcohol problem, should certainly know something about therapies available and the agencies that provide them, as well as the etiologies and prognoses of the conditions themselves. 

No one (at least no one I’ve come across) regards addiction or alcoholism as anything good, but the moral terrain isn’t so simply laid out if the client arrives in the throes of an unwanted pregnancy, an endangered marriage, or troubled about their sexuality. Here purely instrumental advice doesn’t suffice, because debatable questions of right and wrong, to which science provides no final answers, are inescapably engaged. One professional option might be to present the facts and leave the moral choices to the clients, another to lay out explicitly the moral arguments for and against the choices available, a third to take up a brief for one of them. Each of these approaches is defensible, with advantages and disadvantages dependent on context, the relationship of the counselor to the counseled, the maturity of the counseled, and the kind of guidance that is being sought. Each, including those that attach special value to freedom of choice, represent genuine moral postures. As a range of practitioner options they also provide the template for a latitudinarian counseling profession, capable of accommodating advisors and clients differently situated with regard to condition and conscience. Under such a tolerant regime, religious and secular could equally find a niche, as could public employees constrained in taking sides, and those in private and religious charities for whom moral suasion was integral to their calling. Professional training could also proceed without anyone being muzzled.              

Unfortunately, counseling hasn’t elected to be latitudinarian. It vacillates instead between doctrinaire relativism at the individual level, and egalitarian tilted prescription at the collective. Like a number of other academic fields from education through sociology it has compensated for its comparative weaknesses in theoretical grasp by the fortifying embrace of cause. At the collective level this means “social justice” advocacy as a recognized counseling specialty. At the individual level it means an insistent affirmation of the equality of lifestyles, at least where sexuality, family structure, or multicultural variance are concerned.

As is true of social justice advocacy, relativism constitutes a moral choice and, when made the sole professional option, requires suppressing dissent in the name of a subjective rather than a scientific judgment. This is what happened at Eastern Michigan and Augusta State, and is what the judges failed to see when assuming that the academic freedom of the counseling profession was worthy of the same deference, as worthy as being above the normal constraints of the First Amendment, as would the objective appraisal of a physics student’s scientific beliefs by a university physics department, or those of a medical student by a medical school. The introduction of arguable moral commitments into the self-definitions of fields like counseling, social work, education, etc., makes even the apples and oranges analogy rather feeble when comparing them, and their presumptive privileges, to more traditional academic disciplines.

Giving fields of this composite fact/value type constitutional deference when issues of speech and conscience arise, risks excluding widely held and altogether legitimate viewpoints from professional discourse and – when the licensing power of the state gets dragged in – punishing those who hold them by denying preferments and opportunities open to others. It also hardens these fields in their conviction that they lose nothing, and that there is nothing wrong, in imposing a morally doctrinaire stance. Clients seeking morally informed, professionally trained counseling, that draws, let us say, on the Judeo-Christian tradition, suffer too. Finally, it encourages other academic domains to smuggle ideological tests into their recruitment activities, witness the now commonplace demand that candidates for administrative posts demonstrate “a commitment to diversity.” as well as the current efforts to subject applicants for faculty positions to similar vetting at Virginia Tech and, most probably, other institutions.  

The constitutionalization of academic freedom has not, in these cases, progressed as far as it might. Presumably, university governing boards, or state legislatures, could still prevent academic programs in counseling from excluding those opposed to moral relativism. In Michigan, after all, a referendum was able to overturn the Grutter ruling, bringing race conscious admissions to an end. But the constitutionalization process has gone sufficiently far to punish individual students for what one might reasonably have expected to be the free exercise of their First Amendment rights. In light of the unreflecting manner in which it’s been proceeding, it’s gone too far.   


Image: We the People by Steven Nichols // CC BY-NA-NC-SA 2.0

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