Virginia Tech, Academic Freedom, and Employment Law: Part 3

Tom Wood

Part 1
Part 2

Most of the foregoing has concentrated on purely legal considerations. Obviously, there are many non-legal objections to Virginia Tech’s proposed guidelines for faculty assessment. There are many reasons why the policy should be opposed, even if the faculty at VT were to approve the guidelines and even if the courts judged the guidelines to be constitutional. 

Diversity has been an obsession for years at VT, as it has been at most colleges and universities in the U.S. With these guidelines, VT has taken this monomania and pushed it right over the edge. The faculty assessment proposal at Virginia Tech is particularly outrageous because much of the diversity agenda is itself suspect. I myself believe that, within reason, promoting racial and gender diversity is a legitimate public policy objective. I also believe, however, that promoting diversity should be limited to non-preferential forms of affirmative action (as in California’s Prop. 209). And even under federal law, policies to promote diversity in employment and admissions have to be very narrowly tailored.

One reason for regarding the proposed faculty assessment guidelines at VT as a litmus test for the enforcement of an ideology is that, while the proposed guidelines are on steroids, there is comparatively little under the law that a university can do to promote diversity. (In states like California, a public university can do even less.) That VT is putting so much energy and muscle into an area in which it can in fact do relatively little within the law is suspect.

One of the great merits of a proposal of Mark Bauerlein’s (“Commitment to Diversity as a Job Requirement”) is that it would help to expose this fact to everyone’s view. Any serious effort to treat the guidelines for reporting “commitment to diversity” in the same way that the criteria for scholarship, teaching, and community and campus service are treated as standards would encounter obvious difficulties. How can rewards be distributed (for rewards are clearly contemplated) in an area where effective action is so constrained by the law? Does a university want to reward a lot of meaningless, make-work activities? There is enough of that going on in today’s university as it is. Bauerlein puts it this way:


If administrators and (some) professors believe that commitment to diversity is a proper criterion, then they should supply some standards for it. We need to differentiate good commitment from bad commitment, influential and effectual commitment from transitory and ineffectual, long-term and short-term, and so on. If you really believe that commitment to diversity counts up there with other factors, then be rigorous and professional about it. In the tenure deliberation, when the service side comes up, someone needs to be able to say, “Now, we have examined the candidate’s diversity record, and here are the strengths and weaknesses, here’s the rating we give.” In other words, we need more than a yes or no. We need a good or bad. Put into the faculty handbook in cold print, “Here is what good diversity commitment is, and here is bad commitment.”

According to the provost at Virginia Tech, Mark G. McNamee (Robin Wilson, “Critics Challenge Diversity Language in Virginia Tech’s Tenure Policy,” subscription required), the proposed language on diversity is “merely intended to encourage faculty members to pursue activities related to diversity, not to require it.” It represents, according to McNamee, a response to the request of certain faculty members who had asked administrators how they might inform the university of diversity-related activities in the annual reports of their work which they gave to department heads.

As Bauerlein points out, “This is a lesson in the academic version of ‘mission creep.’ What starts out as a benign and unobjectionable approval policy evolves into a demand that everybody do the things that will be approved.” Furthermore, to the extent that the standards and procedures for the new proposed evaluations are underdetermined and under described, they place more power in the hands of administrators in promotion and tenure decisions. This is inherently bad because it contributes to administrative creep. The hegemonic tendencies of administrations rarely serve academic or intellectual purposes or agendas these days, and need to be thwarted for that reason alone. This is another reason for opposing the VT diversity assessment proposal, and for hoping that the faculty there has voted it down.




Although the proposed faculty assessment guidelines at VT are bad, that doesn’t mean that they are constitutionally infirm. A policy can be bad, but still be constitutional. So even if the courts were to hold that there are no special First Amendment protections for academic freedom, that would not be the end of academic freedom. It would mean that it is not constitutionally protected, not that it is prohibited. Academic freedom could still be granted to faculty and institutions by the state.

In response to recent court opinions that have undermined legal protections for academic freedom, the AAUP has formed a panel of First Amendment scholars to develop new and innovative ways of defending academic freedom at public colleges. (See Peter Schmidt, “Professors’ Freedoms Under Assault in the Courts,” subscription required.) The panel is headed by Robert J. O’Neil, and includes among its members Judith C. Areen, Robert C. Post, and William W. Van Alstyne.

Besides looking at the development of innovative legal arguments, the panel is also looking at ways that universities can act preemptively by devising new and stronger institutional policies and contractual agreements that grant faculty greater speech rights than the courts have currently recognized. The University of Minnesota, in particular, is already working to revise its policies to protect faculty speech covering “matters of public concern as well as on matters related to professional duties and the functioning of the university.”

Efforts like those underway at the University of Minnesota underline the key importance of the NAS and its allied organizations like ACTA and FIRE in defending Millsian principles of academic freedom. The right of faculty at public universities to speak out on issues of public concern and the internal affairs of the university is an important one, quite independently of questions of constitutional law. While there are other organizations, like the AAUP, that have defended the principle of academic freedom, the NAS stands virtually alone within the academy in defending that principle and in speaking out against abuses of academic freedom that threaten the public standing of that principle. The NAS has also taken principled stands on many issues for which it has paid a heavy price. Racial preferences in admissions and faculty hiring are a good example. The NAS has stood virtually alone in attacking anti-intellectual and anti-academic (and frequently unlawful) aspects of the diversity agenda at the nation’s colleges. The academy avoids taking a principled stand on this and other kinds of issues at its peril—as the present diversity controversy at VT shows very clearly.

However the courts rule in the future on the First Amendment status of the principle of academic freedom, the hard work of academic reform and the strong defense of academic values will always remain. The NAS has been and continues to be essential to that hard work. That is a point that Peter Wood has recently made in connection with this year’s current membership drive. Given the magnitude of the task, and the unique role that NAS has carved out for itself within the academy, the continued success and growth of the NAS as an organization is vital. 

As Peter put it recently, “Join or dye.”

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