Is nothing sacred?

Reading Stanley Fish’s essay, one gets the sense that the answer is no. Judicial intervention in academic proceedings is on the rise, and it poses a threat to academic freedom. More importantly, it calls into question the longstanding and venerable traditions of academic practices. In her post, Greta critiques Fish’s concerns and, with some reservations perhaps, welcomes this new trend of abandoning the judicial doctrine of academic abstention.

I, however, am not so optimistic. I see several problems with judicial control of academic affairs, which I will highlight below. I do want to make clear that when I refer to academic affairs I don’t mean the regular employment issues that every institution encounters, or the regular contractual matters that a university is engaged in, such as the leasing of property. I mean the “hardcore” academic stuff, such as hiring, grading, deciding on the curriculum, and, of course, tenure.

First, it’s not so clear to me why courts would be the solution to the problems discussed in Fish’s essay and Greta’s post. I am concerned here with judicially administrable standards, and indeed, how those standards would be derived, especially when evaluating a colleague’s performance. I realize that claims of institutional competency are becoming cliche, but it’s hard for me to see how a court can evaluate whether a physicist should or should not have gotten tenure.

To this claim we can add the panoply of claims about academic freedom, institutional independence, the importance of creating a safe environment for peer-review, and the like. Moreover, making test scores actionable will most likely create a culture of entitlement among students for whom the value of hard work and accepting failure as a part of life should be part of the college experience, and, indeed, of growing up. However, I don’t want to talk too much about these arguments, not because they are unimportant – they are. But rather because they’re familiar to the point of banal (although it’s a good idea to keep them in mind).

What bothers me more is the kind of academic culture we’re cultivating by having the courts oversee such processes. The real problem with judicial review of academic affairs (in the way that I defined them) is not simply judicial competence, but the importance of preserving a space free of judicial interference. Yes, I’m actually making the point that even if some academic processes are not always perfect, I still don’t want to see the courts involved.

Universities are not simply institutions of learning and accreting knowledge. They fill a vital purpose in our society – that of producing knowledge, maintaining a repository of ideas and facts, and being a safe haven for innovation, contemplation, and, yes, wisdom.

But that’s not all. What makes universities unique is their institutional history. Universities don’t simply occupy a place among our many institutions. They have developed, ever since the third century (in China), in a particular way. One defining feature is the quest to free the university from external institutional controls. Indeed, our definition of what constitutes a university cannot be separated from the way it evolved over time. Its telos is (partly) to maintain institutional independence so that it can exercise its own criteria of evaluation. Of course, and here I agree with Greta, these criteria can’t be capricious or arbitrary. But the academic process itself seeks to minimize capriciousness through the use of peer-review mechanisms and intersubjective verification processes.

Sure, such processes can never be perfect, but judicial supervision, and the knowledge of judicial overhang is not only imperfect in the sense that it introduces its own institutional limitations and difficulties, but it risks jeopardizing precisely the things for which we value the university and the academe as having a unique role to play in our lives and societies.

Subjecting all institutions to the same judicial standards of propriety and fairness not only belies a certain simplicity and untested faith in the courts, but it fails to recognize the virtues of having an institution that, by its nature, should be evaluated differently. And it fails to acknowledge the role universities play and how they came to have that role.

Related post: The costs of academic freedom


One Response

  1. Welcome to the blog, Adam, and excellent first post! You are very eloquent in articulating why academic freedom is an important tradition in our universities and why this tradition has been so venerated.

    I have a couple of immediate responses. The first is that your post does not really refute my point that academic freedom comes at a cost. When a university uses it to shield itself from judicial review, it is usually at the expense of students and professors who assert their rights to neutral and independent review of whatever adverse action the university has taken against them.

    Perhaps your point is that limiting such rights is good for society as a whole, because universities are producers and repositories of knowledge and wisdom. This leads me to my second point. I do not disagree with your view. But the universities, for better or for worse, have another function in our society — that of evaluating our youths, judging their competence, sorting them into levels, and branding them with a grade. We then send them forth into society where more doors are opened to the ones who have been deemed better in school. Obviously, grades are not everything, but they are something, and this type of sorting and evaluations are also important functions of our universities — indeed of our entire educational system.

    I think the knowledge-production function of the university and the evaluation function of the university often exist in tension with each other. It is a historical accident that the same institutions — and the same people — are often expected to perform both functions in our society. Many are great at one but not the other. (Haven’t we all heard of the great scholars who are terrible at teaching? And how many professors do you know who have said during every exam season: “I hate grading?”)

    In short, I think the concept of “academic freedom” might more plausibly be applied to the knowledge-production function of the university, but what I focused on in my post is the evaluative function of the university. Even if it may be better to give universities great freedom in the former arena, there is little reason I can see for giving them free rein in the second. Unfortunately, the structure of the modern university make the two functions so intertwined so that it is often difficult to separate the two. This is a complicated subject, which I hope to explore more fully in later posts with you and with our readers.

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