This has been a hard year for tenure and academic freedom.
As far as we know, Amy Wax (University of Pennsylvania, law) was punished for racist commentary in op-eds and podcasts (and, potentially, inside the law school community). As far as we know, Maura Finkelstein (Muhlenberg College, anthropology) was fired for social media activity denigrating Israel and Zionists. And as far as we know, Joe Gow (University of Wisconsin–La Crosse, communications, formerly administration) was fired from both his chancellorship and his tenured faculty position for publicly circulating porn that he made with his wife.
(I say “as far as we know” because years of teaching employment law have made me believe that workplace disputes are like icebergs: What’s on the surface is only about 10 percent of the totality.)
Now, some people will respond to these three very different incidents by saying, “This one is not like the others. I’m OK with some, but not all, of these adverse employment outcomes.”
That’s an understandable perspective, but it’s not mine. It’s also not the view I’m interested in right now.
Other people will respond to these three very different incidents by saying, “All these outcomes are OK, even if for different reasons.”
I hope I don’t work for any of these people. This perspective is also not the one that interests me right now.
A third group of people will respond to these three very different incidents by saying, “All these outcomes were wrong. Regardless of my feelings about the content and manner of their speech, neither Amy Wax nor Maura Finkelstein nor Joe Gow should have suffered the employment consequences that were visited upon them.”
These folks—the extramural speech absolutists—are the ones I want to talk about.
Look, I get it. I spent almost a decade studying at the University of Chicago. I took First Amendment law with Geoffrey Stone. Free speech absolutism—its intellectual foundations and the closest we get to living it in American academia—is what I grew up with. It is instinctively appealing to me.
But despite my strong sympathy for free speech absolutism, I’ve always struggled with its academic counterpart: extramural absolutism. And, as the Wax/Finkelstein/Gow incidents suggest, it’s extramural speech that is increasingly landing tenured faculty in trouble. (Not always, though, as proliferating bans on critical race theory remind us.)
It has long been American Association of University Professors policy that even if tenured professors may be disciplined or terminated for their intramural speech—what they say and do in their professional capacities—they may not generally be punished for their extramural speech and conduct. Moreover, this approximation of extramural absolutism isn’t only espoused by the AAUP. It’s practically an article of faith among academics, many of whom implicitly or explicitly state that abandoning extramural absolutism is tantamount to abandoning academic freedom, and perhaps even equivalent to abandoning the academic (or democratic) enterprise itself.
Again, my instincts are to support free speech absolutism of any kind. But as someone who studies tenure, and as someone who teaches employment law, I want to point out that we academics are claiming a privilege that is nothing short of astounding.
Among Americans who are lucky enough to have steady work, only those who are classified as employees are guaranteed basic things like a minimum wage, a discrimination-free work environment or job security if they take medical leave.
Among those who are lucky enough to be classified as employees, most are considered at will. This means that they can be fired with no notice and no payment in lieu of notice for good reasons, bad reasons or no reason at all … any reason except an illegal reason. Your boss could come in tomorrow and fire you because it’s a day that ends in Y. Provided that this really is the reason for your termination (rather than, say, because you’re Black), what your boss did was perfectly legal.
Among those who are shielded from the vagaries of at-will employment, only public employees are entitled to any constitutional protection from being punished at work for their speech. Now, to be perfectly clear, the constitutional speech rights of government workers in the United States are nothing to write home about. The Supreme Court narrowed those rights into virtual nothingness via a 2006 decision called Garcetti v. Ceballos, and subsequent case law has tightened the noose. But virtual nothingness is still more than zero, which is how we can best describe the constitutional speech rights of private sector employees even when they are not subject to the at-will rule. (Those private sector employees do have some statutory protections for workplace speech, but such protections are spotty and increasingly under attack themselves.)
These are the workplace realities that supporters of extramural absolutism must contend with. Personally, I don’t think we’ve done a very good job of it.
That’s partly because we don’t appreciate just how momentous a privilege it is that we’re asking for. Extramural absolutism isn’t about the right to pursue any line of research or any topic and method of teaching that you may deem appropriate. I could get behind that in a millisecond. (And anyway, that’s intramural absolutism.)
Extramural absolutism is about also having the right to post anything on social media, to do anything (noncriminal and nontortious), and to say anything in interviews, op-eds and meetings. Extramural absolutism is about having those freedoms regardless of the connection between your speech and any scholarly expertise you’ve developed. And extramural absolutism involves telling a country full of people who—assuming they even qualify as employees—can be fired instantaneously, for no reason, and who can be punished or terminated for what they say and do anywhere, that you are sui generis.
You might indeed be sui generis—we might be—but we need to articulate better reasons than “because academic freedom.” Otherwise, we’re not going to persuade anyone outside academia (maybe not even anyone inside academia) to help us when extramural speech comes under attack.
Some supporters of extramural absolutism have recognized this need and have worked to articulate those better reasons. (This “Academe” article provides an excellent summary.)
For instance, supporters have argued that extramural absolutism builds trust between faculty as employees and universities as employers: If universities don’t protect professors’ citizen speech, those professors won’t believe they really have freedom of professional speech. Supporters have also argued that their approach prevents disingenuous firings. Instead of firing an economist for his objectionable views on economics, a university might use his social media posts to fire him for his views on history. And supporters have argued that extramural absolutism helps to foster disciplinary parity. COVID complicated matters, but until recently it was easy to believe that academics in humanities and social sciences disciplines would be more likely to incur administrative, political and public wrath, and would therefore need more of the kind of cover provided by a blanket commitment to extramural absolutism.
I don’t disagree with any of these explanations, or with similar ones that have been made. They explain why, as a functional matter, extramural absolutism is necessary in academia. But I worry that even these more nuanced defenses fall short in three ways.
First, as I’ve already noted, they don’t fully acknowledge the magnitude of the privilege we’re claiming. We’re not just asking for a little more latitude compared to the average worker: We are asking for a level of job security that is highly unusual in American society and a level of expressive freedom that is unmatched.
Second, these explanations don’t fully acknowledge the uniqueness of the privilege we’re claiming and what our claim says about the way we academics view ourselves relative to the rest of society. No other type of worker—employee or not, at-will or not, public sector or not—comes close to claiming (much less having) the right to speak freely on any topic in any context without incurring any repercussions at work. Not doctors, not lawyers, not accountants, not electricians, not retail workers, not line cooks. By claiming this unique privilege, we academics are signaling a belief in our own essentiality, and who is or who isn’t essential to societal reproduction is another area of thinking that was profoundly complicated by COVID.
Most of all, though, I worry that even the most nuanced defenses of extramural absolutism fail to acknowledge that the reason we have to stake out an absolutist position is the impossibility—not the undesirability—of adopting a more moderate one.
We can’t easily say what falls within someone’s area of expertise because expertise is difficult to define and changes over time. So, instead, we say that extramural speech should be protected regardless of its connection to scholarly expertise. We can’t easily say what counts as extramural speech because public engagement—writing op-eds (like this one), giving interviews, advocating for causes—is now part of what it means to be an academic for most academics, instead of only for an elite few, and is even part of how many academics are evaluated by their employers. So, instead, we say that anything remotely resembling extramural speech is extramural speech and should not trigger adverse employment consequences.
But these are arguments founded on necessity and pragmatism. They’re not founded on the intrinsic desirability of an absolutist approach.
Necessity and pragmatism are good and valid reasons to adopt a position like extramural absolutism. They are why I lean toward extramural absolutism (although I’m still less comfortable with it than I am with its free speech analogue). They’re also, I believe, reasons that are more likely to resonate with nonacademics because they don’t depend on convincing those listeners that American society will crumble without an absolutist approach to extramural speech. Instead, they simply acknowledge the unusual features of what academics do (and are expected to do) and how academics work (and are expected to work) before showing that there’s only one way academics can fulfill those expectations given those constraints: extramural absolutism.