A First Amendment jurisprudence for the modern state
Robert C. Post. New Haven, CT & London, UK: Yale University Press, 2012; 192 pp; ISBN: 978-0-30019-249-0, paper $22 USD.
Review by Len Findlay
Although their legal and educational histories are distinct, what happens in the United States often affects what happens in Canada.
The formation of the American Association of University Professors (AAUP) for instance helped pave the way for the creation of CAUT. The AAUP’s two milestone statements on academic freedom (1915 and 1940, plus later glosses) influenced CAUT’s Policy Statement on Academic Freedom. Both national collegia faced chilling and purges during the Cold War but recovered rights and power, and the habit of exercising them, during the boom years that followed in both countries.
More recently, the distractions of the culture wars and the rise of academic managerialism have enabled regular federal, state and provincial overreach, including attempts to reopen university charters so as to legislate fuller compliance with a new knowledge order concocted in corporate boardrooms and political backrooms. Across North American campuses things are not looking good, again.
In this context of (mostly) neighbourly interaction, Canadian academics ought to consider carefully Yale law dean Robert Post’s latest relocation of academic freedom, not in the expressive freedoms of the First Amendment to the US Constitution, nor in the misleading trope of “a free market of ideas,” but in the capacity of “disciplinary knowledge” to model and promote that “democratic competence” which is a key Constitutional value and goal.
According to Post, universities are not aggregative, but deliberative democracies defined by expertise produced by open-ended commitment to innovation, scrutiny and counter-argument. Universities and colleges serve democratic societies best by living up to their own distinctive principles of free inquiry and of exchange, serving knowledge and not mere opinion.
So if democracy is in trouble, what does that mean for, or say about, post-secondary institutions? What has been done to these bellwether institutions? What have they done to themselves?
In Canada, the problem of a “democratic deficit” was identified by former prime minister Paul Martin more than a decade ago, and a resocialized economy promoted as a way to reduce or even eliminate that deficit for the benefit of the electorate, parliamentarians and more open and accountable international governance.
Today, this national democratic deficit is much greater than under the federal Liberals, and the fault lies in part with educators and their leaders. Too many members of the Association of Universities and Colleges of Canada (AUCC) have taken their cue from the Prime Minister’s Office and the Privy Council Office, at the very time when they should be defending our post-secondary system and the public interest it has so ably served.
Too many senior administrators attack what they take to be inconvenient freedoms and forms of academic independence that stray from, or publicly contest, a state-sponsored message of narrow utility and short-sighted, self-defeating commercialization. This, while Canadians are living with the consequences of robocalls, robotic parliamentarians scripted to the smallest detail, muzzled scientists, intimidating media protocols, and related affronts to transparency, complexity and evidence.
Senior academic managers appointed by secret processes seem to demonstrate moral courage inversely proportional to their executive compensation, a trend seriously damaging to Canada and to our core democratic values and economic capacities. It is, more-over, a dereliction especially clear in the new (2011) AUCC Statement on Academic Freedom with its anti-democratic excisions and silences, and dubious appeals to loyalty, responsibility and expertise.
It is clear also in the hijacking of collegial governance by administrative team players; in tensions within AUCC and evident on the U-15 group of Canadian research universities’ new website; and in the combination within so many institutions of internal authoritarianism and external abjection, so as to keep academic staff in line and funders happy.
These developments should serve to remind us that the Canadian academy is one of the last refuges of organized labour, independent thinking and expression, and peer review and whose authority resides in the intellectual energy and integrity of academic staff.
Post’s arguments privilege democracy over the economy, refusing to subordinate academic disciplines to market discipline, and human reason to market logic. While he seems a little uncritical of “professional norms,” he makes a good case for their protection of scholars and teachers against inappropriate tests and uninformed accusations. Expertise behaves in ways that lead to sounder knowledge of all kinds, and hence to increased prosperity as well as a healthier polity.
Translating Post’s analysis into Canadian terms is worth the time of every local association across the country. It will be an exacting task, and it is but one aspect of the work required to reclaim universities and colleges as institutions not simply tolerating academic freedom in vestigial forms, but committed to its “free and fearless” exercise (as recommended by the Supreme Court of Canada).
The productive performance of difference gets us further ahead as a society, economy and nexus of ecologies than do the actions and policies of those who try to pick winners, dispense tough love, and use federal spending powers, and the right to make appointments to federal bodies, to replace knowledge for its own sake (and hence for all our sakes), with inquiry in thrall to a particular political agenda.
The public interest is best served by a return to and enhancement of academic freedom and the public funding that produces broad, often surprising public benefits. Anything less, or anything other, is what is unaffordable but increasingly imaginable.
Post warns that recourse to the courts in the United States is not the answer. Nor is this the case in Canada, though litigation and legal intervention are important to developing the jurisprudence many would like to see.
For the foreseeable future, however, it will not be the Charter protections of free speech, important thought they are, but the academic freedom provisions of collective agreements that will be key to our fulfilling the academy’s democratic mission.
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Len Findlay is an English professor and director of the Humanities Research Unit at the University of Saskatchewan, and chair of CAUT’s Academic Freedom and Tenure Committee.