Academic Freedom Mugged

The forced resignation of James Ryan from the presidency of the University of Virginia by pressure from a politically motivated U.S. Department of Justice, abetted by his opponents within the school, deals a dangerous blow to institutional academic freedom both at UVA and at every public university. Of course, universities must abide by federal civil rights laws as interpreted by courts. But Ryan’s antagonists pursue a radical reorientation of higher education away from most forms of increasing opportunities for disadvantaged students. Their initial goal is symbolic submission enforced by threats of wholesale revocation of federal grants. Forcing the resignation of a popular and successful university president who had succeeded in broadening access to an elite public university counts as a success for the demagogues but cripples the independence of every university.

Few allies left

The New York Times reports that Justice Department officials have threatened to strip millions of dollars of federal funding from UVA for what it claims have been violations of civil rights law through the university’s diversity policies. These officials have told members of the university’s Board of Visitors that Ryan’s departure would be necessary to settle the dispute. They claim that Ryan has misrepresented the substance of the university’s programs by essentially rebranding preferences for racial minorities as opportunity for first generation students. The Board of Visitors, appointed by the Republican governor of Virginia, which acts as the corporate board providing overall direction, failed to support Ryan and appears to have connived in his ouster. The attorney general of Virginia normally would represent UVA in such a dispute, but that person is a strident opponent of diversity measures, and has himself urged a company to end its “unlawful” DEI policies in a joint letter.

Thus, while most faculty, staff and students likely support Ryan (student opinion collected by the school newspaper reflects overwhelming support for Ryan and his initiatives), he succumbed to a political demand for his head. The timing is suggestive, too, because the resignation was forced in the summer when students and many faculty are away, and months before Virginia elections widely expected to sweep Republicans from office. A former legal counsel for UVA wrote in the Times: “Mr. Ryan’s resignation is a victory for intimidation and fear over the rule of law.”

Academic freedom and its components

Constitutional academic freedom has two chief components. One is the freedom of the individual faculty member to research, write, and teach without interference, so long as the faculty member abides by appropriate academic standards. The other is institutional academic freedom: a college or university should be free from external political interference, so long as it maintains the conditions under which individual academic freedom can flourish. The essential justification for both aspects of academic freedoms rests on the comparative advantage of higher education over other elements of society to pursue and preserve truth and knowledge. The straightforward statement of both these components, of course, relies on terms the meanings of which are subject to long standing debates and that call for nuance and prudence in their applications.

Academic freedom has flourished not because of strong judicial support – the precedents actually are scattered and inconclusive. Rather public support for research, scholarship, and a form of teaching that trains students to think critically has been enshrined in institutional arrangements that have restrained political power. The peer reviewed character of federal research grants exemplifies this. State officials have granted wide discretion to administrators and faculty to shape curricula and hire faculty. In some states, public universities even enjoy freedom from political control through provisions in their state constitutions.

Between jurisprudence and public support

In the wake of the “red scare” of the 1950’s the Supreme Court protected a university lecturer who had been convicted of contempt for refusing to answer hostile questions posed by a state attorney general. It declared:

“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”

Yet, the Court’s actual holding depended on a niche ruling regarding the authority of the attorney general rather than on a clear application of an academic freedom right. In a concurring opinion in that case, Justice Felix Frankfurter had invoked “‘the four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'” While not clarifying the scope of an academic freedom right, the Court emphasized the importance of maintaining free universities to further research, pursuit of knowledge, and liberal education. Subsequent cases continued this pattern of extolling the values of academic freedom but not clarifying the substance of the right.

This approach has served universities well so far because a broad consensus in society embraced the value of academic freedom that the Court invoked – at least at a high level of generality. The expanding university sector played an ever more central role in society – for good and for ill. Academic freedom became entwined with racial preferences for minorities in admissions due to Justice Powell’s controlling opinion for the Court in Bakke v. University of California. Powell provided the fifth vote to permit such preferences, but limited their application to one positive factor among many in admissions and justified it by arguing that “a university was entitled as a matter of academic freedom ‘to make its own judgments as to … the selection of its student body’” (Students for Fair Admissions v. Harvard quoting Sweezy, supra, 354 U.S. at 312). Although the Court followed Powell’s path in Grutter in 2003, it decisively rejected the use of race or ethnicity as a factor in admissions in the Harvard case in 2023. It seems plausible that while Powell’s invocation of academic freedom preserved preferences for minorities for decades, it also weakened over time overall support for institutional academic freedom.

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Now an authoritarian administration has seized upon public unease with university diversity programs (a fair topic of debate) to strong arm university leaders in a manner outside the normal procedures for addressing the legality of such programs. Rather than conduct a careful and objective investigation of facts and making conclusions subject to judicial review, the Trump administration has attacked several universities with lurid public charges and threats of total cancellation of federal funds, seeking some form of symbolic submission. In the case of UVA, it seems likely that the University’s current policies are completely legal, as it has looked to the capacity of applicants to overcome societal obstacles to success, as approved by the Court in the Harvard case. UVA’s opportunity to vindicate its programs against federal overreach was undercut by a lack of support by the Commonwealth’s political leaders, including a Board of Visitors newly appointed by a partisan governor. The institutional support for academic freedom collapsed, which also in this case prevents public and judicial resolution. Thus, the UVA case illustrates the structural weakness of academic freedom for public universities in an authoritarian political environment – and makes even more crucial the determination of private universities, such as Harvard and others have now undertaken, to defend in court their institutional rights.  It will take years to restore the public trust and structural protections that made U.S. universities the standard of freedom and excellence for the world.