Knowledge in the Making: Academic Freedom and Free Speech in America's Schools and Universities

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How free are students and teachers to express unpopular ideas in public schools and universities? Not free enough, Joan DelFattore suggests. Wading without hesitation into some of the most contentious issues of our times, she investigates battles over a wide range of topics that have fractured school and university communities—homosexuality-themed children's books, research on race-based intelligence, the teaching of evolution, the regulation of hate speech, and more—and with her usual evenhanded approach offers insights supported by theory and by practical expertise.

Two key questions arise: What ideas should schools and universities teach? And what rights do teachers and students have to disagree with those ideas? The answers are not the same for K–12 schools as they are for public universities. But far from drawing a bright line between them, DelFattore suggests that we must consider public education as a whole to determine how—and how successfully—it deals with conflicting views.

When expert opinion clashes with popular belief, which should prevail? How much independence should K–12 teachers have? How do we foster the cutting-edge research that makes America a world leader in higher education? What are the free-speech rights of students? This uniquely accessible and balanced discussion deserves the full attention of everyone concerned with academic goals and agendas in our schools.

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Editorial Reviews

Academe - John M. Elmore
"Joan DelFattore provides both an appeal to urgency in repelling these attacks and a clear description of the legal obstacles and barriers that need to be overcome. The book is well worth reading."—John M. Elmore, Academe

"Joan DelFattore provides both an appeal to urgency in repelling these attacks and a clear description of the legal obstacles and barriers that need to be overcome. The book is well worth reading."—John M. Elmore, Academe

— John M. Elmore

Library Journal
Although this book's title and cover may appear unassuming, the contents are enough to shake up any American educator, whether in K-12 education or at the university level. Americans often pride themselves on the freedoms the First Amendment offers; however, educators may find that those freedoms do not necessarily apply to them in the classroom. DelFattore (English & legal studies, Univ. of Delaware; The Fourth R: Conflicts Over Religion in America's Public Schools) is well versed in the limited freedom and choices educators have. She explains how universities and school boards enjoy a fair amount of protection in matters of free speech, whereas individual educators do not, especially those in the K-12 fields. VERDICT For educators or anyone with a stake in the American educational system, this important and effective book provides in-depth analyses of court cases that have shaped the climate of freedom for educators over the years.—Kate Neff, Pedro Menendez H.S., St. Augustine, FL

"Joan DelFattore provides both an appeal to urgency in repelling these attacks and a clear description of the legal obstacles and barriers that need to be overcome. The book is well worth reading."—John M. Elmore, Academe

— John M. Elmore

Law Library Journal

“Peppered by a sense of humor that will resonate with many in academia . . . The civility with which [DelFattore] approaches controversial subjects helps demonstrate for her readers how respectful discourse and debate can generate a healthier American educational system . . . Excellent.”—Suzanne Corriell, Law Library Journal

— Suzanne Corriell

Matthew Finkin
“An important analysis of who controls the professional speech of university faculty and schoolteachers, of college and public school students—and who should control it—and why it matters.”—Matthew Finkin, co-author of For the Common Good: Principles of American Academic Freedom
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Product Details

  • ISBN-13: 9780300111811
  • Publisher: Yale University Press
  • Publication date: 11/16/2010
  • Edition description: New Edition
  • Pages: 320
  • Product dimensions: 6.30 (w) x 9.30 (h) x 1.10 (d)

Meet the Author

Joan DelFattore is an award-winning author and professor of English and legal studies, University of Delaware.

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Read an Excerpt

Knowledge in the Making




Copyright © 2010 Joan DelFattore
All rights reserved.
ISBN: 978-0-300-16851-8



A Seat at the Table

Coercion is natural; freedom is artificial. Freedoms are socially engineered spaces in which parties engaged in specified pursuits enjoy protection from parties who would otherwise naturally seek to interfere in those pursuits. One person's freedom is therefore always another person's restriction: we would not have even the concept of freedom if the reality of coercion were not already present.

—Louis Menand, "The Limits of Academic Freedom"

IF "[O]NE PERSON'S FREEDOM IS ... always another person's restriction," as Louis Menand suggested, then any discussion of what academic freedom is must consider whose it is. The invocation of academic freedom signals a claim to control the parameters of discourse: not only the right to determine whether certain material should be included but also the authority to establish the principles on which such decisions are to be made. Inevitably, the efforts of any constituency or individual to exercise control can be successful only at the expense of competitors whose understanding of academic freedom would produce a different result.

Even the definition of academic freedom reflects a struggle among constituencies. As a term of art, it applies to universities and university faculty. The extent to which it is constitutionally protected is open to discussion, but it is firmly established as a professional standard. Its underlying premise is that in any system of higher education that aspires to be a world leader, decisions about what and how to teach, how to conduct research and interpret the results, and how to evaluate scholarly or creative work must be made by specialists in the relevant fields rather than by university officials, state legislators, or other nonexperts. For the same reason, academic freedom also protects the right of faculty within a university to share in its governance, which may include voting on such matters as the appointment of department chairs, the hiring of new faculty members, and decisions about promotion and tenure. Used in this sense, it does not apply to teachers in elementary or secondary (K–12) schools or to students at any level, nor does it extend to parents, politicians, taxpayers, advocacy groups, or community activists.

As a matter of general usage, the term "academic freedom" is employed much more comprehensively. Its most obvious use is to describe the ability of K–12 teachers to exercise their professional discretion in teaching, interacting with students, and carrying out other elements of their jobs. The term is also applied to the ability of students to say what they like, to influence their instruction, and to receive information. Most extensively, it is used to describe any constituency's claim to freedom of speech with respect to any education-related matter. As its scope broadens, this popular understanding of academic freedom becomes indistinguishable from generic free-speech rights, and its only function is to signify that the topic of discussion involves some aspect of education. The academic freedom of university professors is rooted in the social benefits to be gained from the unfettered exercise of their content-area expertise, and its use with respect to K–12 teachers is based on their pedagogical and academic background. By contrast, claims to academic freedom by students and the general public rest primarily on the assertion that the claimant has the same right as anyone else to express and receive ideas.

What's in a Name?

In view of the tangle of meanings attached to the concept of academic freedom, the first order of business must be to sort out the terminology. Limiting academic freedom to universities and excluding K–12 schools—particularly when that is done by scholars who are themselves professors—is, of course, vulnerable to the accusation of professorial snobbery. In reality, however, it reflects genuine differences inherent in the two kinds of academic employment. Although some senior-high-school honors classes may approach and indeed reach the university level in content and technique, K–12 public schools as a whole transmit well-known and well-established information, and they foster critical and interpretive skills at a level appropriate for children who are younger than college students and who display a wider range of academic proficiency. Public schools are also tasked with inculcating "community values"—that is, whatever ideals the school board endorses as long as their promotion in public schools is not unconstitutional, as religious indoctrination would be. The governance structure of these schools is based on a long-standing conviction that public elementary and secondary education should reflect the will of the people as carried out by representatives who are answerable, directly or indirectly, to the voters. Accordingly, the authority to decide what is taught in K–12 public schools rests not with individual teachers nor with the faculty as a whole but with school boards that are either elected or appointed by elected officials.

To be sure, teachers in some districts may be so intimately involved in selecting instructional materials, developing and revising curricula, and implementing teaching methodologies that, collectively if not individually, they have effective control of instruction. Some school boards may also encourage teachers to generate, disseminate, and experiment with new ideas in the pedagogy of their fields and may even release teachers from some of their classroom obligations for this purpose. If, however, conditions within a district alter—perhaps because the demographics of the local population change, because a new superintendent or school board takes office, because an activist community group targets a particular issue, or because new conditions are attached to eligibility for federal funding—the fact that ultimate authority rests with the board may become all too clear. When lawsuits concerning the control of educational content reach the courts, teachers may be astonished to learn that state and local school boards can indeed tell them what to teach and how to teach it.

The situation is different in public universities because their core functions within the society are different. University students, most of whom are legally adult, are presumed to be less impressionable and more capable of dealing with controversial and complex ideas than are K–12 students. No one is forced to attend any particular institution or even to enroll in college, and students choose their own majors and many of their own courses or sections of courses. University professors as a group hold more advanced degrees than K–12 teachers do, and they present their disciplines at a higher level. Moreover, although academic freedom applies to university faculty as teachers, it arose out of their role as researchers. Unlike K–12 schools, universities are expected to develop new knowledge and to produce the next generation of experts whose task it will be to carry on the questioning, challenging, and debating necessary to advance human understanding. For this reason, university faculty who are experts in their fields—because they are experts in their fields—have responsibility for shaping and carrying out their research programs, disseminating the results, and determining what and how to teach within their areas of expertise. They are also expected to push the boundaries of orthodoxy and accepted knowledge and to experiment with cutting-edge concepts that may cause discomfort to other experts and possibly to some segments of the public. To fulfill these responsibilities, they must be free to pursue truth wherever they believe it may lead, to disseminate what is learned, and to debate about the meaning and significance of new information in order to determine what is able to withstand informed challenge and what must fall to better arguments. Guarantees of academic freedom are not meant to provide privilege or status to professors but to create the conditions that enable universities to fulfill functions that differ materially from those of K–12 education.

Because academic freedom carries a substantive meaning in relation to universities that is not paralleled in K–12 schools, I use that term in its specialized sense except when quoting or paraphrasing the statements of other people. The ability of K–12 teachers to make their own decisions about what and how to teach and about other aspects of their jobs is described as the exercise of professional discretion. For the same reasons, I do not apply the term "academic freedom" to the free expression of students, politicians, advocacy groups, community activists, parents, and other members of the public. The intent is not to deny or minimize their undoubted right to free speech but to be clear about what is at issue in each situation. Indicating that a particular statement does not fall under the heading of academic freedom does not suggest either that the speech is of low value or that it does not enjoy constitutional protection.

In view of these differences, it is not surprising that the academic freedom of university faculty, the professional discretion of K–12 teachers, and the free-speech rights of students and others are not often discussed in the same scholarly works. More commonly, books and articles delve into such elements as the background, legal standing, and political status of one of these constituencies, referencing the others—if at all—to provide points of comparison and contrast. Although there is much to be said for this approach as a means of exploring case law and public policy in each area, there is also room for a more comprehensive discussion of the expression of controversial ideas in the curriculum, in faculty research, and in other campus speech by faculty and students at all levels. Differences between various constituencies and academic environments, no matter how significant in themselves, should not be permitted to obscure the interconnectedness and interdependence of public education as a whole. The vast majority of students in public universities have experienced K–12 public education, and an important function of public universities is to prepare teachers for K–12 public schools. More fundamentally, public education as a social institution, wholly or partially supported by public funds and regulated to a greater or lesser extent by elected officials, represents certain cultural values and imperatives. Important among these is the need to deal effectively and equitably with the intense differences of opinion that are the inevitable product of a society that is at once free and highly diverse.

As the epigraph by Menand indicates, conflicts over what may or must be said in the context of public education reflect a perception on the part of each participating constituency that its claim to control the discourse trumps the claims of other constituencies. Michael A. Olivas suggested that "how one characterizes classroom interactions is akin to turning a kaleidoscope in the light: From one perspective it is a professor's autonomy to teach how she sees fit; from another it is a student's right to learn in an environment free of harassing behavior; from yet another it is the Dean's duty to ensure that appropriate instruction is taking place; and finally, it may be the accrediting agency's responsibility to maintain uniform standards across institutions." To the extent that one constituency prevails in a given situation, the others will almost inevitably feel that what they are likely to call their academic freedom, used in this context to describe the right to prevail in an education-related matter, is not adequately recognized.

Consider, for instance, disputes involving two science teachers, Roger DeHart and Rodney LeVake. Both taught biology in public high schools in the late 1990s, DeHart in the state of Washington and LeVake in Minnesota. Both challenged the theory of evolution and wished to present other explanations more in keeping with their religious views. Both stated that as qualified professionals, they were empowered to decide how to interpret their content field to their students. They also maintained that their academic freedom and that of their students required the presentation of alternatives to evolution.

As soon as these disputes became public, several constituencies came forward to challenge the teachers' claim that the right to determine what to teach rested with them. Prominent among these constituencies were national organizations representing the mainstream scientific community, which routinely interjects itself into disputes about science instruction by asserting something similar to control of a brand name. Accordingly, the National Academy of Sciences, the American Association for the Advancement of Science, and the National Center for Science Education denied that DeHart and LeVake had the authority to teach nontestable, supernatural explanations of the ultimate cause of life in biology classes. In their view, such theories have a place in religion, philosophy, or social studies classes; indeed, they may even be true. Nevertheless, these organizations maintain, it is demonstrably incorrect and not a matter of viewpoint or opinion to describe such concepts as science. Parents in each of the affected school districts also joined the fray. Some of these parents allied themselves with the mainstream scientific community, asserting that their children's academic freedom included the right to learn accepted scientific theory and method. Others defined academic freedom in terms of participatory democracy: since evolution is presented in most biology classes, it is only fair to include opposing views.

In each of these disputes, the constituency that prevailed was the local school board. Based on decisions made or endorsed by each board, DeHart and LeVake were restricted in their teaching and removed from courses that included evolution. LeVake, represented by attorneys from the American Center for Law and Justice, sued on the ground that by preventing him from sharing his views on evolution with his students, school officials had violated his rights to free speech and freedom of religion. The decision of the Court of Appeals of Minnesota was so predictable as to be, in some ways, the least interesting element of this discussion: "LeVake's responsibility as a public school teacher to teach evolution in the manner prescribed by the curriculum overrides his First Amendment rights as a private citizen." This outcome was based on the well-established premise that school boards enjoy broad authority to determine the curriculum for K–12 schools as long as they do not stray into unconstitutional waters. Nevertheless, acknowledging the school board's legal right to have the final word does not preclude discussion of the procedures and priorities that should contribute to shaping that word. In addition to considering what the courts have said, it is important to reflect upon the logical and practical considerations involved in determining whose voices should be heard and heeded in order to foster the academic rigor and the free play of ideas appropriate to each level of American public education.

The Zen of Cat Herding

Histories of education sometimes trace the notion of unfettered inquiry back to Socrates, although at least in the short term, the outcome of his endeavors was not encouraging. By contrast, even the most draconian modern administrators recognize that poisoning the faculty, tempting as the prospect might appear, is likely to be considered excessive. A more immediate progenitor of the contemporary concept of academic freedom was Charles Darwin, whose work was a key factor in bringing about a widespread change in the understanding of research and of knowledge itself. The scientific revolution associated with Darwin took scientific inquiry out of the reach of amateurs, making it the province of highly educated specialists. Over time, experts in all academic disciplines joined their scientific brethren in declaring that university-level academic work must be assessed by peers in the field because administrators, trustees, and other nonexperts lack the background to understand it. Moreover, teaching and research must be disinterested in the sense that they represent the true state of knowledge at any given time. Ideas should not be gerrymandered, exaggerated, or suppressed to reinforce an ideological preconception or to justify a particular practical outcome.

The leading exponent of academic freedom in American universities is the American Association of University Professors (AAUP), a university faculty union whose stated purpose is "to advance academic freedom and shared governance, to define fundamental professional values and standards for higher education, and to ensure higher education's contribution to the common good." Shortly after its foundation in 1915, the AAUP declared that the ability of professors to carry out their duty to their institutions and to society at large "requires that our universities shall be so free that no fair-minded person shall find any excuse for even a suspicion that the utterances of university teachers are shaped or restricted by the judgment, not of professional scholars, but of inexpert and possibly not wholly disinterested persons outside of their ranks." The principles of academic freedom enunciated in several successive AAUP documents are incorporated into faculty contracts or university policy statements in the vast majority of secular universities, public or private, and in many religious institutions. Indeed, in the absence of a commitment to free inquiry, it is difficult to see how a twenty-first-century university could credibly seek recognition as an intellectual leader.

Ronald Dworkin, a prominent philosopher of law, elaborated upon one of the AAUP's justifications for academic freedom when he observed that professors "are less likely to act from nakedly political or ideological motives than are those whose power it insulates them from." If this system worked perfectly, university faculty would function as highly qualified and disinterested knowledge-seekers, tolerant of dissent and error within reasonable bounds and open to new ideas. In my own academic career, I have seen some of my colleagues go to great lengths in a sincere effort to meet those expectations. Nevertheless, professors are no more immune to human failings than administrators are, and the line between defining a discipline and establishing an orthodoxy is a fine one.

Excerpted from Knowledge in the Making by JOAN DELFATTORE. Copyright © 2010 by Joan DelFattore. Excerpted by permission of Yale UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents


Preface....................     ix     

Acknowledgments....................     xiii     

1 A Seat at the Table....................     1     

2 Freedom and (or) Equality....................     27     

3 Price-Fixing in the Free Marketplace of Ideas....................     56     

4 Rainbow Before the Storm....................     85     

5 Here Comes Darwin....................     117     

6 And Yet It Moves....................     147     

7 The Mote and the Beam....................     179     

8 All Roads Lead to Garcetti....................     214     

9 Caution! Paradigms May Shift....................     239     

Afterword....................     268     

Notes....................     273     

Index....................     299     

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