First Amendment Cliques

Conservative and libertarian professors and students find themselves up against the wall when defending their free speech rights largely because of the so-called guardians of academic freedom.

“Academic freedom is not the freedom of an individual to teach what he wants but the freedom of an academic community to set its standards free from political interference,” law professor Steven Gey said Friday at a conference in Washington, D.C.. A professor at Florida State University’s College of Law, Gey spoke at the American Enterprise Institute (AEI), a conservative-to-moderate think tank.

“If you look back at how the case law developed, that is how it was always defined;” Professor Gey said when asked to clarify this assertion, “many of the court cases came from the 1950s and 1960s and involved communists and their right to teach.”

“That is also how it was defined by the Supreme Court in the 1970s.” Anti-communist scholars can probably see how such a legal interpretation would work against them. After all, the communists won that right.

Professor Gey’s speech at AEI was part of a forum on whether intelligent design should be taught in the classroom to balance lessons on evolution. The veteran lawyer is opposed to the inclusion of the former school of thought in science courses.

The professor is the author of a casebook on religion and the state. His reading of academic freedom as a prerogative of the higher education establishment rather than an individual right may have a judicial history but seems to fly in the face of the American tradition on constitutional liberties.

Certainly, the good folks at the Foundation for Individual Rights in Education (FIRE) have racked up an impressive series of victories on behalf of individuals nationwide, in and out of court. Moreover, the FIRE has achieved some of its greatest successes when persuading colleges and universities to loosen up their speech codes—perhaps the most extreme example of “the freedom of an academic community to set its own standards free from political interference.”

“It’s common sense, really,” Professor Gey says in defense of his interpretation of the law. “This follows directly from the AAUP’s original statement.”

Indeed, most of the American Association of University Professors’ pronouncements on the subject are geared more towards the academic community than the individual pedagogue. But the AAUP statements are not legal documents or court decisions.

Moreover, not only does the AAUP censure schools but the group does so on behalf of individual professors. And when the AAUP goes to court the group usually does so in support of individual professors. For this reason, the overwhelmingly liberal group usually takes action against a handful of conservative colleges and universities which seek to dismiss aggressively left-wing professors.

Professor Gey himself, although he may claim to be apolitical, offered some revealing glimpses of his own ideology when he characterized the personnel on our nation’s highest bench. “The Supreme Court has never been more right wing than it has been in the last twenty-five years,” Professor Gey concludes. Few Liberal Democrats in the U. S. Senate would venture such an observation.

He also said that the late Lewis Powell, who cast a deciding vote in favor of abortion-on-demand in the Supreme Court’s Roe v. Wade decision, was a “pretty conservative guy.” “He was from Richmond, Virginia,” Professor Gey explained.

The professor himself is from Columbia University, where he received his law degree in 1982. While at Columbia, he served as articles editor of the law review.

Columbia was one of the schools surveyed by David Horowitz in his study on Representation of Political Perspectives in Law and Journalism Faculties. At Columbia Law, Horowitz found, Democrats outnumber Republicans by a ratio of 23 to one.

His Center for the Study of Popular Culture literally found 46 Democrats at Columbia Law and two Republicans. Horowitz looked at nine of the country’s top law schools.

“Our findings were straightforward and stark: America’s professional schools of journalism and law have collectively become a one-party state,” Horowitz writes. “Students have little chance of encountering any ideological diversity in the classrooms of these schools.”

Malcolm A. Kline is the executive director of Accuracy in Academia.