Fish on the University: It's All Academic

I haven't posted much in the past couple of weeks about the events on campus across the country, partly because of exams and other duties that actually relate to the core of a university's functioning, and partly because I wanted the time to work through my ambivalence about David Pozen's interesting Balkinization post. I thought it simultaneously had real value as a discussion of failures to follow university procedures, and ran the risk of doing the same thing I see in too much recent contemporary constitutional scholarship: the invocation of "norms" and "settlements" in a way that potentially loads up the content of those words in an imperial and conversation-stopping manner, when there is actually fair debate to be had about what the norms are, how stable the settlements are and when they may be reexamined, and what lessons we might take from the paradigm cases that gave rise to those always-contestable "norms" and "settlements." (The lesson to be taken from the vandalism, anti-intellectualism, and American-style milquetoast hostage-taking that was the 1968 Columbia occupation, for instance, including questions about its morality, efficacy, message discipline, and larger political consequences, may differ in the eye of various beholders. On 1968 as a wider global or at least Western event--in which the American version, predictably, was both closer to cosplay and further away from a meaningful connection to workers or the working class--I recommend Richard Viner's fine book 1968: Radical Protest and its Enemies.)

Of course a good deal has happened since then. I should say that the letter issued by multiple Columbia law faculty members is quite good. God bless lawyers for focusing on the key question of process, and skipping the standard sentences that genuflect to one or another standard sentiment in a way that inevitably leaves someone or everyone dissatisfied. And I am still thinking about Super's post.

In the meantime, I commend to readers a late entrant to the discussion: Stanley Fish's post A Note to University Administrators, which appears in the excellent and pleasingly eccentric Catholic journal The Lamp. Readers of Fish's other work in this area will not be surprised either by his views or by the élan with which he states them. The core of his post is that the university is a university and not something else; its job is to do its job; that job does not include "play[ing] a role on the world's stage"; and while student or faculty political speech may occur on campus in particular spots and at particular times, just as that sort of general speech might happen in lots of other places, the duty of university administrators is to ensure that the main business of the university can take place--and to act, forcefully if necessary, when that business is disturbed. 

I do not agree with 100 percent of Fish's post. He could have said more about the genuine enforcement difficulties involved when administrators face large numbers with few resources (a problem that would be eased if they had acted earlier and more consistently on such matters). In saying--correctly--that speech and conduct that "threatens to undermine the main business of the enterprise...must be curbed and even silenced," he could have added a few words about consistency and procedural regularity. He could have noted the difference, for purposes of university autonomy, between university administrators inviting in the police and state or local politicians sending them in. Finally, I don't think Tinker v. Des Moines was the best case to cite for his purposes. So I hover at only around 80 to 90 percent agreement. But Fish is basically right, certainly right on the fundamentals, and much better and more sensible than many other recent interventions.

The silliest of those, I think. at least outside social media, is this (paywalled) piece in the Chronicle of Higher Education, the gist of which is that the only reason students are currently forced to shout so loud is that the universities have failed to truly listen to them. The piece, by Chicago historian Gabriel Winant, offers some perfectly sensible statements about the consumer orientation of the modern university, which has indeed been a terrible mistake. And I think it uses "listen" accurately; often enough, when someone writes "failed to listen" they actually mean "failed to agree or capitulate." But Winant's piece seems to walk a fine and perhaps strategic line between suggesting that the current protests highlight the failure of current "democratic norms [in] the academic community," and arguing that whatever form the university currently takes, it ought to be a democratic institution. He writes: "Substantive democracy on campus — in which students, faculty members, and staff are meaningful participants in the governance of the university — is the only way to realize the values of academic freedom and freedom of speech that are so widely touted by university leaders and the donors and politicians whom they serve." His view that the university is or ought to be a democracy is connected to a larger complaint about the "undemocratic structures of American social institutions," which I take to include more than just universities.

All this is quite wrong. (I set aside the fact that when someone appends a word like "substantive" to a word like "democracy," you should get ready to be flim-flammed.) The university is not a democracy. It should not be a democracy. If "American social institutions" are currently in bad shape and losing public trust, it is not because they are undemocratic; if anything, the converse is closer to true: the more these institutions try to satisfy everyone's needs and drown their distinctiveness in democratic waters, the less they satisfy anyone. There is room to argue about the proper structure of university governance. But "meaningful, democratic representation for students, faculty, and staff on university boards" is not "the only institutional mechanism that can secure" what the author calls "the university’s role as a place for the free development of critical thought and democratic citizenship." To the contrary. Fish has it right: the way universities contribute to "democratic citizenship" is not by reproducing democracy (or, I guess, "substantive democracy," a phrase whose meaning, again, may end up including all sorts of questionable moves), but by doing their job of "instruction and the advancement of knowledge in the humanities, social sciences, physical sciences and computer sciences." As anyone who has fairly received a high or low grade, fairly been granted or denied tenure, or been praised for advancing knowledge or criticized for erroneous or repetitive scholarship can tell you, these are not democratic activities. 

Here are some passages from Fish's post, all of which is worth reading, although I doubt it will be pleasing to those who favor virtually untrammeled student protest, and I am sure that Fish's response to those who see this moment as requiring a purge of instructors or courses of instruction on a non-disciplinary basis would be equally displeasing to them. (I don't think he would have much sympathy, for instance, for a doctoral student complaining about the "platforming" of an academic lecture on theology and asserting that "the nuances and complexities of my religion are not open for reinterpretation by those who do not share in its lineage or practice." I think he would say, "As an academic matter, and if the academic speaker is academically qualified, you bet your ass they are.")   

University administrators faced with sit-ins, tent encampments, and other forms of protest continue to betray an inability to understand their situations. A prominent (and even poignant) case in point is Columbia’s president, Minouche Shafik, who began a recent statement by acknowledging the obvious: “There is a terrible conflict raging in the Middle East with devastating consequences.” She then notes that many on her campus “are experiencing deep moral distress and want Columbia to help alleviate this by taking action.” Her next sentence falls off the cliff. “We should be having serious conversations about how Columbia can contribute.”

No, no, no! What she should have said is this: “Intervening in a political crisis is not within our job description; it’s not something we are either equipped to do or assigned to do. Our job is to introduce students to the materials and histories of various academic disciplines and to provide those same students with the analytical skills that will enable them to proceed on their own after a course is over.” That’s it, nothing else. Any “contribution” we as members of the academy might make to the solving of society’s problems would be indirect....

If this account of what institutions of higher learning appropriately do—they don’t do everything, they do the academic thing—is accepted, a conclusion (no doubt counterintuitive to many) immediately follows: colleges and universities have no obligation to foster or even allow political protests on campus. Indeed, it is quite the reverse, for if the overriding and defining imperative is to ensure the flourishing of the academic enterprise—classes being taught, research being conducted, procedures being followed—administrators have a positive duty to remove any impediments to that flourishing, including tent encampments, sit-ins, obstacles to exits and entries, building occupations, forcing the cancellation of classes and a host of other things now occurring....

When you are granted a platform [in the institutional context of the university], you are expected to produce speech that contributes in a significant way to the practice that has accepted you as a member. This is not free speech, but speech constrained by the norms and protocols that define and monitor the profession. As with any other practice, it is always possible, and indeed mandatory, to say of something offered, “That’s not the kind of thing we do around here.” In the academy political protest is not the kind of thing we do around here; it is not part of the core mission, although universities can decide to permit a bit of it in designated places on the model of a Hyde Park corner. But once the permitted political speech gets out of hand and threatens to undermine the main business of the enterprise—instructing students and advancing the state of knowledge—it must be curbed and even silenced....

Colleges and universities are not in the free speech business or the democracy business. They are in the education business; and while institutions of higher education may decide to allow a certain amount of political speech on their campuses, they are not required to do so. They are, however, required to silence that same speech once it enters the stage of interference and disruption.

“Required” is a strong word and it hearkens back to my earlier phrase “positive duty.” Some administrators see themselves as torn between the obligation to support free speech and the obligation to maintain a secure and safe campus. But they can dispense with their moral dilemmas (a hard thing for academics to do) and the hand-wringing that accompanies them once they remember that they were hired to administer an enterprise, not to be constitutional watchdogs or guardians of democracy. Removing obstacles to the functioning of the academic process (even by calling in the police) is not something they should apologize for, but something that follows from the office they hold....President Shafik is said to be in danger of losing her job. If that happens, it will be because she doesn’t know what it is.