Why Stay to Fight a Losing Battle? (Part Two of a Series)

Posted in: Education

Over the last few years, more and more people have been thinking that perhaps the American experiment in pluralist constitutionalism and the rule of law is on the verge of failure. Describing one of the most worrisome possibilities, a Washington Post opinion column last fall appeared under the ominous headline: “American Jews start to think the unthinkable.”

The writer of that column, center-left political commentator Dana Milbank, referred to an observation from the scholar Michael Holzman: “For American Jews, the disappearance of liberal democracy would be a disaster…. We have flourished under the shelter of the principles behind the First Amendment, and we have been protected by the absolute belief in the rule of law. Without these, Jews, start packing suitcases.” Milbank noted that many American Jews are openly worried that they “might need to flee the United States,” which has led to conversations about “where might we move.”

I, too, have been asking the question about where to move for the last few years (notably in Verdict columns published on January 12 and January 20, 2022). I would never lay claim to the historical basis for fear that is justifiably palpable for Jews everywhere. I am, after all, a White Anglo-Saxon Protestant (lapsed), upper-middle class and non-LGBTQ+. In almost every sense, therefore, I am arguably the last person who would need to worry about being targeted for harassment or worse by a rising tide of Republican-led intolerance. Almost.

History also tells us that authoritarian regimes are all too aware that universities are a source of dissent and political heterodoxy. It is no mistake that Viktor Orban, who has created a permanent constitutional dictatorship in Hungary, aggressively took control of his country’s universities in the process of consolidating his power. More to the point, “the populist right hates universities,” using attacks on “pointy-headed professors” and claims of “indoctrination” as excuses to neutralize people who otherwise would have the reputational authority and career freedom to speak truth to power. Power is no fan of mouthy truth-tellers.

The American right is thus fascinated with Orban, who was the featured speaker at one of the top US conservative political conferences in 2022 and who then hosted an enthusiastic version of that conference—again, a conference by and for American conservatives—in his own country earlier this year. He has even adopted the meaningless word “woke” to show solidarity with his US brethren (as, by the way, has Britain’s rightwing Prime Minister Rishi Sunak).

Again, this is in no way to compare what has happened to university professors and other intellectuals with the history of oppression, mass murder, and attempted genocide of Jews worldwide. Even so, professors have indeed been targeted and killed for their thought crimes throughout history. And for intellectuals who are also Jewish, the dangers are obviously multiplied. There is, in any case, historical precedent that should make professors worry when we are being politically attacked by people who are obviously trying to silence criticism.

This is because it is not only the reactionary political leaders who pose a danger to the professors, staff, and students at universities. When I first heard the news this past Monday about the gunman who had invaded the campus of the University of North Carolina, my first thought was that this might be an instance of what I have long feared, with radicalized hate groups turning their focus onto the college campuses that the right’s echo chamber has been vilifying for decades. As I write this column, the evidence is unclear about whether that was indeed happening in Chapel Hill. My point, however, is that just as political attacks on the humanity of Black people are accompanied by horrors like the racism-inspired murders in Jacksonville last weekend, political attacks on any group can too easily move from hateful words to deadly actions.

Fighting for Academic Freedom Without the Benefits of Tenure

As the title of this column indicates, this is the second entry in a series. I have no fixed plan regarding how long the series will last, but in the first entry, I indicated that I intend to write with some frequency to address the issues involved in (as I titled Part One) “Fighting the Good Fight versus Knowing When to Move On.” But why would a person even think of moving on? After all, if things are going in the wrong direction, they are not going to turn around unless someone is there to push back. Is walking away from a fight not a sign of cowardice or laziness (or both)? Ultimately, I concluded that it was neither of those things but rather a simple matter of recognizing harsh reality.

Part One of this series, however, did not directly consider these larger questions about when a political situation becomes literally a life-or-death question. Trying to narrow my focus to a much more personal and manageable topic, I noted that I had recently accepted an offer of early retirement from the University of Florida’s Levin College of Law. I made it very clear that my decision was driven by the proto-Orbanesque moves that Republicans in Florida had recently undertaken, especially the insidiously disguised termination of faculty tenure at the state’s universities.

That this elimination of tenure was dressed up to look like something else—with the Republican governor’s appointees in the university’s governance committees and administration insisting that we faculty still had tenure—is something of a surprise. After all, subtlety has never been the anti-intellectual Republicans’ strength, perhaps because they have seen no need to try to hide what they are doing.

In any event, tenure in the US has always meant that faculty are not at-will employees but are subject to removal only for cause, where cause has always been carefully defined to include only objectively verifiable offenses like breaking the law, refusing to carry out one’s job duties, and so on. Now, Florida’s Republicans are interested in removing professors for “insubordination,” among other things, which is possibly the most manipulable concept that one could use to allow administrators to fire disagreeably unwelcome thinkers.

Moreover, the standard tenure system in the US for as long as tenure has existed has not included post-tenure review. Why not? Because the very point of tenure is to give faculty the confidence that what they write and say—most especially including arguments that are political in any way—cannot be used against them in efforts to kick them out of their jobs.

As I pointed out in Part One, Florida’s legislature passed, the governor signed, and the governor’s appointees on the university system’s Board of Governors recently implemented a system that requires every tenured professor to be reviewed every five years—and to be evaluated under standards that now involve vague criteria that are blatantly open to political manipulation.

Summarizing my decision to leave Florida, I recently wrote: “Why would I leave a tenured position? I didn’t. The tenured position left me.” I meant that in two senses. My words were a variation on Ronald Reagan’s famous description of having become a Republican because “the Democratic Party left me.” I was saying that my reasons for being excited to accept the Florida job in 2019 and uproot my life had quickly changed. More to the point, however, I meant quite literally that I did not leave a tenured position but rather was leaving a position that was no longer tenured. The difference matters because I was not in fact giving up something as valuable as a truly tenured position is rightly thought to be.

All of that matters in the current context because we need to understand how faculty would usually be expected to fight back against legislative nightmares like HB7, the state law that forbids professors and teachers in Florida from presenting in a non-“objective” manner or “endors[ing]” ideas that supposedly could cause any student to “feel guilt, anguish, or other forms of psychological distress” around discussions of “race, color, national origin, or sex”? What could go wrong?

Normally, tenured faculty would use their hard-won job protections to test the boundaries of such an unbounded violation of intellectual freedom. And that is precisely why HB7 and other political requirements to toe the reactionary line had to be coupled with the end of tenure. As I put it, “[t]he risks are too great” for any faculty member to test the limits because we all now know that at least every fifth year—or, under further proposed changes to the rules, any time that the governor’s appointees vote to single out a professor for expressing impure thoughts—we will be forced to answer for our transgressions against the state’s preferred ideology. As always, the Republicans’ claims are mere projection, in this case saying that they are fighting “indoctrination” while doing everything possible to enforce a system of indoctrination.

At the end of Part One, however, I acknowledged a difficult question that was pertinent for the very few people like me who are still in a position to fight. I “am not too far from retirement age and thus have the luxury of being able to risk termination for being politically unacceptable to the powers that be.” I am reasonably financially secure, and even though I would prefer to be able to continue to do what I love for the benefit of students and society as a whole for many years to come, it would not ruin my life to lose my job entirely at this point. Given all of that, am I not the perfect candidate to say, “OK, let’s see what this new ‘tenure’ system looks like for someone who says things that might be described as subjective or causing distress to students who would prefer not to hear unpleasant facts and arguments?”

How Do We Know When to Avoid a Losing Battle?

Indeed, it would have been possible for me to make myself a test case, coordinating in advance with interested nonprofit watchdog groups to make sure that I fell afoul of the new laws, specifically to generate impact litigation designed to challenge these attacks on academic freedom. I even spent some amusing hours imagining being attacked in hearings in the state legislature for being a liberal, thinking through responses, ripostes, and zingers. With the personal stakes so low (again, because I am one of the few people who could risk losing my job in a political purge), why not do that?

There is no single answer, but as an initial matter, I would be uncertain from day to day when the powers that be would finally decide to target me. And when that day inevitably arrived, I would then be forced to stop researching, writing, and teaching, instead wasting a huge amount of time and effort on being the person who was the right’s villain du jour. (Sorry, smarty-pants types like me lapse into snooty French phrases every now and again.)

That, however, is not a full answer, because it is arguably true that my time would be better spent fighting for intellectual freedom directly in Florida than by simply exercising my intellectual freedom elsewhere. Again, why take what could very reasonably be seen as the cheap-and-easy way out, even if the work that I would be doing instead ends up being as important as I hope it will be?

The answer is that some fights are simply not winnable, at least not in the moment. Even the most brilliant battlefield generals know when to call “Retreat!” or to choose not to engage in the first place, waiting to fight on another day at another place on more favorable terms. In addition, standing up for what is right is valuable, but being the subject of smears in the rightwing echo chamber while making a stand is a high price to pay, especially because those attacks (as I described above) are not guaranteed to remain civil or even legal.

As it stands, through a combination of gerrymandering, voter suppression, and gross abuses of authority, Florida’s Republicans have locked down their hold on power. They not only have no interest in compromise, but they have made it their brand to intensify their attacks whenever challenged. The idea that there are any avenues of action that remain for faculty and others to win even narrow victories is unfortunately wishful thinking (other than in the courts, which are definitely knee-deep in all of these questions already).

There will come a time, I hope, when enough of the underlying structures of power in Florida and elsewhere have changed to allow universities to return to their important role as independent sources of knowledge, authority, and progress. People like me will be looking on from beyond Florida’s borders, writing in support of such efforts and trying to maintain the traditions that Republicans are currently eager to trample.

The vast majority of people who are not as lucky as I am, stuck in a situation where they are being abused for political advantage, do not deserve this fate. I wish that there were something that could be done right now, but sometimes an opponent is simply too entrenched to make it worth the fight. I hope that changes soon, but I am not holding my breath.

Posted in: Education

Tags: Florida, Law School, tenure

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