Freedom of speech is likely the most daunting of Constitutional freedoms to appreciate and sustain. Often, colleges and universities are centers of contention, especially in light of another cherished and allied tradition, academic freedom—the unfettered expression and exchange of ideas in the academy. The concept is not difficult to define: freedom to discuss or investigate any controversial social, economic, political, or scientific matter without interference or penalty.
Academic freedom emerged as a cultural norm in early 19th century Germany with the Prussian reform of education. The rise of the Third Reich led to the end of academic freedom (and the accompanying principle of institutional autonomy) in Germany. Hitler declared universal education “the most corroding and disintegrating poison.” His Minister of Education selected the rectors for German universities, announcing that “the future basis for all studies in German universities would be the Nazi racial theories.” Fifteen hundred faculty members across the country were dismissed. By 1939, 45 percent of German faculty members had been replaced by Nazi acolytes.
An episode at the University of Wisconsin (UW) in 1894 crystalized the principle in the United States. There, a faculty proponent of the social gospel movement was accused of teaching socialistic ideas, promoting unions and boycotts, leading to his dismissal. Later reinstated, UW announced: “Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone truth can be found.”
Justice William Brennan: Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.
However, the Red Scare in the nation in the 1940s and ‘50s prompted New York State’s 1949 Feinberg Law, which called for the firing of public school teachers “who engaged in ‘treasonable or seditious acts or utterances,’ or joined an organization that advocated the overthrow of the government by ‘force, violence or any unlawful means.’” The US Supreme Court, in Keyishian v. Board of Regents (1967), struck down Feinberg as a violation of the First Amendment. Writing for the majority, Justice William Brennan singled out education as a special concern and cultural value: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
More recently, the national conflict over academic freedom has taken on a different struggle, one for the soul and identity of colleges and universities themselves. This contemporary battle tends to focus on money to compromise the character of academic freedom. Democracy in Chains (2017) by Nancy MacLean traces the efforts and flow of money supporting the Nobel Prize-wining James Buchanan from UVA to George Mason University (GMU) to establish an academic center of conservative libertarian ideology, particularly in economics and law. Milton Friedman unreservedly praised Buchanan as he assumed the chair of the economics department at UVA.
Buchanan’s star power attracted wealthy donors in creating a training center for the staffing of organizations such as the Cato Institute, Heritage Foundation, State Policy Network, and Americans for Prosperity, among others. MacLean documents the dedicated determination of Buchanan and his allies “to train a generation of thinkers to push back against Brown (the 1954 SCOTUS equal but separate decision) and the changes in constitutional thought and federal policy that had enabled it.”
Newly released documents show that a $50 million gift to GMU, Virginia’s largest public university, was given specifically to “promote the conservative principles of governance,” raising concerns from critics that the gift compromises academic freedom. A copy of minutes made public shows that the word “conservative” was dropped from a description of the gift. Instead the scrubbed minutes state the gift will be used to “promote the principles of governance, statesmanship, high morals, civil and religious freedom and the study of the United States Constitution.” This clumsy effort to conceal the donor’s condition as well as the university’s complicity in that concealment ironically contorts the very notion of academic freedom.
George Mason developed a reputation over the years as a conservative powerhouse in law and economics and received increased scrutiny about the influence of conservative donors since 2016, when Mason renamed its law school for conservative jurist Antonin Scalia. The renaming came in conjunction with an anonymous $20 million donation to the law school that was accompanied by $10 million from the Koch Foundation.
Last year the school faced criticism when documents showed that some agreements with the Koch Foundation gave the donors influence into the hiring and firing of some professors at the university’s Mercatus Center, a free-market think tank, in exchange for millions of dollars. The revelations about those provisions came after years of assurances from top university officials that the relationship with the Koch Foundation had no such conditions. The disclosure of apparent dissemblance by GMU leadership is disturbing. Either libertarianism or conservatism are subject to the protection of academic freedom or they ae not. The behavior of GMU seems to suggest they are not. And there is the true conflict.
Secrecy surrounding gifts to higher education only sullies the intention of the donor and the motives of the recipient. If there is no danger to academic freedom from such gifts, then they ought to be celebrated. If, on the other hand, the acceptance of such gifts threatens academic freedom, then the gift must be rejected or modified to conform. A student group from GMU has already argued a case before the Virginia Supreme Court seeking to apply FOIA laws to public universities with respect to donor information.
To be clear, this is not an issue related to the identity of the donor whether it be Jeffrey Epstein or David Duke or even the Koch family. The purpose of the gift may also be a matter of indifferent ethical content. However, when the purpose of the gift compromises the fundamental raison d’etre of the institution itself, then it matters and declination is essential unless the obnoxious condition is eliminated. A simple bright line that all can appreciate.
As in so many instances, it is the secrecy or cover-up that creates odors of distaste and threatens the civic diaglogue. GMU’s behavior in these instances communicates that something is rotten in the Commonwealth of Virginia.