Fighting for Our Rights Today, Building Our Strength for Tomorrow

Long before the presidential election of 2016, college and university faculty faced serious challenges to our profession. The Reagan administration launched an era of privatization that decreased public funding of higher education. Administrators responded by embracing an institutional vision of an “entrepreneurial” university in ways that have shifted many universities away from their traditional public missions and toward identities as private market actors. The corporatization of the university has undermined faculty academic freedom, job security, due process, and shared governance as many administrators have adopted a top-down model of decision-making, created a largely contingent faculty workforce, and commercialized higher education teaching and research. These changes have created risky conditions for faculty members who pursue controversial issues in their teaching and research or criticize college and university administrators.

Since the Reagan era, continued rightward shifts in political and judicial institutions have added external threats to faculty academic freedom, job security, and governance rights. State legislatures have restricted the scope of collective bargaining in public employment, including through attacks on faculty rights to unionize. Twenty-eight states now have “right-to-work” laws prohibiting the collection of fair-share fees—which cover the costs of negotiating wages, benefits, and protections for individuals who are represented by, but are not members of, a union—in public or private unionized workplaces. The threat that the Supreme Court would constitutionalize such prohibitions in public employment was only briefly postponed when Justice Antonin Scalia died before the court could decide the Friedrichs v. California Teachers Association case in 2016. In private universities, faculty face ongoing obstacles to unionization as a result of the Supreme Court’s 1980 Yeshiva decision, which defines most tenure-track and tenured faculty members as managerial employees excluded from coverage under the National Labor Relations Act (NLRA). Even the Obama administration brought new threats to academic freedom, as the Department of Education and college and university administrators applied overly broad definitions of hostile environment harassment, with the ironic result that Title IX allegations could be made against women faculty members based on their teaching and research in gender and sexuality studies.

Given these pre-Trump threats to academic freedom, the changes under the Trump administration in some ways could be described as a continuation of existing trends. Yet, that is clearly not the case. Rather, the scope and depth of the attacks launched by the Trump administration represent a qualitatively new threat to social, economic, and political institutions in the United States. The administration has expanded and deepened the assault on labor and unions through its appointments in all branches of government, including National Labor Relations Board (NLRB) appointments of attorneys from antiunion law firms. The appointment to the Supreme Court of Neil Gorsuch created a solid conservative majority, as evidenced by its decisions in Trump v. Hawaii, which upheld the anti-Muslim travel ban, and Janus v. AFSCME, which completed the work left undone in Friedrichs. The appointment of Brett Kavanaugh moves the court even farther to the political right, raising the likelihood that additional decisions will further restrict labor rights and undermine equal protection on the basis of gender and race.

While the Trump administration has imposed qualitatively different changes, it is still important to recognize what is not new, as a historical matter. The administration’s policies express a deep level of hatred toward the same groups and on the same issues as in other dark periods of history when right-wing forces have come to power. As in other periods, the current administration has declared war against a trilogy of progressive forces: intellectuals and critical thinkers, labor unions, and social movements for equality. These progressive forces stand for values and principles that are in direct opposition to Donald Trump’s political, social, and economic agenda. Each of these progressive forces is also well-represented in colleges and universities. Thus, the Trump administration’s attack on these progressive forces also explains the current threats to higher education.

Attacks on Intellectuals

Intellectual exploration, independent thinking, and dissent are anathema to the Trump political agenda, which is based on ideological beliefs that deny empirical scientific evidence and seek to turn back the clock on social reform. Climate-science denial, narrow definitions of sex and gender on the basis of essentialist notions of biology, and assertions about the dangers posed by immigrants are only a few of the ideological positions that drive the administration’s executive orders, legislation, and federal agency actions. Such actions place the Trump administration in opposition to institutions of higher education, where teaching and research have led to scientific advances and expanded our understanding of social and economic relations. At the heart of the academic profession is independent and critical thinking—in other words, academic freedom, which enables faculty to test new ideas, question the status quo, and expand the scope of the curriculum. Contrary to the stereotype that they work in an “ivory tower,” faculty engage with contemporary issues through teaching and research on diverse subjects such as climate science; critical gender, race, and ethnic studies; labor studies; economics; constitutional law; journalism; history; and moral philosophy. Equally important, academic freedom extends to faculty members’ speech outside their disciplines, whether through public speech or participation in institutional governance.

Academic freedom gives faculty the power to influence generations of students by presenting them with a multiplicity of perspectives on political, social, economic, and scientific issues. Faculty research provides students, colleagues, and the public with data and analysis to expand knowledge and understanding of issues across the humanities, natural sciences, and social sciences. Academic freedom protects the public or “extramural” speech of faculty within or outside their disciplinary areas, including dissent against the existence of injustice, inequality, and abuses of power. The Trump administration and its allies feel threatened by academics who voice dissent against the administration’s dismantling of government programs from the New Deal and the War on Poverty; against the administration’s attacks on science; against the administration’s xenophobia; and against the administration’s racist, misogynistic, and homophobic policies in the United States and abroad.

At this difficult historical moment, AAUP standards of academic freedom are more important than ever. The 1915 Declaration of Principles on Academic Freedom and Academic Tenure broadly defines academic freedom in teaching, research, and extramural speech, to be protected through the strong job security of tenure. These principles are reinforced in the 1940 Statement on Academic Freedom and Tenure, with subsequent derivative AAUP policies describing the “inextricable link” between academic freedom and shared governance. In the current period of corporatization of higher education, college and university administrations have sought to wrest power from the faculty by undermining the tenure system, expanding the ranks of administrators, and weakening shared governance. Despite these structural shifts, faculty have continued to exercise their academic freedom, although they do so in the face of internal and external obstacles. Faculty in gender and critical race studies face severe program cuts; climate scientists in public universities face overly broad public records requests by climate-denier organizations; scientists and engineers face pressure to engage in research that can be commercialized through patents and licenses to industry.

The Trump administration’s ascendancy, accomplished through a campaign based on racism, sexism, and xenophobia, has created new and heightened external threats to faculty who exercise their academic freedom in teaching, research, and extramural speech. Further, the weakening of tenure, the dramatic growth of contingent faculty ranks, and the expanded power of college and university administrations have made the faculty more vulnerable to retaliation for engaging in controversial speech. Since the 2016 presidential election, there has been a sharp increase in virulent targeted online harassment of faculty who criticize social inequalities and Trump administration policies. There has also been a pattern of punitive actions by colleges and universities against faculty for their extramural speech that deals with racial inequalities, particularly where the speech uses satire or irony to draw attention to systemic racism. Through its campaign against targeted harassment, the AAUP has defended faculty from such efforts to silence dissent and chill academic freedom.

Attacks on the Labor Movement

The academic profession gained rights to academic freedom, tenure, and shared governance through collective action. The AAUP was founded in 1915 as a collective demand for the job security of tenure at a time when wealthy industrialists were pressuring administrators to dismiss faculty engaged in research and extramural speech related to social reform. While this early organizing by faculty did not take the form of unionization, it fulfilled the same function by making collective demands for favorable working conditions. In the 104 years since the AAUP’s founding, collective action through shared governance has been essential to the protection of individual faculty rights of academic freedom, tenure, and due process. Since the 1960s, faculty have expanded their collective action to include unionization and collective bargaining, particularly in public universities covered by state collective bargaining laws for public employees. With formal collective bargaining in universities, the academic profession has become part of the broader labor movement.

Private colleges and universities have for decades sought to undermine the ability of faculty to unionize under the NLRA. In 1980, coinciding with the start of the Reagan era, the US Supreme Court held in NLRB v. Yeshiva University that faculty collective autonomy through shared governance made most tenure-track and tenured faculty at private universities “managerial” employees excluded from rights to unionize under the NLRA. More recently, under the Obama administration, the NLRB made important progress by interpreting Yeshiva in the context of corporatization trends that have weakened faculty power in universities. In 2014, in Pacific Lutheran University, the NLRB held that college and university administrations asserting faculty managerial status must prove that faculty exercise actual, not mere paper, authority over policies central to the operation of the institution. In Columbia University, the NLRB, under the Obama administration, held that graduate teaching and research assistants who are paid for their labor are employees with rights to unionize under the NLRA.

The new ultraconservative Trump appointees to the NLRB will seek to roll back this progress as soon as they are presented with a case raising issues of faculty or graduate student employee status. The likelihood of such changes is part of the longer-term and ongoing attack on the labor movement launched by the Reagan administration’s actions to crush the Professional Air Traffic Controllers Organization, the union leading the strike by federal air traffic controllers in 1981. Yet, while right-wing campaigns against the labor movement began long before the 2016 election, the Trump administration has encouraged political efforts to undermine unionization. The Supreme Court’s decision in Janus v. AFSCME, in June 2018, was made inevitable by Donald Trump’s nomination of Neil Gorsuch to the Supreme Court. Janus was the culmination of well-funded campaigns by right-wing organizations such as the Right to Work Foundation and the State Policy Network, which described its intent to use the Janus decision “to deliver a mortal blow” to public-sector unions. This judicial victory by antiunion forces worked in tandem with expansion of “right-to-work” laws and legislation weakening state public-sector collective bargaining. The 2011 Wisconsin “Budget Repair Bill” eviscerated public-sector rights to unionize, including through the elimination of collective bargaining rights for University of Wisconsin system employees. In Ohio, the legislature passed a draconian law in 2011 that eliminated collective bargaining rights for most college and university faculty. Fortunately, political protests and activism in Ohio were successful, and the statute was repealed in a statewide referendum.

Attacks on Social Movements for Equality

The third prong of attacks that directly affect higher education is the Trump administration’s hostility toward social movements for equality. From the start of his presidential campaign and throughout his presidency, Trump has displayed a broad and deep level of animus toward Muslims, Latinos, immigrants, women, and people of color. The administration’s policies reflect this animus, beginning almost immediately after Trump’s inauguration with the executive order imposing a broad ban on entry into the United States from certain Muslim-majority countries. Two similar substitute executive orders followed the original travel ban. The AAUP joined the American Council of Education’s amicus briefs supporting the legal challenges to all three travel bans. These amicus briefs describe the negative impact of the travel bans on the ability of colleges and universities to create strong and positive international relationships among faculty, students, and other visitors to campus. Academic freedom cannot flourish without a free and open exchange among faculty colleagues nationally and internationally. The value of communalism that underlies academic freedom is the same value that underlies crossing borders intellectually.

With a five-member majority of the US Supreme Court at its service, in June 2018 the Trump administration prevailed against the constitutional challenges to its travel ban targeting citizens of eight countries, most of which are predominantly Muslim. In Trump v. Hawaii, the court deferred to the Trump administration’s asserted national-security justifications and held that the travel ban is fully consistent with federal immigration law and the Establishment Clause of the US Constitution. Justice Sonia Sotomayor, in dissent, correctly accused the court of having “blindly” endorsed “a discriminatory policy motivated by animosity toward a disfavored group,” which “now masquerades behind a facade of national-security concerns.”

In response to the Trump administration’s aggressive immigration-related enforcement actions, including the president’s announced intention to end the Deferred Action for Childhood Arrivals (DACA) program, a sanctuary movement has spread nationwide to multiple states and localities and to college and university campuses. In retaliation, Trump issued an executive order withholding federal funds from cities and counties that have declared themselves sanctuaries or that refuse to assist the federal government in enforcing immigration law. In August 2018, the federal Ninth Circuit Court of Appeals held that the executive order unconstitutionally exceeds executive-branch authority in refusing to disburse federal funds without congressional approval. The AAUP joined an amicus brief opposing the executive order, explaining the harm that would be done to colleges and universities if the Trump administration were to extend the executive order to sanctuary campuses. Like the travel ban, the threat to withhold federal funds from sanctuary campuses would undermine the ability of colleges and universities to carry out their public mission and fulfill their interests in developing a diverse student body.

At the campus level, critical race, gender, and ethnic studies programs play an essential role in education and research about existing inequalities and the potential for social change. The Trump administration’s attacks on immigrant rights and freedom of travel are also an attack on academic programs intertwined with these issues. The onslaught of the administration’s attacks on social movements for equal rights has created new obstacles for faculty and students seeking to exercise their academic freedom to teach about, research, and study issues of social, political, and economic equality.

Fighting Back

How should the academic profession fight back against the Trump administration’s three-pronged attack on intellectuals, organized labor, and social movements for equality? Faculty must defend academic freedom, the public mission of higher education, and the academic profession. But how can we be on the offense, not only on the defense?

This fight takes place on multiple fronts. In the legal realm, even as the US Supreme Court has become dominated by a conservative majority, it is still essential to recognize the importance of our victories in the litigation process. It has been inspiring to see lower federal courts use their authority to stand up to the Trump administration and make explicit findings regarding the racially discriminatory motivation for Trump’s travel ban. These lower federal courts have continued to place a check on Trump’s attempted use of executive power to withhold federal funding as a retaliatory action against the sanctuary movement.

Even where the Supreme Court overturns lower-court victories, a resistance movement can build on the judicial decisions that respect the legal and moral imperative of equal rights. Faculty can teach about these issues. Students are hungry for these discussions. Moreover, even if litigation is not successful, the fight is part of important organizing work. The labor movement’s campaigns during the Janus litigation entailed organizing in multiple ways, including through amicus briefs by unions, professional organizations, academics, and public employers. The litigation also spurred internal organizing to increase union membership in existing bargaining units. High levels of union membership mean that more employees in the bargaining unit are paying union dues regardless of the existence of fair-share provisions. Most important, high membership levels strengthen the ability of unions to accomplish goals that serve the interests of labor. This includes faculty union goals to protect academic freedom, job security, and academic due process.

Faculty and university administrators have found common interests in opposing some of the external threats posed by the Trump administration. For example, they have worked together to resist the Trump administration’s threats to the DACA program by providing university support to undocumented students and by refusing to provide university assistance to federal immigration authorities. Where possible, faculty unions and campus governance bodies should join with university administrations to fight against such political attacks on higher education.

At the same time, faculty must not lose sight of the reality of power relations in colleges and universities and ongoing conflicts of interest between faculty and administrators. The corporatization of the university continues, with structural changes that increase the top-down hierarchical power of university administrators at the cost of individual and collective rights of faculty academic freedom and governance. Administrations continue to respond with hostility to collective bargaining in public universities and to attempts by private university faculty and graduate employees to unionize. In that context, administrations may welcome the recent rightward shifts in the NLRB.

In the face of multidirectional attacks, the resistance must take place at all levels—local, national, and international. How can we avoid being discouraged and fatigued by the current battles and the struggles that lie ahead? One way is to inspire one another in words and deeds. The recent strikes of public schoolteachers in Arizona, Colorado, Kentucky, Oklahoma, and West Virginia remind us of the courage of employees who unionize and strike even where they have no statutory rights to engage in collective bargaining. Joe Hill’s famous words from 1915 still ring true: “Don’t waste time in mourning. Organize!”    

Risa L. Lieberwitz is professor of labor and employment law in the Cornell University School of Industrial and Labor Relations and general counsel of the AAUP. Her email address is [email protected].