An article on threats to academic freedom on college campuses in last week’s New York Times Magazine touched on a running debate between the American Association of University Professors (AAUP) and the Foundation for Individual Rights and Expression (FIRE). The former has long been the expositor of the meaning of academic freedom; the latter is active in litigating free-speech cases. The quarrel between the two organizations raises some hard questions about the AAUP’s current role.
From its founding in 1915, the AAUP has gained the respect of the academic community and of the judiciary in explicating the meaning and application of academic freedom and tenure. Its work has had a significant impact on both. Its credibility has been earned by the consistent adherence to principle uninfluenced by exogenous policies or organizational ends, and by the sheer quality of its work. The latter was captured a half century ago by Judge J. Skelly Wright, who noted the “thoroughness and scrupulous care” in the AAUP documents placed before the court.
Recent actions have departed from these standards — and radically. The AAUP, acting through its Committee A on Academic Freedom and Tenure, has, first, abandoned its prior position that systematic participation in the boycott of Israeli universities could threaten academic freedom and, second, declared that adherence to diversity, equity, and inclusion (DEI) dictates as a condition of faculty retention can be consistent with academic freedom. These actions reveal a body now driven by considerations other than fidelity to principle. As a result, the deep well of communal respect has been drained dry; the AAUP’s credibility has been destroyed.
Committee A’s engagement with the call to boycott Israeli universities proceeded in two phases: a declaration strongly in opposition followed 19 years later by an about-face.
The story begins in 2005, when the British Association of University Teachers (AUT) called on its members not to cooperate or collaborate with two Israeli universities. The resolutions drew international attention. In response, Committee A placed the matter on its agenda. Its staff was asked to prepare a draft statement based on established policy for the committee’s consideration. The two-paragraph draft, which the committee adopted, condemned the AUT’s resolutions and called for their repeal:
Since its founding in 1915, the AAUP has been committed to preserving and advancing the free exchange of ideas among academics and irrespective of governmental policies and however unpalatable those policies may be viewed. We reject proposals that curtail the freedom of teachers and researchers to engage in work with academic colleagues, and we reaffirm the paramount importance of the freest-possible international movement of scholars and ideas.
As the controversy continued, the committee responded by appointing a subcommittee to take a deeper dive. The subcommittee report, “On Academic Boycotts,” canvassed the issue in greater depth and in light of the texture of AAUP policy and experience. It set out a taxonomy of boycotts: “economic,” intended to injure the target financially; “symbolic and cultural,” intended to stigmatize the target, which might nevertheless have adverse consequences on third parties, on the earning capacity of writers and artists, for example; and “academic,” which strikes “directly at the free exchange of ideas.” Even though an academic boycott might call for noncooperation only at the institutional level, leaving individuals to their own devices, it “inevitably involves a refusal to engage in academic discourse with the teachers and researchers” housed in the targeted institutions.
The report’s conclusion was categorical: “We oppose academic boycotts,” albeit by institutions, not by individuals. The nature of what was opposed was further refined: Although academics are free to decide not to cooperate with foreign scholars or their institutions, when these individuals act collectively and the refusal “takes the form of a systematic academic boycott, it threatens the principle of free expression and communication on which we collectively depend.” That is, such group action could in effect come within the ambit of what Committee A opposed. However, the distinction between allowable individual and disallowed systematic group action was not further explained, nor the line between them explored. It should have been. In the event, that obvious lacuna was not addressed in the committee’s later action — even as the committee’s position was explicitly reversed.
There matters stood until the summer of 2024, when Committee A approved a statement that expressly “supersedes” the position adopted nearly two decades before. The new Statement on Academic Boycotts explained its raison d’être: The 2006 position was “controversial, contested, and used to compromise academic freedom. We therefore believe that this position deserves reconsideration and clarification.” Unfortunately, the reasons given for this reconsideration are threadbare, at best. The result is a tangle of inconsistencies and begged questions — without any reference to, let alone inquiry into, the role played by freedom of research and teaching on which the committee’s position rested a generation before.
The assertion that because the 2006 position has been “used to compromise academic freedom” it should be reconsidered could provide a valid reason for revision. But the report makes no mention of any instance, in press accounts or complaints brought to the staff, of any faculty member having been disciplined or threatened with discipline simply for advocating for a boycott. So “compromise” must mean something other than violation or abridgment, but the 2024 statement breathes no hint of what.
As we cannot find a guide to the meaning of “used to compromise” in the statement, we are compelled to look elsewhere. The chair of Committee A, Rana Jaleel, a professor at the University of California at Davis, essayed the notion earlier in “Teaching Palestine,” an article that appeared in a 2016 issue of the AAUP’s magazine Academe. We cannot know whether her thinking played a role in what the committee meant by “used to compromise,” but her essay is the only document we have that could shed light on it.
Jaleel pointed to state legislation prohibiting public universities from doing business with companies that observe the anti-Israel boycott or that require entities under legislative control — university pension funds — to divest in such businesses. These laws, in effect, boycott the boycotters. She called on the AAUP to “push back” against these and all other laws that, she says, “cast any critique or less than favorable academic assessment of the Israeli state as discriminatory.” She demands the pushback “in the name of academic freedom.”
The sense seems be that legislative directives of this sort, even if at a remove from campus life, have the capacity to create an on-campus atmosphere so inimical to those who favor the boycott as to chill or, to use the statement’s phrase, to “compromise” advocacy for it. In other words, what the AAUP said in 2006 has to be reconsidered because advocates for the boycott have been put at a forensic disadvantage.
This argument is logically flawed and empirically unsupported. By its logic, were the state to accede to the demands of the boycott, divestment, and sanctions movement and divest university investments in companies that do business in Israel, those faculty members who oppose the boycott and wish to say so would have had their own academic freedom “compromised.” The only way that would not be the case would be to maintain that advocacy for BDS is protected by academic freedom, but advocacy against it is not.
Nor is there any factual basis for the claim that such legislation has actually “been used to compromise” academic freedom in that chilling sense. Illinois law, for example, directs its public-university retirement system to decline to invest in companies that observe the anti-Israel boycott and to divest in those that do. Yet at the University of Illinois at Urbana-Champaign, the BDS movement shows no sign of abatement.
Nevertheless, on these sinking sands the statement proceeds to ground a syllogism. The major premise: Violations of fundamental human rights abound across the globe, denying the right to life, liberty, religion, and much else. The minor premise: When faculty deploy an academic boycott against institutions of higher education in these countries in order to end or ameliorate these abusive conditions, academic freedom is not infringed. The conclusion: Individual faculty members should be free to “make their own choices regarding their participation.”
The conclusion would seem to be in keeping with the 2006 report’s recognition of “the right of individual faculty or groups of academics not to cooperate with other individual faculty members or academic institutions with whom or with which they disagree.” The difference lies in the fact that the drafters in 2006 took up the necessary next question: If individuals or groups have a privilege to decline to cooperate with foreign institutions, may they do so “systematically,” as, say, an entire departmental faculty, even as they declare it to be a personal, not a departmental, action? If the institutional/individual distinction is to be maintained, that question cannot be avoided. The 2006 report addressed it plainly: “When such noncooperation takes the form of a systematic academic boycott, it threatens the principles of free expression and communication on which we collectively depend.”
The 2024 statement declines to address the 2006 treatment of the systematic boycott directly, but it does so by indirection, and emphatically:
Committee A therefore holds that individual faculty members and students should be free to weigh, assess, and debate the specific circumstances giving rise to calls for systematic academic boycotts and to make their own choices regarding their participation in them. [Emphases added.]
This choice is asserted to be a matter of academic freedom.
The 2024 statement then extends academic freedom to participation in a specific kind of boycott. Unlike the taxonomy of boycotts given in 2006, the 2024 statement would seem to distinguish a primary boycott, an infliction of economic or reputational cost imposed on an actor to sanction the actor’s wrongful action, from a secondary boycott, where a party that has done no wrong is made a target of financial or reputational harm because it has a relationship to the wrongfully behaving actor in order to pressure the nonactor to pressure the wrongdoer.
The 2024 statement first embraces the secondary boycott full-throatedly, and then retreats from it without a word explaining why. It starts out by reciting a litany of fundamental human-rights violations in global terms, and states that faculty can support a boycott to “advance the … fundamental rights of colleagues and students who are living … under circumstances that violate … one or more of those rights”; that is, faculty can engage in secondary boycotts of institutions housed in countries whose governments violate rights against arbitrary arrest, detention, etc., for no reason other than that the institutions are housed there and that these violations affect faculty and students. But in its concluding sentence, the 2024 statement would restrict academic freedom to participation in the primary boycott: “Academic boycotts should target only institutions of higher education that themselves violate academic freedom or the fundamental rights upon which academic freedom depends” (emphasis added).
The statement makes no effort to connect the two assertions. It says faculty should be free to boycott on their own account, which fairly implies they may support a primary or a secondary boycott, but especially the latter in light of the litany the statement recites of human-rights abuses that cannot be attributed to the targeted universities — arbitrary arrest and detention, for example. But it then says that academic freedom extends only to participation in a primary boycott. The way it reads, a professor has academic freedom to engage in a systematic primary boycott, but not a systematic secondary one.
A secondary boycott, if allowable, could rest on findings of human-rights violations by the Israeli government adequately documented by well-respected neutral bodies. The targeted universities need not be shown to have engaged in any wrongdoing. Not so the primary boycott. If Israeli universities are to be boycotted for their discrimination against Arab students and faculty — a matter much in controversy — the nature and extent of that wrongdoing should be found sufficient to justify the action. Unlike the process of an AAUP investigation wherein wrongdoing would be the subject of inquiry, the launching of a systematic primary boycott need not be founded on any process to assure the accuracy of the allegations, nor involve any opportunity for the targeted institution to defend itself. The issues of accuracy and fairness inherent in the primary boycott pass without Committee A’s notice.
Nor did the 2024 statement attempt to explain how academic freedom applies. The 2006 report stated the boycott “threatens the principles of free … communication,” i.e., of the liberty of academic collaboration which the AAUP’s core document — the 1940 Statement of Principles on Academic Freedom and Tenure — assured. The 2006 report objected to the systematic group boycott on the ground that, akin to a boycott by the university, a systematic group boycott threatens (or compromises) the capacity of colleagues to freely decide what academic collaborations were best suited to their research and teaching. The 2024 statement emphatically rejects that reasoning, without a word of explanation.
Then, there is the question of the AAUP’s position on so-called DEI statements. A number of universities have adopted policies governing faculty appointment, retention, and promotion geared to a sociopolitical end, i.e., to better achieve diversity, equity, and inclusion. Toward that end, at some institutions every candidate for reappointment, tenure, and promotion has to submit a statement explaining — and, for incumbent faculty, detailing — how, as one such policy puts it, the individual has “facilitated a diverse and equitable community in your teaching, mentoring, outreach, research, and/or service.”
To its advocates, the use of DEI statements is well within the prerogative of a university, especially when acting congruent with the sentiments of its faculty, to emphasize that aspect of its mission and to implement it in that way. To its critics, required DEI statements are parlously close to loyalty oaths, categorically inimical to academic freedom. As Ralph Fuchs, a former AAUP president, put it while the loyalty-oath controversy raged, even giving due allowance for the institution’s prerogative to chart its mission — “the essentiality of autonomy for academic institutions” — the “core of the matter” remains the “freedom of individual faculty against control of thought or utterance from either within or without” the institution.
Had Committee A taken up DEI in keeping with its customary process of policy consideration in such a weighty matter, it would have assembled the data on what these policies actually provided, how widespread they were, and how they were being administered; engaged with the arguments on the relationship of DEI to academic freedom in the literature and in the deliberations of faculties, including those that refused to use them; and provided a clear, dispassionate analysis of how DEI stacked up against the 1940 statement’s commitment to freedom of research, teaching, and political engagement. It did nothing of the kind. Instead, it launched an aggressive defense of DEI accompanied by a strident attack on its critics, in all of six paragraphs and three conclusory recommendations. Each bears brief synopsis before the substance of the statement is addressed.
The first paragraph recites the AAUP’s support for affirmative action, which includes the promotion of diversity not only in the composition of the faculty but also in the production of knowledge, of opening “entirely new vistas of inquiry that were not possible without it” (emphasis added).
The second paragraph folds DEI criteria into this “broader vision,” thereby allowing “DEI criteria in faculty evaluation,” including the use of statements that “require faculty members to address their skills, competence, and achievements regarding DEI in teaching, research, and service” (emphasis added). It notes an AAUP survey in 2022 indicating that 21.5 percent of four-year institutions have included DEI criteria in their tenure policies and that another 39 percent were considering it.
The third paragraph notes the objection to DEI on academic-freedom grounds. The response then reads in its entirety:
This committee rejects the notion that the use of DEI criteria for faculty evaluation is categorically incompatible with academic freedom. To the contrary, when implemented appropriately in accordance with sound standards of faculty governance, DEI criteria — including DEI statements — can be a valuable component in the efforts to recruit, hire, and retain a diverse faculty with a breadth of skills needed for excellence in teaching, research, and service.
The fourth paragraph goes on at length to explore the role of the faculty in setting and applying standards for faculty performance and evaluation. It argues that DEI is in keeping with that traditional role when the policy is faculty approved.
The fifth paragraph attacks critics of DEI who use “sweeping or abstract criticism” of it to misrepresent, “often deliberately,” what it really does, which, to repeat, is to ensure “teaching, research, and service that responds to the needs of a diverse global public” (emphasis added). Faculty members are free to voice dissent, but “when an appropriate larger group” — a faculty committee, one would assume — adopts an “educational policy” by which an individual’s performance is measured toward these ends, the policy must be adhered to.
The sixth paragraph pursues the critics of DEI with greater vehemence. Attacks on DEI have gone “hand in hand with partisan … efforts to restrict or ban” the teaching of some subjects. Moreover, “attacks on DEI have played an integral part in the partisan political playbook to turn back the clock on advances that have been made toward the goal of diversity in the faculty, student body, and areas of study.”
The statement concludes by recommending that faculty be involved at all stages in developing DEI policies and, critically, that “meaningful DEI faculty work should be evaluated as part of the core faculty duties of teaching, research, and professional service.”
Before addressing the statement’s rejection of DEI’s incompatibility with academic freedom, when “implemented appropriately,” the manner in which the statement sets the stage should be noted: It stresses widespread acceptance; it denigrates those who are of a contrary mind; and it places dispositive weight on faculty approval. Let us look at each.
The statement starts out by noting a staff report describing the broad extent to which DEI criteria in faculty hiring and promotion have been adopted, but it declines to note that the same staff report also found that over 39 percent of the institutions surveyed had decided not to consider such policies, nor that several months before Committee A issued its statement the Faculty of Arts and Sciences at Harvard University rescinded its DEI-statement policy, as did the Massachusetts Institute of Technology. The reasons for Harvard’s and MIT’s actions were never inquired into, let alone addressed.
The attack then impugns the motives of those critical of DEI, without naming or citing any of them. I myself am one such critic. I am also a former chair of Committee A. My analysis of the University of Illinois at Urbana-Champaign’s DEI policy in terms of academic freedom appeared the year before Committee A’s statement, but it was ignored. Shortly before Committee A acted, but in ample time for it to take into account what was said, David M. Rabban, a professor at the University of Texas School of Law and a former chair of Committee A and AAUP general counsel, published a comprehensive work on academic freedom and the First Amendment — Academic Freedom: From Professional Norm to First Amendment Right (Harvard University Press, 2024) — that provided just the sort of dispassionate assessment one would have expected of Committee A. Rabban concluded that, on balance, the opponents of DEI statements had the better of the argument. Rabban is not a partisan for the repression of teaching. Committee A took no note of his work.
The statement then makes key to its endorsement of DEI that the policy be faculty approved. For academic-freedom purposes, faculty approval is and should be irrelevant; the heavy reliance placed on it is fraught with mischief. As a matter of sound institutional governance, faculty are accorded a primary role in the development and adoption of educational policies bearing on instruction, research, and faculty status; a faculty is accordingly expected to understand and respect academic freedom. But faculties can and have failed in that regard. When one does, Committee A’s role is to correct the error. In the past, it did so.
It is worth noting that a number of faculty members subject to the anti-Communist loyalty oath supported it, and a larger number were indifferent. The AAUP did not consider the depth of faculty support for the loyalty oath to have any bearing on its consequences for academic freedom. The reason is that the abridgment of academic freedom is a matter of fact irrespective of the status or motive of those effecting or acquiescing in it. The way Committee A has cast it, a DEI policy identical in every word would or would not abridge academic freedom depending only on the ideological or political proclivities of a majority of a bare quorum of “an appropriate larger group.” Faculty liberties cannot be made to hang by so precarious a thread. It should be enough to say of the right to exercise academic freedom what the Supreme Court said of the right to exercise freedom of thought and speech: It depends on no majority; it hinges on the outcome of no vote.
Let us step back to take the statement as a whole. Committee A has endorsed a policy that allows professors to be put to a Hobson’s choice: either compromise their judgment in teaching or research, or engage in officially approved political and ideological expression and association. In public universities it is difficult to conceive that this could possibly withstand constitutional muster, nor can it be reconciled with the 1940 statement’s assurance of professional and personal liberty. Committee A flatly “rejects” that conclusion, but it does so without any engagement with the 1940 statement, the source of its authority; in fact, the 1940 statement makes no appearance in this document. Instead, the committee attributes its support to the “needs of a diverse global public” without a moment’s reflection on the fact that if academic freedom can be sacrificed on that altar, the door is opened to any authority vested with legal control of the institution to declare what those needs are and to condition faculty retention on fulfilling them.
It seems inevitable that sometime, somewhere, one or more instructors will not be reappointed for no reason other than the failure to satisfy a DEI requirement. It seems equally inevitable that at least one housed in a public university will contest the decision on constitutional grounds; and, in that event, that the AAUP will appear before the court as amicus curiae. In that case, it would be expected that the AAUP will address the court much along this line:
We appear before this court as the repository of a century’s thoughtful engagement with the meaning and significance of academic freedom, to bring our considered judgment, expressed in the Statement on Diversity, Equity, and Inclusion Criteria for Faculty Evaluation, to the court’s attention and to argue in support of it.
To which the only frank response a court could make is: “You are the successor in title, but no longer in principle, spirit, or scrupulous care.”
This essay is adapted from an article originally published in Telos Insights.