James Otteson teaches in the department of philosophy at the University of Alabama.
In a free society adults should be able to associate, establish institutions, and order their lives without interference, provided that in doing so they initiate no violence against others. That indeed is the definition of an open, peaceful society.
One thing in particular that adults are able to do in such a society is establish formal associations and groups. People who share certain views may want to ally themselves to promote and provide a safe haven for their views or just create a place in which like-minded people may gather. Most religious orders, for example, are of that nature: people sharing (some) common interests who establish an association in which they can pursue those interests together. Of course there is nothing wrong with people doing this—in fact, I would suggest that this habit of forming associations, which has been part of human nature for all of recorded history, is an essential element in leading a flourishing, happy life. People need associations and close ties to others to provide them the psychological well-being necessary for being happy.
But trouble can arise in this paradise. What happens, for example, when someone joins an established association and then decides to subvert it? Here we would seem to have a conflict of rights that free people enjoy. On the one hand, the people in the association have the right to maintain whatever kind of group they want; on the other hand, the new member, it would seem, also has the right to express himself as he sees fit. May the other members rightfully expel the newcomer—or does the newcomer have a right to stay and act according to his beliefs? It seems that we cannot have it both ways.
Notre Dame Case
This is precisely the situation in which many religiously oriented colleges and universities find themselves. They were founded and organized to conduct educational activities from within a specific religious framework. They have traditionally appointed presidents and trustees, hired faculty and staff, and admitted students on the basis of their commitment to or at least their tolerance for the school’s religious framework.
The University of Notre Dame, for example, has only had Catholic priests of the Holy Cross order as presidents, and it makes explicit its commitment to the Catholic tradition. But Notre Dame now finds itself in a difficult position. It recently hired a faculty member who, it turns out, is not only not a Catholic, but is a Marxist atheist and an open lesbian. To make matters worse for Notre Dame, she is public and militant about her beliefs and practices, and is quite candid about her intention to subvert, as she sees it, the sexist, patriarchal, homophobic tradition of the Catholic church generally and of Notre Dame in particular. And she has further put Notre Dame on notice that if it tries to get rid of her, it will be sued before it can say a Hail Mary.
What to do? Notre Dame asserts its right to maintain its Catholic character, which entails, presumably, the right to exclude people who are antithetical to that character. The professor asserts her right to academic freedom, which is guaranteed, she claims, not only by the First Amendment but also by moral principle.
The notion of academic freedom (free speech for professors) was developed and pressed by—who else?—academics who were looking for protection from political persecution. They argued that they should not be punished for the views they hold, even if those views are politically controversial. Moreover, the long-term health of our civilization requires the uninhibited exchange of ideas in the search for truth. Colleges and universities were conceived as safe houses in which even the most outrageous and subversive ideas could be tried and tested. If they were no good, the marketplace of ideas would eventually weed them out; but under no circumstances should ideas be forced out—or worse, not allowed to join the debate in the first place—because they were politically inexpedient or unfashionable. Ideas are just too important to suffer those kind of restrictions, and professors, whose main currency is ideas, therefore deserve special protection on campuses.
This seems to leave us at an impasse, a purported case of rights clashing: the university’s right to self-determination and the professor’s right to free speech. There is, however, a way out that simultaneously protects the rights—properly understood—of both parties. We can eat our cake and have it too.
Misconstruing the First Amendment
The constitutional argument that the renegade professor marshals in her defense does not hold water. The First Amendment says that “Congress shall make no law . . . abridging the freedom of speech. . . .” If Notre Dame fires the professor for her beliefs, how can that be construed as, or even be relevant to, the Congress’s making a law abridging speech? Even if we grant the substantial extension of the First Amendment’s scope allowed by various twentieth-century court decisions and the “incorporation” clause of the Fourteenth Amendment, it seems plain that the First Amendment does not address private entities. (The emphasis on “private” is crucial. If the entity in question is publicly funded, the picture changes dramatically—and to the extent that Notre Dame accepts governmental funding, its claim to private autonomy is commensurately weakened. ) It seems clear that the First Amendment does not even address this professor’s case, let alone provide her a protection. But let us not be content to argue about the constitutionality of Notre Dame’s proposed action—for in the words of the first Chief Justice of the Supreme Court, John Jay, “anything in the Constitution can be made to mean anything.”
Let us focus, then, on the moral issue involved. Would it be a violation of the professor’s rights to fire her? And would Notre Dame therefore be acting immorally if it did so? The answer to both questions is no.
Like everyone else, the professor has a right to express herself without restriction from others. But this right does not entail that someone else must listen: included in the right to freely associate is the right to choose not to associate with the professor and thus not to listen to her.
To go a step further, although each person has the right to speak freely, no one has a right to demand that someone else provide a forum, for that would violate the other person’s right to freely associate. Speech, after all, is merely an expression of belief; speech has been protected throughout the centuries in order to protect the sanctity of conscience. There is nothing special about words (or other sounds) in themselves that warrants protection. Likewise, the freedom to associate is a manifestation of private belief. Thus both the right to speak freely and the right to associate freely protect the right to believe what one wants to believe—and, by extension, to act peacefully on those beliefs.
An example will illustrate my point. Suppose you hire a painter to paint your living room and halfway through you notice that he has painted it all black enamel, though you had told him you wanted a light periwinkle. Suppose, then, you quite understandably fire the painter, at which point he claims that you had no right to fire him because that would abridge his freedom of artistic expression. You would undoubtedly inform him not to let the door hit him on the way out. He does indeed have a right to freedom of expression, but that does not mean he has the right to express himself in your living room. So your firing him does not infringe his rights; it merely asserts yours. It is your house, and you get to say what goes on in it. The painter may express himself elsewhere—in his own living room, perhaps.
The principle can be generalized to all private associations. Any group of adults may unite under any consensual conditions they please and they may include or exclude others as they see fit. Now there is an important restriction: if the group entered into a contract with a new member, it is bound to honor the contract even if the group later regrets the decision. But that has nothing to do with the right to free speech. (The standard pre-tenure university contract permits the dismissal of a professor at the end of an academic year.)
Reconciling the Notre Dame Dispute
The upshot is that Notre Dame can fire the subversive professor and respect her right to speak freely. By firing her it is acting entirely within its rights to associate freely. On the other hand, it has not interfered with her right to speak freely. She can continue her mission to subvert the Catholic church and to convince people that Christianity is a superstition. All Notre Dame would be saying is that it chooses not to provide her a forum. She can say what she wants, just not on Notre Dame’s nickel.
As a university professor myself, I can assure you this issue is of no little moment for me. I would love to have someone else guarantee a lifelong forum in which I could espouse whatever opinions I wanted. But I, like my colleagues, have no right to force others to provide me with such a forum. If that means that Marxist atheist lesbian professors cannot get jobs at Catholic universities, then I think that is the price we pay for living in a free society.
- For an excellent summary of court decisions and other important historical events regarding academic freedom and the scope of the First Amendment, see Alan C. Kors and Harvey A. Silverglate, The Shadow University: The Betrayal of Liberty on America’s Campuses (New York: Free Press, 1998), chapters 1–3.