The Volokh Conspiracy - Abortion Art, Possible Hoaxes, and Academic Freedom:

The Yale Daily News reports:

The University will not allow Aliza Shvarts '08 to display her controversial senior art project at its scheduled opening Tuesday unless she confesses in writing that the exhibition is a work of fiction, Yale officials said Sunday.

The University, meanwhile, acknowledged that it has disciplined two faculty members for their role in allowing Shvarts to proceed with a project that she claimed included nine months of repeated artificial inseminations followed by self-induced miscarriages.

As news of Shvarts' project swept across the Web last week and attracted the ire of students and private citizens alike, Shvarts and the University engaged in a match of he-said/she-said: Shvarts stood by her project as she described it earlier last week in a news release, while the University -- claiming Shvarts had privately denied actually committing the acts in question -- dismissed it as a hoax that amounted to nothing more than "performance art." ...

"I am appalled," Yale College Dean Peter Salovey said in a statement Friday. "This piece of performance art as reported in the press bears no relation to what I consider appropriate for an undergraduate senior project."

School of Art Dean Robert Storr also condemned the project in a written statement Friday.

"If I had known about this, I would not have permitted it to go forward," Storr said in the statement. "This is not an acceptable project in a community where the consequences go beyond the individual who initiates the project and may even endanger that individual." ...

[Sunday], Salovey and Storr announced that an investigation had found "serious errors in judgement" on the part of two unnamed individuals -— ostensibly her thesis adviser, School of Art lecturer Pia Lindman, and School of Art Director of Undergraduate Studies Henk van Assen -- who had been involved in her project before it incited mass condemnation across campus and across the country and that "appropriate action" had been taken against them.

"In one case, the instructor responsible for the senior project should not have allowed it to go forward," Salovey said. "In the other, an adviser should have interceded and consulted others when first given information about the project." ...

In his statement Sunday night, Salovey called on Shvarts to produce a written confession admitting that her project did not actually include the graphic acts that she had first described. He added that Shvarts will not be allowed to install her project unless she admits she did not try to inseminate herself and induce miscarriages and promises that no human blood will be displayed in her exhibit....

In his statement, Storr emphasized that the University "has a profound commitment to freedom of expression" and that he, personally, supports the legality of abortion.

"That said, Yale does not encourage or condone projects that would involve unknown health risks to the student," Storr said. "Nor does it believe that open discourse and inquiry can exist in an educational and creative community when an individual exercises these rights but evades full intellectual accountability for the strong response he or she may provoke." ...

A few thoughts (keeping in mind that Yale is a private university, and the issue here is properly one of professional principles of academic freedom rather than of the First Amendment as such, though most of what I say would equally apply to public universities):

1. A university is surely entitled to impose content-neutral conditions on the projects that it will exhibit -- even if it has a practice of exhibiting all student projects -- as well as on the projects that are entitled to school credit. It may also impose many content-based conditions, since quality evaluations are generally based on content, but surely content-neutral conditions are generally quite apt. Obvious examples are conditions related to medium (this exhibition is paintings only, or to graduate you have to produce at least one painting and one sculpture), or materials used (you must produce this using oils and not watercolors).

With much modern art, the line between content-neutral and content-based restrictions is less obviously sound than it is with most speech, because the medium is quite literally an inherent part of the message. Nonetheless, it seems to me that tolerance of a wide range of content-neutral restrictions is required for pedagogical reasons (e.g., to teach people how to work in different media). Nor does the university have to defend such lines as a matter of academic freedom (as opposed to as a matter of sound judgment). Insisting, for instance, that everyone do at least one realist watercolor is a legitimate pedagogical decision on the university's part, though artists may or may not agree that this is a sensible requirement.

In particular, it seems to me that requirements that people not use human blood, or do things that jeopardize their health -- even slightly -- in the preparation of school projects are indeed permissible, whether as a means of protecting students' health, protecting others' health (even if the risk is very slight), or simply focusing the project on what is being depicted rather than on the medium being used. Such rules can be enforced both against students and advisors.

2. More broadly, one quite basic rule of universities is "tell the truth." Even without specific guidelines so saying, generally speaking students and faculty members need to be candid about the nature of their projects, whether it's the data they're reporting on or their own accounts of how the projects were put together.

Naturally, if a reasonable reader is aware that the statement is not meant literally, the author's duty of candor isn't violated: A short story submitted in writing class can't be faulted for being dishonest because it's fictional, so long as the reasonable reader knows that this is supposed to be a short story. The same is true of obvious parodies and the like.

Yet if the reasonable reader would interpret an assertion as being literally made, then the student (or a faculty member or anyone else in the university) has an obligation to make sure that the assertion is indeed true. Perhaps in some other contexts hoaxes might be forgivable -- but not in class work, unless there's some strong contextual cue that the hoax is indeed a hoax. So if Shvarts did indeed misdescribe what she did (the accounts I've seen are somewhat contradictory), she should be faulted for that, and at least required to correct the misdescription.

3. Yet it seems to me that, when it comes to the requirements described in #1, it's important that the university set out pretty clear rules, and not punish students or faculty members in the absence of such rules. This is especially true, I think, for art. As I understand it, avant-garde art and academic art, for better or worse, has in recent decades heavily prized the transgressive and shocking.

Shvarts and her advisors, it seems, gave the university pretty much what academic artists are asked to give. So if the university had a preexisting no-human-blood rule, then it could reasonably enforce it. But if it didn't, then I'm not sure what sort of "appropriate action" (setting aside a good talking-to) could reasonably be taken against faculty members who saw the transgressiveness of Shvarts' project as a plus rather than a minus. In other fields, it might be possible to fault faculty and students for violating unwritten but broadly accepted rules of scholarship. But my sense is that this is hard to assert (again, for better or worse) about modern academic art.

One question is whether this applies to #2 concerns as well, or whether the norm against false statements is scholarship is so well-understood that it need not be expressly stated (and perhaps it is expressly stated in some relevant policies). I'd be inclined to say that this is the sort of basic norm, alongside "don't commit crimes in making your project" or "don't do things that make your audience feel in danger of being shot," that goes without saying. A norm of "don't use your blood" or even "don't try to deliberately abort early-term fetuses for your art project" doesn't strike me as comparably well-entrenched in the academic art community.

* * *

There are a lot of "if"'s here -- I don't know exactly what the "appropriate action" was, I don't know exactly what the rules were, and I don't know to what extent Yale's action focused on the #1 concerns (rules about what's permitted generally for art projects) rather than #2 concerns (rules of academic candor). This is why I don't feel comfortable expressing a bottom-line judgment here, especially as to the matters is item #3. Still, I hope some of this general discussion strikes a chord.

Thanks to Dana Nguyen for the pointer.

	[Eugene Volokh, April 21, 2008 at 2:49pm] Trackbacks Abortion Art, Possible Hoaxes, and Academic Freedom: The Yale Daily News reports: The University will not allow Aliza Shvarts '08 to display her controversial senior art project at its scheduled opening Tuesday unless she confesses in writing that the exhibition is a work of fiction, Yale officials said Sunday. The University, meanwhile, acknowledged that it has disciplined two faculty members for their role in allowing Shvarts to proceed with a project that she claimed included nine months of repeated artificial inseminations followed by self-induced miscarriages. As news of Shvarts' project swept across the Web last week and attracted the ire of students and private citizens alike, Shvarts and the University engaged in a match of he-said/she-said: Shvarts stood by her project as she described it earlier last week in a news release, while the University -- claiming Shvarts had privately denied actually committing the acts in question -- dismissed it as a hoax that amounted to nothing more than "performance art." ... "I am appalled," Yale College Dean Peter Salovey said in a statement Friday. "This piece of performance art as reported in the press bears no relation to what I consider appropriate for an undergraduate senior project." School of Art Dean Robert Storr also condemned the project in a written statement Friday. "If I had known about this, I would not have permitted it to go forward," Storr said in the statement. "This is not an acceptable project in a community where the consequences go beyond the individual who initiates the project and may even endanger that individual." ... [Sunday], Salovey and Storr announced that an investigation had found "serious errors in judgement" on the part of two unnamed individuals -— ostensibly her thesis adviser, School of Art lecturer Pia Lindman, and School of Art Director of Undergraduate Studies Henk van Assen -- who had been involved in her project before it incited mass condemnation across campus and across the country and that "appropriate action" had been taken against them. "In one case, the instructor responsible for the senior project should not have allowed it to go forward," Salovey said. "In the other, an adviser should have interceded and consulted others when first given information about the project." ... In his statement Sunday night, Salovey called on Shvarts to produce a written confession admitting that her project did not actually include the graphic acts that she had first described. He added that Shvarts will not be allowed to install her project unless she admits she did not try to inseminate herself and induce miscarriages and promises that no human blood will be displayed in her exhibit.... In his statement, Storr emphasized that the University "has a profound commitment to freedom of expression" and that he, personally, supports the legality of abortion. "That said, Yale does not encourage or condone projects that would involve unknown health risks to the student," Storr said. "Nor does it believe that open discourse and inquiry can exist in an educational and creative community when an individual exercises these rights but evades full intellectual accountability for the strong response he or she may provoke." ... A few thoughts (keeping in mind that Yale is a private university, and the issue here is properly one of professional principles of academic freedom rather than of the First Amendment as such, though most of what I say would equally apply to public universities): 1. A university is surely entitled to impose content-neutral conditions on the projects that it will exhibit -- even if it has a practice of exhibiting all student projects -- as well as on the projects that are entitled to school credit. It may also impose many content-based conditions, since quality evaluations are generally based on content, but surely content-neutral conditions are generally quite apt. Obvious examples are conditions related to medium (this exhibition is paintings only, or to graduate you have to produce at least one painting and one sculpture), or materials used (you must produce this using oils and not watercolors). With much modern art, the line between content-neutral and content-based restrictions is less obviously sound than it is with most speech, because the medium is quite literally an inherent part of the message. Nonetheless, it seems to me that tolerance of a wide range of content-neutral restrictions is required for pedagogical reasons (e.g., to teach people how to work in different media). Nor does the university have to defend such lines as a matter of academic freedom (as opposed to as a matter of sound judgment). Insisting, for instance, that everyone do at least one realist watercolor is a legitimate pedagogical decision on the university's part, though artists may or may not agree that this is a sensible requirement. In particular, it seems to me that requirements that people not use human blood, or do things that jeopardize their health -- even slightly -- in the preparation of school projects are indeed permissible, whether as a means of protecting students' health, protecting others' health (even if the risk is very slight), or simply focusing the project on what is being depicted rather than on the medium being used. Such rules can be enforced both against students and advisors. 2. More broadly, one quite basic rule of universities is "tell the truth." Even without specific guidelines so saying, generally speaking students and faculty members need to be candid about the nature of their projects, whether it's the data they're reporting on or their own accounts of how the projects were put together. Naturally, if a reasonable reader is aware that the statement is not meant literally, the author's duty of candor isn't violated: A short story submitted in writing class can't be faulted for being dishonest because it's fictional, so long as the reasonable reader knows that this is supposed to be a short story. The same is true of obvious parodies and the like. Yet if the reasonable reader would interpret an assertion as being literally made, then the student (or a faculty member or anyone else in the university) has an obligation to make sure that the assertion is indeed true. Perhaps in some other contexts hoaxes might be forgivable -- but not in class work, unless there's some strong contextual cue that the hoax is indeed a hoax. So if Shvarts did indeed misdescribe what she did (the accounts I've seen are somewhat contradictory), she should be faulted for that, and at least required to correct the misdescription. 3. Yet it seems to me that, when it comes to the requirements described in #1, it's important that the university set out pretty clear rules, and not punish students or faculty members in the absence of such rules. This is especially true, I think, for art. As I understand it, avant-garde art and academic art, for better or worse, has in recent decades heavily prized the transgressive and shocking. Shvarts and her advisors, it seems, gave the university pretty much what academic artists are asked to give. So if the university had a preexisting no-human-blood rule, then it could reasonably enforce it. But if it didn't, then I'm not sure what sort of "appropriate action" (setting aside a good talking-to) could reasonably be taken against faculty members who saw the transgressiveness of Shvarts' project as a plus rather than a minus. In other fields, it might be possible to fault faculty and students for violating unwritten but broadly accepted rules of scholarship. But my sense is that this is hard to assert (again, for better or worse) about modern academic art. One question is whether this applies to #2 concerns as well, or whether the norm against false statements is scholarship is so well-understood that it need not be expressly stated (and perhaps it is expressly stated in some relevant policies). I'd be inclined to say that this is the sort of basic norm, alongside "don't commit crimes in making your project" or "don't do things that make your audience feel in danger of being shot," that goes without saying. A norm of "don't use your blood" or even "don't try to deliberately abort early-term fetuses for your art project" doesn't strike me as comparably well-entrenched in the academic art community. * * * There are a lot of "if"'s here -- I don't know exactly what the "appropriate action" was, I don't know exactly what the rules were, and I don't know to what extent Yale's action focused on the #1 concerns (rules about what's permitted generally for art projects) rather than #2 concerns (rules of academic candor). This is why I don't feel comfortable expressing a bottom-line judgment here, especially as to the matters is item #3. Still, I hope some of this general discussion strikes a chord. Thanks to Dana Nguyen for the pointer.