Jim Geraghty (The Kerry Spot, at The National Review, quotes Newt Gingrich on Ward Churchill:
Ward Churchill is a viciously anti-American demagogue. He has every right to free speech, and I support his free speech . . . . We should give him free speech by not paying him.
You don’t need tenure in this country anyway. The idea that he would be oppressed without tenure is nonsense. There are 75 whacked-out foundations that would hire him for life. Dozens of Hollywood stars would hold fundraisers for him. His life will become a film by Michael Moore.
The question here, is “What obligation does society have to fund its own sickness?”
We ought to say to campuses, it’s over . . . . We should say to state legislatures, why are you making us pay for this? Boards of regents are artificial constructs of state law. Tenure is an artificial social construct. Tenure did not exist before the twentieth century, and we had free speech before then. You could introduce a bill that says, proof that you’re anti-American is grounds for dismissal. . . .
The Ward Churchill issue is not about tenure as such. The Supreme Court has held that even government employees, including ones who are untenured, have a right to free speech; and courts have applied this especially strictly to scholarship and speeches by public university professors (and professional standards have generally reinforced this rule and applied it to private universities). If you’re untenured, you may be fired for any reason except your exercise of your constitutionally protected free speech rights (and your race, sex, religion, and the like). And a law that says “proof that you’re anti-American is grounds for dismissal” would violate the First Amendment, as the Court has interpreted it for roughly half a century, just as a law that says “proof that you’re pro-life is grounds for dismissal” or “proof that you’re anti-affirmative-action is grounds for dismissal” would violate the First Amendment.
Tenure is an extra protection beyond that given by the First Amendment: It’s a contractual (or perhaps a statutory) guarantee that professors can’t be fired without good cause, which is interpreted quite narrowly. This means not just that a professor can’t be fired for his viewpoints, but also, generally speaking, that he can’t be fired if he’s a bad teacher (perhaps unless he’s an awful teacher), he can’t be fired if he produces virtually no scholarship, he can’t be fired if he’s unpleasant to be around, and so on.
Now tenure does in practice protect professors’ academic freedom. Under the First Amendment, a university can’t fire a professor because he expresses anti-American, pro-life, anti-war, or pro-biological-gender-differences views. But if the university is free to fire professors for other reasons, then it can come up with some pretext (we aren’t really firing this professor because he’s a Republican; it’s just that we think we can get someone more productive instead), and thus fairly easily get away with the First Amendment violation.
But even if tenure is abolished — and there are good arguments for it, since perhaps its costs (e.g., retention of some people who are bad teachers or unproductive scholars) exceed its benefits (e.g., protection of academic freedom) — the First Amendment academic freedom principles would still remain. Perhaps universities could try to push the envelope; public employers can sometimes fire employees because their public speech sufficiently alienates the public, and maybe universities could argue that university professors should be treated more like other government employees this way. But certainly, as I mentioned, a “proof that you’re anti-American is grounds for dismissal” law would be unconstitutional even in the absence of tenure.
Finally, if tenure is abolished, and universities cut down academic freedom protections to the minimum that the First Amendment demands (or the Supreme Court reverses its First Amendment protection for government employee speech), do we really think that only extreme anti-Americans will be fired? Or would it be likelier that the overwhelmingly left-wing faculties and administrations will fire lots of professors on the right — including people who express eminently legitimate views, just on topics that are unpopular with the left?
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