Copyright (c) 1997 First Things 38 (December 1993): 12-16.
Sometime in the late summer of 1988, when I was still teaching at Valparaiso University in Indiana, I received a phone call from the Washington headquarters of the American Association of University Professors (AAUP). The official there wondered if I would be willing to serve on an AAUP investigating committee looking into a charge of breach of academic freedom brought against Concordia Theological Seminary in Fort Wayne, Indiana. The AAUP official thought I would be an ideal person to serve on this particular case. Concordia Seminary is operated by the Lutheran Church-Missouri Synod (LCMS), and Valparaiso University, although free of any official institutional affiliation with the LCMS, has since 1925, when it was purchased by individual members of the church, considered itself a Lutheran university of Missouri Synod heritage. Moreover, I had just published an essay in the American Scholar, "Athens and Jerusalem in Indiana," in which I had written sympathetically—if by no means uncritically—of my experience as an undergraduate and later a faculty member at VU. The AAUP official, concerned that his organization was perceived by its critics as indifferent or unfriendly to religious sensibilities, thought that appointment of someone like me, a non-disaffected Lutheran, to a case involving a Lutheran institution would be evidence of the AAUP’s good faith and disinterested intentions.
My initial response was skeptical. I was not, in fact, as good an appointment for the AAUP’s purposes as it thought. During the early 1970s, the LCMS had torn itself apart in a series of doctrinal conflicts that pitted conservatives against moderates (no one in Missouri would admit to being a liberal), with particular emphasis on the question of interpretation of the Bible. The conservatives, who insisted on a literal reading of Scripture, won decisively in a series of political fights at LCMS conventions that eventually resulted in an exodus of moderates from the Synod. I had sided with the moderates—and had said so in print—and despite my increasing discontent with the post-seventies drift of the moderates toward general American Protestantism, I remained a critic of the conservatives. More particularly, I had been involved in controversies with the majority faculty faction at Concordia-Ft. Wayne, which had established itself as champion of conservative orthodoxy within the LCMS. It was unlikely, in other words, that most members of the faculty at Concordia would accept me as an objective arbiter.
But in the end I relented. The AAUP’s credibility did not particularly concern me one way or the other, but I did care about the larger issue at hand, and I concluded that I was in fact peculiarly situated—whatever the people at Concordia might think—to render a balanced judgment.
The case involved a Professor X, a tenured full professor, who had been dismissed by the Seminary for teaching false doctrine, specifically for contending, contrary to the official position of the LCMS, that there are no valid theological or biblical grounds forbidding the ordination of women as ministers. In addition to calling in the AAUP, Professor X had also sued the Seminary for breach of contract. The suit was eventually settled out of court, but the AAUP investigation went ahead, although the Seminary refused from the outset to cooperate, insisting that the case was a matter of church doctrine that did not concern the AAUP.
Upon investigation, the case turned out to be not as clear-cut on the issue of academic freedom for religious institutions as one might have hoped. There were, to begin with (as there so often are in such matters), questions of procedure. Professor X made a not unsubstantial case that the Seminary had proceeded against him in ways that violated its own and the Synod’s prescribed rules, not to mention the elaborate—bordering on Byzantine—procedures called for in these matters by the AAUP.
More significantly, it turned out that Professor X and the AAUP saw the case in quite different lights, as the final report of the investigating committee—published in the AAUP’s journal, Academe, May-June 1989—made clear (I had my name removed from the final report and in fact wrote a rather vehement dissent to it):
It is not within the purview of the investigating committee to pass judgment on the question of whether or not Professor [X] did in fact teach what the [LCMS] would consider to be false doctrine. Professor [X] himself does not claim an absolute right of academic freedom as a member of the theological seminary faculty and, indeed, appears to accept the premise that, had he taught false doctrine, he deserved to be dismissed. From his point of view, the principal issue may be whether or not he was teaching false doctrine. From the viewpoint of the [AAUP], however, the concern is that the administration and the board of regents, in dismissing him because he expressed certain views in the classroom and in his writing that are within his area of academic competence, acted in violation of his academic freedom. The investigating committee finds that Professor [X] was indeed dismissed for reasons violative of academic freedom as enunciated in the 1940 Statement of Principles [on Academic Freedom and Tenure] and generally accepted in American higher education.
Mention of the AAUP’s 1940 Statement draws us toward the center of the problem of the modern secular academy’s attitude—as represented authoritatively by the AAUP—toward academic freedom and church-related institutions. The history of that development is an illuminating, and thoroughly depressing, tale.
The 1940 Statement defines academic freedom for faculty members in three categories: (1) freedom "in research and in the publication of the results"; (2) freedom "in the classroom in discussing [the professor’s] subject"; and, (3) freedom "from institutional censorship and discipline" when professors "speak or write as citizens." There is, however, one apparently straightforward exception in the document to applications of that freedom, the so-called Limitations Clause: "Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of appointment." A commonsense reading of that clause would suggest that restrictions on academic freedom for religious reasons are legitimate as long as they are plainly specified when faculty are hired. It would not seem to be make sense, in other words, that a statement of rights of academic freedom specifying certain exceptions would suggest anything other than the legitimacy of those exceptions.
And so it was in practice for a long period after 1940. As late as 1965, for example, in a case involving Gonzaga University, a Jesuit institution, the AAUP’s committee on academic freedom and tenure, Committee A, ruled that "satisfactory conditions of academic freedom and tenure now prevail at Gonzaga," this despite restrictions on all faculty members to "be careful not to introduce into [their] teaching controversial matter which . . . is contrary to the specified aims of the institution" and despite reserving to the University the right to dismiss nontenured faculty for "inculcation of viewpoints which contradict explicit principles of Catholic faith and morals."*
Yet it became clear within a few years thereafter that the AAUP had developed second thoughts on the matter. In 1970, the Association adopted a statement of Interpretive Comments on the 1940 document that included this sentence: "Most church-related institutions no longer need or desire the departure from the principle of academic freedom implied in the 1940 Statement, and we do not endorse such a departure." Read at face value, that somewhat curious sentence would suggest nothing more than a statement of observation and encouragement, i.e., the AAUP observes that most church-related institutions no longer feel the need to take advantage of the Limitations Clause and it supports that development. Note, however, that something further is going on here: the AAUP not only supports the trend away from restrictions on academic freedom allowed by the Limitations Clause—it refuses to endorse institutions that continue to take advantage of that clause. In other words, the original legitimacy of the Limitations Clause has now been brought into question, though without the clear repudiation of that clause that such a development would seem to call for.
The process of implicit repudiation through reinterpretation continued in the report of a 1988 subcommittee of Committee A, the substance of which report defines current AAUP policy. The subcommittee concluded that the 1970 Interpretive Comments "repudiated not the Limitations Clause but the interpretation of an ‘acceptable’ or ‘indulgent’ limitation." It follows then that an institution "has no ‘right’ under the 1940 Statement simultaneously to invoke the Limitations Clause and to claim that it is an institution of learning to be classed with institutions that impose no such restrictions."
Observe the elaborate process of linguistic evasion at work here. One moves from an apparently dispassionate tautology—institutions of higher learning that invoke the Limitations Clause are different in classification from institutions that do not—to an evaluative judgment that repudiates invocation of the Limitations Clause (there can be no "acceptable" or "indulgent" limitation on academic freedom) even while the wording of the Limitations Clause remains intact. Thus institutions that take advantage of an explicit dispensation in an official AAUP statement are subject to disapproval and official censure for so doing. The process is nothing short of Orwellian. Religious institutions are informed that they have the continuing "right" to impose restrictions on academic freedom, but it turns out that this is a right that cannot legitimately be exercised: for an institution to avail itself of it is to remove itself from the ranks of true institutions of higher learning.
So it was with Concordia Seminary, which was added to the AAUP censure list in the case of Professor X. The LCMS "Statement of Limitations on Academic Freedom," which is included in the Concordia Faculty Handbook, could hardly be more clear or explicit: "Faculty members are pledged to the Scriptures as the inspired and inerrant Word of God and to the Lutheran Confessions . . . [and] are also expected to honor, to uphold, and to teach in accordance with synodically adopted doctrinal statements, which express the convictions of the fathers and brethren with whom all members of the Synod are united in their obedience to the Scriptures and Confessions." The Seminary invoked that limit on academic freedom with respect to Professor X (that it may have done so inaccurately is not here relevant). The AAUP report solemnly acknowledges "the right of Concordia Theological Seminary to set limitations . . . on what its faculty can write and say" but then immediately proclaims "that in so doing the Seminary separates itself from the community of higher education that holds academic freedom central to institutional integrity."
It bears emphasizing that, here as elsewhere, AAUP policy involves no mere exercise in neutral taxonomy, i.e., division of the academic world into institutions that restrict academic freedom and those that do not. As in the Concordia case, those institutions that do operate with restrictions are visited by the AAUP with intellectual ostracism and academic sanctions: they are officially censured and the rest of the academic community is in effect told that it should have no dealings with them unless and until they change their policies.
The AAUP policy comes down to this. It requires of theological seminaries (and all other institutions of religious higher education) an unfair and intolerable choice: legitimacy as institutions of higher education or sacrifice of their commitments to confessional loyalty. The Association has sufficient residual integrity that it is uneasy with what it has done, so it attempts to deny the contradictory bind it has imposed on religious institutions. Thus, for example, in the Concordia report it refers wishfully and vaguely to the "many theological seminaries [that] are able to define and administer their doctrinal requirements without infringing on essential elements of academic freedom" and, again, to the "many theological seminaries that have doctrinal requirements yet uphold essential elements of academic freedom." But wishing does not necessarily make things so. There will arise, in denominational seminaries of orthodox persuasion, those occasional hard cases in which the demands of academic freedom (as understood by the secular academy) come into conflict with requirements of confessional adherence. What then?
According to the standards established by the AAUP, to which it held Concordia Seminary, there can be but one acceptable outcome in such instances. Take an extreme, but entirely imaginable, example. According to the AAUP’s understanding of academic freedom, an orthodox Christian seminary would be required to allow a professor of systematic theology to teach his or her students, the future pastors in that seminary’s church body, that the doctrine of the Trinity is an absurdity or that Jesus was neither the Son of God nor risen from the dead. One wonders if even the AAUP, in all its serene secular assurance, can really mean this—that it is truly that objectively hostile to religious sensibilities and religious commitments.
The Concordia case, for all its paradigmatic significance, is not by itself a fully satisfactory referent for the issues involved in the problem of academic freedom and the religious university.
Start with the policy of the AAUP with respect to the interpretive history of the 1940 Statement. One can imagine that a great many secular academics committed to the substantive view of the AAUP—that there should be no religious restrictions on academic freedom—would nonetheless concede that the Association’s handling of the issue has constituted a bad faith exercise in semantic obfuscation that does violence to the meaning of words and to the reputation of the organization that allowed that exercise to proceed. A straightforward repudiation of the Limitations Clause would solve that problem, which, for all its current practical importance, is after all irrelevant to the central issue at hand.
There is also, not incidentally, the distinction between a theological seminary and a church-related university. Most people would concede it reasonable to extend a more expansive definition of academic freedom to a University of Notre Dame than to a Catholic seminary preparing men for the priesthood, or to a Valparaiso University than to a Concordia Seminary. But here, unlike the case with the treatment of the Limitations Clause, the problem cannot be solved neatly. Just how expansive should that more expansive definition of academic freedom be? Should it be infinite, or, if not, where should the line be drawn?
The first thing that needs to be said here is that wherever that line is properly drawn, the decision as to the drawing of it should be made by the religious institutions involved, and not by external groups such as the government, academic accrediting agencies, or secular representatives of the professoriate like the AAUP. Religious universities, we should remember, have academic freedom rights of their own. The Supreme Court, in a 1957 decision written by Felix Frankfurter, acknowledged "the four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." No professor, after all, is required to take a job at a religious university, and so long as the university lays out clearly in advance the restrictions it imposes, it should be free to interpret and apply rules of academic freedom according to its lights (which, to recall again, was the original position of the AAUP).
But to settle the question of right is not at all to solve the problem of prudence. Granted that religious universities have the right to limit academic freedom, the question remains: to what extent, if at all, should they do so?
The dilemma, for which no conclusive, one-size-fits-all solution can be offered, stems from the religious university’s dual nature as both a community of inquiry (Athens) and a community of conviction (Jerusalem). A university, qua university, is involved in an endless and unfettered pursuit of truth, a pursuit originating in skepticism toward received truths, whereas religion, at least Christian religion, must, if it is to be true to itself, in some sense simply claim to be the already revealed and unsurpassable truth. The community of conviction, of religious faith, speaks necessarily of orthodoxy and heresy (after all, no heresy, no orthodoxy), terms inadmissible in the community of inquiry—though the pathology of political correctness reminds us that even the most secular of academic institutions are not immune to the inquisitorial impulse.
This Athens/Jerusalem tension has, for a very long time now, tilted overwhelmingly in the direction of Athens. Richard Hofstadter noted some forty years ago that of all the themes in the history of American higher education, "the oldest and the longest sustained is the drift toward secularism." Scholars such as James T. Burtchaell and George M. Marsden have, in these pages, described in detail the process by which higher education in America—even at universities that began as church-related institutions—drifted more and more in the secularist direction indicated by Hofstadter. The general pattern, continuing into the present, has been from specific denominational affiliation to generic Christianity to generic religiosity to outright secularity.
The dominant pressures of the modern academy point in the same direction. Faculty members at academically ambitious religious universities, socialized by their graduate training, focus their energies more on research than on teaching. As they do so, they tend to focus less on the distinct religious preoccupations of their institutions, since those preoccupations are more likely to be relevant to the classroom than to the highly specialized and particularistic tasks of scholarship. Similarly, professionally ambitious academics direct their loyalties more to the disciplines in which they work than to the institutions at which they happen to do that work. Their loyalty is to the scholarly guild and its standards and norms rather than to the concerns of their academic residence. Thus, duly socialized modern academics are inclined to insist that in matters like hiring and retention of faculty nothing other than academic promise, as defined by the norms of the relevant disciplines, should come into play. Intrusion into those matters of questions concerning religious commitment or dedication to the particular purposes of the institution comes to seem at best parochial, at worst a betrayal of the academic calling.
All this and more makes it difficult for religious universities, especially those with academic pretensions, not to let their duties to Athens reduce to the vanishing point their loyalty to Jerusalem. The clear and present danger in church-related universities today is not that they will give over the academy to the religious obscurantists and yahoos, but that, in an incremental process so subtle and gradual as hardly to be noticed, they will give up the particular religious commitments for which they presumably exist.
The point is not that the Athens/Jerusalem tension should be resolved unequivocally in the direction of Jerusalem, but that it should be maintained, and that, so maintained, it will exist in a perpetual state of irresolvable and therefore unsettling uncertainty. For most of us, any university worthy of the name will remain a place where people are involved in deep and fundamental argument with each other. That is simply—and gloriously—the nature of the place. And few Christian institutions today will find normal difficulty in letting the university be what it naturally is. Most versions of Christianity, after all, do not pretend to offer all-inclusive answers to all philosophical dilemmas and questions; they do not presume to intellectual (or even moral) comprehensiveness. Most Christians—and I hope I am not simply revealing my Lutheran biases here—would remain skeptical not only of Christian physics or Christian chemistry but also of Christian economics, Christian history, or Christian political science. For most religious universities, in other words, most of their life and work most of the time will be carried on without questions of academic freedom ever arising.
Yet for almost any Christian confession worthy of the name, there remain certain fundamental issues of faith and morals, violation of which constitutes violation of the confession itself. When such issues and occasions arise, academic freedom cannot be in religious universities the trump it would be in secular institutions. And those of us who would argue for a carefully restricted demarking of those fundamental issues are nonetheless required to respect the right of other Christians to define them more expansively.
What should not be tolerated in the church-related university are those faculty members for whom religious questions are matters either of contempt and ridicule or dismissive unconcern. Religious universities justify themselves in the larger academic world by raising and contemplating questions that are not elsewhere engaged—an argument, one might say, for diversity, if that term were not so corrupted by current usage—and those who are not willing to engage such questions have no proper place there.
The hesitancy of most church-related universities to define academic freedom in terms relevant to their distinctive purposes stems from their thralldom to the reigning norms of the secular academy. And they are in thrall precisely to the degree that they aspire to respectability and prestige within the secular academic community. A Bob Jones University, after all, can maintain its radically sectarian independence because it does not care what the "respectable" academic community thinks of it. I would not for a moment suggest Bob Jones U. as a model for religious universities to follow, but I would encourage church-related institutions to keep in mind its unconcerned independence of spirit. Although I was of two minds at the time, I now fully agree with the president of Concordia Seminary, who, informed in 1988 of the AAUP’s concern with the Seminary’s policy on academic freedom, told the Association that its attitudes on the issue were entirely alien to the Seminary’s fundamental purposes, and that the Seminary’s internal affairs were, for that reason among others, none of the Association’s business.
Religious universities need, if they are to confront the issue of academic freedom with neither defensiveness, obduracy, nor fear, a recovery of nerve and will. To achieve that, they need to come to terms with the history of church-related universities in America, a history of largely self-imposed subservience. The moral of the story of the decline and fall of most religious universities in this country is clear: the road from religion to secularity that most of them followed was paved with massive institutional forgetfulness and disastrous good intentions. The movement from religious commitment to secularity was the result most often not of any secularist plot but rather of a fit of absence of mind, combined with a lusting after acceptance by the secularist academic establishment. Schools that had been born Christian, that had stayed Christian, that had assumed they would always remain Christian, suddenly awoke to find they were no longer Christian, or were so far down the road past Christian identity that it was too late to recover. The historical record shows that the critical steps down the slippery slope to secularity were almost always initiated by administrators and faculty members who did not intend secularity at all. They wanted to improve their institution’s academic standing, to move beyond sectarianism, parochialism, and church control in the direction of greater acceptance in the scholarly community. Almost all of the formerly Christian institutions that capitulated to secularity lost their religious identity incrementally and by inadvertence, not by one critical step or by conscious policy.
The question of academic freedom for religious universities needs to be understood in the light of this history. The response to that history should not be one of defensive protectiveness, but of a certain serenity of conviction. The fundamental issue for the preservation of religious distinctiveness in American higher education is whether, given the message of modernity, any such serenity is still intellectually available.
For those of us who believe that it is, who are persuaded that the secular enlightenment model does not exhaust authentic ways of knowing, the opportunities for religious universities to define their own norms of academic freedom may be seen not as negative requirements but as positive occasions for affirmation of their distinctive visions and purposes. The religious university, after all, sets its own rules of academic freedom not in order to restrict the pursuit of truth by those within its walls but to affirm those higher truths that determine its existence in the first place. In contradistinction to the secular academy, the religious university’s controlling norm is not radical individual autonomy. It is rather that suggested by C. S. Lewis. "I was not born to be free," Lewis said, "I was born to adore and to obey." It is in their freely assumed responsibilities to adore and to obey that religious communities, and the religious universities they establish, find their reasons for being. And it is in light of their reasons for being—and without regard to the arrogant intrusions of the secular academy—that religious universities should frame their policies on academic freedom.
*I was made aware of the Ganzaga case---and of the 1957 Supreme Court decision noted below---by Michael McConnell's "Academic Freedom in Religious Colleges and Universities," Law and Contemporary Problems, Vol. 53, No. 3, Summer 1990. Anyone interested in the subject of academic freedom and religious universities should consult McConnell's thoughtful essay.
James Nuechterlein is Editor of First Things.