The Constitution of Academic Liberty
It's not easy to found a new university, as Thomas Jefferson discovered — though it is easier than founding a new republic. The two enterprises have certain things in common. In particular, success depends on constitutional design.
There would be no point in founding a new university if there were not something rotten in the state of contemporary American academia. Some of us have known this for years. But events arising from the October 7 terrorist attacks on Israel revealed the extent of the rottenness to many alumni and donors who had not been paying close attention.
There is no need to rehearse here the symptoms of the disease, which has been spreading for the better part of a decade: the dis-invitation campaigns; the cancellations of dissident voices; the denunciations of heterodox scholars; the violations of academic freedom by an unholy combination of "woke" students, progressive faculty, and inquisitor-administrators. The question is how to inoculate a university against it.
Two years ago, a group of like-minded friends and I set out to establish a new university in Austin, Texas. Since our initial announcement of the University of Austin in November 2021, I have often been asked: "How will you prevent your university from being 'captured' like all the others?" Yet our challenge is even more daunting: It is to build an institution that is not only insulated from the problems of the present, but also fortified against the (as yet unknown) problems of the future.
Nearly all universities are launched with lofty aspirations, the University of Austin included. Some dozen educational institutions around the world have adopted Sapere Aude (Dare to Know) as their motto — including the Moscow Institute of Physics and Technology, which was established under Joseph Stalin. At the same time, modern universities have demonstrated considerable variety in institutional structure. And yet, despite these founding ambitions and diverse designs, a striking convergence in campus cultures has taken place in recent years. To fulfill our goal of establishing a university "devoted to the unfettered pursuit of truth," we must understand the reasons for this convergence.
As the founders of our republic well understood, upholding freedom requires more than mere declarations of good intent; effective safeguards and remedies must also be embedded within a governing structure. That is why I spent many months drafting a constitution for the University of Austin. My hope is that this constitution will form a more perfect university — one that models the principles and practice not of ideological conformity, but of unfettered inquiry and free intellectual exchange.
THE AMERICAN UNIVERSITY
The modern university in the United States is a hybrid institution, as Americas Quarterly's Nick Burns has observed. "[M]any of its formal structures," he notes,
from the division into faculties to the lecture, date from the thirteenth century....[T]he university took shape gradually as a corporation of scholars based on the model of the cathedral school and the monastery, with special privileges granted by secular or ecclesiastical authority....Medieval university students paid fees to matriculate or received assistance from public or private sources. Study was divided into faculties...with teaching staff assigned to each. The lecture was the primary means for the transmission of knowledge....[The medieval university had] effective juridical autonomy.
It was perhaps inevitable that the earliest universities established in Britain's North American colonies would look to Oxford and Cambridge for their inspiration, though the ancient Scottish universities were also available as models. The 19th-century revolution in German academia had its impact on the United States, too. Daniel Coit Gilman imported the German model of a "research university" to Johns Hopkins. Charles William Eliot Germanized Harvard. On top of these influences, American universities were from an early stage more willing than their models in either Britain or Germany to blur the distinction (so clear to John Stuart Mill in the 1860s) between "general education" and "professional knowledge." (Mill would be appalled by the power wielded at Harvard or Stanford today by law, medical, and business schools.)
European institutions metamorphosed on American soil. If senior professors in Europe enjoyed what Burns called "a medieval-style privilege, granting separate status and special protections to an individual," tenure in the United States (as codified in the American Association of University Professors' 1940 "Statement of Principles on Academic Freedom and Tenure") was intended to protect academics' rights to free speech and free association. At Oxford and Cambridge, the high, impenetrable walls of the colleges — so frustrating to Thomas Hardy's Jude Fawley — created sequestered groves. In the American context, the walled college has recently evolved into "a totalizing community" (to use Burns's words), made all the more intrusive in its surveillance by the opportunities for social control created by the Covid-19 pandemic.
William Kirby's book Empire of Ideas argues that the German model was significantly improved when it crossed the Atlantic. "The modern American research university," he wrote, was "built upon a foundation of three diverse elements: an undergraduate liberal arts education in the tradition of the colonial colleges; participatory research evolved from the German tradition of the nineteenth century; and twentieth century engagement with government, industry, and private philanthropy." But there is more to it than that.
The defining feature of the American university is that its governance structure more closely resembles that of a public for-profit corporation than is true of a British or a German one. It has a board of directors (board of trustees), a chief executive (university president), a management team (the provost and deans), and various stakeholders, of whom the most important are stockholders (donor alumni) and the key employees (star professors).
Typically, a university board of trustees serves as the legal representative of the institution. Trustees, who are often alumni of the university, are expected to bring their administrative and financial experience to bear in supporting (and monitoring) the work of the university president, whom they are also responsible for selecting. University presidents sit atop the academic leadership team, which usually consists of a provost and a series of deans focused on various areas of academic and campus life. As Derek Bok noted in Higher Education in America, since administrative and fundraising duties increasingly dominate the time of university presidents, they "tend to delegate most of the responsibility over academic affairs to provosts and deans." "[A]s a practical matter," Bok adds, "ultimate power resides with those who are most difficult to replace." At elite research universities, which compete fiercely to gain and retain top professors, the faculty, when united, can prove extraordinarily powerful.
The two key differences between the university and a public for-profit corporation are that the former has no single "bottom line," meaning standards of presidential performance are more difficult to establish, and, unlike key employees at a corporation, tenured professors can be discharged only in exceptional circumstances. For this reason, the typical university president can be said to operate with one hand tied behind his back.
To understand the defects of this model, it helps to study the history of the most venerable of American universities, not least because any new university would surely wish to emulate their longevity and success — and seek to avoid at all costs becoming what they are today.
DECENTRALIZED GOVERNANCE
Any newcomer to Harvard hears repeatedly that the university's great strength — and simultaneously, its great weakness — is that it is (to quote William Kirby, a former dean of the Harvard Faculty of Arts and Sciences, or FAS) "(in)famously decentralized, with a large amount of money and power resting in the deans of its twelve schools, while relatively little is retained by the central administration." Decentralization is by and large a desirable feature in liberal institutions, so it is important to understand why Harvard's decentralization is widely seen as a source of difficulty, and how far that assessment is warranted.
From its earliest years, Harvard's governance diverged radically from that of Cambridge — Harvard's parent institution in terms of both inspiration and personnel. Harvard's laws and statutes were first compiled in 1642, prescribing appropriate conduct and detailing the requirements for students. With professors in short supply, a board of overseers was made a permanent institution in 1642 to run the college until there were sufficient resident faculty. When the college was formally chartered in 1650, ownership and executive power were vested in the president and fellows of Harvard College, also known as "the Corporation."
Initially, the Corporation comprised seven members: the president, the treasurer, and five fellows, the latter of whom were initially teaching staff but later included members of the surrounding communities. This arrangement differed radically from the one that prevailed at Cambridge (as well as Oxford), where fellows were numerous and associated with colleges that provided instruction as well as bed and board.
Harvard's charter was conceived by its author, Henry Dunster, as what Arseny Melnick described as "a system of checks and balances." Harvard's president is its chief executive, with the leading role in planning and strategy, appointing faculty deans, and granting tenure. Though he has a great deal of power on paper, the president faces a major struggle to exert control over Harvard's schools and other institutions — aptly characterized by the Boston Globe as a "confederation of semi-independent baronies." Of these institutions, the most powerful is FAS, which is capable of playing a parliamentary role. There is no judicial branch.
Since the presidency of Neil Rudenstine in the 1990s, Harvard presidents have delegated the more academic aspects of administration to the provost, who is the university's chief academic officer. Students are represented by the Harvard Undergraduate Association, which has an executive team led by the co-presidents who meet on a regular basis with the president, the dean of Harvard College (in essence, the undergraduate program), and the dean of FAS. Since the mid-20th century, undergraduates have lived in residential houses, which have some tutorial functions and faculty leadership but lack the autonomy of the Oxbridge colleges. The real power at Harvard rests with the "barons" — the deans of the wealthy professional schools of medicine, law, and business.
Whereas the German research university succumbed to excessive democratization after 1968, that was certainly not the case at Harvard (despite the efforts of militant students in the late 1960s and early 1970s). Credit is due here to Henry Rosovsky, who served as acting president in 1984 and 1987 and for many years was the dean of FAS. Rosovsky's "Seven Principles to Ensure Reliable Performance" within a university were in large measure a reaction to the era of student protest; their main theme was the need to limit student influence over governance. They read as follows:
1. Not everything is improved by making it more democratic.
2. There are basic differences between the rights of citizenship in a nation and the rights that are attained by joining a voluntary organization.
3. Rights and responsibilities in universities should reflect the length of commitment to the institution.
4. Those with knowledge are entitled to a greater say.
5. The quality of decisions is improved by consciously preventing conflict of interest.
6. University governance should improve the capacity for teaching and research.
7. To function well, a hierarchical system of governance requires [an] explicit mechanism of consultation and accountability.
Rosovsky envisioned a university where "professors [are] responsible to chairmen, most particularly when it comes to teaching responsibilities. Chairmen report to deans, who are appointed and if necessary discharged by provosts or presidents. And presidents report to boards of trustees."
Such a system not only resembles the configuration of a major public corporation; it has precisely the same vulnerabilities. First, there is "key man risk." The demands of Harvard's president are so great as to be potentially overwhelming. Rudenstine's ambitious efforts to increase cooperation and integration across Harvard's many "tubs," and his determination to be on top of every tenure decision, led ultimately to his collapse and leave of absence in 1994. Another overactive president, Lawrence Summers, intervened regularly in the work of the departments and schools. His fate was to be overthrown by FAS, where his critics were able to instrumentalize some undiplomatic comments he had made on women's underrepresentation in the sciences.
Summers's ouster was costly. The financial crisis of 2008-2009 struck two years after he had stepped down as president. Investment decisions by both the Harvard Management Company and the General Operating Account — over which Summers had exerted some influence — proved disastrous in the bank run that followed Lehman Brothers' failure. "Had Summers remained as president," Kirby argues, "my guess is that he would have known when to get the university out of those investments. But two years after he left, there were few who had the memory or expertise to understand the potential risks." Despite including some experienced financiers, the Corporation was "uninformed and inattentive." The new president was an American Civil War historian — far less familiar than Summers with the university's financial exposures. Having reached a value of $36.9 billion, the Harvard endowment lost $10 billion in a matter of weeks.
Summers's fall and the financial crisis led to a major review of Harvard's governance. The resulting reforms included a near doubling of the size of the Corporation to 12 members plus the president, and the creation of new subcommittees for finance, facilities planning, and governance. Yet in practice, the "tubs" remain the dominant institutions.
In Kirby's words, Harvard's modern success is due to "the deans and schools responsible for all the teaching and research, much of the fundraising, and nearly all the innovation to be found at Harvard." He points in particular to the work of "what one might call Harvard's Berufsbeamtentum, or permanent civil service" — "executive and associate deans of FAS, HBS, and other large schools," who oversee the university's complex of "research, physical facilities, labs, and concert halls."
Like many large for-profit corporations, Harvard is now a loose conglomerate of semi-autonomous, siloed entities with widely divergent financial resources and priorities, and whose technocratic leadership cadre finds it easier to appease than to resist radical proponents of "Diversity, Equity and Inclusion" as institutional priorities — a tendency exemplified by the recent appointment of Claudine Gay as the university's president.
The University of Austin is intended to be anything but a Texan replica of Harvard. But it is not difficult to see how defective institutional design might inadvertently produce that outcome. A too-powerful but inattentive board, a president more powerful on paper than in practice, too many near-autonomous professional schools, a self-important but practically weak board of overseers, an equally self-important and potentially too-powerful faculty, and a permanent civil service growing in both power and numbers — these are flaws of design it would be only too easy to reproduce (with sufficient billions, of course).
COMMUNITY SENTIMENT
There has been more than one attempt in American history to challenge the Ivy League colleges with a new institution committed to academic freedom and inspired by a sense that subpar education endangers the republic. Jefferson's aspirations for the University of Virginia (UVA), which he founded in 1819, were exactly that. "If a nation expects to be ignorant & free," Jefferson wrote, "it expects what never was & never will be."
Jefferson's hope for UVA was that it would "form the statesmen, legislators and judges, on whom public prosperity and individual happiness are so much to depend." It would be an "institution...based on the illimitable freedom of the human mind" — a place where "we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." We at the University of Austin have been saying the same thing (though perhaps less eloquently) for two years.
Like almost everyone who has ever set out to establish a university, Jefferson was motivated in part by dissatisfaction with his own alma mater, which in his case was William & Mary. (In part because of its close ties to the Episcopal Church, he came to refer to Williamsburg, the city in which William & Mary is situated, as "Devilsburg.") Jefferson intended UVA to be "the future bulwark of the human mind" in the Western hemisphere, modeled on the universities of Edinburgh and Geneva, which Jefferson — a true child of the Enlightenment — described as the "two eyes of Europe."
Like most founders, Jefferson also had an architectural vision for his university. His idea of an "academical village" — with each professor in a building that combined a classroom and living area, and five pavilions on each side of a central lawn — was inspired by a Parisian hospital. And, like most founders, Jefferson had a clear idea of what he wanted UVA students to learn. His would be a secular university, with no professor of divinity. Any religious sect would have the opportunity to build and fund its own school on the grounds of the university, "but always understanding that these schools shall be [independent] of the University and of each other." Students were expected to study the American founding, the Declaration, The Federalist, and Washington's farewell address, as well as more classical texts. However, there would also be a system of electives to ensure that there was Lernfreiheit.
But what of governance? Chronically indebted by his aristocratic lifestyle and complex personal life, Jefferson had no alternative but to seek funding for his project from the Virginia state legislature. Though an old man — he was 75 when UVA was formally chartered and 81 when it opened its doors to students — he tirelessly drove the project forward, riding to and from meetings at Rockfish Gap, where the key decisions on governance and location were made.
With James Madison and James Monroe — Jefferson's two successors as president — joining him on the board, UVA launched with maximum political star power. Jefferson himself agreed to serve as the inaugural rector. Yet problems soon arose.
The board believed that, with the right compensation (between $1,000 and $1,500 annually), it could recruit a solid initial faculty of eight professors. The most controversial hire was Thomas Cooper, an English-born lawyer and amateur chemist who, along with Joseph Priestley, had emigrated from England to the United States in 1794. Cooper was a political radical who had argued bitterly with Edmund Burke about the French Revolution and was convicted for libel for an attack on President John Adams.
Jefferson's offering Cooper the chair in natural science and law was never likely to sit well with Virginian legislators. Indeed, Jefferson's ally in the state senate, Joseph Cabell, warned that Cooper's appointment would "cause the entire overthrow of the institution." Jefferson was forced to rescind his appointment, grumbling that he was up against a "Holy Inquisition."
UVA officially opened on March 7, 1825. In the span of seven months, the number of students swelled from 40 to 116. But Jefferson was dissatisfied. He privately divided the class into three segments, with the lowest third dismissed as "idle ramblers, incapable of application." Later that year, a group of drunk students ran amok, throwing bottles of urine through the windows of their instructors' homes and chanting "down with European professors." One rioter beat a professor with a cane.
UVA nevertheless survived. To a remarkable extent, Jefferson's architectural vision was realized and has been preserved. But the early history of his university is a reminder of two major pitfalls that any new university in the South must contend with: that local sentiment may be less aligned with Lehrfreiheit and Lernfreiheit than the founders assume — and that unruly students can be as big a headache as those whose consciousness has been raised by political ideology.
IDEOLOGICAL TYRANNY
For an institution whose motto, Die Luft der Freiheit weht (the wind of freedom blows), encapsulates the romantic spirit of German academic freedom, Stanford University has scarcely exemplified that spirit in recent years. The university's former provost, John Etchemendy, has acknowledged that "academia has not been going in a good direction in terms of academic freedom." It seems reasonable to infer that he includes his own university in that assessment.
Like most other major private universities in the United States, Stanford has a board of trustees, a president, and a faculty "legislature." The board of trustees (which includes up to 38 members, who serve five-year terms with the possibility of only one renewal) determines the university's operation and policies, and includes committees on finance; students, alumni, and external affairs; development; land and buildings; audit, compliance and risk; and trusteeship. The board delegates to Stanford's president broad authority to operate the university. The provost serves as the chief academic and budget officer, administering the academic program and services that exist to support that program. Students are represented by the Associated Students of Stanford University (ASSU), the senate of which is composed of 15 elected student senators. Up to six representatives of the ASSU are allowed to attend and speak at senate meetings, but they do not get a vote.
As at Harvard, Stanford's various professional schools enjoy considerable autonomy. The academic council (to which all Stanford faculty belong) elects a senate — the system's "legislature" — as well as an advisory board, academic-council committees, and an academic-council professoriate. The advisory board, which is made up of one tenured professor from each of the university's seven schools, oversees recommendations for appointments and promotion, as well as for the creation or dissolution of departments. It also handles faculty disciplinary hearings — and in that sense is the nearest thing to a judiciary that Stanford possesses.
Donald Kennedy, who was Stanford's president in the 1980s, once said that the university president's role was to take "a position that goes quite against the consensus" by representing not only "the vision of the University as the community of the present," but also of "all possible futures," considering not "merely the rights of those who are there, but all of those who have not yet arrived." In practice, presidents of recent years have struggled to hold the ring between the wealthy Silicon Valley donors represented on the board of trustees, the more politically minded members of the academic council, and a constantly growing bureaucracy that seems more interested in enforcing contemporary progressive norms than in encouraging the development of young minds. An associate dean intervening to help student protesters disrupt a Federalist Society event; a series of "conversations" intended to model free speech that lasted barely a year before being ignominiously discontinued; and former president Marc Tessier-Lavigne's being forced to step down after the student newspaper published allegations of scientific misconduct, are just three examples of the dysfunction that has resulted.
Unsurprisingly, Stanford ranks abysmally in its protection of academic freedom: In the FIRE College Free Speech rankings for 2024, it placed 207th out of 248. Though ahead of Harvard (which came in dead last), it lagged far behind the University Chicago, which ranked a respectable 13th.
ACADEMIC FREEDOM?
Founded five years after Stanford, the University of Chicago evolved in a notably different direction. Like Stanford, Chicago was established with Gilded Age wealth — in the latter's case, millions of dollars of donations from oil baron John Rockefeller. And Chicago, too, grew rapidly, its student population overtaking the numbers at Harvard and Yale within a decade of its founding.
The success of Chicago owed much to the visionary leadership of its first president, William Rainey Harper, an eminent biblical scholar and classicist who had earned his Ph.D. at Yale and then taught there. A devout Baptist, he threw himself into the task with almost superhuman energy.
Harper proposed to create five divisions, of which three were entirely novel: In addition to the university and its libraries, he created an extension school, a university press, and affiliations with other educational institutions in the region. He proposed a calendar of four quarters, including a fully functioning summer quarter. Convocation (graduation) occurred at the end of every quarter. Harper paid top dollar to hire faculty with "then unheard-of" salaries of $7,000, which would be over $200,000 today, adjusted for inflation. By June 1892, 60 instructors had been appointed. By the time Harper was satisfied, he had doubled that number.
The first classes at the University of Chicago were held on October 1, 1892, exactly 15 months after Harper had started work as president. There were 594 students enrolled, of which 166 were graduate students. In rapid succession, Harper added a business school and a law school; the school of medicine he lobbied for was established only after his death.
Harper was a prodigy. He had attended college at the age of 10. He was 34 when he accepted Rockefeller's offer to lead the new university. While serving as president, he also performed the work of a professor in the Semitic department and continued to publish and edit. He took an interest in every aspect of the university, including its football team. He took almost no vacations. Tragically, he died of cancer in 1906 after less than 15 years as president.
In the early years of the university, the board of trustees met frequently — it had to, if it was to keep pace with Harper. From the outset, it included standing committees on buildings and grounds, finance and investment, and organization and faculties. In Martin Ryerson, the board's president, Harper had a sympathetic advisor and supporter. The pace of their combined fundraising was breathtaking.
As at Stanford, the key founding institutions of the university continue to this day. The board of trustees and the office of the president make up the executive branch. The board now includes nine standing committees: audit, executive, financial planning, institutional capacity, investment, medical-center executive committee, outward engagement, trusteeship and governance, and university advancement. The legislative branch consists of two bodies: the Council of the University Senate — the "supreme academic body of the university" — and the College Council, which is responsible for curricula, examinations, grading, and admission requirements.
The university's senate "consists of Professors, Associate Professors, and Assistant Professors who have completed one year's full-time service on academic appointment at whatever rank; the President; the Provost; and the Vice Presidents." Its council has 51 elected members chosen according to a system of proportional representation. Terms of service are three years, with 17 new council members elected in the spring. The president and provost serve as chairman and vice chairman of the council, respectively, though they are non-voting members. A committee of the council, which comprises seven members, exists to concern itself with "matters of educational policy within the jurisdiction of the Council."
As at Stanford, students are represented at Chicago through the undergraduate student government — which has its own college council and cabinet — and the student ombuds office. Additional governance structures include university-wide standing boards, committees, and councils, such as the Committee on Academic Fraud, the Disciplinary Committee on Disruptive Conduct, the Independent Review Committee for the University of Chicago Police Department, and the Panel on Unlawful Harassment.
What distinguishes Chicago from Stanford most clearly is the former's unequivocal commitment to academic freedom. As Stanford's principal source of funding in its early years, Jane Stanford regularly intervened in the life of the university that bore her name. The most controversial case involved the firing of Edward Alsworth Ross, an economist and sociologist whose political views ranged from populist to socialist. In the spring of 1900, after Ross expressed opposition to Japanese immigration to California, Jane Stanford wrote to the university's president, David Starr Jordan: "Professor Ross cannot be trusted, and he should go....He is a dangerous man."
As Jordan put it to a friend, he "resisted Mrs. Stanford's evident wish...as long as [he] could, in the interest of academic freedom." Ross's dismissal was one of the cases that led in 1915 to the creation of the American Association of University Professors, whose "Statement of Principles" laid the foundation for today's tenure system.
The atmosphere at Chicago was quite different. In 1895, a newspaper claimed that a Chicago instructor whose contract had not been renewed had in fact been removed in deference to donor complaints. Stung by this slur, President Harper announced that "[n]o instructor has been or will be asked to separate himself from the University because his views on a particular question differ from those of another member of the same department, even though that member be the Head." In 1902, in his address marking the university's decennial, Harper declared that "the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago," and that "this principle can neither now nor at any future time be called in question." It is a principle that has recently been enshrined in the "Report of the Committee on Freedom of Expression," also known as the "Chicago principles."
What Chicago lacks is any mechanism to uphold and enforce its much-vaunted principles. According to FIRE's most recent survey, 69% of Chicago students say that shouting down a speaker to prevent him from speaking on campus can be acceptable on rare occasions, 60% that they are worried about damaging their reputations because someone misunderstands something they have said or done, and 47% that they have self-censored on campus at least once or twice a month. Seventy-two percent say they would feel somewhat or very uncomfortable disagreeing with a professor about a controversial political topic. If this constitutes freedom of expression at Chicago, it is clearly very circumscribed in practice.
BUILDING ANEW
"Are 'new' universities different from those longer established? Have we learned from experience how to build institutions? The answer appears to be no in both cases." These words appear in a history of American higher education published in 1985. Nearly 40 years later, the question remains unanswered: How can we build a new institution of higher education that avoids not only the pitfalls of the present, but also those that may arise in the future?
First, we should beware of attempting to run a university as if it is a corporation. Modern corporate governance is problematic enough. Absent performance metrics such as quarterly profit-and-loss accounts or a stock price, the relationship between the president and the board of trustees is bound to look very different from the classic relationship between a chief executive and a board of directors — just as the relationship between the president and the faculty is unlikely to resemble the one between a CEO and a company's most highly skilled employees.
Second, there is little reason to believe that maintaining academic freedom depends much on the balance of power between the trustees, the president, and the faculty. Duke University has, as Kirby notes, a much more streamlined and centralized system of governance than, say, the University of California, Berkeley, with the president and provost wielding a great deal more power than their Berkeley counterparts, who must contend with a powerful academic senate. Yet Berkeley ranks 147th in the FIRE rankings, compared with Duke at 124.
A more plausible inference is that Chicago's explicit commitment to academic freedom — which Stanford has refused to adopt — matters more than any institutional arrangement. Yet even at Chicago, as we have seen, there are signs that at least some of the university's famed principles do not promote a culture of academic freedom in practice.
A final and important suggestion follows from all this. All the universities we have discussed have a more or less clear separation of powers between the executive and legislative branches. What they all lack is an independent judicial branch. Those that claim to have some judicial element in their governance structure turn out, on closer inspection, to have (as at Stanford) a mere subcommittee of the legislature playing that role — for that is all the advisory board of the academic council amounts to. It would be as if the U.S. Constitution delegated the role of the Supreme Court to the Senate Judiciary Committee.
The University of Austin takes a different approach. Rather than model itself after a public corporation, with a board, a CEO-president, and a collection of stakeholders and employees with ill-defined powers to hold the president to account, the university takes its inspiration from the Constitution of the United States in establishing a clear tripartite separation of powers.
As in our national Constitution, the president has considerable power over the university's governance — having, for example, the ultimate say over appointments and promotions of teaching staff. However, there are real checks on presidential power. Under Article I, Section 6, of the university's constitution, "a discretionary decision of the President may be reversed by an affirmative vote of a simple majority of the Trustees," and the trustees may dismiss the president if at least two-thirds of them vote to do so (Article I, Section 7). The chief financial officer also has to present his annual budget to the trustees, a majority of whom must vote to pass it (Article II, Section 8). We thus see the board of trustees as the parliamentary or congressional body, exercising explicit but limited controls over the executive branch.
Another novel feature of our university is that the admissions process is not delegated to the bureaucracy — a practice that has led to innumerable abuses. Instead, it is managed by the academic staff, and led by the deans of the various centers (Article III, Section 3).
Unlike most universities, the University of Austin has interdisciplinary centers rather than subject-specific departments, which have the tendency to become silos and (through the old tenure system) agencies of conformism. The faculty will be responsible for running two important disciplinary bodies: the Academic Standards Council and the Disciplinary Council. But there is an important innovation here, too. "In all cases of academic or disciplinary misconduct," Article III, Section 10, states,
the accused shall enjoy the right to a speedy and public hearing, before an impartial jury composed of six people (four instructors and two students), and shall be entitled to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor; and to have the assistance of counsel for his or her defense.
The absence of such due process in many academic disciplinary procedures is one of numerous lamentable features of the modern academy.
Perhaps the most important novelty of our constitution is Article IV, which establishes a seven-member adjudicative panel appointed by the trustees but wholly independent from the board. This will be the university's supreme court, to which students and employees can submit petitions if they believe their constitutionally enshrined rights are being violated. These, in turn, are spelled out in Article VI, our bill of rights, the most important points of which establish the apolitical character of the university (Section 1); the criteria for admission, graduation, hiring, and promotion, which are "strictly without regard to race, gender, sexual orientation, political affiliation, or religious faith" (Sections 2 and 3); the clearly delineated grounds for dismissal of an employee or suspension of a student (Section 4); and the precise nature of academic freedom at the university (Articles V-X).
Recent years have seen a proliferation of public statements on political issues by university presidents — violating Max Weber's precept that there should be a clear separation of Politik and Wissenschaft. Article VI of the University of Austin's constitution prohibits the university as a corporate entity from "express[ing] opinions on religious, political, or social issues, modify[ing] its corporate activities to foster political or social change, or tak[ing] collective action, except insofar as these activities are directly in the service of its mission." Everyone, from the trustees down to the janitors, "may advocate positions on religious, political, or social issues [only] in their capacity as private individuals" — "not in their official capacities as representatives of" the university.
To put a stop to the deplorable practice of dis-invitation and cancellation, Article VI ensures that the issue of outside speakers is left to student associational life, where it belongs: "Students are free to form voluntary associations or societies and these associations are free to invite such outside speakers as they wish, so long as it is made clear that the invitation comes from the association and not the university." We add that students "may peacefully protest an event held on [university] premises, but they may not prevent or substantially disrupt the proceedings."
As for academic freedom, Section 8 makes clear that faculty and administrators "may not use their authority or their control over measures of academic achievement such as grades or letters of recommendation to exert pressure on students for reasons unrelated to their studies, such as adopting any particular position on religious, political, or social issues." Finally, under Section 9, employees and students are free to criticize the university's constitution. But because academic freedom comes with responsibility, too, "the Trustees, President, Provost, Deans, academic and administrative staff of [the university] must respect and support the Constitutional order that enables the University to fulfill its purpose. They have a positive obligation to model and teach intellectual humility, civil discourse, and open inquiry."
We do not delude ourselves into thinking that our constitution is perfect; in fact, the seventh and final article creates a mechanism to amend it. But we do believe we have devised new and powerful ways to improve academic governance.
Readers will note the omissions. There is no system of tenure, as we believe this no longer protects academic freedom but merely creates perverse incentives. In many cases, it breeds conformism before the award of tenure and indolence after it. Professors at the University of Austin will enjoy generous compensation, and they will face dismissal only if they are clearly negligent of their duties. So long as their academic freedoms are constitutionally protected, there is no reason why they should have greater job security than other professionals.
There is no faculty senate or other parliament of professors, either. We do not believe the most skilled employees at an institution should play the part of legislature — a role that properly belongs to the board of trustees.
A FOUNDATION OF FREEDOM
"Nowhere is freedom more important," Friedrich Hayek wrote in The Constitution of Liberty, "than where our ignorance is greatest — at the boundaries of knowledge, in other words, where nobody can predict what lies a step ahead." He continued:
[W]e so often forget today that intellectual freedom rests on a much wider foundation of freedom and cannot exist without it. But the ultimate aim of freedom is the enlargement of those capacities in which man surpasses his ancestors and to which each generation must endeavor to add its share — its share in the growth of knowledge and the gradual advance of moral and aesthetic beliefs, where no superior must be allowed to enforce one set of views of what is right or good and where only further experience can decide what should prevail.
The threats to liberty in Hayek's day were bureaucrats and technocrats, who sought to subordinate the work of scholars to some grand overarching plan, rather than academics engaging in political activism. His assumption was that "the old universities, devoted to research and teaching at the boundaries of knowledge," would remain preeminent in advancing knowledge precisely because "only such institutions can offer that freedom in the choice of problems and those contacts between representatives of the different disciplines that provide the best conditions for conception and pursuit of new ideas." It would have shocked Hayek to learn that the old universities might opt to take a road to intellectual serfdom without being forced to do so by some totalitarian government.
The University of Austin represents an attempt to reinvent the university, beginning with its governance. It is not our aims that are original. Our ideal of a university is, in essence, little different from Jefferson's or Hayek's. The original part is the constitution of academic liberty, designed to ensure that our university adheres to its principles.
If successful, we hope that other institutions will adopt some, if not all, of our innovations. Nothing could be more beneficial to the spirit of intellectual life in America than such a revolution in university governance.
