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Scholastic Gag Orders:
                                        NDAs, Mandatory Arbitration,
                                        and the Legal Threat to
                                        Academics
                                        By Stephen Baskerville

                                        January 2021

Introduction                                        Both mechanisms enable institutions to
                                                    conceal unethical conduct that would bring
As radical activists serve as self-appointed        public condemnation upon them. Both
censors in our cultural institutions, attention     conservatives and liberals consider their
has focused on the militants’                       use unethical because they protect
quasi-Bolshevik tactics. But much less              administrators from legal liability and
attention has focused on the absence of             criticism while leaving scholars in legal
resistance: the silence of able-minded              jeopardy and possibly even at risk of
scholars, whose talents and learning could          criminal punishments.​1
fight intimidation, and the failure of nerve by
institutional leaders who could gain                Because secrecy is the overriding
overwhelming public support.                        imperative, information is difficult to obtain.
                                                    These mechanisms exist to conceal, and
Colleges and universities now respond not           the mechanisms are themselves concealed
by defiantly defending their principles, but        and disguised. We cannot know therefore
by devising new and secretive methods to            how many and which institutions use them.
rid themselves of the faculty who resist            Nevertheless, recent scandals involving
intimidation—without the world knowing.             Evangelical institutions show that they
                                                    seem to be especially popular at religiously
Two methods provide a veil of legally               affiliated colleges,​ ​though nothing suggests
enforced secrecy that shields institutions          that they aren’t used by public universities
from negative publicity, professional
censure, and even oversight:
non-disclosure/disparagement agreements             1
                                                      Jeremiah Poff, “​Conservative Professor Says
and mandatory arbitration.                          Baptist Seminary Used COVID as an Excuse to
                                                    Get Rid of Him​,” The College Fix, 26 May 2020.
                                                    American Association of University Professors,
                                                    “​Say No to NDAs and Forced Arbitration in
                                                    Higher Education​,” 7 September 2018.

                                                                                                  1
                                                                                                      1
as well.​2​ ​Apparently, “higher education         Scholars must understand what
institutions that pursue unique missions can
                                                   is taking place. They need to
also be susceptible to unique governance
pitfalls.”​3
                                                   defend their profession and
                                                   sound the alarm so the public
This battle involves more than academic            understands what is at stake.
freedom. It concerns the power to take
control of entire universities and leverage
                                                   The process goes something like this:
the legal system to eliminate whoever is in
                                                   Universities can terminate professors (with
the way. S​cholars must understand what is
                                                   or without tenure) without warning, instantly
taking place. They need to defend their
                                                   cutting them off from their livelihood and
profession and sound the alarm so the
                                                   the grievance procedures and oversight
public understands what is at stake. ​Shared
                                                   bodies of the university. If the professor
governance, the voices of faculty and
                                                   renounces their legal claims, waiving
faculty assemblies, and effective oversight
                                                   statutory and constitutional rights, and
by governing boards are also endangered.
                                                   promises silence, then the university may
Even the constitutional integrity of the
                                                   temporarily restore salary as “hush
judiciary itself is potentially undermined.
                                                   money.”​4​ This insulates administrators from
                                                   accountability, for both the termination
                                                   itself and any other ethical or political
Non-Disclosure/Disparagement
                                                   issues leading to the dismissal.​ ​It inverts
Agreements                                         the law itself into an instrument of extortion.

Non-disclosure agreements (NDAs) may               The professor ​becomes legally punishable
serve legitimate business purposes.                for disclosing ​the institution’s ​contractual
Non-​disparagement ​agreements (not                breach. Colleagues, students, prospective
always the same thing) are inherently              students, and faculty are all kept in the dark
unethical, at least in academia, because           about it happening. Even oversight bodies
ipso facto ​they violate academic freedom          charged with ensuring the institution’s
and conceal other ethical violations.              integrity—faculty senates, accreditors, and
                                                   the institution’s own governing
                                                   boards—can be kept unaware of their use.​5
2
  The use of NDAs at public universities are
rarely publicized, making them hard to track.      The most effective recourse to politically
Purdue University Global attracted negative
publicity in 2018 for a broadly written            motivated dismissals—going to the press to
nondisclosure agreement that it required faculty   draw public attention—is precisely what the
members to sign. Goldie Blumenstyk, “​Do
                                                   NDA forbids.
Corporate-Style NDAs Have a Place in Higher
Ed?​,” ​The Chronicle of Higher Education​, 4
                                                   4
September 2018.                                     Poff, “Conservative Professor Says…”
3                                                  5
  Christian Barnard, “​Liberty University: A        Lawrence Fuqua, “​SBTS Trustee Sees Serious
Cautionary Tale​,” James G. Martin Center for      Problems at Al Mohler’s Seminary​,” Capstone
Academic Renewal, 25 October 2019.                 Report, 29 November 2020.

                                                                                                    2
                                                                                                        2
Like any restriction on freedom of              creating “a culture of fear where people are
expression, the scope of an NDA is unclear      unable to speak out.”​6​ Buried in ​Politico​’s
and broad enough to scare professors            prurient accounts is the revelation that
away​ ​from even publishing academic            Liberty uses “non-disclosure agreements
articles on the topic. A professional article   that stop current and former staff ​and
on NDAs written by a professor who signed       board members​ from discussing sensitive
an NDA could potentially open them up to        matters” (emphasis added).​7
legal action, as could publicly defending
their own integrity and reputation.             Multiple dismissals of conservative
                                                professors at two important Baptist
The only possible purpose for university        theological seminaries, allegedly for their
administrators to demand a professor sign       dissent on the institution promoting leftist
an NDA in an academic setting is to hide        theories of sexuality, race, and “social
suspicious conduct by administrators,           justice,”​ ​were likewise accompanied by
especially surrounding a dismissal. Thus,       NDAs.​8​ A conservative professor fired from
NDAs invariably prohibit divulging their own    a prominent theological seminary for similar
existence. One actual non-disparagement         reasons was given a severance package
agreement, used by Patrick Henry College        combined with an NDA, though he cannot
(a non-denominational Christian institution),   discuss the case, which is precisely the
reads:                                          purpose. Another refused to sign but is
                                                reluctant to talk because his case is
   ●   Dr. [X] agrees that he will not          covered by mandatory arbitration
       disclose the terms of this agreement     (discussed below).
       at any time to anyone.
   ●   Dr. [X] agrees that he will not at any   “I am appalled by Evangelical Christian use
       time disparage [the College], its        of Non-Disclosure Agreements to prevent
       affiliates or related organizations,
       directors, officers, employees, or
                                                6
       students in any way.                       Barnard, “Liberty University...”
                                                7
                                                  Brandon Ambrosino, “‘​Someone’s Gotta Tell
   ●   Dr. [X] that he will not initiate        the Freakin’ Truth’: Jerry Falwell’s Aides Break
       communication in any fashion at any      Their Silence​,” Politico, 9 September 2019.
                                                Maggie Severns et al., “‘​They All Got Careless’:
       time with anyone directly or
                                                How Falwell Kept His Grip on Liberty Amid
       indirectly associated with any           Sexual ‘Games,’ Self-Dealing​,” ​Politico,​ 1
       accrediting agency.                      November 2020.
                                                8
                                                  Robert Oscar Lopez, “​COVID-19 Completes
                                                Liberal Takeover of Southern Baptist
As noted, such devices seem to have             Convention​,” ​American Thinker​, 23 April 2020.
special appeal for Evangelical institutions.    Lopez introduced a resolution at the Southern
                                                Baptist Convention condemning NDAs as
Even before President Jerry Falwell Jr.’s       unethical, shortly before himself being fired from
recent disgrace, Liberty University was         Southwestern Baptist Theological Seminary,
                                                allegedly for his stance on homosexual politics.
criticized for using NDAs to silence            Robert Oscar Lopez, “​Liberty’s Future is
dissenting faculty and even trustees and        Predictable, Based on the 2018 Paige Patterson
                                                Case​,” 23 April 2019.

                                                                                                  3
                                                                                                      3
further discussion of concerns,” Robert             Second, business executives who do not
Gagnon of Houston Baptist University                understand academic ethics often run
wrote. “I expect this of left-wing ‘liberal’        conservative institutions and assume NDAs
denominational structures, not Evangelical          can serve legitimate purposes, as they do
institutions.” He continued:                        in the business world. One college
                                                    president, also a corporate executive, told
        It gives the appearance of being            the author that “Separation
        hush money. A professor who has             agreements…are common in the
        served faithfully for…years should          employment world, both for businesses and
        not be forced to muzzle himself and         non-profits,” after firing a professor who
        violate conscience as a condition for       could have told him why it is not equivalent.
        receiving even a couple of months
        of salary.​9                                These institutions also mostly lack tenure
                                                    because they want the (perfectly legitimate)
Tom Rush, a trustee at Southern Baptist             option of dismissing faculty who deviate
Theological Seminary, went on record                from the institution’s religious principles.
recently saying that “this contract was             But this habit can serve the ​il​-legitimate
unethical” and that “it was hush money to           purpose of punishing healthy dissent and
keep them [fired professors] quiet.” Rush           constructive criticism and protecting
pointed out that “They allegedly were being         administrators’ arbitrary power (including
terminated for financial reasons, but if            administrations that themselves deviate
that’s the case, why silence them?”​10              from the religious principles). Because
                                                    institutions must still profess to respect
Why this proclivity among Evangelical               academic freedom on non-doctrinal
colleges?                                           matters and fear criticism, such dismissals
                                                    must be hidden.
First, they loathe controversy and avoid
engaging in public debate.​11​ “The church
has a bad habit of keeping things secret.           Mandatory Arbitration
They want to keep it in house, take care of
it in house,” a former dean at Liberty said.        Yet refusing to sign an NDA is no panacea.
“And Liberty’s the same way.”​12
                                                    Faculty contracts now contain mandatory
9
  “​Top Baptist Professor: Al Mohler’s Strong-Arm   arbitration (MA) clauses (often disguised),
Tactics Are ‘Sub-Christian,’​” Capstone Report,
26 May 2020.                                        requiring that “employment disputes” be
10
    Lawrence Fuqua, “​Trustee Reveals Disturbing    adjudicated in secrecy by private
Look Inside of Albert Mohler’s SBTS​,” Capstone
Report, 28 November 2020. The quotations are        arbitrators.​13​ Here, too, professors are
the article’s paraphrases of Rush’s more            instantly cut off from their salaries, the
extended comments, which can be verified from
the video starting at 14:10.
11                                                  13
    Stephen Baskerville, “​The Crisis of the          Jason P. Baily, “​Mandatory Arbitration in
Christian Colleges​,” ​Crisis​, 17 August 2017.     Higher Ed Employment Contracts​,” Browne
12
    Severns et al., “‘They All Got Careless’…”      House Law Group, 11 July 2018.

                                                                                                   4
                                                                                                       4
courts, grievance procedures, oversight             transactions of ordinary people.”​16​ (Your
bodies, and, most importantly, collegial and        inbox probably contains a dozen notices
public opinion. They can object only in a           changing your “terms of service” to
secret proceeding run by lawyers, not               arbitration with everyone from banks to
academic colleagues, who can suppress               retailers).
ethical questions because proceedings are
closed and without record, and public               Arbitration discards accepted legal norms
disclosure is punished.                             and procedures, including due process
                                                    protections. Arbitrators (enjoying legal
As with NDAs, we cannot know how many               immunity) have no specified limits on what
faculty members get purged because                  awards or punishments they can inflict,
secrecy is the whole point.                         including unlimited punitive damages and
                                                    lawyers’ fees. Nothing requires that they
Mandatory arbitration,​ ​too, may serve             follow the law, and yet their secretive
legitimate purposes among business firms.           decisions are enforced by civil (and even
But even in non-academic contexts, MA               criminal) courts with almost no opportunity
has been harshly criticized for depriving           for challenge or appeal. One firm’s rules
individuals of statutory and constitutional         (used by educational institutions) include
       14
rights.​                                            these departures from open justice:

Standard MA requires parties to forego                    ●    Proceedings are secret, with
redress in the courts and instead submit                       participants bound to silence; no
disputes to secret binding arbitration.                        record or transcript is kept or
Ethical criticisms arose when businesses                       permitted; and no access by public,
began imposing the practice on individual                      press, or family.
employees and consumers (which was                        ●    No guarantees for contractual,
originally prohibited). Institutional clients                  statutory, or constitutional rights.
allegedly enjoy superior leverage over                    ●    Rules of evidence are explicitly
isolated individuals, dictate the arbitration                  discarded, with no requirement to
clauses (often supplied by the arbitration                     record evidence or explain
firms), and collude with arbitrators.​ 15                      decisions.
MA is now an “epidemic.” This privatized                  ●    Proceedings cannot be stopped,
judiciary “has largely displaced the civil                     and one cannot withdraw.
justice system for most of the major                      ●    Decisions, damages, and
                                                               punishments ​in absentia​, without
                                                               parties present to defend
14                                                             themselves.
   Katherine V.W. Stone and Alexander J.S.
Colvin, “The Arbitration Epidemic: Mandatory              ●    No limits on arbitrators’ rulings, their
Arbitration Deprives Workers and Consumers of                  scope or relevance to merits, issues,
their Rights,” Economic Policy Institute Briefing
Paper #414, 7 December 2015.                                   or facts.
15
   Arguments are summarized in Stone and
                                                    16
Colvin, “Arbitration Epidemic.”                          Stone and Colvin, “Arbitration Epidemic,” 16.

                                                                                                         5
                                                                                                             5
●   Damages and fees can be imposed             Academic freedom and other
         without finding legal culpability.
     ●   Decisions are without appeal, legally
                                                     ethical   principles   become
         binding, and enforced by courts             subsumed into an “employment
         before which parties cannot present         dispute” which excludes one’s
         their case.                                 academic colleagues from any
     ●   Unlimited fees can be imposed on
         parties who can be prevented from
                                                     role.
         presenting their side of a case,
         including defending themselves,             fairness and impartiality.​19​ Incentives
         until fees are paid.                        governing business, though, are mostly
     ●   No separation of powers or checks           irrelevant in higher education.
         and balances in arbitrators’
         selection or powers.​17
                                                     Secrecy and Faculty Rights
Arbitrators can even issue restraining
orders that carry criminal penalties. This           Higher education brings even more serious
constitutionally questionable tool allows a          dynamics into play because of MA’s
personalized criminal code to be legislated          greatest asset to institutions: secrecy.​20
around a legally innocent individual,                Unorthodox professors can be airbrushed
imposing criminal punishments for doing              out of an institution, gagged, and placed
what no statute prohibits and what anyone            under possible legal liability for objecting
else may do. Punishments include                     publicly. ​Academic freedom and other
mandatory incarceration ​without trial​, even        ethical principles become subsumed into
when the infringement is inadvertent or              an “employment dispute” which excludes
unavoidable—which it may well be, since it           one’s academic colleagues from any role.
only prohibits otherwise legal acts.​18
                                                     19
Despite enormous potential for injustice,               Stone and Colvin, “Arbitration Epidemic.”
                                                     20
                                                        Despite widespread criticism in employment
arbitration is defended in business settings         contracts generally, the implications for
because arbitrators seek a reputation for            academic freedom are unexplored. Students
                                                     subject to similar provisions discover
                                                     comparable implications: “Because the
                                                     enrollment contracts typically include gag
17
   Information about arbitration comes from          clauses that prevent students from sharing
Stone and Colvin, “Arbitration Epidemic,” and        information about their complaint and the results
similar articles cited below, from the Guidelines    of the arbitration with outside parties, their
for Christian Conciliation (January 2019) of the     complaints are effectively silenced. They are
Institute for Christian Conciliation (used by        heard only through a secretive process that
educational institutions as discussed ​here​), and   prevents information from becoming public
from discussions with attorneys, who                 through the court system—ultimately shielding
unanimously confirm that the harshest                bad actors from public accountability.” Anthony
interpretations of arbitration regulations are all   Walsh, “​States Should Act to Prohibit Mandatory
possibilities under arbitration law as currently     Arbitration in College Enrollment Contracts​,” The
written and practiced.                               Century Foundation, 26 May 2020. Of course,
18
   Stephen Baskerville, ​Taken Into Custody          student complaints raise wholly different issues
(Nashville: Cumberland House, 2007), 177-186.        from academic freedom for faculty.

                                                                                                     6
                                                                                                          6
Larger ethical contexts then become                 institution and twist the knife on any
irrelevant, and students, donors, trustees,         recalcitrant faculty who questions its
senates, accreditors, and the public will           reputation for integrity. Criticizing the
never know.                                         college’s ethics, including the arbitration
                                                    procedure itself, undermines both the
Instead, lawyers “settle” everything in             college’s credibility and the arbitration
secret arbitration. The dispute will be             firm’s entire selling point.
reduced to material issues, with ethical
principles ignored. Regardless of material          Whether or not the arbitrators would act as
awards, the institution wins the important          ruthlessly as they can, the open-ended
battle before the procedure ever begins             possibilities of legal action provide a clear
because the secrecy keeps its reputation            threat that will intimidate anyone. When
intact, regardless of how unethical its             your aim is to shut someone’s mouth, the
actions. MA cannot address ethical                  threat is everything. “While [Baptist
violations because it is itself the principal       seminary President Al] Mohler says he
method of enabling and concealing those             wouldn’t take the former professors who
violations in the first place.                      signed such an agreement to court, he says
                                                    that threatening them works.” This refers to
Even if professors decline to claim                 an NDA, but the point is the same.​21
damages for unjust firings, they cannot be
certain that any public criticism they make         Even vindicating one’s reputation by
will not trigger an arbitration procedure           divulging larger ethical or political issues
against ​them ​by the institution. ​In absentia​,   behind one’s dismissal (e.g.​ ​to a
one could potentially be forced to pay              prospective employer) could bring
exorbitant damages and massive legal fees,          retribution. (Few will believe the favorite
since no rules limit the amount.                    pretext of “budget cuts”). Suspicion of
                                                    having signed an NDA (and taken “hush
Why would arbitrators act so unjustly?              money”) may also compromise one’s
                                                    professional integrity, as some academics
In education, material settlements are trivial      or administrators may assume signing an
compared to the ​procedure ​itself. The             NDA is complicity in wrongdoing.​22
arbitration firm is selling the power to            A larger danger arises here: ​Faculty
silence and intimidate faculty. It offers           governance could disappear altogether, as
universities a no-lose proposition: You may
have to pay some damages, but your
reputation is guaranteed to remain intact so        21
                                                       Fuqua, “Trustee Reveals Disturbing Look…”
                                                    22
long as the professor can be kept quiet.               At least one professor lauds his colleagues’
                                                    refusal to sign. “Irrespective of whether
                                                    Professors [Russell] Fuller and [Jim] Orrick are
Given the lack of restraints on damages             right or wrong in their accusations [against
                                                    Southern Baptist Theological Seminary]…they
described above, the firm has both the              come across by their actions in not signing the
means and the​ ​incentive to collude with the       NDA as having more courage and integrity.”
                                                    “Top Baptist Professor...”

                                                                                                       7
                                                                                                           7
higher ed bureaucrats gain more power and            Faculty    governance     could
control by using NDAs and MA.
Administrations can suppress any dissent
                                                     disappear altogether, as higher
or criticism about their leadership (or any          ed bureaucrats gain more power
topic) and render grievance procedures               and control by using NDAs and
useless. All looks serene because no                 MA.
controversy can surface in the first place.
Faculty are reduced to hired hands.                  Yet those objections may distract from a
                                                     larger issue, a sleight-of-hand that
                                                     disguises standard MA with an aura of
The Peculiar World of Religious                      religious sanctimony.​ ​For it is not clear that
Arbitration                                          religious arbitration contains anything
                                                     religious at all. At least with the Christian
Eliminating divergent views is advanced by           version (used by educational institutions), it
the most controversial version of MA:                simply replicates standard mandatory
religious arbitration (RA). This, too, has           arbitration sprinkled with Bible verses.
been criticized in other areas for entangling
church and state,​23​ violating religious            RA invokes religious faith for commercial
          24​
freedom,​       and even establishing Sharia         gain. Behind the smiles, fee-charging and
law.​25​ With secrecy effectively immunizing         profit-making firms​ ​develop​ ​a market for
them from public criticism, Christian                “Christian” arbitration. This gives the firm
organizations appear to be erecting a                (one dominates the market) a further
framework to penalize “Christophobia,”               incentive to collude with employers, such
copying​ ​prohibitions on “Islamophobia” and         as colleges, who support their monopoly by
“homophobia.”​26                                     embedding arbitration clauses into
                                                     employment contracts. (Some college
                                                     contracts replicate the principal firm’s
23
   Brian Hutler, “Religious Arbitration and the      suggested language verbatim). Without
Establishment Clause,” ​Ohio State Journal on
Dispute Resolution​, vol. 33, no. 3 (2018), 338,     competitors, incentives to impartiality cited
340. Sophia Chua-Rubenfeld and Frank Costa,          by MA’s defenders do not really apply to
“The Reverse-Entanglement Principle: Why
Religious Arbitration of Federal Rights Is
                                                     the Christian version.
Unconstitutional,” ​Yale Law Journal​, vol. 128,
no. 7 (2019), 2120, 2087, 2099, 2105.                The pitfalls are further obfuscated by the
24
   Nicholas Walter, “Religious Arbitration in the
United States and Canada,” ​Santa Clara Law          religious-therapeutic veneer. Labeled as
Review​, vol. 52, no. 2 (2012), 504, 566.            “Christian Conciliation,” it claims to
25
   Courts apparently have already upheld
arbitration decisions based on Sharia law.
                                                     “conciliate” disagreements to avoid
Chua-Rubenfeld and Costa,                            litigating them, promising a less
“Reverse-Entanglement Principle,” 2095. Walter,      “adversarial” alternative that redeems
“Religious Arbitration,” 569.
26
   Christian arbitrators equate criticism of their   antagonists spiritually (“change their
clients with criticism of Christianity itself,
rationalizing the secrecy “to prevent a public       criticize and mock Christianity.” Guidelines for
quarrel that would give others an opportunity to     Christian Conciliation, 12.

                                                                                                        8
                                                                                                            8
attitudes and behavior”). The therapeutic         The Model: Christian Colleges as
camouflage further moves​ ​the process            Political-Business Empires
away from justice. Organizations jumping
onto the mandatory arbitration bandwagon          It is ironic that Christian colleges are not
for self-interested reasons can advertise it      only joining their secular counterparts in
as spiritual uplift for those they plan to        purging faculty but using methods that
injure.                                           weaponize their religion in such a
                                                  mercenary fashion. One might wonder what
Replacing justice with moral improvement          kind of ethics and theology these
may leave their potential future adversaries      institutions teach.
feeling good, but they have also lost any
recourse against unjust and arbitrary             This use of MA becomes comprehensible
judgements.                                       when one understands the political
                                                  dynamic driving some Evangelical
Whether operated by the American                  institutions.​ ​Though nothing so sinister as
Arbitration Association or relabeled by the       the “theocracy” suspected by their
Institute for Christian Conciliation (ICC, a      detractors,​28​ it is still enough to vitiate
firm with clients in higher education), the       authentic institutions of higher learning.
reality is the same. ICC’s ​Guidelines for
Christian Conciliation27​
                      ​ make very clear that      Often founded by conservative political
what they are practicing is simply standard       moguls​29​ as components of their
MA. In fact, its ​Guidelines ​actually ​prevent   political-business empires, the newer,
people from using moral pressure alone            alternative​ ​Evangelical institutions can
and can punish them for it—moral pressure         exhibit “a governance model that place[s]
would defeat the secrecy and make the             too much power in the hands of one
arbitrators superfluous.                          person.”​30​ Rarely do they offer more than
                                                  their secular counterparts when it comes to
What religious arbitration offers is another
                                                  critically examining ideas and society, and
way for Christian colleges to bypass public
                                                  they are determined to keep faculty on a
(and legal) scrutiny. It enables colleges to
                                                  tight rein.​31​ The empire expands primarily
avoid the legal liability, public scrutiny, and
                                                  by placing students in influential positions
impartiality that comes with a non-secretive
                                                  of political power.
process.​ ​The business product being sold
here is not reconciling people who
disagree, but eliminating them.                   28
                                                     Hanna Rosin, ​God’s Harvard: A Christian
                                                  College on a Mission to Save America​ (New
                                                  York: Houghton Mifflin Harcourt, 2007).
                                                  29
                                                     Emma Green, “​Liberty University Students
                                                  Want to Be Christians–Not Republicans​,” ​The
27
  This is the version most often cited in law     Atlantic,​ 26 October 2016.
                                                  30
review articles and litigated in cases. See          Barnard, “Liberty University.”
                                                  31
Chua-Rubenfeld and Cost,                             Stephen Baskerville, “​Jerry Falwell, Jr. and the
“Reverse-Entanglement Principle,” 2094-2098,      Tragedy of Christian Higher Education​,” ​New
2101-2102.                                        English Review​, September 2020.

                                                                                                    9
                                                                                                         9
Liberty University’s mission, for example,           integrity of an institution of higher
aims to “train champions for Christ,” and            education.
Jerry Falwell proclaimed, “We’re turning out
moral revolutionaries.” Despite the                  Religious or secular, contractual clauses
ostensible liberal arts ethos, procuring jobs        that gag professors present a unique threat
becomes an end in itself, eclipsing “critical        to academic freedom in higher education.
thinking,” and education itself becomes              NDAs and MA deprive the institution of
secondary.​32​ The pipeline of jobs and              faculty voices that can help ensure the
influence must be protected at all costs.            centrality of academics and the pursuit of
                                                     truth.
Nothing endangers that influence so much
as controversy, and so faculty are treated           The most debilitating feature of this legal
as hired hands who are expected to teach             climate is the admission of intellectual
and otherwise keep quiet. Criticizing the            incapacity by institutions of learning. When
wrong people or deviating from boilerplate           self-interest is at stake, high-minded
conservatism could block the pipeline.               pretenses about the​ ​exchange​ ​of​ ​ideas give
                                                     way to high-level administrators quietly
Colleges become another​ ​vehicle of                 stabbing their colleagues in the back and
political influence,​ ​with students and faculty     stopping the mouths of critics with legal
as pawns in the game—not prophets or                 threats. These actions constitute an open
intellectuals who critically assess ideas.           admission that colleges have become
                                                     havens for intellectually incapable people
                                                     whose professional competence, by their
Conclusion                                           own judgement, is insufficient when their
                                                     own interest is at stake.​33
Whether motivated by a desire for political
influence or the self-perpetuating desire to         If institutions continue to use
protect their reputation and avoid                   non-disparagement agreements,
accountability, NDAs and MA threaten the             mandatory arbitration, and other legal
                                                     mechanisms to deal with criticism and
32
  These institutions usually start life with a
contradiction. Their initial claim to superiority
                                                     33
involves returning to the traditional liberal-arts      John Ellis writes that “Large numbers of
curriculum deserted by mainstream academia.          people holding professorial titles have neither
Because they are essentially political operations,   any real interest in academic work, nor aptitude
however, they soon become dominated by               for it” and attributes the “breakdown of higher
applied courses that train their cadres in           education” to “a concentration of people who
techniques of political activism and power, such     don’t really belong in academia but are now
as journalism, pre-law, business, law                numerous enough there to control it, to abuse it
enforcement, and security studies. Taught by         for their own selfish purposes, and effectively to
practitioners rather than scholars, these subjects   destroy it.” Ellis’ account points to a
are perceived by students as advantageous for        preponderance of left-wing ideologues but
their careers and quickly drive out the liberal      allows that it is not necessarily limited to
arts, while functionaries drive out the scholars.    professors alone nor to leftists among them. ​The
One college offers the doublespeak of “Applied       Breakdown of Higher Education​ (New York:
Liberal Arts.”                                       Encounter, 2020), 182.

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fights over academic freedom, the public     About the Author
should be more skeptical of the classroom    Stephen Baskerville, PhD, has worked for
instruction they offer and the scholarship   30+ years in universities in the United
produced in their Ivory towers.              States and Europe. His publications include
                                             The New Politics of Sex: Civil Liberties and
                                             the Growth of Governmental Power​ (2017),
                                             and ​Not Peace But a Sword: The Political
                                             Theology of the English Revolution​ (1993,
                                             expanded 2018), plus peer-reviewed
                                             articles on politics, law, history, religion,
                                             and higher education. In July 2019, he was
                                             dismissed as Professor of Government
                                             from Patrick Henry College.

                                             About the Martin Center
                                             The James G. Martin Center for Academic
                                             Renewal is a private nonprofit institute
                                             dedicated to improving higher education
                                             policy. Our mission is to renew and fulfill
                                             the promise of higher education in North
                                             Carolina and across the country.

                                             We advocate responsible governance,
                                             viewpoint diversity, academic quality,
                                             cost-effective education solutions, and
                                             innovative market-based reform. We do
                                             that by studying and reporting on critical
                                             issues in higher education and
                                             recommending policies that can create
                                             change—especially at the state and local
                                             level.

                                             353 E. Six Forks Road, Suite 200
                                             Raleigh, NC 27609
                                             919.828.1400
                                             jamesgmartin.center

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