ERIC ED611856: Scholastic Gag Orders: NDAs, Mandatory Arbitration, and the Legal Threat to Academics

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by  ERIC

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.
​
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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 
defend their profession and
pitfalls.”3 
​
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. Scholars 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
​ ​ ​
September 2018. 4 Poff, “Conservative Professor Says…”
3 Christian Barnard, “Liberty University: A 5 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 Barnard, “Liberty University...”
students in any way.
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
​ ​ ​
November 2020.
accrediting agency.
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.
​ ​ ​
Lopez introduced a resolution at the Southern
special appeal for Evangelical institutions. 
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.
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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 quo​tations are arbitrators.1​ 3 ​ 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 Stephen Baskerville, “The Crisis of the 13 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.
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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 
rights.14  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
themselves.
14 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
or facts.
Paper #414, 7 December 2015.
15 Arguments are summarized in Stone and
Colvin, “Arbitration Epidemic.” 16 Stone and Colvin, “Arbitration Epidemic,” 16.
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● Damages and fees can be imposed Academic freedom and other
without finding legal culpability.
ethical principles become
● Decisions are without appeal, legally
subsumed into an “employment
binding, and enforced by courts
before which parties cannot present dispute” which excludes one’s
their case. academic colleagues from any
● Unlimited fees can be imposed on
role.
parties who can be prevented from
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 
​
Despite enormous potential for injustice,  19 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.
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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.2​ 2 
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 At least one professor lauds his colleagues’
long as the professor can be kept quiet. 
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...”
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higher ed bureaucrats gain more power and  Faculty governance could
control by using NDAs and MA.  
disappear altogether, as higher
Administrations can suppress any dissent 
ed bureaucrats gain more power
or criticism about their leadership (or any 
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 
​
freedom,24 ​ and even establishing Sharia  gain. Behind the smiles, fee-charging and 
​
law.2​ 5 ​ 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
the Christian version. 
Religious Arbitration of Federal Rights Is
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
“conciliate” disagreements to avoid 
arbitration decisions based on Sharia law.
Chua-Rubenfeld and Costa, litigating them, promising a less 
“Reverse-Entanglement Principle,” 2095. Walter,
“adversarial” alternative that redeems 
“Religious Arbitration,” 569.
antagonists spiritually (“change their 
26 Christian arbitrators equate criticism of 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.
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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 Conciliation​27 ​ make very clear that  Often founded by conservative political 
what they are practicing is simply standard  moguls29 ​ 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.
​
review articles and litigated in cases. See 30 Barnard, “Liberty University.”
Chua-Rubenfeld and Cost, 31 Stephen Baskerville, “Jerry Falwell, Jr. and the
​
“Reverse-Entanglement Principle,” 2094-2098, Tragedy of Christian Higher Education,” New
​ ​
2101-2102. English Review, September 2020.
​
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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
involves returning to the traditional liberal-arts 33 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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