BOSTON University President John Silber, now a Democratic candidate for governor of Massachusetts, has a well-known penchant for talking tough. But he probably didn't foresee the dramatic consequences of some overly forthright remarks he made to and about female professors at his university. Last week, the Supreme Court let stand a Boston court's decision to award tenure at BU -- and $200,000 in damages -- to English literature scholar Julia Prewitt Brown, who had been denied tenure at the university a decade before. The Silber comments had a lot to do with it.
Dr. Brown was rejected in 1980 under circumstances that a Boston jury, upheld by an appeals court, subsequently ruled discriminatory. That judgment in turn was based partly on testimony that Dr. Silber had referred to one academic department as "a damn matriarchy" (six of 20 faculty members were women, including the department chair) and had told another female professor that she didn't need job security because "your husband is a parachute." As in the recent Supreme Court case granting partnership to a woman who had been rejected on suspect grounds by Price Waterhouse, such comments were ruled relevant in gauging whether a professional decision of this sort, one that would ordinarily be exclusively up to the organization, had been in fact tainted by prejudice.
"Academic freedom," the appeals court said in December, "does not include the freedom to discriminate against tenure candidates on the basis of sex or other impermissible grounds."
Such statements might seem to breathe a cold wind on universities, hampering them in the free exercise of their professional judgment on colleagues. But a court's ability to overturn certain "tainted" tenure decisions has in fact already been established.
It's a subtle right: a court can't simply substitute its judgment for a tenure committee's, but it can rule a decision invalid because of "impermissible" prejudice. The facts about Dr. Brown's case were stark enough to make the taint argument possible: the original jury was told she'd been recommended unanimously by her department and two higher faculty committees and that Dr. Silber had never overturned any other comparably unanimous tenure recommendation. The comments by Dr. Silber, with other evidence, helped link that odd treatment with the alleged motive, and the unfairness to Dr. Brown will now be remedied.
This, it is important to note, is not a question of forbidding or even penalizing speech. It is a question of taking it seriously.