The Ways in Which Colleges Legally Silence Troublesome Scholars

James G. Martin Center for Academic Renewal ^ | January 6, 2021 | Stephen Baskerville

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Radicals on campus do more than just “cancel” speakers. Failure by administrators to stand firm alters the atmosphere at colleges as well as, eventually, our system of government. The most profound consequences may come less from ideological zealots than from our own cowardice to oppose them.

Some colleges now respond to ideological intimidation not by defiantly defending their principles, but by devising furtive techniques to eliminate politically incorrect faculty.

In a new Martin Center policy brief, Scholastic Gag Orders: NDAs, Mandatory Arbitration, and the Legal Threat to Academics, I explore how non-disparagement agreements (NDAs) and mandatory arbitration (MA) provide a veil of legally enforced secrecy, shielding administrations from negative publicity, professional censure, and legitimate oversight, as they cleanse their faculty of ideologically heterodox professors.

Both mechanisms hide conduct that would incur professional and public condemnation. They even shift legal liability from leaders who breach agreements and ethics to terminated scholars, including possible criminal punishments.

More than academic freedom is threatened. The public judiciary is used to enforce institutional takeovers. Not only are shared governance, faculty assemblies, and oversight by governing boards compromised, but freedom of expression and even judicial integrity.

Non-disparagement agreements exist only to curtail academic freedom and conceal other ethical culpability. Non-disclosure agreements may be legitimate but are often used to tie the hands of academics like non-disparagement agreements.

Using NDAs, universities can terminate professors without warning, cutting them off from grievance procedures and oversight bodies. Salary and benefits may then be temporarily restored only upon renouncing legal claims, waiving statutory and constitutional rights, and above all silence.