[Volokh] Eugene Volokh: Abortion Art, Possible Hoaxes, and Academic Freedom:

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Posted by Eugene Volokh:
Abortion Art, Possible Hoaxes, and Academic Freedom:
http://volokh.com/archives/archive_2008_04_20-2008_04_26.shtml#1208803746


   The [1]Yale Daily News reports:

     The University will not allow Aliza Shvarts â08 to display her
     controversial senior art project at its scheduled opening Tuesday
     unless she confesses in writing that the exhibition is a work of
     fiction, Yale officials said Sunday.

     The University, meanwhile, acknowledged that it has disciplined two
     faculty members for their role in allowing Shvarts to proceed with
     a project that she claimed included nine months of repeated
     artificial inseminations followed by self-induced miscarriages.

     As news of Shvartsâ project swept across the Web last week and
     attracted the ire of students and private citizens alike, Shvarts
     and the University engaged in a match of he-said/she-said: Shvarts
     stood by her project as she described it earlier last week in a
     news release, while the University -- claiming Shvarts had
     privately denied actually committing the acts in question --
     dismissed it as a hoax that amounted to nothing more than
     âperformance art.â ...

     âI am appalled,â Yale College Dean Peter Salovey said in a
     statement Friday. âThis piece of performance art as reported in the
     press bears no relation to what I consider appropriate for an
     undergraduate senior project.â

     School of Art Dean Robert Storr also condemned the project in a
     written statement Friday.

     âIf I had known about this, I would not have permitted it to go
     forward,â Storr said in the statement. âThis is not an acceptable
     project in a community where the consequences go beyond the
     individual who initiates the project and may even endanger that
     individual.â ...

     [Sunday], Salovey and Storr announced that an investigation had
     found âserious errors in judgementâ on the part of two unnamed
     individuals -â ostensibly her thesis adviser, School of Art
     lecturer Pia Lindman, and School of Art Director of Undergraduate
     Studies Henk van Assen -- who had been involved in her project
     before it incited mass condemnation across campus and across the
     country and that âappropriate actionâ had been taken against them.

     âIn one case, the instructor responsible for the senior project
     should not have allowed it to go forward,â Salovey said. âIn the
     other, an adviser should have interceded and consulted others when
     first given information about the project.â ...

     In his statement Sunday night, Salovey called on Shvarts to produce
     a written confession admitting that her project did not actually
     include the graphic acts that she had first described. He added
     that Shvarts will not be allowed to install her project unless she
     admits she did not try to inseminate herself and induce
     miscarriages and promises that no human blood will be displayed in
     her exhibit....

     In his statement, Storr emphasized that the University âhas a
     profound commitment to freedom of expressionâ and that he,
     personally, supports the legality of abortion.

     âThat said, Yale does not encourage or condone projects that would
     involve unknown health risks to the student,â Storr said. âNor does
     it believe that open discourse and inquiry can exist in an
     educational and creative community when an individual exercises
     these rights but evades full intellectual accountability for the
     strong response he or she may provoke.â ...

   A few thoughts (keeping in mind that Yale is a private university, and
   the issue here is properly one of professional principles of academic
   freedom rather than of the First Amendment as such, though most of
   what I say would equally apply to public universities):

   1. A university is surely entitled to impose content-neutral
   conditions on the projects that it will exhibit -- even if it has a
   practice of exhibiting all student projects -- as well as on the
   projects that are entitled to school credit. It may also impose many
   content-based conditions, since quality evaluations are generally
   based on content, but surely content-neutral conditions are generally
   quite apt. Obvious examples are conditions related to medium (this
   exhibition is paintings only, or to graduate you have to produce at
   least one painting and one sculpture), or materials used (you must
   produce this using oils and not watercolors).

   With much modern art, the line between content-neutral and
   content-based restrictions is less obviously sound than it is with
   most speech, because the medium is quite literally an inherent part of
   the message. Nonetheless, it seems to me that tolerance of a wide
   range of content-neutral restrictions is required for pedagogical
   reasons (e.g., to teach people how to work in different media). Nor
   does the university have to defend such lines as a matter of academic
   freedom (as opposed to as a matter of sound judgment). Insisting, for
   instance, that everyone do at least one realist watercolor is a
   legitimate pedagogical decision on the university's part, though
   artists may or may not agree that this is a sensible requirement.

   In particular, it seems to me that requirements that people not use
   human blood, or do things that jeopardize their health -- even
   slightly -- in the preparation of school projects are indeed
   permissible, whether as a means of protecting students' health,
   protecting others' health (even if the risk is very slight), or simply
   focusing the project on what is being depicted rather than on the
   medium being used. Such rules can be enforced both against students
   and advisors.

   2. More broadly, one quite basic rule of universities is "tell the
   truth." Even without specific guidelines so saying, generally speaking
   students and faculty members need to be candid about the nature of
   their projects, whether it's the data they're reporting on or their
   own accounts of how the projects were put together.

   Naturally, if a reasonable reader is aware that the statement is not
   meant literally, the author's duty of candor isn't violated: A short
   story submitted in writing class can't be faulted for being dishonest
   because it's fictional, so long as the reasonable reader knows that
   this is supposed to be a short story. The same is true of obvious
   parodies and the like.

   Yet if the reasonable reader would interpret an assertion as being
   literally made, then the student (or a faculty member or anyone else
   in the university) has an obligation to make sure that the assertion
   is indeed true. Perhaps in some other contexts hoaxes might be
   forgivable -- but not in class work, unless there's some strong
   contextual cue that the hoax is indeed a hoax. So if Shvarts did
   indeed misdescribe what she did (the accounts I've seen are somewhat
   contradictory), she should be faulted for that, and at least required
   to correct the misdescription.

   3. Yet it seems to me that, when it comes to the requirements
   described in #1, it's important that the university set out pretty
   clear rules, and not punish students or faculty members in the absence
   of such rules. This is especially true, I think, for art. As I
   understand it, avant-garde art and academic art, for better or worse,
   has in recent decades heavily prized the transgressive and shocking.

   Shvarts and her advisors, it seems, gave the university pretty much
   what academic artists are asked to give. So if the university had a
   preexisting no-human-blood rule, then it could reasonably enforce it.
   But if it didn't, then I'm not sure what sort of "appropriate action"
   (setting aside a good talking-to) could reasonably be taken against
   faculty members who saw the transgressiveness of Shvarts' project as a
   plus rather than a minus. In other fields, it might be possible to
   fault faculty and students for violating unwritten but broadly
   accepted rules of scholarship. But my sense is that this is hard to
   assert (again, for better or worse) about modern academic art.

   One question is whether this applies to #2 concerns as well, or
   whether the norm against false statements is scholarship is so
   well-understood that it need not be expressly stated (and perhaps it
   is expressly stated in some relevant policies). I'd be inclined to say
   that this is the sort of basic norm, alongside "don't commit crimes in
   making your project" or "don't do things that make your audience
   [2]feel in danger of being shot," that goes without saying. A norm of
   "don't use your blood" or even "don't try to deliberately abort
   early-term fetuses for your art project" doesn't strike me as
   comparably well-entrenched in the academic art community.

                                   * * *

   There are a lot of "if"'s here -- I don't know exactly what the
   "appropriate action" was, I don't know exactly what the rules were,
   and I don't know to what extent Yale's action focused on the #1
   concerns (rules about what's permitted generally for art projects)
   rather than #2 concerns (rules of academic candor). This is why I
   don't feel comfortable expressing a bottom-line judgment here,
   especially as to the matters is item #3. Still, I hope some of this
   general discussion strikes a chord.

   Thanks to Dana Nguyen for the pointer.

References

   1. http://www.yaledailynews.com/articles/view/24579
   2. http://www.volokh.com/archives/archive_2005_01_16-2005_01_22.shtml#1106426961