Need a parpahse of the attached

academic_freedom.doc

 

Is academic freedom under threat in UK and US higher education?

 

 

 

Introduction

 

The British observer could hitherto be excused for reasonably perceiving that the concept of academic freedom was better understood and protected in US higher education then in the UK, but now one has to pose the question as to whether US higher education is at the cusp of change and is about to slip into a new McCarthy-style (‘Red Menace’) era of external intervention in determining the content of the academic curriculum across the campus. Such external intervention is driven less from what at first sight might be assumed as the obvious factor (certainly in the UK, by way of Government reaction to the 9/11 terrorist attack) and more by what is, if anything, a more threatening and insidious process of political and social change the OxCHEPS website.)

 

What is academic freedom?

Academic freedom can be a difficult concept to define in theory, and one sometimes abused in practice when inappropriately invoked by academics/faculty in employment law disputes with their university (and occasionally by students in the context of campus free speech). A useful definition is to be found courtesy of the Canadian Association of University Teachers:

 

The common good of society depends upon the search for knowledge and its free exposition. Academic freedom in universities is essential to both these purposes in the teaching function of the university as well as in its scholarship and research. Academic staff shall not be hindered or impeded in any way by the university or the faculty association from exercising their legal rights as citizens, nor shall they suffer any penalties because of the exercise of such legal rights. The parties agree that they will not infringe or abridge the academic freedom of any member of the academic community. Academic members of the community are entitled, regardless of prescribed doctrine, to freedom in carrying out research and in publishing the results thereof, freedom of teaching and of discussion, freedom to criticise the university and the faculty association, and freedom from institutional censorship. Academic freedom does not require neutrality on the part of the individual. Rather, academic freedom makes commitment possible. Academic freedom carries with it the duty to use that freedom in a manner consistent with the scholarly obligation to base research and teaching on an honest search for knowledge.

 

What is the history of academic freedom?

If it is accepted that the University and Academe has to function as the conscience and critic of Society, with a duty to speak out if necessary against the political tide, then inevitably the institution, its academics and sometimes its students will clash with convention, orthodoxy and . Such clashes have occurred in most countries over many decades (if not centuries), as illustrated by three Australian examples typical of their type. One was Professor Marshall-Hall, University of Melbourne, 1890s, who wrote to the HEI’s Council: ‘The notion that such expression by a Professor not ex cathedra but as a private citizen can be injurious to the University is possible only by forgetting that the greatest service a University can render to the community is to be the model of toleration in opinion and the champion of freedom of thought. There is no toleration, and no freedom where men must echo conventional views of life, religion, or politics, or hold their peace.

 

 

Another was Professor Wood, University of Sydney, also 1890s, who wrote to the University’s Senate: ‘I received my historical education at two great English universities, the Victoria University of the North of England, and Oxford University… It was therefore natural that I should take perhaps too much for granted those principles as to freedom of speech which have in modern times been respected in these and, I think, in most if not all other British universities. When I became a candidate for the Chair of History in Sydney University, I was a member of the University in which Professor Freeman was the Regius Professor of Modern History; and I was connected with two colleges, Balliol and Mansfield, presided over respectively by Professor Jowett and Dr Fairbairn. Under such circumstances it became a habit of mind with me to imagine that a University teacher was free to criticise the policy of the British Government; and it was not likely to occur to me that such criticism would be taken as evidence of lack of patriotism, and “anti-British sentiment”. Even during the present heated controversies, the principle of liberty of speech has been guarded with the utmost jealousy in both of the two great English Universities with which I am connected.’

 

The third was Dr Heaton, University of Adelaide, 1920s, who wrote to ‘The Adelaide Advertiser’: ‘And if you ban teaching on controversial subjects outside the university, you must shut down such teaching inside as well, for ideas and books will get about, no matter how you try to prevent it. You must stop the teaching of philosophy, for it discusses questions which border on theology; you must abandon history, for people have theories and interpretations of history; chemistry must be taboo, for it teaches things which are of use in making poison gases for the next war; biological studies must be stopped, for they are groping round trying to upset our old ideas about the origin of life; and sixty years ago geology would have been anathema just as all talk of evolution is to some folk in Kentucky today. Even literature is a bit suspect, for Milton had strange views about freedom of speech, Carlyle and Ruskin said unpleasant things about modern industry, and most modern writers are socialists’.

 

Similarly, at the University of Birmingham (UK) Karl Wichmann, the Professor of German, in the midst of World War I ‘was effectively blackmailed into resigning his chair by a vote of the City Council Finance Committee, which made continuation of its regular payment of £13,000 a year to the University subject to the University Council ‘not retaining the services of any pre-war unnaturalised German’…’ (Ives, The First Civic University: Birmingham, 1880-1980, 2000, University of Birmingham Press, pp 169/170). Whatever unpleasantness may have occurred in modern times at Australian, US and UK HEIs, it is, however, not quite as dramatic as events at New College, Oxford (and at other Oxbridge colleges), in its interactions with Henry VIII, Mary and Elizabeth I, during the Reformation when Protestant Fellows were expelled (and, in one case, a Fellow, the Lutheran Peter Quinby, locked in the Bell Tower by the Catholic Warden London until he starved to death!) and Catholic texts in the College Library were destroyed – the College C14th stained-glass in the Chapel was, however, not replaced with plain glass and hence survives to this day, but the Reredos was destroyed along with various altars and images. Similarly, at the time of the Civil War, Warden Pincke was arrested by Parliamentary forces (led, ironically by a New College alumnus, Lord Saye and Sele), but returned when the Royalists took control of Oxford and New College became the King’s main arsenal . The College duly suffered again when Oliver Cromwell triumphed and at least fifty Fellows were expelled, with a Parliamentary loyalist being imposed as Warden: but, then, of course, the Restoration of the monarchy in 1660 led to the expulsion of the ‘intruded’ Cromwellian Fellows and the restoration of some of the deprived Royalist Fellows… Meanwhile, also in the 1660s, the New College Fellow, Thomas Hobbes (but not a rather more famous namesake, he of Leviathan, 1651), presumably (and inappropriately) invoked academic freedom in refusing to get out of bed to perform teaching duties during the winter months! (See Buxton & Williams (1979), New College, Oxford, 1379-1979; and Rashdall & Rait, New College, 1901.)

 

In the USA, arguably, ‘concern with academic freedom began at the end of the last century [19th] when Leland Stanford’s widow demanded that the president of Stanford University should sack the economist E.A Ross… [whose great offence] was to urge that no more Chinese migrant workers should be allowed into California, and then to suggest that natural monopolies such as railroads should be taken into public ownership. Leland Stanford had made his money from railroads built with coolie labor. Ross was sacked…’ (Ryan, Liberal Anxieties and Liberal Education, 1998). It was a similar story at the University of Wisconsin (R.T. Ely ‘tried’ by the Regents in 1894 for speaking favourably of strikes), at the University of Chicago (E.W. Bemis), at Brown University (President E. Benjamin Andrews): ‘Economic nonconformity was the great and abiding sin of the professors who were involved in these key cases of academic freedom in the 1890s and early 1900s’ (Rudolph, The American College and University: A History, 1962, p 414; see also Hofstadter & Metzger, The Development of Academic Freedom in the United States, 1955). Better known in the US context, of course, is the threat to academic freedom arising under the McCarthy era where the issue was not economic nonconformity as half a century earlier, but political nonconformity in the context of America’s fear of the virus of communism and socialism infecting its youth via liberal academics and indoctrination within the university lecture theatre and classroom.

 

How is academic freedom protected in Law within the UK?

To what extent does English Law protect the ability of individuals and groups connected with universities/colleges to express their views and opinions freely and without fear of reprisal from the HEI in terms of its power to use against students disciplinary procedures under the student-HEI contract to educate or similarly to use against faculty and other employees disciplinary procedures under the employee-HEI contract of employment. The British citizen has certain expressional rights protected either by the common law or by statute (notably the Human Rights Act 1998 (HRA) and its incorporation into English Law of the European Convention on Human Rights (ECHR) – specifically Articles 9 and 10 re freedoms of expression, of thought, of conscience and of religion – and the Public Interest Disclosure Act 1998 re ‘whistleblowing’). Moreover, a British citizen is subject to common law constraints in relation to defamation and also to legislation restricting his/her freedom of expression where such expression would constitute, say, obscenity or sexual harassment, or be discriminatory, or incite racial hatred.  There is no special treatment or protection for students, faculty or other HEI employees. Such individuals within the campus community have under English Law exactly the same expressional rights and precisely the same restrictions upon their freedom of expression as citizens beyond the campus, and as outlined above. The debate about such ‘expressional rights’ dates back to J.S. Mill’s On Liberty (1859); with modern contributions notably from Barendt, Freedom of Speech (2nd Ed, 2005), along with Rawls, Dworkin, Hart, etc.

 

The key issue for this article is the extent to which freedom of expression linked to academic freedom is specifically protected against the HEI (perhaps itself under pressure from external, third-party sources) attempting to curtail such expression. So just what is ‘academic freedom’ and how is it protected under English Law? Does it extend to students or faculty or any HEI employee criticising the HEI’s governance and management or, say, UK involvement in the War on Iraq; and can it cover a Professor of Physics challenging the HEI’s outsourcing of the campus catering or a Chemistry Lecturer sounding off about UK Government policy on care for the elderly? (On the basis of the New Zealand case of Rigg v University of Waitkato [1984] 1 NZLR 149 it would seem that the Professor of Physics can criticise the University management and invoke academic freedom in doing so: ‘the concept of academic freedom applied to University affairs generally and not simply to the discipline in which the academic was engaged’ (at 151), providing such criticism is ‘reasoned and fair’, and is expressed ‘with integrity, scholarship and a sense of responsibility’ – a somewhat subjective set of criteria!) The only formal protection of academic freedom in English Law is under s202(2)(a) Education Reform Act 1988: the HEI has a duty ‘to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions’. But s202 applies only to the ‘pre-1992’ royal charter HEIs as one half of the UK HE system and not to the former polytechnics that became the ‘new’ statutory universities of 1992. There is also s32(2) Higher Education Act 2004 which, in creating the Director of the Office for Fair Access, puts upon the Director ‘a duty to protect academic freedom including, in particular, the freedom of institutions – to determine the contents of particular courses and the manner in which they are taught, supervised or assessed; and to determine the criteria for the admission of students and apply those criteria in particular cases…’. (this wording, interestingly, echoes the US debate about institutional academic freedom or autonomy and the professional academic freedom of individual faculty members, Farrington & Palfreyman, The Law of Higher Education, 2006, Oxford University Press.

 

                         Tim Birtwistle (“Academic freedom and complacency: the possible effects if ‘good men do nothing’”, 2004 Education and the Law 16(4) 203-216) considers these (and other rather random) statutory references to be ‘nothing of substance that actually provides a definitive statement’. He notes the references to the significance of academic freedom in the 1988 Magna Charta of European Universities and in various UNESCO pronouncements, as well as detailing how a number of other countries seek to protect academic freedom either as itself a constitutional right or by way of a right enshrined within a Higher Education Law, before calling for the UK to overcome its ‘complacency’ and ‘act now to give a proper statutory framework to academic freedom’.

                        

There is also some protection for freedom of expression on the campus in the form of s22(4) Education Act 1994 which requires that HEIs issue students with a copy of the HEI’s code of practice drawn up in accordance with s43 Education (No 2) Act 1986: HEIs must ‘take such steps as are reasonably practicable to ensure freedom of speech for students and employees of the HEI and for visiting speakers’.

 

It is worth re-iterating that there is indeed confusion over such terms as ‘academic freedom’ and ‘institutional autonomy’. Perhaps a helpful analysis is to consider: (i) institutional autonomy (or, less usefully, ‘institutional academic freedom’) as embracing the HEI’s procedures and processes in relation to (ii) the four essential freedoms of a university (autonomy to decide what to teach and to whom,  and by whom and how it will be taught); this concept also then means the HEI itself creates an institutional context as an employer in which (iii) faulty academic freedom can best be utilised as a specially protected form of (iv) freedom of expression applicable to the academic profession and its duty to research and teach (and also sometimes to ‘Speak Truth to Power’), bearing in mind that the academic’s utilisation of this especially protected (partly by way of (v) academic tenure) form of freedom of expression has to be used responsibly and professionally; while none of this means that HEI autonomy trumps the academic freedom of the individual member of faculty in relation to research direction/publication and, to a lesser extent, in relation to his/her comments on the HEI’s governance/management or on wider ‘issues of the day’ in Society, providing the academic concerned is indeed behaving (vi) responsibly and professionally (but the individual academic’s professional freedom is subject to the institution’s (and perhaps more relevantly the academic department’s) authority and control with respect to the curriculum and, to a lesser extent at least in the US, as to exactly how that curriculum is delivered within the lecture theatre and seminar room); and, finally, that (vii) the courts will display due judicial deference to the exercise of expert academic judgement by the HEI/its faculty if the academic decision has indeed been taken in accordance with the HEI procedures and, again, responsibly and professionally. Whether faculty academic freedom and HEI autonomy is protected in Law directly within a written constitution or indirectly via relevant legislation on HE, or ‘only’ by case law as a matter of judicial policy, will then vary country by country.

 

Put another way… What is academic freedom? How is it protected in Law? What are the limits of any such protection? It is a specially protected form of freedom of expression that applies to the academic profession in the context of the employment of academics within universities that themselves may also have institutional autonomy as a factor conducive to engendering the faculty utilisation of its academic freedom, and especially by way of the university-academic contract of employment in some countries being dominated by the concept and practice of academic tenure. The degree of protection in Law will vary from being directly written into the Constitution, through being worded into a specific HE Law, to case-law as a matter of judicial policy (perhaps linking to judicial deference to academic judgement). The limits of academic freedom are unclear in terms of its inter-action with other areas of law (eg defamation law and discrimination law) and also in relation to how an individual academic uses it (eg does academic freedom relate only to his/her subject area (and, even then, with respect to both teaching and research equally), or to the subject area and the governance/management of the HEI, or simply to anything and everything that the academic elects to ‘speak out’ about; and, in speaking out, does it matter whether he/she does so responsibly and professionally or recklessly and polemically?).

 

What are the potential challenges to academic freedom?

Academic freedom is likely to be challenged for one of five main reasons: first, the HEI is too dependent on one key source of funding (usually the State/Government/taxpayer) and is compromised by needing to be politically accountable via external micro-management to the one who pays the piper being able to call the academic tune; second, the HEI being compromised by a commercial/market relationship with a financial sponsor of the HEI generally or of particular research which expects the ‘right’ academic output or to block output that is inconvenient/too revealing; third, and linked to reason two above, the HEI’s own management is compromised by being over-enthusiastic about ‘the entrepreneurial university’ model; fourth, the conflict between freedom of academic expression and any prevailing orthodoxy of political correctness; and, fifth, pressure upon the HEI to silence faculty or students speaking or acting against the political consensus as determined by powerful funders or politicians claiming to represent ‘the silent majority’. These reasons can, of course, overlap in some complicated cases/scenarios.

 

The first threat of the Government piper calling the tune (State control of higher education) has historically been greater in the mainland European higher education systems where higher education is seen as a State-provided public good/public service; and also since the 1980s in the UK, as indeed predicted when Lord Robbins (the architect of 1960s expansion) wisely warned in a Lecture entitled Of Academic Freedom (6 July 1966, British Academy/Oxford University Press) that university autonomy and academic freedom (‘a very special kind of freedom which, in some ways at least, transcends our normal conceptions of freedom in society and, because it involves exceptional privilege, also demands exceptional justification’ – see also Kennedy, Academic Duty, 1997, Harvard University Press and Evans, Calling Academia to Account: Rights and Responsibilities, 1999, Open University Press) would be in danger if HEIs became too dependent on State subsidy and such funding increasingly came with demands for value-for-money and with ever-greater micro-management via excessive bureaucratisation (‘men of goodwill who are inadequately informed of what is at stake… are apt to believe that academic freedom means academic anarchy… are prone to fall for all sorts of grandiose half-baked plans for alleged reform and reorganisation’). Back in 1922, H.A.L. Fisher, Warden of New College, Oxford, and sometime Minister of Education, had similarly commented: ‘The State is, in my opinion, not competent to direct the work of education and disinterested research which is carried on by Universities, and the responsibility for its conduct must rest solely with their Governing Bodies and teachers’. Some three decades later after Lord Robbins, Lord Russell in Academic Freedom (1993, Routledge) saw recent legislation in the form of excessive bureaucracy that Robbins had predicted as ‘a further significant erosion of academic freedom’, and called for Oxford and Cambridge to break away from State-funding, to become truly private corporations, as ‘the only way any universities [worth having] might continue to exist in Britain’ (see the 2004 OxCHEPS Report on financing the privatisation of Oxford University at oxcheps.new.ox.ac.uk, Papers Page, Item 14, for the same issue surfacing a decade later) – that said, Lord Beloff once commented that the best benefactor for a college was a dead bishop rather than the taxpayer or alumni or corporations, as a donor both unlikely and unable to try and pull strings!

 

The paradox is that State micro-management of HEIs increases as taxpayer funding declines, and HEIs (in the UK at least) lack the political will and effective leadership to grasp their own collective destiny. In the USA, in contrast, higher education has until rather more recently been in a relatively privileged position in terms of fairly generous taxpayer funding and also State-government demands for accountability have been somewhat muted compared with the experience in Australia, New Zealand and (perhaps to a lesser extent) Canada. Moreover, the taxpayer seeking value-for-money does not necessarily threaten academic freedom, as opposed to challenging the cosy, producer-oriented delivery of higher education (see, for example, Bok (2006, Princeton University Press) Our Underachieving Colleges: A Candid Look at How Much Students Learn and Why They Should Be Learning More and Hersh & Merrow (2005, Palgrave) Declining by Degrees).

 

The second threat by way of inappropriate pressure from commercial sponsors is ever-present, as disputes in the USA, Canada, and Australia and the UK have shown and as discussed in Bok (2003, Princeton University Press) Universities in the Marketplace. The third reason is often linked to the second, and is explored in such critiques as that by Marginson and Considine (2000, Cambridge University Press) The Enterprise University: Power, Governance and Reinvention in Australia, as well as in the manageralism: collegiality or (in US terms) the shared values: corporatism debate (see the OxCHEPS Bibliography Page for several relevant texts and Chapter 1 of Tapper & Palfreyman, Oxford and the Decline of the Collegiate Tradition, 2000, Woburn/RoutledgeFalmer).

 

The fourth and linked fifth reasons are explored in many texts, perhaps notably by Allan Bloom (1987) The Closing of the American Mind: How Higher Education has failed Democracy and impoverished the Souls of today’s Students; and, rather more polemically, in A.C. Kors and H.A. Silverglate (1998) The Shadow University: the Betrayal of Liberty on America’s Campuses. The current debate in a dozen US States about an ‘Academic Bill of Rights’, proposed by Horowitz and the Center for the Study of Popular Culture, and designed to protect students against allegedly force-feeding of liberal ideology in the lecture room, further illustrates the issue and links across to the fifth element explored below: see also the campaign ‘Students for Academic Freedom’ (source: New York Times, 25/12/05, p22, ‘Professors’ Politics Draw Lawmakers into the Fray’). More of this in the next section, but, for the moment, note the robust common-sense of Ryan’s comments: ‘If you don’t like having your beliefs questioned, don’t go to college’ (Liberal Anxieties and Liberal Education, 1998).

 

Is UK academic freedom threatened by Government anti-terror legislation?

Professor Furedi (University of Kent, UK), writing in the AUT Bulletin, commented on demands from the UK Government that HEIs clamp down on extremist campus groups: ‘Policing discussion is inconsistent with academic freedom and campus democracy. The issue is not whether or not we agree or disagree with the view of organisations like Hizb-ut-Tahir but whether we think that clarity can be gained from a clash of opinion. Academics must not allow themselves into becoming too scared to defend free speech.’ This is politically charged territory, especially in the context of two opinions from the House of Lords (the UK’s Supreme Court) that, as Government would see it, tend to undermine the ‘War on Terror’ and the legislation passed since 9/11.

 

Many in HE worry that the teaching of certain courses and the supply of certain reference material could leave faculty and library staff exposed.  We value diversity and multicultural and free society. Freedom of speech or expression is one of the most fundamental rights that individuals enjoy. And Higher Education is a bastion of those values. Part of its reason for existence is to teach people to think for themselves, and express themselves, and to listen to and consider the opinions of others. However, freedom of speech does not mean tolerance of unacceptable behaviour. I believe the HEIs need to confront unacceptable behaviour on the premises and within their community. They should be alert and be unafraid to set their own boundaries – within the law and with the law in support – in consultation with their own community and the wider community. That means informing the police where criminal offences are being perpetrated or where there may be concerns about possible criminal acts. HEIs have a duty to support and look after the moderate majority as they study and develop their own ideas and knowledge, to ensure that those students are not harassed, intimidated or pressured.’

 

Is academic freedom in US HE threatened by neo-conservatism?

Reference has already been made to the campaign for an ‘Academic Bill of Rights’ that would require ‘balance’ in the presentation of concepts and ideas in the classroom and in the hiring of faculty (as well as, along similar lines to the duty imposed upon the UK HEI by s22(4) Education Act 1994 referred to above, with respect to campus free speech). As in US society generally there are religious and socio-political tensions on the campus between groups of students, and between (usually conservative) students (along with their parents) and (usually liberal) academics. The result is the attempts to enact the ‘Academic Bill of Rights’ (ABR) as a means of balancing via legislation student and faculty academic freedom: such attempts have been made in some 20 States, with partial success in Massachusetts, Minnesota, New York, Tennessee and Washington (see text at Note 2). Similarly, an attempt has been made to introduce a Federal version. The AAUP and ACE strongly opposes any attempt to enact an ABR.

 

Moreover, the position in the USA is not helped by the tendency within HE (and education generally) to refer to ‘instruction’ rather than ‘teaching’, revealing ‘deep and widespread mental confirm about the nature of what universities ought to do’). Instruction is not education: the former ‘lays down rules to be obeyed’; the latter ‘strews ideas to be subverted’; the one is ‘regimentation’ by way of ‘data feeding into dull automata’ and the other is ‘liberation’ by way of ‘the stimulation of independent minds’ that can then ‘question and quarry and challenge and harry’ within the HE classroom as ‘an area of criticism, a nursery of the unpredictable’ – in short, ‘intellectual progress’. By wrongly assuming that US undergraduates are ‘dull automata’ awaiting ‘instruction’, and by further mistakenly assuming that such ‘instruction’ should (and indeed could) be effective as ‘regimentation’, the agitations and legislations behind the Academic Bills of Rights movement ‘misconceive education as instruction’ and then get so terribly over-excited about a few liberal/leftist faculty supposedly indoctrinating impressionable young minds – as Fernandez-Armesto concludes (potentially earning himself a place among the ‘most dangerous professors’!): ‘The best way to produce conservative students is to give them radical teachers. But those who think of teaching as instruction will never see that, now perceive the potential education has for changing lives and changing the world’.

 

It is precisely because that potential is sometimes actualised that totalitarian regimes close down universities and censor faculty, and also why some politicians with totalitarian tendencies (Senator McCarthy in 1950s America and the evangelicals/neocons in the American of some half a century later) seek to control universities and their faculty. That said, Andrew Roberts in A History of the English-Speaking Peoples since 1900 (2006) comments: ‘Since the 1960s the universities across the English-speaking world have seen department after department captured by the radical Left whose grip on appointments and tenured posts has been near impossible to loosen, even after the collapse of Communism across Europe in 1989.’ Whether the radical Left of academe is effective in filling academic posts with its stooges, it certainly appears to be pretty ineffectual when it comes to influencing liberal-democracy in elections over recent decades within the US, UK and Australia, let alone brain-washing the young student minds supposedly under its malign influence.

 

The threat to academic freedom within UK higher education, albeit minimally protected in Law at present, from anti-terrorism legislation and its ramifications is probably not significant and is somewhat exaggerated – assuming that, even if the ‘glorification’ of terrorism gets on to the statute book as a crime, common sense will (hopefully!) not see academics prosecuted for discussing the Chartists or the IRA in seminars, or HEI librarians for supplying to students material about the Mau Mau or the South Africa anti-apartheid movement. The threat to academic freedom in US higher education is again not directly from anti-terrorism legislation but is far greater in the US than in the UK from the more insidious pressures of social and religious conservatism that are beginning to impinge upon the teaching and learning environment of the campus. Again, even where ABR wording finds its way on to the State statute book, one might assume (hope) that it is the result of political appeasement and fudge, and that nobody seriously expects the legislation to be invoked. But, as with UK anti-terror legislation, the risk is that, once theoretically available, it is in practice utilised by over-zealous enforcement agencies or by political pressure groups.