"With his customary flair and insight, Stanley Fish discusses essential contemporary issues of academic freedom. Fish’s views are consistently trenchant and illuminating. They should be required reading for anyone interested in these questions." –Robert Post, Yale University
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Academic Freedom Studies
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In 2009 Terrence Karran published an essay with the title “Academic Freedom: In Justification of a Universal Ideal.” Although it may not seem so at first glance, the title is tendentious, for it answers in advance the question most often posed in the literature: How does one justify academic freedom? One justifies academic freedom, we are told before Karran’s analysis even begins, by claiming for it the status of a universal ideal.
The advantage of this claim is that it disposes of one of the most frequently voiced objections to academic freedom: Why should members of a particular profession be granted latitudes and exemptions not enjoyed by other citizens? Why, for example, should college and university professors be free to criticize their superiors when employees in other workplaces might face discipline or dismissal? Why should college and university professors be free to determine and design the condition of their workplace (the classroom) while others must adhere to a blueprint laid down by a supervisor? Why should college and university professors be free to choose the direction of their research while researchers who work for industry and government must go down the paths mandated by their employers? We must ask, says Frederick Schauer (2006), “whether academics should, by virtue of their academic employment and/or profession, have rights (or privileges, to be more accurate) not possessed by others” (913).
The architects of the doctrine of academic freedom were not unaware of these questions, and, in anticipation of others raising them, raised them themselves. Academic freedom, wrote Arthur O. Lovejoy (1930), might seem “peculiar chiefly in that the teacher is . . . a salaried employee and that the freedom claimed for him implies a denial of the right of those who provide or administer the funds from which he is paid to control the content of his teaching” ( 384). But this denial of the employer’s control of the employee’s behavior is peculiar only if one assumes, first, that college and university teaching is a job like any other and, second, that the college or university teacher works for a dean or a provost or a board of trustees. Those assumptions are directly challenged and rejected by the American Association of University Professors’ 1915 Declaration of Principles on Academic Freedom and Academic Tenure, a founding document (of which Lovejoy was a principal author) and one that is, in many respects, still authoritative. Here is a key sentence:
The responsibility of the university teacher is primarily to the public itself, and to the judgment of his own profession; and while, with respect to certain external conditions of his vocation, he accepts a responsibility to the authorities of the institution in which he serves, in the essentials of his professional activity his duty is to the wider public to which the institution itself is morally amenable.
There are four actors and four centers of interest in this sentence: the public, the institution of the academy, the individual faculty member, and the individual college or university. The faculty member’s allegiance is first to the public, an abstract entity that is not limited to a particular location. The faculty member’s secondary allegiance is to the judgment of his own profession, but since, as the text observes, the profession’s responsibility is to the public, it amounts to the same thing. Last in line is the actual college or university to which the faculty member is tied by the slightest of ligatures. He must honor the “external conditions of his vocation”—conditions like showing up in class and assigning grades, and holding office hours and teaching to the syllabus and course catalog (although, as we shall see, those conditions are not always considered binding)— but since it is a “vocation” to which the faculty member is responsible, he will always have his eye on what is really essential, the “universal ideal” that underwrites and justifies his labors.
Here in 1915 are the seeds of everything that will flower in the twenty- first century. The key is the distinction between a job and a vocation. A job is defined by an agreement (often contractual) between a worker and a boss: you will do X and I will pay you Y; and if you fail to perform as stipulated, I will discipline or even dismiss you. Those called to a vocation are not merely workers; they are professionals; that is, they profess something larger than the task immediately at hand— a religious faith, a commitment to the rule of law, a dedication to healing, a zeal for truth— and in order to become credentialed professors, as opposed to being amateurs, they must undergo a rigorous and lengthy period of training. Being a professional is less a matter of specific performance (although specific performances are required) than of a continual, indeed lifelong, responsiveness to an ideal or a spirit. And given that a spirit, by definition, cannot be circumscribed, it will always be possible (and even thought mandatory and laudable) to expand the area over which it is said to preside.
The history of academic freedom is in part the history of that expansion as academic freedom is declared to be indistinguishable from, and necessary for, the flourishing of every positive value known to humankind. Here are just a few quotations from Karran’s essay:
Academic freedom is important to everyone’s well-being, as well as being particularly pertinent to academics andtheir students. (The Robbins Committee on Higher Education in the UK, 1963)
Academic freedom is but a facet of freedom in the larger society. (R. M. O. Pritchard, “Academic Freedom and Autonomy in the United Kingdom and Germany,” 1998)
A democratic society is hardly conceivable . . . without academic freedom. (S. Bergan, “Institutional Autonomy: Between Myth and Responsibility,” 2002)
In a society that has a high regard for knowledge and universal values, the scope of academic freedom is wide. (Wan Manan, “Academic Freedom: Ethical Implications and Civic Responsibilities,” 2000)
The sacred trust of the universities is to carry the torch of freedom. (J. W. Boyer, “Academic Freedom and the Modern University: The Experience of the University of Chicago,” 2002)
Notice that in this last statement, freedom is not qualified by the adjective academic. Indeed, you can take it as a rule that the larger the claims for academic freedom, the less the limiting force of the adjective academic will be felt. In the taxonomy I offer in this book, the movement from the most conservative to the most radical view of academic freedom will be marked by the transfer of emphasis from academic, which names a local and specific habitation of the asserted freedom, to freedom, which does not limit the scope or location of what is being asserted at all.
Of course, freedom is itself a contested concept and has many possible meanings. Graeme C. Moodie sorts some of them out and defines the freedom academics might reasonably enjoy in terms more modest than those suggested by the authors cited in Karran’s essay. Moodie (1996) notes that freedom is often understood as the “absence of constraint,” but that, he argues, would be too broad an understanding if it were applied to the activities of academics. Instead he would limit academic freedom to faculty members who are “exercising academic functions in a truly academic matter” (134). Academic freedom, in his account, follows from the nature of academic work; it is not a personal right of those who choose to do that work. That freedom— he calls it an “activity freedom” because it flows from the nature of the job and not from some moral abstraction— “can of course only be exercised by persons, but its justification, and thus its extent, must clearly and explicitly be rooted in its relationship to academic activities rather than (or only consequentially) to the persons who perform them” (133). In short, he concludes, “the special freedom(s) of academics is/are conditional on the fulfillment of their academic obligations” (134).
Unlike those who speak of a universal ideal and of the torch of freedom being carried everywhere, Moodie is focused on the adjective academic. He begins with it and reasons from it to the boundaries of the freedom academics can legitimately be granted. To be sure, the matter is not so cut and dried, for academic must itself be defined so that those boundaries can come clearly into view and that is no easy matter. No one doubts that classroom teaching and research and scholarly publishing are activities where the freedom in question is to be accorded, at least to some extent. But what about the freedom to criticize one’s superiors; or the freedom to configure a course in ways not standard in the department; or the freedom to have a voice in the building of parking garages, or in the funding of athletic programs, or in the decision to erect a student center, or in the selection of a president, or in the awarding of honorary degrees, or in the inviting of outside speakers? Is academic freedom violated when faculty members have minimal input into, or are shut out entirely from, the consideration of these and other matters?
To that question, Mark Yudof, who has been a law school dean and a university president, answers a firm “no.” Yudof (1988) acknowledges that “there are many elements necessary to sustain the university,” including “salaries,” library collections,” a “comfortable workplace,” and even “a parking space” (1356), but do academics have a right to these things or a right to participate in discussions about them (a question apart from the question of whether it is wise for an administration to bring them in)? Only, says Yudof, if you believe “that any restrictions, however indirectly linked to teaching and scholarship, will destroy the quest for knowledge” (1355). And that, he observes, would amount to “a kind of unbridled libertarianism for academicians,” who could say anything they liked in a university setting without fear of reprisal or discipline (1356).
Better, Yudof concludes, to define academic freedom narrowly, if only so those who are called upon to defend it can offer a targeted, and not wholly diffuse, rationale. Academic freedom, he declares, “is what it is” (of course that’s the question; what is it?), and it is “not general liberty, pleasant working conditions, equality, self- realization, or happiness,” for “if academic freedom is thought to include all that is desirable for academicians, it may come to mean quite little to policy makers and courts” (1356). Moodie (1996) gives an even more pointed warning: “Scholars only invite ridicule, or being ignored, when they seem to suggest that every issue that directly affects them is a proper sphere for academic rule” (146). (We shall revisit this issue when we consider the relationship between academic freedom, shared governance, and public employee law.)
So we now have as a working hypothesis an opposition between two views of academic freedom. In one, freedom is a general, overriding, and ever-expanding value, and the academy is just one of the places that house it. In the other, the freedom in question is peculiar to the academic profession and limited to the performance of its core duties. When performing those duties, the instructor is, at least relatively, free. When engaged in other activities, even those that take place within university precincts, no such freedom or special latitude obtains. This modest notion of academic freedom is strongly articulated by J. Peter Byrne (1989): “The term ‘academic freedom’ should be reserved for those rights necessary for the preservation of the unique functions of the university ” (262).
These opposed accounts of academic freedom do not exhaust the possibilities; there are extremes to either side of them, and in the pages that follow I shall present the full range of the positions currently available. In effect I am announcing the inauguration of a new field— Academic Freedom Studies. The field is still in a fluid state; new variants and new theories continue to appear. But for the time being we can identify five schools of academic freedom, plotted on a continuum that goes from right to left. The continuum is obviously a political one, but the politics are the politics of the academy. Any correlation of the points on the continuum with real world politics is imperfect, but, as we shall see, there is some. I should acknowledge at the outset that I shall present these schools as more distinct than they are in practice; individual academics can be members of more than one of them. The taxonomy I shall offer is intended as a device of clarification. The inevitable blurring of the lines comes later.
As an aid to the project of sorting out the five schools, here is a list of questions that would receive different answers depending on which version of academic freedom is in place:
Is academic freedom a constitutional right?
What is the relationship between academic freedom and the First Amendment?
What is the relationship between academic freedom and democracy?
Does academic freedom, whatever its scope, attach to the individual faculty member or to the institution?
Do students have academic freedom rights?
What is the relationship between academic freedom and the form of governance at a college or university?
In what sense, if any, are academics special?
Does academic freedom include the right of a professor to criticize his or her organizational superiors with impunity?
Does academic freedom allow a professor to rehearse his or her political views in the classroom?
What is the relationship between academic freedom and political freedom?
What views of education underlie the various positions on academic freedom?
As a further aid, it would be good to have in mind some examples of incidents or controversies in which academic freedom has been thought to be at stake.
In 2011, the faculty of John Jay College nominated playwright Tony Kushner to be the recipient of an honorary degree from the City University of New York. Normally approval of the nomination would have been pro forma, but this time the CUNY Board of Trustees tabled, and thus effectively killed, the motion supporting Kushner’s candidacy because a single trustee objected to his views on Israel. After a few days of outrage and bad publicity the board met again and changed its mind. Was the board’s initial action a violation of academic freedom, and if so, whose freedom was being violated? Or was the incident just one more instance of garden- variety political jockeying, a tempest in a teapot devoid of larger implications?
In the same year Professor John Michael Bailey of Northwestern University permitted a couple to perform a live sex act at an optional session of his course on human sexuality. The male of the couple brought his naked female partner to orgasm with the help of a device known as a “fucksaw.” Should Bailey have been reprimanded and perhaps disciplined for allowing lewd behavior in his classroom or should the display be regarded as a legitimate pedagogical choice and therefore protected by the doctrine of academic freedom?
In 2009 sociology professor William Robinson of the University of California at Santa Barbara, after listening to a tape of a Martin Luther King speech protesting the Vietnam War, sent an e-mail to the students in his sociology of globalization course that began:
If Martin Luther King were alive on this day of January 19th, there is no doubt that he would be condemning the Israeli aggression against Gaza along with U.S. military and political support for Israeli war crimes, or that he would be standing shoulder to shoulder with the Palestinians.
The e-mail went on to compare the Israeli actions against Gaza to the Nazi actions against the Warsaw ghetto, and to characterize Israel as “a state founded on the negation of a people.” Was Robinson’s e-mail an intrusion of his political views into the classroom or was it a contribution to the subject matter of his course and therefore protected under the doctrine of academic freedom?
As the 2008 election approached, an official communication from the administration of the University of Illinois listed as prohibited political activities the wearing of T-shirts or buttons supporting candidates or parties. Were faculty members being denied their First Amendment and academic freedom rights?
BB&T, a bank holding company, funds instruction in ethics on the condition that the courses it supports include as a required reading Ayn Rand’s Atlas Shrugged (certainly a book concerned with issues of ethics). If a university accepts this arrangement (as Florida State University did), has it traded its academic freedom for cash or is it (as the dean at Florida State insisted) merely accepting help in a time of financial exigency?
In 1996, the state of Virginia passed a law forbidding state employees from accessing pornographic materials on state- owned computers. The statute included a waiver for those who could convince a supervisor that the viewing of pornographic material was part of a bona fide research project. Was the academic freedom of faculty members in the state university system violated because they were prevented from determining for themselves and without government monitoring the course of their research?
Just as my questions would be answered differently by proponents of different accounts of academic freedom, so would these cases be assessed differently depending on which school of academic freedom a commentator belongs to.
Of course I have yet to name the schools, and I will do that now.
(1)— The “It’s just a job” school. This school (which may have only one member and you’re reading him now) rests on a deflationary view of higher education. Rather than being a vocation or holy calling, higher education is a service that offers knowledge and skills to students who wish to receive them. Those who work in higher education are trained to impart that knowledge, demonstrate those skills and engage in research that adds to the body of what is known. They are not exercising First Amendment rights or forming citizens or inculcating moral values or training soldiers to fight for social justice. Their obligations and aspirations are defined by the distinctive task— the advancement of knowledge— they are trained and paid to perform, defined, that is, by contract and by the course catalog rather than by a vision of democracy or world peace. College and university teachers are professionals, and as such the activities they legitimately perform are professional activities, activities in which they have a professional competence. When engaged in those activities, they should be accorded the latitude— call it freedom if you like— necessary to their proper performance. That latitude does not include the performance of other tasks, no matter how worthy they might be. According to this school, academics are not free in any special sense to do anything but their jobs.
(2)— The “For the common good” school. This school has its origin in the AAUP Declaration of Principles (1915), and it shares some arguments with the “It’s just a job” school, especially the argument that the academic task is distinctive. Other tasks may be responsible to market or political forces or to public opinion, but the task of advancing knowledge involves following the evidence wherever it leads, and therefore “the first condition of progress is complete and unlimited freedom to pursue inquiry and publish its results.” The standards an academic must honor are the standards of the academic profession; the freedom he enjoys depends on adherence to those standards: “The liberty of the scholar . . . to set forth his conclusions . . . is conditioned by their being conclusions being gained by a scholar’s method and held in a scholar’s spirit.” That liberty cannot be “used as a shelter . . . for uncritical and intemperate partisanship,” and a teacher should not inundate students with his “own opinions.”
With respect to pronouncements like these, the “For the common good” school and the “It’s just a job” school seem perfectly aligned. Both paint a picture of a self-enclosed professional activity, a transaction between teachers, students, and a set of intellectual questions with no reference to larger moral, political, or societal considerations. But the opening to larger considerations is provided, at least potentially, by a claimed connection between academic freedom and democracy. Democracy, say the authors of the 1915 Declaration, requires “experts . . . to advise both legislators and administrators,” and it is the universities that will supply them and thus render a “service to the right solution of . . . social problems.” Democracy ’s virtues, the authors of the Declaration explain, are also the source of its dangers, for by repudiating despotism and political tyranny, democracy risks legitimizing “the tyranny of public opinion.” The academy rides to the rescue by working “to help make public opinion more self-critical and more circumspect, to check the more hasty and unconsidered impulses of popular feeling, to train the democracy.” By thus offering an external justification for an independent academy— it protects us from our worst instincts and furthers the realization of democratic principles— the “For the common good” school moves away from the severe professionalism of the “It’s just a job” school and toward an argument in which professional values are subordinated to the higher values of democracy or justice or freedom; that is, to the common good.
( 3)— The “Academic exceptionalism or uncommon beings” school. This school is a logical extension of the “For the common good” school. If academics are charged not merely with the task of adding to our knowledge of natural and cultural phenomena, but with the task of providing a counterweight to the force of common popular opinion, they must themselves be uncommon, not only intellectually but morally; they must be, in the words of the 1915 Declaration, “men of high gift and character.” Such men (and now women) not only correct the errors of popular opinion, they escape popular judgment and are not to be held accountable to the same laws and restrictions that constrain ordinary citizens.
The essence of this position is displayed by the plaintiff ’s argument in Urofsky v. Gilmore (2000), a Fourth Circuit case revolving around Virginia’s law forbidding state employees from accessing explicitly sexual material on state-owned computers without the permission of a supervisor. The phrase that drives the legal reasoning in the case is “matter of public concern.” In a series of decisions the Supreme Court had ruled that if public employees speak out on a matter of public concern, their First Amendment rights come into play and might outweigh the government’s interest in efficiency and organizational discipline. (A balancing test is triggered.) If, however, the speech is internal to the operations of the administrative unit, no such protection is available. The Urofsky court determined that the ability of employees to access pornography was not a matter of public concern. The plaintiffs, professors in the state university system, then detached themselves from the umbrella category of “public employees” and claimed a special status. They argued that “even if the Act is valid as to the majority of state employees, it violates the . . . academic freedom rights of professors . . . and thus is invalid as to them.” In short, we’re exceptional.
(4)— The “Academic freedom as critique” school. If academics have the special capacity to see through the conventional public wisdom and expose its contradictions, exercising that capacity is, when it comes down to it, the academic’s real job; critique— of everything— is the continuing obligation. While the “It’s just a job” school and the “For the common good” school insist that the freedom academics enjoy is exercised within the norms of the profession, those who identify academic freedom with critique (because they identify education with critique) object that this view reifies and naturalizes professional norms which are themselves the products of history, and as such are, or should be, challengeable and revisable. One should not rest complacently in the norms and standards presupposed by the current academy ’s practices; one should instead interrogate those norms and make them the objects of critical scrutiny rather than the baseline parameters within which critical scrutiny is performed.
Academic freedom is understood by this school as a protection for dissent and the scope of dissent must extend to the very distinctions and boundaries the academy presently enforces. As Judith Butler (2006a) puts it, “as long as voices of dissent are only admissible if they conform to accepted professional norms, then dissent itself is limited so that it cannot take aim at those norms that are already accepted” (114). One of those norms enforces a separation between academic and political urgencies, but, Butler contends, they are not so easily distinguishable and the boundaries between them blur and change. Fixing boundaries that are permeable, she complains, has the effect of freezing the status quo and of allowing distinctions originally rooted in politics to present themselves as apolitical and natural. The result can be “a form of political lib eralism that is coupled with a profoundly conservative intellectual resistance to . . . innovation” (127). From the perspective of critique, established norms are always conservative and suspect and academic freedom exists so that they can be exposed for what they are. Academic freedom, in short, is an engine of social progress and is thought to be the particular property of the left on the reasoning (which I do not affirm but report) that conservative thought is anti- progressive and protective of the status quo. It’s only a small step, really no step at all, from academic freedom as critique to the fifth school of thought.
(5)— The “Academic freedom as revolution” school. With the emergence of this school the shift from academic as a limiting adjective to freedom as an overriding concern is complete and the political agenda implicit in the “For the common good” school and the “Academic freedom as critique” schools is made explicit. If Butler wants us to ask where the norms governing academic practices come from, the members of this school know: they come from the corrupt motives of agents who are embedded in the corrupt institutions that serve and reflect the corrupt values of a corrupt neoliberal society. (Got that?) The view of education that lies behind and informs this most expansive version of academic freedom is articulated by Henry Giroux (2008). The “responsibilities that come along with teaching,” he says, include fighting for
an inclusive and radical democracy by recognizing that education in the broadest sense is not just about understanding, . . . but also about providing the conditions for assuming the responsibilities we have as citizens to expose human misery and to eliminate the conditions that produce it. (128)
In this statement the line between the teacher as a professional and the teacher as a citizen disappears. Education “in the broadest sense” demands positive political action on the part of those engaged in it. Adhering to a narrow view of one’s responsibilities in the classroom amounts to a betrayal both of one’s political being and one‘s pedagogical being. Academic freedom, declares Grant Farred (2008–2009), “has to be conceived as a form of political solidarity ”; and he doesn’t mean solidarity with banks, corporations, pharmaceutical firms, oil companies or, for that matter, universities ( 355). When university obligations clash with the imperative of doing social justice, social justice always trumps. The standard views of academic freedom, members of this school complain, sequester academics in an intellectual ghetto where, like trained monkeys, they perform obedient and sterile routines. It follows, then, that one can only be true to the academy by breaking free of its constraints.
The poster boy for the “Academic freedom as revolution” school is Denis Rancourt, a physics professor at the University of Ottawa (now removed from his position) who practices what he calls “academic squatting”— turning a course with an advertised subject matter and syllabus into a workshop for revolutionary activity. Rancourt (2007) explains that one cannot adhere to the customary practices of the academy without becoming complicit with the ideology that informs them: “Aca demic squatting is needed because universities are dictatorships, devoid of real democracy, run by self- appointed executives who serve private capital interests.”
Copyright notice: Excerpted from pages 1-15 of Versions of Academic Freedom: From Professionalism to Revolution by Stanley Fish, published by the University of Chicago Press. ©2014 by The University of Chicago. All rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. copyright law, and it may be archived and redistributed in electronic form, provided that this entire notice, including copyright information, is carried and provided that the University of Chicago Press is notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the consent of the University of Chicago Press. (Footnotes and other references included in the book may have been removed from this online version of the text.)