Battle to define what academic freedom means is not over

Henry Reichman, Understanding Academic Freedom, Johns Hopkins University Press (2021), Baltimore, Maryland, United States, ISBN 9781421442150

The Germans have two words for ‘academic freedom’. The shift of the ‘r n’ in Lernfreiheit to ‘h r’ in Lehrfreiheit serves to distance the student freely seeking knowledge from the professor’s jealously guarded freedom to research and teach governed only by the rules of their scholarly discipline (as opposed to law or religious dogma).

Academic freedom is the sine qua non of universities in common law countries as well as those in Western Europe and, indeed, is central to the functioning of universities in all but those countries with repressive governments. Nowhere, however, are there more skirmishes about the meaning of ‘academic freedom’ – and the practical consequences of its definition – than in the United States.

There are two main reasons for this. The first is the large number (some 5,300) of higher education institutions in the country, which means there are more places where debate over the meaning of academic freedom can arise.

The second, as Henry Reichman shows in his recent and insightful book, Understanding Academic Freedom (something of a sequel to his The Future of Academic Freedom published in 2019), part of the reason for this is the litigious nature of the country.

In 1915, to take the year that the American Association of University Professors (AAUP) was founded, there were 49 different legal regimens and court systems divided between the 48 states and the federal government.

One of the more surprising facts Reichman elucidates is that the link between academic freedom and the First Amendment (“Congress shall make no law … abridging the freedom of speech”) comes rather late in the day.

In 1915, the AAUP argued that colleges and universities held “a public trust” to advance knowledge and that limits on professors’ research or teaching were injurious to the mission of advancing “the sum of human knowledge”. Even error was protected, for instead of dogmatic truth, wherever scholarly work was at a particular moment was but “an intellectual experiment station”.

Surprisingly, perhaps the most important legal formulation of what academic freedom is on the ground, so to speak, came in a concurring opinion in the 1957 case of Sweezy v New Hampshire that doesn’t reference the First Amendment.

The Supreme Court reversed New Hampshire University professor Paul M Sweezy’s conviction for contempt; Sweezy had refused to answer then New Hampshire attorney general Louis C Wyman’s questions about Sweezy’s belief in the Marxist concept of dialectical materialism and the inevitable triumph of socialism.

In his concurring opinion, associate justice Felix Frankfurter said that each university possessed four essential freedoms: 1) to determine who may teach; 2) what can be taught; 3) how it is taught; and 4) who will be admitted.

Three years later, however, the Supreme Court used the case of Keyishian v Board of Regents of the University of the State of New York to place academic freedom under the umbrella of the First Amendment.

During the Red Scare of the 1950s, Professor Harry Keyishian and several other professors at the University of Buffalo had been dismissed for refusing to attest to the fact they were not Communists.

In his majority decision, associate justice William Brennan Jr wrote: “Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

A source of authority

However powerfully worded they may be, the AAUP’s investigative reports concerning impingement on academic freedom have no legal power. Yet, says Reichman, a former AAUP vice president who between 2012 and 2021 chaired its Committee A on Academic Freedom and Tenure, the many investigative reports it has issued “comprise”, he writes, “a body of ‘academic common law’ that has at times been recognised as a source of authority by the nation’s courts”.

Using them and an abundance of case law, Reichman explains what academic freedom means in seven areas: research, teaching, citizenship (ie extramural writing or speaking), tenure, law, students and knowledge – and, more importantly, notes worrying trends.

As late as 2002, Mercer University in Macon, Georgia, (a Baptist school) prevented a professor doing research on sexuality from conducting a survey of Mercer’s students. The professor left the school “for a new, better-paid position”, so the case never went to court.

Research is threatened also by outside organisations, such as the National Rifle Association (NRA), which “launched a paragraph-by-paragraph search of errors” in Michael Bellesiles’ Arming America (2000). Bellesiles admits that there were errors in his presentation of probate records, but what can fairly be termed a ‘take down’ by the NRA was not made in the interest of advancing knowledge or within the norms of historical scholarship.

Reichman also cites the power of monied donors, like the oil man Charles Koch and his foundation.

In addition to donating US$50 million to some 249 higher education institutions in 2016, Koch and his foundation gave George Mason University’s law school in Washington, DC, US$10 million (which was paired with an anonymous donation of US$20 million) to rename the law school for the late justice Antonin Scalia and reorient it toward his originalist (conservative) interpretation of laws and the state and federal constitutions.

The shift to online learning because of the COVID crisis highlighted a growing threat to academic freedom as practised in the classroom. The AAUP is concerned about groups like Turning Point USA which created a Professor Watchlist. Students are invited to upload videos and screenshots to the watchlist, the founder of which says, “now is the time to document and expose the radicalism that has been infecting our schools”.

Online teaching opens the door to administrators increasing their control of the classroom, which according to declarations signed by both the AAUP and the Association of American Colleges and Universities are under the control of professors (a position that also has some court support).

Coincidentally, the day I received Understanding Academic Freedom, word came from the Peach State (Georgia) that the Board of Regents of the University of Georgia were planning changes to tenure that would effectively “obliterate tenure”, as Janet Murray, the Ivan Allen College dean’s professor in literature, media and communication at the Georgia Institute of Technology, told Inside Higher Ed.

The Board of Regents seeks to arrogate to itself the power to deprive faculty who are dismissed for reasons other than ‘cause’ from coming under the Faculty Handbook’s “policies on Grounds for Removal and Procedures for Dismissal”.

The AAUP responded: “If any institution of higher education can dismiss any faculty members without affordance of due process for unspecified reasons – as long as those reasons are not among the listed grounds for dismissal – then the system of tenure and the academic freedom it is designated to protect are severely compromised, as are the appointment security and academic freedom of non-tenured faculty members.”

For, in the chapter on tenure, Reichman shows that – critiques of tenure as a means to protect ‘dead wood’ aside – tenure plays an essential role in protecting academic freedom.

It may seem a relic of the past, especially because only about a quarter of the faculty are now either tenured or on the tenure track, as opposed to 66% in the 1970s. Yet, tenure ensures “that scholars may be uninhibited in criticising and advocating controversial changes in accepted theories, widely held beliefs, existing institutions, as well as policies, programmes and leadership of their own institutions,” writes Reichman.

Attack on ‘relativism’

Early in Understanding Academic Freedom, Reichman references William F Buckley’s now 70-year-old God and Man at Yale as the urtext of today’s conservative attack on the academe; he might well have added that this book by an American version of an ultramontane Catholic has been seized upon also by libertarians in the US.

Buckley argued that the belief in God had vanished from the school funded by Elihu Yale at the behest of the Puritan minister Cotton Mather. Even if Buckley’s complaint that the faculty belonged more to the sophist camp than to Socrates’, Buckley’s attack on what he saw as ‘relativism’ raises the spectre that has haunted academe since 1615, almost exactly a century before Yale made his donation.

Hauled before the Roman Inquisition for arguing for the heliocentric model of the solar system in Dialogue Concerning the Two Chief World Systems, Galileo was saved from a fiery end by his friendship with Pope Urban VII when he was Cardinal Maffeo Barberini. For, without anything like the protection of tenure, Galileo was forced to recant and was placed in what amounted to house arrest for the rest of his life.

Yet, in what is perhaps the most famous example of a scholar demonstrating that Die Gedanken Sind Frei, “Thoughts are free” (as popularised by the American folk or protest singer Pete Seeger), as Galileo left the room he paused and in a stage whisper, said, “And yet it [the Earth] still moves” – a moment that should be remembered whenever academic freedom is discussed.