Lai-AcademicFreedom-2023 History

University of Michigan Press
Chapter Title: Academic Freedom: History, Definitions, and Democratic Significance
Book Title: In Defense of Free Speech in Universities

Book Subtitle: A Study of Three Jurisdictions
Book Author(s): Amy Lai
Published by: University of Michigan Press. (2023)
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Chapter Two
Academic Freedom
History, Definitions, and Democratic Significance
Who would even doubt that academic freedom, like free speech, was nonexis-
tent in Nazi Germany and Mao’s China? In fact, academic freedom, like free
speech, also found its origin in Authentica Habita in medieval Europe. This
freedom continued to evolve in the nineteenth and early twentieth centuries
before gaining recognition and protection in many Western nations in the mid
to late twentieth century. Among the most thorough discussions of academic
freedom is Stanley Fish’s 2014 book, Versions of Academic Freedom. Fish’s pre-
ferred model according to which scholars should not engage in politics in their
pursuit of knowledge is nonetheless rife with internal inconsistencies. Exam-
ples from the Renaissance to the modern period also show that a distinction
between academics and politics cannot and should not be made, in legal as well
as in other disciplines, and that academic freedom should serve the common
good and help realize democratic principles.
I. A Brief History
Essential to the mission of the academy, academic freedom is generally

defined as the freedom to engage in an entire range of activities involved in
the production of knowledge,1 without unreasonable interference or restric-
Academic Freedom, New World Encyclopedia, http://www.newworldencyclopedia.org/entry/Aca

1.
demic_freedom (last visited May 24, 2021).
30
Academic Freedom / 31
tion from law, institutional regulations, or public pressure.2 Arguably, it is a

freedom enjoyed by all members of the academic community. For teachers, it
is the freedom to research any subject that they consider to be of value, to
present and publish their findings without control or censorship, and to teach
in a manner they consider professionally appropriate.3 For students, it is the
freedom to study subjects that concern them, to form their own conclusions,
and to express their opinions.4 Academic freedom is subject to a number of
constraints, including the professional standards of relevant disciplines and
the legitimate and nondiscriminatory requirements of individual institutions
to fulfill their academic missions.5
Some argue that ancient Greece, where freedom of thought and expression
originated, was also the breeding ground for academic freedom.6 Hence, aca-
demic freedom can be known as a modern term for an ancient idea.7 However,
because this freedom is located in academia, like campus free speech, its origin
is more properly located in Authentica Habita, the decree that was issued in
Bologna and applied to the first European universities.8 Among the imperial
rights and protections that the Habita conferred on scholars, including free-
dom of travel and safe residence, immunity from reprisal, the right to choose as
judges their own masters at schools or the bishop of the diocese, none of them
expressly protected their freedom in teaching and research. Yet an idea of aca-
demic freedom, albeit one that is more restrained than is commonly under-
stood and practiced today, is implicitly recognized in the security that scholars
in medieval Europe enjoyed through these rights and protections. Such
security—physical, mental, and economic—empowered scholars of that time
2. Academic Freedom, Britannica, http://www.britannica.com/topic/academic-freedom (last visited

May 24, 2021).
May 24, 2021).
May 24, 2021).
5. Peter MacKinnon, What Do We Mean When We Talk about Academic Freedom, University Af-
fairs (Sep. 12, 2011), https://www.universityaffairs.ca/opinion/in-my-opinion/what-do-we-mean
-when-we-talk-about-academic-freedom/
6. See, e.g., Michiel Horn suggests that the struggle for freedom in teaching can be traced as far back as
Socrates’s eloquent self-defense against the charge of corrupting Athenian youth. Academic Free-
dom in Canada: A History 4 (1999); see also William J. Hoye, The Religious Roots of Aca-
demic Freedom, Theological Studies 58 (1997).
7. See William J. Hoye, The Religious Roots of Academic Freedom, Theological Studies 58
(1997).
8. E.g., William J. Hoye, The Religious Roots of Academic Freedom, Theological Studies 58
(1997); Kemal Gürüz, Global: University Autonomy and Academic Freedom: A Historical
Perspective, International Higher Education 63 (2011).
32 / In Defense of Free Speech in Universities
to teach, learn, research, publish, and produce knowledge so long as no heresy

was involved.
Privileges provided by the Habita, as explained, also led to the formation of
more universities throughout Europe, which modeled their own charters upon
it. Further, Parens Scientiarum, a papal bull issued by Pope Gregory IX on April
13, 1231, first recognized the right of the university as a corporate body to award
degrees.9 The papal bulls and imperial edicts that followed, while providing
privileges and support to institutions and scholars, stipulated detailed condi-
tions under which institutions operated and functioned—including syllabi,
graduation, and promotion requirements, libraries, facilities, and codes of con-
duct.10 Medieval scholars thus benefited from the autonomy of their institu-
tions to pursue knowledge, subject to the oversight of the Catholic Church.11
The idea of academic freedom further took shape in the nineteenth century,
which witnessed the slow decline of religion and its impact on universities.
Napoleon I reformed French national education by replacing all universities in
France and the occupied lands by l’Université de France, a highly centralized
state educational institution.12 After Napoleon’s defeat, Prussian philosopher
and linguist Wilhelm von Humboldt was put in charge of reviving German
universities.13 Humboldt had contended that education serves both individual
and social purposes, and that “self-education can only be continued [. . .] in the
wider context of development of the world.”14 His views on the structure of the
university can be collectively expressed as the freedom to teach and publish
(Lehrfreiheit), the freedom to learn (Lernfreiheit), and the unity of teaching and
9. Kemal Gürüz, Global: University Autonomy and Academic Freedom: A Historical Per-
spective, International Higher Education 63 (2011).
10.
Kemal Gürüz, Global: University Autonomy and Academic Freedom: A Historical Per-
11.
spective, International Higher Education 63 (2011); Academic Freedom, New World Ency-
clopedia, http://www.newworldencyclopedia.org/entry/Academic_freedom (last visited May 24,
2021).
12.
13.
14.
Wilhelm von Humboldt, Gesammelte Schriften: Ausgabe Der Preussischen Akademie
Der Wissenschaften Book 7: 33 (1968). Individuals must “absorb the great mass of material of-
fered to him by the world around him and by his inner existence . . . then reshape that material with
all the energies of his own activity and appropriate it to himself so as to create an interaction between
his own personality and nature in a most general, active and harmonious form.” Wilhelm von
Humboldt, Gesammelte Schriften: Ausgabe Der Preussischen Akademie Der Wissen-
schaften, bk. 2: 117.
research (Einheit von Forschungund Lehre).15 These views, though neither

clearly nor fully articulated, formed the basis for the modern research univer-
sity and the modern concept of academic freedom.16 Inspired by this model,
German universities, particularly those in the Protestant states, emphasized
Lehrfreiheit, the freedom of professors to determine the content of their teach-
ing and to publish the results of their research without prior approval by their
institutions.17
In the 1940s, the concept of academic freedom further evolved in response
to the encroachments of totalitarian states on science and academia for the
furtherance of their own goals. In the Soviet Union and Nazi Germany, for
example, scientific research was brought under the control of the state.
Hungarian-British scientist Michael Polanyi argued against Marxist John Des-
mond Bernal’s instrumentalist view in The Social Function of Science (1938) that
science exists primarily to serve the needs of society.18 Demands in Britain for
centrally planned scientific research finally prompted Polanyi, together with
John Baker, to found the Society for Freedom in Science in 1940, which pro-
moted a liberal conception of science as a discipline pursued freely for the sake
of truth through peer review and the scientific method.19
In the United States, the first university to incorporate the Humboldtian
ideal was Johns Hopkins University, founded in 1876, which made the needs of
its professors, many having studied in Germany, central to its enterprise.20 Aca-
demic freedom came to be further defined, first through the “1915 Declaration
of Principles on Academic Freedom and Academic Tenure,” authored by the
American Association of University Professors (AAUP), and then through the
“1940 Statement of Principles on Academic Freedom and Tenure,” jointly
authored by the AAUP and the Association of American Colleges (now the
Association of American Colleges and Universities). The former affirms that
15.
Wilhelm von Humboldt, Gesammelte Schriften: Ausgabe Der Preussischen Akademie
Der Wissenschaften, bk. 2: 117.
16.
17.
Michiel Horn, Academic Freedom in Canada: A History 7 (1999).
18.
William McGucken, On Freedom and Planning in Science: The Society for Freedom in
Science 1940–1946 (1978).
19.
William McGucken, On Freedom and Planning in Science: The Society for Freedom in
Science 1940–1946 (1978). In The Contempt of Freedom (1940) and The Logic of Liberty (1951),
Polanyi claimed that co-operation among scientists is analogous to the coordination among agents
within a free market. Just as consumers in a free market determine the value of products, scientists
should freely pursue truth as an end through open debate with fellow specialists.
20.
Michiel Horn, Academic Freedom in Canada: A History 7 (1999).
“academic freedom” applies to both academics and students, and that scholars
should not be “debarred from giving expression to their judgments upon con-
troversial questions,” nor should their freedom of speech, outside the univer-
sity, “be limited to questions falling within their own specialties.”21 The latter
states that “[t]eachers are entitled to full freedom in research and in the publi-
cation of the results, subject to the adequate performance of their other aca-
demic duties,” and “are entitled to freedom in the classroom in discussing their
subject,” but “should be careful not to introduce into their teaching controver-
sial matter which has no relation to their subject.”22 In the years that followed,
the U.S. Supreme Court further held that “[i]n a university knowledge is its
own end, not merely a means to an end,” and thus a university “is characterized
by the spirit of free inquiry, its ideal being the ideal of Socrates—‘to follow the
argument where it leads.’”23 Just as freedom of speech in America is guaranteed
as a fundamental right by the First Amendment, the Supreme Court identified
academic freedom as “a special concern of the First Amendment, which does
not tolerate laws that cast a pall of orthodoxy over the classroom.”24
There is no protection of academic freedom in the British constitution,
whether through direct mention of the concept or indirectly under freedom of
expression. To date British courts have not applied freedom of expression under
Article 10 of the Human Rights Act 1998 to academic freedom like the Ameri-
can court interpreted the First Amendment to include this freedom. The 1988
Education Reform Act nonetheless established the legal right of academics in
the U.K. “to question and test received wisdom and to put forward new ideas
and controversial or unpopular opinions without placing themselves in jeop-
ardy of losing their jobs or the privileges they may have.”25 According to the
statement published by the University and College Union, formed in 2006
through the merger of the Association of University Teachers and the Univer-
sity and College Lecturers’ Union, academic freedom includes the right to
21. The 1915 Declaration of Principles on Academic Freedom and Academic Tenure, American Associa-
tion of University Professors, https://www.aaup.org/NR/rdonlyres/A6520A9D-0A9A-47B3-B5
50-C006B5B224E7/0/1915Declaration.pdf/
22. Seven regional accreditors worked with American colleges and universities to implement these prin-
ciples. The AAUP, which is not an accrediting body and works with these same institutions, does not
always agree with the regional accrediting bodies on these principles. The 1940 Statement of Princi-
ples on Academic Freedom and Tenure, AAUP, https://www.aaup.org/report/1940-statement-princip
les-academic-freedom-and-tenure
23. Sweezy v. N.H., 354 U.S. 234, 262–63 (1958).
24. Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).
25. Education Reform Act 1988, § 202(2)(a).
“freedom in teaching and discussion; freedom in carrying out research without

commercial or political interference; freedom to disseminate and publish one’s
research findings; freedom from institutional censorship, [. . .] and freedom to
participate in professional and representative academic bodies, including trade
unions.”26 Academic freedom is also “bound up with broader civil liberties and
human rights,” and carries with it “the responsibility to respect the democratic
rights and freedoms of others.”27
Academic freedom was not unheard of in nineteenth-and early twentieth-
century Canada.28 Yet it was not until the Great Depression of the 1930s, when
academic freedom was severely restricted, that academics claimed it as a pro-
fessorial right—even the “essence of university life” and a “sacred privilege”—a
trend that continued into World War II and the postwar period.29 The 1950s,
with the boom in the academic labor market, saw the establishment of the
Canadian Association of University Teachers (CAUT), which, in fighting for
stronger protection of academic freedom, confronted numerous prominent
cases.30 The CAUT defines academic freedom as “the right, without restriction
by prescribed doctrine, to freedom to teach and discuss; freedom to carry out
research and disseminate and publish the results thereof; [. . .] freedom to
express one’s opinion about the institution, its administration, and the system
in which one works,” among other freedoms.31
The significance of academic freedom has been recognized on a global
level. The most symbolic event was the signing of the Magna Charta Universi-
tatum at the European Rectors’ conference on September 18, 1988 by universi-
ties from all over the world, both to commemorate the 900th anniversary of the
26. UCU Statement on Academic Freedom, University and College Union, https://www.ucu.org.uk
/academicfreedom
27. UCU Statement on Academic Freedom, University and College Union, https://www.ucu.org.uk
/academicfreedom
28. Michiel Horn, Academic Freedom in Canada: A History 15–61 (1999).
29. Sir Robert Falconer, addressing alumni of the University of Toronto on February 14, 1922, gave aca-
demic freedom a certain degree of public exposure by noting that “[t]he freedom to investigate and
evaluate new truth was of the essence of university life,” that the academic freedom enjoyed by pro-
fessors was “one of the most sacred privileges of a university,” and that the information that they
provide would be “intelligible to [students] and will equip them to fulfil their duties as citizens and
as searchers for the truth.” Michiel Horn, Academic Freedom in Canada: A History 69 (1999).
30. One such case involved the dismissal of Professor Harry S. Crowe by the Board of Regents of Win-
nipeg’s United College for a letter he wrote to a colleague that criticized the college administration
and disparaged religious influence over the institution. The case led to the establishment of a perma-
nent CAUT office in Ottawa.
31. Policy Statement on Academic Freedom, Canadian Association of University Teachers, https://
www.caut.ca/about-us/caut-policy/lists/caut-policy-statements/policy-statement-on-academic-fre
edom
founding of the University of Bologna and to celebrate university traditions.32

The Universitatum provides for an international standard for the fundamental
values and principles of the university, in particular institutional autonomy and
academic freedom.33 It describes “freedom in research and training” as “the
fundamental principle of university life,” which enables an “independent search
for truth” and serves as a “barrier against undue intervention by both govern-
ment and interest groups.”34 Referencing the mobility that the Habita ensured
for both teachers and students in the twelfth century, the Universitatum stresses
that the freedoms of students—and not only of teachers—must be safeguarded,
and that “instruments appropriate to realise that freedom must be made avail-
able to all members of the university community.”35
II. Why an Academic Job Isn’t “Just a Job”
Certainly, the idea of academic freedom has matured through the centuries and
its significance is now widely recognized and protected in many countries. The
exact scope of this freedom nonetheless has remained highly contested. Neither
the Habita nor the Humboldtian ideal delineates the scope of academic free-
dom. Polanyi’s notion of science, liberal in his time and a reaction against total-
itarianism, did not require that scientific knowledge fulfill any critical purpose
with regard to society. If anything, his conceptualization of science aimed to
sever science from the state. It was in the second half of the twentieth century
that academic freedom came to be expressly associated with freedom of expres-
sion, civil liberties, and democracy in Western societies.
This section and the next examine in detail Stanley Fish’s 2014 book Ver-
sions of Academic Freedom: From Professionalism to Revolution, which is one of
the most comprehensive studies of this topic particularly with regard to how
academic freedom has been defined and ought to be defined. Fish espouses
what he calls the “It’s just a job” school of academic freedom. Academic free-
dom, according to this school of thought, is a mere subset of “professionalism”
and rests upon a deflationary view of higher education as a service that offers
32. In 1988, 318 universities signed the Universitatum, and the number later increased to 805. Magna
Charta Universitatum, http://www.magna-chata.org
33. Magna Charta Universitatum, http://www.magna-chata.org
knowledge and skills to students who wish to receive them.36 Because the obli-
gations and aspirations of college and university professors are defined by the
sole task of advancing their field of knowledge, any latitude or freedom they
enjoy does not include performing other tasks, no matter how worthy they
might be.37
Both research and teaching are accordingly circumscribed in Fish’s pre-
ferred school of academic freedom. For example, legal scholars should commit
to the “inquiry into the intellectual coherence of rules and doctrines,” not to
higher goals such as “justice,” “political desirability,” or “cost-effectiveness,”
even where these might be identified as aspirations for the law.38 Fish quotes
Ernest Weinrib, who asserts that to understand tort law from the vantage point
of wealth maximization would be to regard it as a branch of economics, and
thereby to distort tort law as a practice informed by the goal of redressing
wrongs suffered by an individual due to another person’s negligent actions.39
Weinrib’s reasoning applies to other disciplines. Performing solely as academics
rather than as political agents in the classroom, teachers should base their judg-
ment of a text upon its own merit, so that any partisan implications that it
might contain should not occupy the foreground or even the surface of the
discussion.40 In sum, while debating political issues is a valuable activity in a
democracy, it is not an academic activity and does not deserve protection under
the doctrine of academic freedom.41
Fish distinguishes his preferred school of academic freedom from the “For
the common good” and the “Academic exceptionalism or uncommon beings”
schools. The former shares some arguments with the “It’s just a job” school,
especially the argument that the academic job is distinctive and involves a
transaction between academics and students.42 Yet the “For the common good”
36.
Stanley Fish, Versions of Academic Freedom: From Professionalism to Revolution 22–23,
34 (2014).
37.
34 (2014).
38.
34 (2014).
39.
Stanley Fish, Versions of Academic Freedom: From Professionalism to Revolution 22–23
(2014); citing Ernest Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 Yale L.J.
949 (1988).
40.
Stanley Fish, Versions of Academic Freedom: From Professionalism to Revolution 34
(2014).
41.
(2014).
42.
(2014).
school also contends that academia produces experts to advise both legislators
and administrators and to make public opinions more self-critical and circum-
spect.43 Academics armed with this freedom help to further the realization of
democratic principles.44 The latter can be seen as a logical extension of the for-
mer, seeing academics as “men of high gift and character” and uncommon or
exceptional both intellectually and morally.45 Hence, they not only correct the
errors of popular opinion, but are entitled to the privilege of unaccountability
to the same laws and restrictions that constrain ordinary citizens.46
Fish also introduces the “Academic freedom as critique” school, which
holds that academics, possessing the special capacity to expose the weaknesses
and contradictions of public opinions, are obliged to interrogate and revise the
professional norms and standards of the current academy’s practices rather
than accepting them complacently.47 In his view, this school represents “the
very antithesis of academic freedom” by challenging the legitimizing authority
of the academy itself and, in doing so, it turns this freedom into an engine for
social progress.48 Lastly, the “Academic freedom as revolution” school further
radicalizes this idea of social progress. Rather than a mere offer of critique,
fighting for an inclusive and radical democracy and standing in solidarity with
other academics in the same fight becomes a responsibility that comes along
with teaching.49 “A passion for justice is of course a good thing,” Fish admits,
but emphasizes that “it’s just not an academic good thing.”50
Obviously, Fish’s view is that there are only two competing versions of aca-
43. Stanley Fish, Versions of Academic Freedom: From Professionalism to Revolution 35

(2014).
(2014).
(2014).
46. This is found in the plaintiffs’ argument in Urofsky v. Gilmore (2000), a decision by the Court of Ap-
peals for the Four Circuit of the U.S., which involved Virginia’s law forbidding state employees from
accessing sexually explicit material on state-owned computers without their supervisors’ permission.
The plaintiffs argued that professors in the state university system claimed a special status: while the
act was valid to most state employees, it violated the academic freedom of professors and did not
apply to them.
(2014).
(2014).
(2014).
(2014).
demic freedom among the five: the “It’s just a job” and the “For the common
good” schools.51 Because, as Fish argues, “parents, churches, free libraries,
political discussion groups, newspapers, high-level journals, the internet, pub-
lic television, National Public Radio, documentaries, popular culture, folk wis-
dom, common sense” can all enlighten and empower a political citizenry, the
academy should not appeal to the claim of a larger common good to justify its
privileges.52 This, in his words, is his position’s “greatest strength because, in
refusing the challenge of public/political justification, it reaffirms the indepen-
dent value of what academics do, and provides a secure, because wholly inter-
nal, justification of allowing them to do it freely.”53 Ole W. Pedersen, an aca-
demic, contends that in this day and age, an increasing value is being attached
to academic research on account of its societal benefit as opposed to its intrin-
sic value and, in some cases, even to the extent that the academic research
enterprise is shaped in accordance with researchers’ desired social objectives
and detracts from the core purpose of inquiry.54 Fish’s assertion of the impor-
tance of the intrinsic value of the academy is important, as any social value that
it may produce would be seen as an unintended consequence rather than a
deliberate, calculated attempt to influence matters external to it (which, though
Pederson does not expressly state it, may compromise the integrity of the
research process).55 Fellow academic Evan Kindley, on the other hand, believes
that Fish’s arguments will only speed up the eradication of the professional
academy by preventing new entrants from invoking the spiritual or social
value(s) of the academic profession, which is already deprived of many worldly
benefits commonly enjoyed in other professions.56
Both Pedersen and Kindley argue from the perspective of academics who
are deeply concerned about the intrinsic value and existence of the academy,
respectively—concerns that are both timely and legitimate. On the contrary,
law professor Robert Post compellingly exposes the weaknesses of Fish’s argu-
51. E.g., Evan Kindley, The Calling, Dissent (2015), https://www.dissentmagazine.org/article/the-calli

ng-academic-freedom-stanley-fish
(2014).
(2014).
54. Ole W. Pedersen, Review of: Versions of Academic Freedom, by Stanley Fish, 35 Leg. Stud. 551 (2015).
55. Ole W. Pedersen, Review of: Versions of Academic Freedom, by Stanley Fish, 35 Leg. Stud. 551 (2015).
56. E.g., Evan Kindley, The Calling, Dissent (2015), https://www.dissentmagazine.org/article/the-calli
ng-academic-freedom-stanley-fish
ment for the “It’s just a job” school by targeting its internal inconsistencies.57
Agreeing with the thrust of Fish’s thesis, Post rightly contends that his efforts to
distinguish “It’s just a job” and “For the common good” schools were misplaced.
First, Fish is wrong in saying that justifying academic freedom in terms of
external goods would corrupt the academy, because this freedom is primarily a
value empowering scholars to defend the autonomy of the scholarly enterprise,
and it would be more effective to appeal to the common good outside of the
academy to persuade nonscholars to respect the profession’s autonomy.58 Sec-
ond, by arguing that academic freedom cannot be justified in terms of values
external to the academic enterprise, Fish effectively denies all constitutional
underpinnings of this freedom, including democracy’s need for the creation
and distribution of expert knowledge.59 Third, because the disciplinary norms
defining and constituting legitimate scholarship are not unitary and shared by
all scholarly fields, his criteria for distinguishing scholarship from politics fail
to account for the breadth and diversity of scholarly practices that characterize
the modern university.60
Michael Robertson, also a law professor, adds to Post’s robust criticism of
Fish’s opinion that the refusal to consider external values and goals is the best
and most principled way to defend the academy. As Robertson wisely argues,
citing Larry Alexander, good academic works do tend to produce great social
benefits even if scholars do not aim to do so, and benefits completely different
from the original goals can justify the academic enterprise to outsiders.61 In
fact, such collateral or even random social benefits will be valuable ammuni-
tion to use against those who seek to dismiss and undermine the work of
universities.62
The following section will further the arguments of Fish’s reviewers by jus-
tifying the role of the academy in serving the common good and realizing dem-
ocratic principles. Examples from the Renaissance and Enlightenment periods
57. Robert Post, Why Bother with Academic Freedom? 9 FIU L. Rev. 9 (2013).
58. Robert Post, Why Bother with Academic Freedom? 9 FIU L. Rev. 9, 9 (2013).
59. Robert Post, Why Bother with Academic Freedom? 9 FIU L. Rev. 9, 9 (2013).
60. Post points out that Fish’s method applies more readily to fields like literature. Academic disciplines
like political theory, on the contrary, commonly require political theorists to take positions on real-
life political events. It is merely one of the practical disciplines that study and analyze the world to
effect changes. Robert Post, Why Bother with Academic Freedom? 9 FIU L. Rev. 9, 20 (2013).
61. Michael Robertson, Book Review on Stanley Fish, Versions of Academic Freedom, 65(3) J. Leg. Educ.
672, 700 (2016); citing Larry Alexander, Fish on Academic Freedom: A Merited Assault on Nonsense,
but Perhaps a Bridge Too Far, 9 Fla. Int’l U. L. Rev. 1, 8 (2013).
62. Michael Robertson, Book Review on Stanley Fish, Versions of Academic Freedom, 65(3) J. Leg. Educ.
672, 700 (2016).
and from totalitarian regimes in the twentieth century will be used to illumi-
nate the flaws and impracticality of the “It’s just a job” school and to justify the
democratic function of academic freedom. The chapter will end by discussing
the statement by the United Nations Education, Scientific, and Cultural Orga-
nization (UNESCO) on academic freedom, the first successful international
attempt to articulate in a single major UN document the rights and responsi-
bilities of postsecondary faculties and the democratic implications of the
academy.
III. Why Academic Freedom Is Important to Democracy
Robertson correctly identifies one common criticism of Fish’s “It’s just a job”
school—that it would be difficult for scholars to compartmentalize academics
from politics while they are on the job.63 Indeed, compartmentalization is not
only impractical but may also be self-defeating. While certain scholars were
victimized by the circumstances of their times, others benefited from them. The
greatest philosophies, inventions, and discoveries cannot be isolated from the
social and political circumstances that gave rise to them. Chapter 1 has already
described the stories of Milton and Locke, who benefited from the intellectual
atmosphere at their respective universities and later advanced their theories of
freedom of expression. Similarly, one would be hard pressed to isolate Nicolaus
Copernicus’s heliocentric theory and Galileo Galilei’s invention of his telescope
and support for the Copernican view of the universe from the Renaissance,
which saw the decline of the Church’s influence, the resurrection of the ancient
Greek tradition of law and reasoning, the reform of the educational curricu-
lum, and the rise in the study of mathematics and astronomy.64 The same goes
for Isaac Newton’s discovery of gravity, the laws of motion, and calculus, which,
being products of the late Renaissance, hugely impacted the Enlightenment
period that followed it.65
Yet Fish’s preferred model is inadequate for a related reason. In his earlier
works, Fish expresses views similar to those in his work on academic freedom,
See Michael Robertson, Book Review on Stanley Fish, Versions of Academic Freedom, 65(3) J. Leg.
63.
Educ. 672, 700 (2016).
See, e.g., Allen George Debut, Man and Nature in the Renaissance (Cambridge Studies in
64.
the History of Science) (1978).
See Allen George Debut, Man and Nature in the Renaissance (1978).
65.
by arguing that making partisan politics part of the academic job could expose
the university to hostile political actors. To protect their pursuit of disciplinary
truths from interference by legislators and political activists, he argues, aca-
demics should stay away from politics.66 Legislators and activists who want to
usurp the role of academics then “would have no traction or point of polemical
entry because politics, or religion, or ethics would enter the classroom only as
objects of analysis and not as candidates for approval or rejection. The culture
wars, at least in the classroom, would be over.”67 This interestingly echoes
Polanyi’s argument back in the 1930s against the instrumentalist view of science
and his promotion of a liberal view of science and knowledge to be pursued for
its own sake. What Fish may have overlooked is that despite any attempt to
shield the academy from politics, the academic profession may—and likely still
will—become infiltrated or usurped by nonscholars and politicians to further
their agendas. A better and more sensible approach, therefore, would be not to
stay within the confines of one’s disciplinary expertise, but to aspire to loftier
goals like democracy and justice while drawing upon one’s expertise in pursu-
ing knowledge. This approach would entail following the “For the common
good” school, meaning scholars should actively communicate knowledge pro-
duced in the academy to the public and feed the input from the public back into
the academy to produce more knowledge.
Throughout Western history, not only have universities not been immune
to political forces, but they were exploited and weaponized to serve totalitarian
agendas during different periods. This happened in Germany in the 1930s,
when the Humboldtian model was said to have inspired many universities by
the time Hitler took power. Lehrfreiheit, or the freedom to teach, research, and
publish, which had been the foundation of many German universities, was not
enough to shield them from the Nazis. While many German scholars who
opposed Hitler or expressed anti–National Socialist sentiments were expelled
from the Nazi-controlled universities along with their Jewish counterparts,
those who stayed either openly supported the regime or did not defy it and so
were complicit in the Holocaust.68
That the German academy could do little to resist the Nazis was due to many
factors, one being that German universities themselves had served on different
occasions as a breeding ground of nationalism. There were other reasons. Curi-
66.
Fish, Professional Correctness 96 (1995).
67.
Fish, Save the World on Our Own Time 169–70 (2008).
See, e.g., Robert P. Ericksen, Complicity in the Holocaust: Churches and Universities in
68.
Nazi Germany (2012).
ously enough, neither Post nor Robertson, both legal academics, questions Fish’s
reliance on Weinrib’s argument that academics should study law purely from a
legal, rather than interdisciplinary, perspective to bolster his preferred model of
academic freedom. Neither do they draw examples to show that studying law
without reference to democratic or justice principles could pose problems to
society. In fact, another reason that the German academy was unable to resist the
Nazis could have been due to the rise of legal positivism in Germany, which treats
law as a construct dependent on social facts rather than as something that is
driven by universal principles. Although there is nothing inherently authoritar-
ian about legal positivism per se,69 the common good or justice, as in the natural
law tradition, arguably offers an intellectual defense and moral safeguard against
arbitrary state power and unjust laws.70 Unsurprisingly, not a few have attributed
Nazism in part to the belief in legal positivism—that law bears no relation to
morality or justice—among German academics of that time.71
The mere belief in the role that higher moral principles play in law, or even
an entire academy that actively resisted the Nazi regime, may not have helped
rewrite the modern history of Germany. Yet in the aftermath of World War II,
Germany and the world realized the dangers of excluding ethics and metaphys-
ics from the understanding of law. One of the Nuremberg Principles, created by
the UN’s International Law Commission to codify the legal principles underly-
ing the Nuremberg Trials of Nazi party members following World War II, states
that individuals have “a duty to disobey laws which are clearly recognizable as
violating higher moral principles.”72 If law should be understood and studied
with respect to justice, morality, and democratic principles, there is no reason
why this idea should not also apply to other disciplines. Fish’s view that an aca-
demic position is “just a job” turns out to be too restrictive and regressive.
Nazi Germany is long gone. As the previous chapter has explained, how-
ever, campus speech is not free, in part because extreme political correctness
69. See, e.g., Brian Leiter, The Radicalism of Legal Positivism, University of Chicago Public Law
Working Paper, no. 303 (Mar. 12, 2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=156
8333
70. E.g., Kenny Yang, The Rise of Legal Positivism in Germany: A Prelude to Nazi Arbitrariness? 3 W. Aus.
Jurist 245 (2012).
71. Kenny Yang, The Rise of Legal Positivism in Germany: A Prelude to Nazi Arbitrariness? 3 W. Aus. Ju-
rist 245, 253–54 (2012); Oren Gross disagrees, arguing that the Nazis adopted a perverted version
of natural law to support their actions, and “it was not inattention to values that marred the post-
WWII reputation of the German legal profession, but it was rather devotion to a base and odious set
of values”—the “Nazi morality.” 11 Wake Forest L. Rev. Online 54 (2021), http://wakeforestlawre
view.com/2021/05/what-both-hart-and-fuller-got-wrong/
72. Kenny Yang, The Rise of Legal Positivism in Germany: A Prelude to Nazi Arbitrariness? 3 W. Aus. Ju-
rist 245, 253–54 (2012).
has stifled freedom of speech and discussion on many campuses. This culture of
conformity and censorship, unfortunately born out of a globalized and hetero-
geneous environment, can be challenged through academic freedom, which
enables existing knowledge to be evaluated and new knowledge to be created.73
The defense and exercise of this broadly conceived freedom will ideally help to
thwart despotic tendencies that ruin our democracies.
Unsurprisingly, the importance of academic freedom came to be affirmed by
the UN. UNESCO recognizes this freedom as a right to which all academic staff
should be entitled and which should be protected by the tenure system. On
November 11, 1997, it issued a statement titled Recommendation concerning the
Status of Higher-Education Teaching Personnel. According to this statement, “the
right to education, teaching and research can only be fully enjoyed in an atmo-
sphere of academic freedom,” and “open communication of findings, hypotheses
and opinions lies at the very heart of higher education and provides the strongest
guarantee of the accuracy and objectivity of scholarship and research.”74
Among the main components of academic freedom, according to the
UNESCO’s statement, are “Institutional autonomy,” “Individual rights and free-
doms,” “Self governance and collegiality,” and “Tenure.”75 Regarding the second
item in particular, it stipulates that “[h]igher-education teaching personnel are
entitled to the maintaining of academic freedom, that is to say, the right, with-
out constriction by prescribed doctrine, to freedom of teaching and discussion,
freedom in carrying out research and disseminating and publishing the results
thereof, freedom to express freely their opinion about the institution or system
in which they work, freedom from institutional censorship and freedom to par-
ticipate in professional or representative academic bodies.”76 “Tenure,” which
serves to protect the freedom of academic staff, “should be safeguarded as far as
possible even when changes in the organization of or within a higher education
institution or system are made, and should be granted, after a reasonable period
of probation, to those who meet stated objective criteria in teaching, and/or
scholarship, and/or research to the satisfaction of an academic body.”77
See Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear
73.
of Knowledge (2016).
Recommendation concerning the Status of Higher-Education Teaching Personnel, UNESCO (1997),
74.
http://www.gdrc.org/doyourbit/113234mb.pdf
Recommendation concerning the Status of Higher-Education Teaching Personnel § 5, UNESCO (1997),
75.
http://www.gdrc.org/doyourbit/113234mb.pdf
Recommendation concerning the Status of Higher-Education Teaching Personnel § 27, UNESCO
76.
(1997), http://www.gdrc.org/doyourbit/113234mb.pdf
Recommendation concerning the Status of Higher-Education Teaching Personnel § 46, UNESCO
77.
(1997), http://www.gdrc.org/doyourbit/113234mb.pdf
UNESCO’s Recommendation concerning the Status of Higher-Education

Teaching Personnel is not a treaty and is aimed to set a standard rather than to
stand as formal legislation. Yet it was the first successful international attempt
to articulate in a single major UN document the rights and responsibilities of
postsecondary faculties.78 Compared to the Magna Charta Universitatum
described earlier, it is lacking in the sense that it fails to address the freedom of
students. In addition, it has low compliance among many nations, including
European states.79 Nonetheless, as a UN document, it has been drawn upon in
different countrywide protests over violations of academic freedom, including
those that occurred under authoritarian regimes.80 In sum, it sets out an impor-
tant freedom—one that has been violated or compromised in many nations,
but to which postsecondary institutions and faculty associations in many of
these nations have continued to aspire.81
• • •
It was hardly surprising that some of the worst dictators like Hitler and Mao
sought to usurp intellectuals’ academic freedom through their ministers of
education and Red Guards. Academic freedom, taken broadly, is a form of free
expression and the freedom to teach and research plays an important role in
democracies. Yet this chapter has also indicated that free speech and academic
freedom, often conflated and used interchangeably, are not the same. The next
chapter will explicate the relationship between campus free speech and aca-
demic freedom. In light of the democratic function of academic freedom, it will
also examine the proper role of academics as instructors and discuss the mea-
sures they may take to safeguard students’ freedom of speech while exercising
their academic freedom in the classroom.
78. Donald C. Savage & Patricia A. Finn, The Road to the 1997 UNESCO Statement on Academic Free-
dom, CAUT (Sep. 2017), at 5, http://www.caut.ca/sites/default/files/unesco_en_insidepages_final20
17-09-11.pdf
79. Terence Karran, Academic Freedom in Europe: Reviewing UNESCO’s Recommendations, 57 Brit. J.
Educ. Stud. 191 (2009).
17-09-11.pdf
17-09-11.pdf

Lai-AcademicFreedom-2023 History

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University of Michigan Press

Chapter Title: Academic Freedom: History, Definitions, and Democratic Significance

Book Title: In Defense of Free Speech in Universities

This book is licensed under a Creative Commons Attribution-NonCommercial 4.0

Essential to the mission of the academy, academic freedom is generally

Academic Freedom, New World Encyclopedia, http://www.newworldencyclopedia.org/entry/Aca

tion from law, institutional regulations, or public pressure.2 Arguably, it is a

2. Academic Freedom, Britannica, http://www.britannica.com/topic/academic-freedom (last visited

to teach, learn, research, publish, and produce knowledge so long as no heresy

research (Einheit von Forschungund Lehre).15 These views, though neither

“freedom in teaching and discussion; freedom in carrying out research without

founding of the University of Bologna and to celebrate university traditions.32

II. Why an Academic Job Isn’t “Just a Job”

43. Stanley Fish, Versions of Academic Freedom: From Professionalism to Revolution 35

51. E.g., Evan Kindley, The Calling, Dissent (2015), https://www.dissentmagazine.org/article/the-calli

III. Why Academic Freedom Is Important to Democracy

UNESCO’s Recommendation concerning the Status of Higher-Education

You might also like

Lai-AcademicFreedom-2023 History

Uploaded by

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Lai-AcademicFreedom-2023 History

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Lai-AcademicFreedom-2023 History

Uploaded by

Copyright:

Available Formats

University of Michigan Press

Chapter Title: Academic Freedom: History, Definitions, and Democratic Significance

Book Title: In Defense of Free Speech in Universities

This book is licensed under a Creative Commons Attribution-NonCommercial 4.0

Essential to the mission of the academy, academic freedom is generally

Academic Freedom, New World Encyclopedia, http://www.newworldencyclopedia.org/entry/Aca​

tion from law, institutional regulations, or public pressure.2 Arguably, it is a

2. Academic Freedom, Britannica, http://www.britannica.com/topic/academic-freedom (last visited

to teach, learn, research, publish, and produce knowledge so long as no heresy

research (Einheit von Forschungund Lehre).15 These views, though neither

“freedom in teaching and discussion; freedom in carrying out research without

founding of the University of Bologna and to celebrate university traditions.32

II. Why an Academic Job Isn’t “Just a Job”

43. Stanley Fish, Versions of Academic Freedom: From Professionalism to Revolution 35

51. E.g., Evan Kindley, The Calling, Dissent (2015), https://www.dissentmagazine.org/article/the-calli​

III. Why Academic Freedom Is Important to Democracy

UNESCO’s Recommendation concerning the Status of Higher-­Education

You might also like

Academic Freedom, New World Encyclopedia, http://www.newworldencyclopedia.org/entry/Aca

2. Academic Freedom, Britannica, http://www.britannica.com/topic/academic-freedom (last visited

43. Stanley Fish, Versions of Academic Freedom: From Professionalism to Revolution 35

51. E.g., Evan Kindley, The Calling, Dissent (2015), https://www.dissentmagazine.org/article/the-calli

UNESCO’s Recommendation concerning the Status of Higher-Education