Academic freedom from Hofstadter to Dworkin

Academic freedom is a core value in American higher education. At certain times in our history it is a value that has been severely challenged, including especially during the McCarthy period of the 1950s. But what, precisely, does it entail?

One way of starting on this topic is to consider Richard Hofstadter’s writings on the subject. Hofstadter was an historian who did an excellent job of tracking some deep currents in American political culture, including the powerful currents of progressivism, conservatism and paranoia that American politics have embodied over the past two centuries (The Progressive Movement: 1900-1915, Anti-Intellectualism in American Life, The Paranoid Style in American Politics). (Here is an informative review of Hofstadter’s biography in the New York Times.

One of those currents on the progressive side is the idea of academic freedom. Hofstadter was a champion of the value of intellectual discourse in a democracy, and Development of Academic Freedom in United States (with Walter Metzger, 1955) was a direct response to the attack on the academic freedoms of professors of the McCarthy period beginning in 1953. (The first part of this book was later published as Academic Freedom in the Age of the College (1961), which covers the history of the freedoms assigned to colleges and universities from the European middle ages to American colleges at the time of the Civil War.) The project as a whole is an interesting one. It was funded by the American Academic Freedom Project at Columbia as a response to Joseph McCarthy’s attack on universities and professors. Hofstadter’s part of the project was to write a history of the evolving idea of academic freedom from the European middle ages through the American colleges of the 1860s. Walter Metzger’s contribution analyzed the development of universities and academic freedom in America after the 1860s. Robert MacIver wrote a companion volume, Academic Freedom in Our Time.

What is lacking in Development of Academic Freedom is an analytical definition of the idea of academic freedom. Hofstadter is clearest in his defense of the idea of the independent intellectual, whether in the medieval Italian university of the nineteenth century American university. But neither he nor Metzger give a succinct definition of the concept of academic freedom itself.

So what is academic freedom? And how is it distinct from the other kinds of freedoms we have as either constitutional protections or fundamental human rights — freedom of association, freedom of speech and thought, freedom of expression? Fundamentally the idea is that the faculty of a university have a more extensive and specialized version of each of these fundamental freedoms, and that their exercise of their academic freedom cannot be used as a basis for dismissing them from their positions within the university. (This is the fundamental justification of the system of faculty tenure.) The employees of a corporation have a right of freedom of expression; but their conditions of employment may set limits on their exercise of that freedom. For example, there are numerous examples of people dismissed from their jobs in the private sector as a result of their comments about the company they work for. The idea of academic freedom is that professors have a special right to think, reason, and express their ideas about subjects relevant to their teaching and research responsibilities without fear of sanction by the universities (or legislatures) that employ them.

A second dimension of the idea of academic freedom is institutional. The university ought to be significantly autonomous from the power centers of society in its internal organization and decision-making. The curriculum, the subjects that are taught and researched, and the processes of appointment and review of faculty should be governed by the processes of the university rather than external powers in society. And most fundamentally, this aspect of the idea depends on the notion that the pursuit of truth should depend on the rational procedures of the disciplines of the sciences and humanities, not on the particular interests of powerful segments of society.

The classical justification for the idea of a form of academic freedom more extensive than the general freedoms that citizens enjoy qua citizens derives essentially from arguments expressed in the nineteenth century in John Stuart Mill’s On Liberty: the pursuit of truth requires the untrammeled exploration of and expression of conflicting ideas, so that rational citizens can arrive at a better understanding of the issues. Here is how the 1940 AAUP statement puts the point (link):

Academic freedom is essential to these purposes and applies to both teaching and research. Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. It carries with it duties correlative with rights.[1]

The argument is fundamentally utilitarian: Society is best served when it embodies a university system that is fundamentally committed to the the principles of academic freedom.

Here is the classic statement of academic freedom from the AAUP Red Book, drafted in 1940 (link).

Academic Freedom

  1. Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
  2. Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.[2] Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.[3]
  3. College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.[4]

This statement refers to three zones of academic freedom: in research and publication, in the classroom, and in “extramural expressions” by faculty members in the exercise of their ordinary citizens’ rights of expression. Essentially this final point comes down to the idea that a faculty member has an ordinary citizen’s right to express ideas that are unpopular to the public without punishment, “censorship or discipline” from the university for this expression. Noam Chomsky’s opinions about the Vietnam War or the Gulf War were often unpopular with officials and the public; but his academic freedom assured that he would not be censored by his university employer. An employee of Northrup or Krogers would not have had the same protections. (Note that principle 3 is the most qualified of the three, and sets somewhat vague limits on the content and form of extra-mural utterances by the faculty member.)

The AAUP statement does not separately justify its inclusion of the extramural principle; but presumably it goes along these lines. Determining public policy in a democracy requires open debate among well informed citizens. Faculty members are well positioned to develop their knowledge and arguments about important public issues — welfare reform, desegregation, war and peace. The public and the common good are well served by a set of arrangements that enable faculty members to speak their minds without fear of retaliation from their university employers. So it is felicitous to extend the protections of academic freedom to expressions by faculty members in the public sphere as well as within the university.

The philosopher of jurisprudence Ronald Dworkin provided a pivotal contribution to Louis Menand’s The Future of Academic Freedom (1998). Dworkin argues that the issues surrounding academic freedom have shifted since the 1970s, and that they have as much to do with criticisms of faculty speech from the left as from the right. Here is how Dworkin describes the essentials of academic freedom:

We begin reinterpreting academic freedom by reminding ourselves of what, historically, it has been understood to require and not to require. It imposes two levels of insulation. First, it insulates universities, colleges, and other institutions of higher education from political institutions like legislatures and courts and from economic powers like large corporations. A state legislature has, of course, the right to decide which state universities to establish — whether, for example, to add an agricultural or a liberal arts college to the existing university structure. But once political officials have established such an institution, fixed its academic character and its budget, and appointed its officials, they may not dictate how those they have appointed should interpret that character or who should teach what is to be taught, or how. Second, academic freedom insulates scholars from the administrators of their universities: university officials can appoint faculty, allocate budgets to departments, and in that way decide, within limits, what curriculum will be offered. But they cannot dictate how those who have been appointed will teach what has been decided will be taught. (183)

In addition to the utilitarian reasons for defending academic freedom mentioned above, Dworkin argues that there is also a principled ethical basis for these institutional protections based on his theory of “ethical individualism”.

It seems relatively clear that academic freedom is a fragile value that depends substantially on the willingness of the public to recognize its crucial role in securing democratic progress, and legislatures and elected officials who are prepared to resist the inclination to narrow its scope. And it also seems right that Hofstadter’s central intuitions about universities are still the strongest justification for the defense of academic freedom: the integrity of intellectuals and scholars seeking and debating the truth and the contribution they can make to a civil democracy. Here is how Robert MacIver puts this point in Academic Freedom in Our Time:

The search for knowledge, honestly undertaken, is a moral discipline. With the pursuit of this discipline goes the liberation from intolerance. . . Thus the intellectual mission of the university becomes also a moral one. Men sensitive to experience may learn the lesson in other ways, but the institution of learning is a major training ground. . . . Not knowledge itself but the free search for and the free communication of knowledge distinguishes the open mind from the closed mind, and the open society from the closed society…. The attack on academic freedom is an attack on all these values. (261-262.)

Here is a review of Hofstadter and Metzger, Development of Academic Freedom in United States as well as MacIver, Academic Freedom in Our Time. Here is an article in the Journal of Philosophy on MacIver’s book, including a fascinating letter by John Dewey the the New York Times in 1949 on the subject of academic freedom. And here is an AAUP piece in Academe on what it regards as a different kind of threat to academic freedom — from commercial and corporate interests.

Academic freedom and faculty email

There have been several efforts recently by partisan groups in Michigan and Wisconsin to gain access to faculty email messages on subjects that fall within the scope of the faculty member’s research or personal political opinions. These groups have made use of state Freedom of Information laws, on the basis that faculty members are “state officials” and their communications are therefore “business records” of the university.

This is an alarming intrusion into the zone of academic and personal freedom of the faculty member, and it threatens to create a chilling effect on the faculty member’s ability to freely communicate his or her ideas with colleagues without fear of retaliation or punishment, or premature disclosure of ideas not yet fully developed. It is vital that universities think very carefully about these issues before complying.

Once a scholar’s ideas are published, they are in the public forum and are readily available to anyone who is interested, including the partisan groups who are now attempting to gain access to private emails. But before the scholar chooses to publish his or her ideas, she needs and deserves to have a zone of private conversation and expression through which she can test and refine her ideas. This is part of being a human being. It is a key reason why academic freedom is so important, to allow the free expression and refinement of ideas through intellectual interaction. And being able to control the publicity or privacy of one’s thoughts is essential for this process, and is very close to being a human right.

So accepting the principle that a faculty member at a public university is a state official and his/her communications about research ideas or social and political opinions are “business records” represents a huge erosion of academic and personal freedom. Academic freedom requires a zone of untrammeled private expression and discussion through which the individual can develop and refine her ideas.

If public universities are to be successful in maintaining their commitment to academic freedom for their faculty, they need to draw a bright line between business records and intellectual, critical, and creative documents. Freedom of information laws pertain to the former but should not require disclosure of the latter.

So what is the distinction? Here is one way of drawing the distinction. Business activities have to do with decision making about material issues within the organization. They have to do with concrete decisions involving such issues as purchasing, contracting, personnel decisions, hiring, and other material administrative actions. Intellectual, critical and creative documents are those that express the faculty member’s ideas, thoughts, judgments, and hypotheses about subjects of interest. Transparency about business deliberations and decisions is essential in order to prevent conflict of interest, favoritism, and other improper business activities within any institution. But privacy with regard to “intellectual, critical, and creative documents” falls outside the scope of business activity, and should be protected.

The argument is sometimes made that professors are hired to think and do research; therefore their writings, even in email, are part of their employment work; therefore these writings are business records. But this line of thought is incorrect. The faculty member is hired to teach courses. An expectation of their work is that they will be active intellectuals and scholars. They will exercise their talents, it is expected, in an autonomous and self-directed way, to arrive at their own original results. But the content and product of their intellectual works are not themselves paid work products. Evidence of this, in part, is the fact that the university does not claim ownership of the copyright on faculty writings. Originality, autonomy, independence, and creativity are key to intellectual work, including faculty work. And this in turn underlines the importance of the zone of privacy within the context of which their intellectual and personal thinking and expression take place.

There are extreme and untenable results that ensue if you take this paradigm to its limit. Right now the FOIA requests are for a range of emails delimited by a list of keywords. But if the principle is accepted that the faculty member’s intellectual products, in whatever form, are a business record, then preliminary drafts of scholarly work, laboratory notebooks, the jottings of a creative writing professor in preparation of a short story or novel — all these products ultimately lead to a research result, which is a part of the expectations of the faculty member’s work. And therefore, by this paradigm, they would be discoverable.  Therefore it would be possible to FOIA a poet working for a public university to make available preliminary drafts of a poem. Likewise, paintings, drawings, and sculptures are the work of faculty in the arts. By this same principle, it is hard to see a basis for denying a FOIA request for drawings, sketches, and clay models.

On the subject of the expression of political and social opinions, observations, and judgments: Clearly this set of ideas and expressions by the faculty member does not fall within the scope of faculty employment under any description. The university does not hire faculty members to have political opinions. Rather, as citizens they may or may not have such opinions, and it is entirely within their rights to hold and express them. Further, neither the state nor the university has a right or an interest to surveilling or observing or criticizing or delimiting their expressions of political opinion. So any emails that are primarily expressive of political opinions or judgments are not part of their work, do not have business content, and should not be provided under the scope of a FOIA request, even though they are expressed by a faculty member hired by a public university.

These FOIA requests, it should be noted, do not depend on the issue of whether the email account is owned by the university or is a private account. FOIA requires university officials to provide emails that have business content relevant to a particular subject, without regard to the platform on which these messages were transmitted. If the judgment were to stand that the faculty’s intellectual products are in fact business records, then it wouldn’t matter whether they are expressed in an email owned by the university or a private account.

Background

Here is a story in TPM about the Mackinac Center FOIA request in Michigan (link). Here is a summary of Michigan’s FOIA law. Here is a posting from Inside Higher Education that describes the decisions the University of Wisconsin administration made with respect to requests for some of history professor William Cronon’s email (link). And here is a thoughtful piece from the Center for Free Speech on Campus on the issues (link).

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