Academic Freedom


Govern, govern always, but beware of governing too much. (J. Witherspoon in Herman, 2001,p. 207)

Hofstadter and Metzger (1955) begin their classic history of academic freedom by observing that although the term itself is of recent vintage , the concepts are of a far older origin. Significantly, while modern usages of the phrase suggest legal beginnings, early iterations of academic freedom arose as more direct expressions of institutional power. Inheritors of an educational legacy that included the persecution of Socrates, community resentment, rioting students, and ecclesiastical and monarchical antipathy, besieged scholars developed a structure of self-protection: the medieval university. Although still tethered to requirements of ecclesiastical licensure, academic life gradually became subject to an internal regulation that included vows of obedience, discipline, and fealty to institutional authority, including rights of censorship. The organizationally strengthened university thus became a stable and permanent entity, gaining acceptance as an increasingly revered actor within the larger community. In return, it acquired a capacity to provide a place for scholars to work with security, but not with impunity.

This condition was created through the interplay of relationships existing between the university and the rest of the world. A key factor within this dynamic was the academy s position in the overall scheme of authority. Within medieval times, controlling power was undoubtedly held by the Church and extended to affairs within its immediate concern. As a result, scholars in the less dogmatic fields of mathematics, logic, and the sciences enjoyed relative latitude in their pursuits, while those within theology and, to a somewhat lesser degree, philosophy, would be more likely to attract active attention and intervention. According to Harris (1927) and others, the severity of this latter condition is often exaggerated. It should also be noted that in return for the detriments of ecclesiastical supervision, the mostly clerical faculties enjoyed the many benefits conferred by this association.

As the state grew in its power, universities became a focal point and often a battleground for the inevitable intellectual and political competition. In the early 15 th century, disputes often resulting in stalemates were waged between the crown-allied episcopacy and the English universities. Continental universities contributed substantial intellectual ammunition for politically tainted volleys between Catholics and Lutherans. On the eve of his politically based reformation of the national Church, Henry VIII requested , and finally extracted from his faculties, approval for his divorce. Soon thereafter, in signification of his newly-unified state and church, the Royal Injunctions of 1535 were promulgated, imposing oaths of state loyalty upon faculties, defining standards for the conduct of theological instruction, and banning reference to many politically troublesome scholastic sources. McLaughlin (1977) details a history of the University of Paris that places it at the epicenter of power shifts between bishops, kings, councils, and popes until it was finally silenced by King Louis XII in 1499.

The career of Marsilius of Padua, once the rector of the University of Paris, illustrates the most obvious, prevalent , and volatile currency employed in the academy s transactions with the larger society: ideas. Engaged in the support of Holy Roman Emperor Louis IV against Pope John XXII, he wrote Defensor Pacis (1324/1980), which advocated, among other things, a doctrine of popular sovereignty, laws written and approved by the people, and subordination of the Church to the state. Its immediate effect was to bring down the wrath of ecclesiastical authorities upon its author, but inevitably, many of its ideas were embraced by future policy makers . As evidenced by Martin Luther, Erasmus, Thomas More, and generations of their successors, universities provided the ideas and graduates to serve as well as to disable governments , both temporal and divine. Moreover, in the yearly diaspora of graduation, the academy injected into society, practitioners eager to make use of its curriculum, language, etiquettes, and intellectual methodologies, thereby establishing itself as the template for the conduct of high affairs in all areas of life.

At the time of the American Revolution, the processes by which universities held their place within society remained largely unchanged. Variations among institutional situations within this framework existed as the result of such timeworn factors as the proximity and popularity of church authorities, the strength of university patrons, and the beneficence, machinations, and toleration of sovereigns. Notwithstanding these differences, the academic community possessed no accepted body of law or theory that would cause it to assert an independence from the greater society. In short, and with few notable exceptions [ 2] , scholars were locked into a culture that valued its tradition and made the most of its gains. Notably, even when culturally shifting scientific discoveries began to take hold of the public imagination , it was through the private scientific societies that the findings found an outlet for debate and celebration . Within the walls of the academy, the curriculum remained classical, humanist, and stable. Hofstadter notes, The modern idea of academic freedom has been developed by men who have absorbed analogous ideas from the larger society (1961,p .61). In light of this reflection, it is not surprising that the most poignant contemporary notions of academic freedom were developed on what was literally new ground. Unlike the European academies where relationships were dictated by mixtures of etiquette, history, and negotiation, the North American academy took shape far away from the traditional sources of authority in a place where conditions for survival dictated the close and frank interaction of actors in commerce, government, religion, and the academy.

There are early suggestions that the American experience would be different. One such indication is the career of John Witherspoon. In mid-18 th century Scotland, he was the leader of the conservative-leaning Popular Party and a noted evangelical cleric and apologist of the Presbyterian Church. In 1768, after heavy lobbying from its trustees, Witherspoon accepted the college presidency of Princeton, an institution founded to stand as a bastion of tradition and orthodoxy in America. The effect of his tenure was nearly the opposite . Drawing upon his own education at the moderate University of Edinburgh, Witherspoon broadened Princeton s classical course of studies to include modern and liberal thinkers, including those he had criticized in pamphlet and pulpit. His opening of the college to new thought was followed by the even more controversial decisions to openly debate the most politically charged issues of the times and to encourage the registration of Native Americans, blacks, and non-Presbyterians. According to Herman s (2001) study of Scottish intellectual culture, Witherspoon s efforts flowed naturally from a unique tradition of faith in humanism, freedom of intellectual inquiry, and conscience that had been nurtured within the country s academic institutions. This attitude embraced science as a partner in the human struggle and regarded political participation as an obligation that was in keeping with the greater efforts to establish a new Godly realm on earth. Witherspoon s injection of the real world into academics and his extension of the university into common affairs were novel in their reach, but were not original. Adam Smith, a fellow Scot and the founder of modern economic theory, profiled the dynamism of his homeland s universities by contrasting them with those of the English, which he derided as constituting a sanctuary in which exploded systems and obsolete prejudices find shelter and protection, after they have been hunted out of every corner of the world (1776/1994). Within the same work, Smith identifies education as a public good and, as such, a proper subject of government attention.

Witherspoon s innovations paid an immediate dividend in gaining the new nation s attention when Princeton graduates outnumbered those from other American universities at the Constitutional Convention (Herman, 2001). Moreover, his quoted opinion about mild governance anticipated the general trajectory of American education, not only in its institutional movement toward broad curricular horizons, but also as the default posture of American government in its dealings with the academy. By the eighteenth century, the idea that philosophical systems should be tested rather than censored had become the North American academic norm. While this position did not yet extend to theological matters, that, too, was in the offing, a product of divisions between established religions as well as by the influx of new faiths. Within governmental relations, the initial test came in the courts of law.

Hofstadter (1961) points out that, unlike their European counterparts, American colleges developed as smaller, geographically dispersed entities. This configuration made national control a virtual impossibility . Additionally, while internal governance within Oxford or Paris was largely the province of scholars, the distinctive American model of private, religious funding resulted in governance by non-academic, and at times, even non-professing trustees [ 3] . Consequently, those involved in the secular pursuits of law, government, and business were also on intimate terms with scholastic concerns. It is, therefore, less surprising that the first major crisis within American academic governance occurred within a civil judicial setting instead of criminal proceedings , riots, or heresy investigations.

In Bracken v. Visitors of William and Mary College (1790), the plaintiff sought the restoration of his teaching position, asserting that it was held by right of freehold, an English common law doctrine which granted privileges of a hearing and other due process protections to property holders based upon their service to a lord. In this case, Bracken claimed that the leaders of the College were analogous to peers due to their quasi-political ability to elect a representative to the Virginia legislature. The court , without opinion, averred to the arguments of the Visitors made by John Marshall, who stated that the College was a private corporation and, under the circumstances of the case where the plaintiff was terminated due to loss of legislative funding, further state review of the College s actions was inappropriate.

Marshall would soon again influence academic law, this time as Chief Justice of the United States Supreme Court. In The Trustees of Dartmouth College v. Woodward (1819), the New Hampshire legislature was challenged for repealing the charter of Dartmouth College, granted in 1769 by King George III, as well as making changes to the authority and structure of the governing board. The Trustees advocate, Daniel Webster, attempted to use the freehold argument to allege that professors rights were violated by the modifications. As with Bracken, the argument went nowhere. Whether Webster s famous utterance concerning the love for a small college had any effect is unknowable, for Chief Justice Marshall s decision focused upon the contractual intricacies of the case, and the status of the college as independent from New Hampshire s interference was maintained .

Although sharing little common legal ground, both cases conveyed the message that, in matters of higher education, an activist state would not find sympathy within the judiciary. While this shielded universities from many of the problems with external authorities that had plagued their European counterparts, it placed governance squarely within the ambit of the trustees. As American education moved through the 19 th century, suits were brought variously relying upon claims elevating the professoriate to levels of corporate officers or employees , depending on the circumstances. Aside from considerations of legal efficacy, another reason for this variation was a general absence of professional agreement upon the role of the academic. As the twentieth century dawned, courts had a fairly well established policy that boards of trustees could hire and fire without judicial interference, even when such measures seemingly violated the terms of a contract.

In addition to uncertainty in both legal and professional status, 19 th century academics also experienced a rise in religious zeal. Armed with assurances of judicial non-interference , many governing bodies implemented fundamentalist-oriented curriculums, reversing course from the rationalist traditions of the Revolutionary era. Exclusion and expulsion from the faculty on the basis of religious grounds became common, as did a general aversion to scientific research and teaching. American law, having vested trustees with nearly absolutely discretion, could offer no avenue of aid to would-be reformers. Change would have to come through other means.

While the mechanics of its influence are at issue, it is incontrovertible that 19 th century American contact with the German academy produced a profound cultural shift. Metzger (1961) reports that in this period, over 9,000 Americans had traveled to German universities. In the other direction, professors from German academies began to lecture in the states. From this flow came an interaction that arrested the fundamentalist development and transformed American academics.

Metzger (1961) identifies the operative ideal of the German university as that of Wissenschaft, a mixture of medieval idealism with modern empiricism, signifying not merely the goal of rational understanding, but the goal of self-fulfillment; not merely the study of the ˜exact sciences, but of everything taught by the university; not the study of things for their immediate utilities, but the morally imperative study of things for themselves and for their ultimate meanings (p.99).

The German university was not a loose collection of small colleges, but rather more of an organic unity in which free inquiry ranged between disciplines, with philosophical sensitivities detectable at nearly every level. As the traditional recipient of community and state support, German faculties were, to a degree, freed from their American counterpart s need to constantly monitor and react to individual donors or fluctuations in religious opinion. Their students were somewhat older than those in England and America, their teaching much more collegial, focusing upon the common exploration of knowledge. Blending this ideal with that of pragmatism , science and engineering were taught openly and in well-equipped laboratories, producing felicitous results, which were not lost upon American observers.

When, by the 1850s, Americans rushed to emulate German scholastics, they also acquired parts of its value system. Although many of its claims were found to be exaggerated, there is no doubt that German boasts of academic freedom were accurate. Both students and faculty were recognized as having, by virtue of their positions , liberties of free inquiry known as Lernfreiheit and Lehrfreiheit , respectively (Pooch, 1993). This sentiment was mirrored in the Prussian Constitution of 1850 in the statement that science and its teaching shall be free (Metzger, 1961). Within the walls of the university, professors elected their leadership and conferred the credentials necessary to teach. As educators answerable to fellow professionals, deans and rectors did little to establish curricular requirements, allowing others the same freedoms that they themselves had enjoyed. The concept of lay governing boards did not exist, and through various protections, intentional and otherwise , governmental interference was kept to a minimum.

These conditions were received in the United States with great enthusiasm , and as graduates of German programs began to assume positions of leadership within and without the academy, changes began to be made. The establishment of Johns Hopkins University in 1876 brought to America the first avowedly German academic institution. Graduate programs were created along German lines and soon began to deliver unprecedented numbers of scholars with doctoral credentials and sights set upon teaching careers. Scientific programs attracted the attention and support of industry, giving a distinctively American imprimatur to the transformation. Yet, despite the physical changes, perhaps the most important change was in the culture of the academy. Through a combination of better credentials, better teaching methods , and better working conditions, the academy had acquired a unique professional identity that was not dependent upon sectarian religions or lay power structures. For the first time in its history within America, an articulable, nationally recognized definition of academic freedom would be the immediate result. Metzger explains:

[I]f one were to single out the chief German contribution to the American conception of academic freedom, it would be the assumption that academic freedom, like academic searching defined the true university. (Metzger, 1961,p. 119)

With the establishment of an identity, other attributes of professionalism were quick to follow. Among the first was an enhanced ability to identify instances in which academic freedom was violated. In the concluding years of the 19 th century, a strong affiliation between the university and industry created a climate in which faculty that supported unions, alternative economic theories, or political theories deemed hostile to business were subject to quick termination [ 4] . Armed with a newly defined value of academic freedom, representatives of the professoriate gathered to devise a means of resistance.

The result was the founding of the American Association of University Professors (AAUP). In its 1915 General Declaration of Principles (American Association of University Professors, 1915), strands of thought from the German intellectual heritage, as well as broader ones from the American civic experience, combined to create a distinctive mosaic of professional, institutional, and political assertions. These included three basic elements: freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extra-mural utterance and action. Perhaps even more important, these explicit assertions are the many descriptive sentences in which both public and private participants in the academic enterprise are unambiguously established as providing a peculiar and necessary service to society, a public trust dispensing education, the cornerstone of society . Building upon this social foundation, the Declaration erects an ethical layer, explicitly defining its practitioners as members of a profession that transcends conventional employee classifications. Significantly, such prerequisites as security of position, control over standards, and discipline are claimed as a consequence of professional status and as requirements for the fulfillment of the profession s obligations to society, to whom its ultimate duty was owed.

Not surprisingly, many of the assertions of the Declaration failed to find enthusiastic acceptance among university presidents and administrators. However, through extended negotiations between the AAUP and the presidents Association of American Colleges (ACC), both organizations released a joint Statement of Principles on Academic Freedom and Tenure in 1940 (AAUP, 1940). Armed with the imprimatur of mutual agreement, The Statement called for a public recognition of four freedoms in education: research, publication, teaching, and extramural communication. The security of tenure was endorsed. Following the reasoning of the Declaration, the benefits of academic freedom were linked to the common good, which extended beyond the concerns of faculty or even institutions.

The Statement has been joined by over 172 academic, scholarly, and professional associations, becoming the doctrinal foundation for the popular image of academic freedom. The document is predominantly ethical and social in character, but it is also considered the philosophical groundwork for much of the modern legal decisions, which attempt to place academic freedom within the constitutional and statutory structure of American law (Van Alstyne, 1993). These attempts are far from uniform in scope and in theme. This is because the law of American academic freedom is, from the start, complicated by the variety of American academic institutions that include both state and private entities. Although a complete description of these differences is beyond the scope of this chapter, an important generalization involves the variations of constitutional involvement. Essentially, institutions that derive their funding from the public will be considered to be fully subject to constitutional norms in matters of expression, privacy, and due process, whereas private academies will be less so. In the latter case, the practical enforcement of rights of academic freedom will usually be provided through contract (Pooch, 1993) [ 5] . Even in these circumstances, the effect of public conceptions about academic freedom upon the judiciary should not be underestimated.

Although the canonical documents of academic freedom liberally reference constitutional ideals, the term itself does not exist within the Constitution. Various decisions have inferred it as a constitutional concept, albeit with particularized interpretations. The first judicial use of the term is in Adler v. Board of Education (1952). The case involved state statutory law that authorized the removal of public employees for advocating the unlawful overthrow of government. The Supreme Court majority affirmed the dismissal of the teacher-petitioners, but in dissent, Justice Douglas laid the groundwork for future characterizations by stating that there can be no real academic freedom in [an] environment of the sort created by the statute . He explicitly invoked the First Amendment by stating that freedom of thought and expression is given to all Americans, but needed by none more than the teacher. In Sweezy v. New Hampshire (1957), the court, again faced with a McCarthy-era matter and by a plurality decision, reversed the contempt conviction of a University of New Hampshire faculty member for refusing, among other things, to testify about a classroom lecture. Although the Sweezy majority did not base its decision upon First Amendment rights, Chief Justice Warren s language echoed many of the Statement s themes:

The essentiality of freedom in the community of American universities is almost self-evident....To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation .Teachers must always remain free to inquire , to study and to evaluate otherwise our civilization will stagnate and die. ( Sweezy v. New Hampshire, 1957, Warren, C.J.,p. 250)

Following Sweezy, the Supreme Court affiliated academic freedom with the First Amendment in Keyishian v. Board of Regents (1967). This case also dealt with the state law addressed in Adler , but this time, the Court struck down the statute, finding that it produced a stifling effect on the academic mind [in] curtailing [First Amendment] freedom of association. (p. 607). In words reminiscent of the Declaration and Statement , the virtues of academic freedom are characterized by the majority s author, Justice Brennan, as a transcendent value to all of us (p. 603).

Although Sweezy and Keyishian remain good law today, cases decided subsequent to their release have raised another issue that has been ambiguously present since the beginnings of judicial consideration of their subject. This is the problem of locating the source of academic freedom. Historically, there is no doubt that its ethical and cultural precursors were derived from institutional struggles. As already noted, the relative freedoms of the university from ecclesiastical and governmental interference were often upheld by the imposition of administrative censorship. It is also true that as American academic culture developed, particularly through its contacts with German institutional practice, the theoretical focus for rights shifted to the individual professor . The 1915 Declaration specifically reflects this idea when it denounces the control of the professoriate by lay governing officers, and the 1940 Statement suggests this position in its endorsement of faculty tenure. Nevertheless, although this issue has profound implications on how academic freedom is deployed and asserted, there is no clear historical, cultural, or ethical precedent to provide an answer.

At law, the question was first addressed in Regents of the University of Michigan v. Ewing (1985). The matter concerned the due process safeguards employed in the University s expulsion of a medical student. In upholding the institution s actions, the majority characterized academic freedom as not only pertaining to interchanges between faculty and students, but to autonomous decision-making by the academy itself (p. 214). According to Smith (2002), although there is no logical reason to compel this conclusion, this decision has led some legal scholars to classify academic freedom as an exclusively institutional possession to which individual faculty members have no recourse.

The same author points to related developments within public employment law that contribute to this trend. The rights of public employees to exercise free speech were at issue in Pickering v. Board of Education (1968). The case arose from the firing of a high school teacher for writing a newspaper letter that criticized educational funding decisions. The teacher s acts were, after a hearing, found to be unjustly critical of the administration and disruptive of faculty discipline. In overturning the dismissal, the majority stated that First Amendment rights do not end with public employment. Significantly, it also left room for the state to act as an employer and regulate employee expression when it undermines work efficiency. The key to adjudicating between these interests was, according to the majority, the arrival at a balancing of interests, which, although not explicitly detailed, would involve the consideration of workplace disruption against the free expression rights of citizen employees. The Pickering standard was revisited in Connick v. Myers (1983). The matter involved the petitioner s dismissal for expression aimed at agency operations, including the workplace circulation of opinion questionnaires. In allowing the dismissal, the majority stated that because the expression did not involve public matters (ostensibly following Pickering ), the Constitution was not implicated and the state s action amounted to a routine business decision directed toward employment efficiency.

In equivocating First Amendment protection with matters involving public concern and accentuating the state s bureaucratic interest in preserving efficiency, Smith (2002) suggests that the juridical pendulum has swayed away from employee rights and moved toward the prioritization of administrative expedience. This position is reinforced by Waters v. Churchill (1994), a plurality opinion in which Justice O Connor opined that although the government employer must conduct a Pickering investigation, it nevertheless enjoys wider powers in dealing with employee expression than it holds in the case of the average citizen.

Appropriately, the final case in this section involves the intersection of academic freedom and monitoring. In Urofsky v. Gilmore (2000), the petitioners, professors employed at state universities, challenged a 1996 Virginia law prohibiting the unapproved use of state computing resources to access, download, print or store any information infrastructure files or services having sexually explicit content (p. 404). The basis for the petitioners action was their claim that the statute imposed unconstitutional restrictions upon their freedom to teach, publish, or research. The state countered that the statute, by banning access, contributed to efficient operations by reducing the possibility of hostile environments.

After a hearing, the district court held the statute to be void under the First Amendment. Harkening to the rhetoric of the Declaration , Statement , and earlier Supreme Court decisions, the court found the Pickering and Connick requirements satisfied as the professors work was necessarily of service to the public and thus, a matter of its concern. It noted that the broadness of the prohibition would necessarily harm inquiry as well as debate in numerous academic fields to such a degree that any claims of efficiency were abnegated. It stated that the standard for use authorization was ambiguous, vesting supervisors with nearly complete discretion in their decision.

Upon appeal , the tribunal reversed the lower court. The majority of the panel found no First Amendment protection in the employment-based duties of professors. It further held, citing Waters , that the state was properly exercising its greater powers of censorship in an appropriate employment context. Significantly, the Pickering-Connick criteria were held not to have been met by the petitioners as the expression at issue was undertaken as an employee rather than as a citizen. Upon further appeal, the reversal was upheld, with an en banc majority holding that academics, as public employees, hold no special First Amendment rights and stating that to the extent it has constitutionalized a right of academic freedom at all, the Supreme Court appears to have recognized only an institutional right of self-governance in academic affairs. ( Urofsky v. Gilmore , 2000,p . 412).

Although the Urofsky opinion has not found adoption in other courts, including the Supreme Court, its significance should not be ignored. In a contemporary climate, where efficiency within the workplace has achieved priority within our cultural values, the rhetoric employed by the Urofsky appellate majorities is undeniably powerful. Their prioritization of efficiency and seeming insensitivity to the more subtle aspects of scholarly practices serves as a reminder that academic freedom is itself primarily a product of ethical and cultural norms, what Van Alstyne (1993) has termed soft law. Without the benefit of hard embeddedness within statutes or the Constitution, the practical stability of academic freedom is particularly dependent upon current attitudes and notions.

[ 2] Tommaso Campanella, a Calabrian cleric, is credited with first raising explicit theoretical notions of academic freedom in his work, The Defense of Galileo (1622/1975). Using the writings of Thomas Aquinas and others, he formulated the idea of libertas philosophandi ( freedom of philosophizing ), which is held by Hofstadter and Metzger (1955) to constitute a direct precursor to the term academic freedom. The same authors reference Sutton to identify the late 16 th century academy at Leiden as the earliest university of Europe to follow an intentional and consistent policy of academic freedom (Hofstadter & Metzger, 1955, pp. 41- 42).

[ 3] It is notable that no college within the colonies required a profession of faith by its students. Moreover, King s College, the College of Philadelphia, Brown, and others counted among their trustees, members of faiths other than that dominant at the institution (Hofstadter, 1961).

[ 4] Significantly, Metzger (1961) points out that in these times, persecution for unorthodox doctrinal belief was practiced by members of the left-wing, as well as those within the dominant, conservative power structure.

[ 5] Even in private academic scenarios, constitutional involvement will be found where it has been determined that state action exists (Smith, 2002).




Electronic Monitoring in the Workplace. Controversies and Solutions
Electronic Monitoring in the Workplace: Controversies and Solutions
ISBN: 1591404568
EAN: 2147483647
Year: 2005
Pages: 161

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