Academic Freedom Nathalie Des Rosiers Dean, Faculty of Law – Civil Law Section, University of Ottawa Outline of the presentation Introduction : the different dimensions of academic freedom The old and the new - recurrent themes and new dimensions : seven vignettes The ambiguous legal protection or « I protect strongly what I define narrowly » Conclusion : Rights without remedy? Interests without protection? Implicit and explicit commitments to academic freedom Definitions Individual Academic Freedom is the freedom to: Teach Research Disseminate Learn Potential Applications to university professors / high school teachers / students vis-à-vis their employer or the educational establishment Institutional academic freedom : autonomy of universities vis-à-vis government/ others International Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights : "higher education shall be equally accessible to all on the basis of merit", that States "undertake to respect the freedom indispensable for scientific research and creative activity"; IAU Policy Statement 1998 1. The principle of Institutional Autonomy can be defined as the necessary degree of independence from external interference that the University requires in respect of its internal organisation and governance, the internal distribution of financial resources and the generation of income from non public sources, the recruitment of its staff, the setting of the conditions of study and, finally, the freedom to conduct teaching and research. IAU Policy Statement 1998 2. The principle of Academic Freedom can be defined as the freedom for members of the academic community - that is scholars, teachers and students - to follow their scholarly activities within a framework determined by that community in respect of ethical rules and international standards, and without outside pressure. http://www.unesco.org/iau/p_statements/af_statement.html AAUP / CAUT http://www.aaup.org/aaup Academic Freedom commonly means the freedom of professors to teach, research and publish, to criticize and help determine the policies of their institutions, and to address public issues as citizens without fear of institutional penalties. Other meanings include the autonomy of the university in running its internal affairs, and the freedom of students to function within the academic programs they have chosen. CAUT In none of its meanings is academic freedom absolute. The freedom to teach, for example, is normally subject to approval of courses by academic bodies; the freedom to carry on research is often dependent on funding by universities or other groups. Hence academic freedom is generally linked to the idea of academic self-government, in the hope that limits will not be imposed arbitrarily and improperly. Wexler – four dimensions of university Value of Tradition : Ethical command : preserve the integrity of the university mission Value of the Community: Ethical command : ensuring the participation of all to the intellectual life of university Value to Society : Knowledge transfer /contribution to human capital Ethical command : ensuring the relevance of university and progress for society Value to Promotion of Individual Talent Ethical command : publicity is always good or sharing knowledge with the world Wexler – four dimensions of university Value of Tradition : Academic freedom as essential to university Value of the Community: Academic freedom as supporting or destroying access by new members Value to society : Knowledge transfer /contribution to human capital Academic freedom vs. Accountability and partnerships Value to Promotion of individual Talent Academic Freedom as support for the stars Vignette 1 Vignette 1 : Professor X complains publicly about a memorial service for women slain as propaganda for the feminists who « like the KKK use tragedies to foster their own agenda ». Vignette 1 Results : nothing was done President of university reinforced the idea of academic freedom while describing the message as abhorrent Vignette 2 Professor A discusses in public his controversial views on issues of national interest ( war on Irak, Afghanistan, eg.) Public is outraged and demands his resignation Vignette 2 Although pressures exist, most recognized that this is the clearest example of academic freedom Support to the Star system Vignette 2 – John Bassett 1903 Offered his Resignation Refused Validated The Rushton case Research funded by white supremacist organizations Size of brain varies according to race Results : policies on compliance with human rights code in funding policies Vignette 3 Professor O is doing research on deferiprone (L1), an experimental drug. Her research is financed by a drug company A. Results show that the drug has detrimental effect on some children – which could prove fatal. Prof. O informs the patients. A stops the funding and sues O for a breach of the non-disclosure clause in the funding arrangement. Vignette 3 A is being courted by the University that employs O for a multi-million dollars donation for a new health science building Allegations of misconduct are brought against O by colleagues who are also funded by A. The Olivieri case 6 years later, Two reports Validated Changes in policies: No non disclosure clauses Vignette 4 Professor R is assigned to Chemistry 101 and announces to the students that the real problems of the world will not be solved by improving our knowledge of chemistry but by our commitment to end the degradation of the environment. He assigns to the students topics relating to environmental activism. Vignette 4 - results On-going New course on Science and society developed but on-going litigation as to prof’s teaching assignements Vignette 5 Professor M refuses to transfer the copyright in her research papers to the university despite earlier commitment to that effect. Vignette 5 - results Validation by the arbitatrator : Ownership of copyright is part of academic freedom Vignette 6 Professor writes in student newspaper a virulent attack on Dean – calling her « equivalent to the « Tonton macoute » of Haiti » Dean is a black woman from Haiti Vignette 6 - results Disciplinary proceedings Obligation of loyalty / human rights violations. Vignette 7 University criticized for hiring a professor « enemy of the State » Autonomy of institution would protect decision? Law and non Law Minimal constitutional protection Exclusion of private institutions « I protect strongly what I define narrowly » Labour law protection Implicit and explicit in employment contracts Administrative and Ethical support Policy developments PIAROWSKI v. ILLINOIS,. “Many decisions describe "academic freedom" as an aspect of the freedom of speech that is protected against governmental abridgment by the First Amendment, (however) the term is equivocal. It is used to denote both the freedom of the academy to pursue its ends without interference from the government (University of California v. Bakke, (1978)) and the freedom of the individual teacher (or in some versions indeed in most cases - the student) to pursue his ends without interference from the academy; and these two freedoms are in conflict, as in this case.” (United States Court of Appeals, Seventh Circuit. Argued February 26, 1985) Hetrick v. Martin Whatever may be the ultimate scope of the amorphous "academic freedom" guaranteed to our Nation's teachers and students, [citations omitted] it does not encompass the right of a nontenured teacher to have her teaching style insulated from review by her superiors when they determine whether she has merited tenured status just because her methods and philosophy are considered acceptable somewhere within the teaching profession. Hetrick v. Martin, 480 F.2d 705, 709 (6thCir. 1973), cert. den., 414 U.S. 1075 (1973). Wexler – four dimensions of university Value of Tradition : Academic freedom as essential to university Value of the Community: Academic freedom as supporting or destroying access by new members Value to society : Knowledge transfer /contribution to human capital Academic freedom vs. Accountability and partnerships Value to Promotion of individual Talent Academic Freedom as support for the stars Concluding remarks The on-going tensions Academic freedom and privately funded research Academic freedom and accountability mechanisms Who is protected? What is the remedy?