Academic Freedom

Academic Freedom
Nathalie Des Rosiers
Dean, Faculty of Law – Civil Law
Section, University of Ottawa
Outline of the
 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
 Individual Academic Freedom is the freedom to:
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
 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
 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
 2. The principle of Academic Freedom can be
 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.
 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.
 In none of its meanings is academic freedom
 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
 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
 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
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
Offered his
 Validated
The Rushton case
 Research funded by white supremacist
 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
Vignette 3  A is being courted by the University that
employs O for a multi-million dollars
donation for a new health science
 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
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
Vignette 7
 University criticized for hiring a professor
« enemy of the State »
 Autonomy of institution would protect
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
 “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
 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
 Value to Promotion of individual Talent
 Academic Freedom as support for the stars
Concluding remarks The
on-going tensions
 Academic freedom and privately funded
 Academic freedom and accountability
 Who is protected? What is the remedy?