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College Quarterly
Spring 1995 - Volume 2 Number 3
Academic Freedom: An Essentially Contested Concept
by Howard A. Doughty

At the height of the Viet-Nam conflict a student organization on an American campus issued a statement urging, among other things, the assassination of senior U.S. military personnel in the field. The group came in for severe public criticism, especially from the local Chamber of Commerce. Its faculty advisor, Dr. Oliver Lee, also felt the enmity of the community. In the wake of the Tet offensive of January, 1968, his university's Council of Regents initially rejected the recommendation of his department (Political Science) that he be granted tenure. Given the times, it is neither surprising that the Regents' decision was followed by a campus demonstration in support of Dr. Lee's “academic freedom”, nor that an eleven-day occupation of the administration building culminated in the arrest of hundreds of student demonstrators. What is surprising is that Dr. Lee was ultimately granted tenure, that all charges against the students were dropped, and that it was the president of the university who was compelled to resign. I recall the events well, for I had connections to both sides. I played an active part in the “sit-in”, but my monthly pay cheque was signed by Thomas Hamilton, formerly the President of the University of Hawaii.

Having thus revealed my bias, I will quickly add that the 1990s are not the 1960s, and that contemporary Ontario colleges are dissimilar from a large American university in time of war. As well, these days are unlike the 60s in that the budget cuts to education ensures that employees in the Colleges of Applied Arts and Technology will win little improvement in wages and benefits for some years; so, seemingly non-budgetary items such as academic freedom will be the focus of collective bargaining for the near future. Indeed, among negotiators readying themselves for contract discussions, academic freedom already seems to be not only the most important but virtually the only issue. This being so, all interested parties should try to understand something of what the elusive concept of academic freedom means. As a first step, I have borrowed W. B. Gallie's phrase an “essentially contested concept” to underscore the importance of semantics in the debate. (Gallie, 1962, p. 121)

Many controversial topics can be resolved by appealing to empirical evidence. Such controversies are normally based on an assumption of agreement on the concepts in question: what remain to be argued are the facts. Gallie uses these examples: we may debate the proposition that “this picture is painted in oils” by relying on physical evidence, for we can probably agree on what we mean by the nouns “picture” and “oils” and by the verb “to paint”; however, we are on much more difficult ground when we debate the proposition that “this picture is a work of art”, since there is unlikely to be agreement on what properly counts as art. It is, in short, the definition of what we are talking about that is likely to be contested, rather than the object of discussion itself. Like art, democracy and justice, academic freedom is an essentially contested concept.

German Origins

The modern definition of academic freedom owes much to the experience of German universities in the middle and late nineteenth century. Epistemologically, it was associated with the tradition of positivism that was nicely captured in the work of Max Weber. Yet, his defence of sociology as an “objective” science and his forceful distinction between normative and empirical statements were (to anyone familiar with the passion he displayed toward, for example, the close of The Protestant Ethic and the Spirit of Capitalism) as much attempts to disarm critical Prussian officials who disdained academic research, especially when its results offended the ruling ?lite, as they were claims for positivism as a philosophy of science.

Freiheit der Wissenschaft was the broadest term for academic freedom. It was composed of three basic rights: the right of the professor to write and to teach with neither censorship nor an imposed curriculum (lehrfreiheit); the right of the student to pursue knowledge according to personal taste and method within a university holding no authority save that of specifying qualifications for degrees (lernfreiheit); and the right of the university to be dissociated from state control, such that although certain financial and other powers were exercised by government, the academy had the right to be internally self-governing. Though not universally accepted, this definition is a good place to start.

Canadian Heritage

Canadian interpretations of academic freedom must take into account our relations with various empires. In this instance, the first empire-the French-must be given short shrift, for although Qu?bec's distinct society has accorded a prominent role to the academy and although francophone institutions of higher learning have had their share of problems regarding academic freedom, the direct influence of Paris was removed well before any serious debate about academic freedom was begun. Thus, for our purposes, we must rely on the British and the Americans.

Academic freedom in Britain has long been respected. British universities have historically been associated with the state and the church, and the “Oxbridge-London axis” has enjoyed influence from medieval times to the present day. As members (albeit occasionally eccentric ones) of an association of ?lites, it was not especially difficult for the relatively closed academy to institute, safeguard and depend upon traditions of unfettered inquiry and expression. If discontents have arisen in recent years, they can be attributed to the gradual democratization of the universities and to the entry into the hallowed halls of those who were not to good manners born. Academic freedom was enjoyed by those who could be trusted by the ruling class not to abuse it. It was a privilege for the privileged and assumed that an academic was a gentleman first and a member of a community of scholars second. It was as a gentleman that he was subject to lenient rules of conduct.

American Influence

In the United States, the matter centred less on privilege than on rights. American teachers in post-secondary education were, above all, employees of the school. Though many may have boasted of wealthy backgrounds and perceived themselves as no less scholarly than their British counterparts, the affectations of the class-bound British culture were relatively absent. Instead, what is commonly called populism set much of the background for debates about liberty of inquiry.

Populism-here broadly interpreted to mean the notion that all public institutions are accountable to the people-has been used as an explanation both of the fearless defence of academic freedom and of the greatest resistence to its practice. The urge to democracy, the reliance on the philosophy of individual liberty, and the doctrine of natural rights and freedoms-so central to American history-have generated many disputes. They have prompted, as de Tocqueville might have said, a tyranny of the majority to punish those of unconventional opinion and, at the same time, they have inspired individuals to persist in defiance of that same majority despite harsh social, political and economic pressures.

The history of academic freedom in the United States amply shows how the academy has faced external interference and has courageously struggled against it. In the natural sciences, the relentless debate over “creation science” is a case in point; in the arts and social sciences, persistent clashes over “un-American” ideas have provided many tumultuous moments. The history of academic freedom is surely erratic, but for all its inconsistency, contentiousness and ambiguity, the American experience is particularly instructive for Canadians. Since Canada adopted the Charter of Rights and Freedoms in 1982, it may only be a matter of time before this freedom too becomes the object of litigation and the courts will have the opportunity to determine its nature and limits. Until those decisive events, however, it will be possible to think creatively about what academic freedom has meant and what it might begin to mean in Canadian colleges.

A Special Privilege?

The first question to be dealt and done away with is whether or not academic freedom counts as either a right or a privilege not normally enjoyed by the average citizen. For some critics, academic freedom amounts to a claim for academic license, the belief that being a teacher gives special dispensation to any crackpot intellectual with the will to foist daffy and dangerous ideas on our allegedly callow youth. Those who equate academic freedom with scholarly irresponsibility seem to put academic freedom in a category akin to Parliamentary immunity. They appear to think that teachers demand exemption from penalties arising from their statements or behaviour because of their special “academic” status. Few academics, of course, have ever claimed this exemption, but that has not stopped the pious refutations put against it by those with neither respect for straw men (persons?) nor sympathy for dead horses. Thus, even the esteemed existential philosopher Karl Jaspers once unnecessarily denied that the ideal of academic freedom gave anyone special treatment above other citizens and then added that the role of the intellectual demanded that one be doubly careful about making irresponsible statements in public. Jaspers, I fear, was being far too hard on himself and others.

A Minimal Right?

Far from demanding special treatment, most actual disputes about academic freedom have involved neither more nor less than simple freedom of speech. Not special privileges but burdensome responsibilities have been in contention. At issue is the counter-claim to the notion that a teacher is bound by a higher obligation than other citizens to stand as a model of decorum in personal, professional and even political matters. This counter-claim is simply that a teacher should be free to exercise independent judgement without fearing punishment for expressing views that would not otherwise constitute a transgression of the rules of civil society.

Though this may seem reasonable enough, there is ample evidence that academics should not be sanguine. To hold unpopular political opinions or to subscribe to unorthodox scientific theories, and to express either in the academy can be chancy. Placing academe naked in the market place, American historian Richard Hofstader once opined that teachers have no immunity from the economic penalties that may repay unpopular utterances and that they thus may expect the dwindling of clients, the boycott of subscribers, the loss of a job.

Sometimes public officials are all too happy to help the process along. The most well-known Canadian case in point was the attempt to dismiss historian Frank Underhill from the University of Toronto. Underhill's job was put in jeopardy by some remarks he made at the Couchiching Conference in August, 1940. Speaking about the recently concluded Ogdensberg Agreement between Canada and the United States, he suggested that in the future Canada would have joint loyalties to Britain and the United States. His message was that the relationship between ourselves and our southern neighbours would be affected by “our common geographical position and the common Canadian-American interests which that produces. Hitherto,” he said, “in military and defence matters Canada has always acted as part of the British Empire and has pursued a single policy along with Britain. In the Ogdensberg Agreement,” he concluded, “she acts as an autonomous North American nation on her own responsibility.” This was construed as disloyalty to England at the most crucial moment of World War II. There were cries for Underhill's dismissal by Tory politicians and Liberal Premier Mitch Hepburn alike. The Toronto Telegram insisted he be disciplined. The University's Board of Governors complained bitterly about him and said that his mere presence on campus was a blow to “the prestige and good name of our university.”

Underhill, with the abundant support of colleagues, students and a mix of politically aware citizens, kept his job. Though the case had few concrete effects other than for its principal figure, it was a singular event in Canadian education. “It did not,” as his biographer Doug Francis admits, “result in the formulation of a theory of academic freedom [but] it did force individuals who believed in academic freedom to clarify their position and to speak out themselves in support of the cause.”

A Preliminary Consensus

By the end of World War II, some consensus had been reached in Canada concerning what elements constituted academic freedom. Three components were identified: (1) the right to teach without restraint; (2) the right to conduct and publish research; (3) the right to speak openly on public issues. Little was said about students. The German idea of lernfreiheit did not take hold in North America, so while “student power” was much discussed in the 1960s, its impact has been relatively small. Now, apart from occasional forays into political correctness, student voices remain muted and, in the colleges, almost completely silent.

As for lehrfreiheit, the problem is that rights are necessarily limited both in theory and in practice. So, while most individuals applaud the notion of academic freedom in principle, the contest takes place around the inevitable controls to be placed upon it.

Political Censorship

Going back to the attacks on academic freedom based on cases of simplistic antagonism to political ideologies, it is easy to find examples of high foolishness. I am personally acquainted with a case in which a professor was but one signature away from being fired for the offence of “preaching communism.” The evidence? He had assigned (along with similarly brief passages from Hobbes, Locke, Rousseau, J. S. Mill and Max Weber) a three-page passage from a tract by Karl Marx. I am happy to report that the teacher is still teaching. Embarrassing incidents of this sort are, I am even happier to report, ever fewer. Many such assaults on the political, sexual, cultural or scientific orientation of faculty are generally being set aside. Today, Frank Underhill would not incur the ire of the authorities for daring to say that Canada and the United States might one day enjoy closer relations. Ire, nonetheless, is there to be incurred.

The Agency Relationship

Murray Ross, the founding President of York University, put his finger on the dilemma. Speaking of the dual colonialism of Canadian university teachers, he announced that “the Canadian professor was ... a hybrid-both a member [of the scholarly élite] and an employee-but in the fullest meaning of the term he was neither.” (Ross, 1976, p. 195)

If academic freedom was problematic for the university scholar/employee, it has been even more so for the college teacher. Most universities have now developed to the point where they can withstand public opprobrium for the unpopular opinions of their staff. Some Canadian colleges have shown less maturity. Appealing to the concept of agency, Canadian colleges have occasionally attempted to restrict the right of teachers to speak publicly. In 1989, for example, Lakeland College in Lloydminster, Alberta, fired long-time instructor George van der Loos for openly criticizing a new “competency-based” curriculum. That same year, Cariboo College in Kamloops, B.C. dismissed professor Al MacKinnon for criticizing government spending cuts to education. Both teachers violated the “grocery clerk theory of education,” which, simply put, is this: if you are a grocery clerk and you tell the public that the produce in your store is bad, you may be fired; if you are a teacher and you tell the public that the education being offered has been degraded, you may be fired too. Your first loyalty is to the employer. While such cases are rare, they do attract unpleasant attention. Wrote John Ohliger: “Anyone who finds events in the film Dead Poets Society unbelievable hasn't heard about Lakeland College in Alberta, Canada” where academic freedom has become “a stale joke.” (Ohliger, 1989, p. 6)

The law of agency effectively chips away at academic freedom. As Winnipeg-based lawyer and lecturer Naomi Levine recently told a group of Georgian College faculty: “when professors speak, they may be construed as speaking on behalf of the institution for which they are employed.”* Thus, if the employing institutions find public utterances by their professors offensive, they may take disciplinary action up to and including dismissal.

The Fiduciary Relationship

Potentially more important than agency is the fiduciary relationship alleged to exist between college teacher and student. The term fiduciary refers in law to a trustee or a character analogous to a trustee. It normally involves the management of money but also applies to a “a person, having duty, created by his own undertaking, to act primarily for another's benefit in matters connected with such undertaking.” (Black, 1979, p. 563)

In a remarkable casuistic stretch, the notion of fiduciary responsibility has been extended to cover legal, clerical, medical and educational services wherein a mentor/prot?g? obligation is said to exist. Many teachers may enjoy thinking of themselves as mentors but, if the fiduciary responsibility of the professional over the client is affirmed, they may find themselves held accountable for the effects they have had as they “shaped minds.” I have small doubt that this specious argument would find no favour in the minds of learned judges; however, in the murkier language of human relations I also have small doubt that an obligation to be extraordinarily cautious in dealings with students will be pressed to the full.

Being Respectful

This brings us to the matter of the respectful classroom. Having made my views clear in these pages previously, I will not rehearse my concerns. I will simply mention that though Al MacKinnon won reinstatement on the “agency” issue, he was dismissed on Christmas Eve, 1994, after a report by lawyer Joan McEwan called his political correctness into question. (Doughty, 1995, p. 5)

On the matter of boosting the pupils' comfort quotient, Ms. Levine made it plain that “faculty cannot say whatever they want with impunity” for students “may not be able to handle” what they perceive as an “attack” on their culture, values and so on. At a time when a local school board (in Abbotsford, B.C.) has defied the provincial government and is compelling its science teachers to give equal time to creationism, one can only tremble in anticipation of what lessons may give offence and what the implications of “violating the trust” of a true believer might be.

Moreover, in the wake of the University of British Columbia's effective quarantining of its own Political Science department after yet another report by lawyer McEwan, it is clear that both individual professors and entire departments need to worry. The Globe and Mail (June 23, 1995) recently editorialized, McEwan's report was a “cowardly, disgraceful” document and UBC's “craven response” has assured “cringing conformity” to “Orwellian euphemisms” without “the slightest respect for due process.”

As Levine mentioned, “the truth is a defence against defamation” but, as Salmon Rushdie learned, when defamation is transformed into blasphemy no mere truth will help.

Curiouser and Curiouser

Having previously referred to the Charter of Rights and Freedoms and to the possible litigation that may be forthcoming over issues of academic freedom, I must acknowledge that, at the moment, the Charter is about the only legal document to which people might appeal either to oppose or to support academic freedom. No Canadian law nor collective agreement dealing with Ontario (or other) teachers has explicitly recognized academic freedom.

Those, then, who wonder why I have discussed universities in an article intended for a college audience may take note that university teachers have no more recourse to law than we do. At the same time, numerous cases have been won (and numbers of others lost) in the long history of achieving some protection for scholars in the university setting. The colleges have no such history.

Potentially dramatic cases of political censorship, not unlike the Underhill matter, have arisen in the colleges but have generally been settled quietly. Conflicts over agency have occasionally come before arbitration boards and have been won, in the main, by the colleges. The fiduciary responsibility (when shaken down into questions of human rights violations-i.e., the subjective expression of feeling “put down”) have also normally resulted in the curtailing of freedom in the interest of what some call equity.

The result, then, is a weak college record in defence of academic freedom. Even more disquieting is that in the absence of a clear policy, the void will be filled by others. The arbitrator in the MacKinnon decision of 1986 could have made a clear ruling on academic freedom, but remained silent on the core question of whether tests of loyalty to the employer can properly be applied to an academic employee. MacKinnon was reinstated on that occasion but his academic freedom to speak publicly remained obscure. What is not obscure is the fact that relations between institutions and teachers are increasingly governed by collective agreements and regulated by arbitral jurisprudence. Academic freedom will surely become defined ever more strictly within the law, and especially labour law.

Control of Curriculum

And now for the twist. Almost every expression of the principle of academic freedom and almost every conflict over its application have involved actions or statements by a specific person whose rights have allegedly been violated by an employing institution. Now, in Ontario, academic freedom is being discussed as a collective issue. Partly because the colleges are seen as mainly, if not exclusively, teaching institutions, there has been a great reluctance on the part of the authorities to concede much on the matter of academic freedom. Those charged with the responsibility of disseminating but not creating knowledge, it is held, have no need for such protection. The irony may be that in future talks management will be prepared to accept the concept of lehrfreiheit and negotiate some assurance that an individual professor who introduces topics of controversy in the classroom will not be disciplined.

Faculty, on the other hand, may define things differently. At stake now may be the broader term of Freiheit der Wissenschaft or, put another way, who is to control curriculum, the classroom and the teaching/learning process generally. Thus, rather than focus on the occasional egregious violation of individual liberty, faculty seem in a mood to question control of curriculum as a whole. Such control is, under the terms of all previous collective agreements between the Council of Regents and O.P.S.E.U., a management right. Despite recent talk about replacing the “industrial model” of labour relations with a “collegial” model, little thought is being given to shared control over curriculum. Such key elements in academic freedom-the individual right to express informed opinions-are thus becoming peripheral to the general concern about academic freedom in the colleges. Plainly, the focus of the teachers' argument will not be the protection of the occasional individual who runs afoul of management but a more comprehensive attempt to win contractual rights over the workplace. The ultimate aim is to introduce arrangements analogous to those of universities where, as one faculty newsletter put it, “the mere suggestion of a system where curriculum was out of the hands of faculty would justly cause revolt.” (OPSEU Local 560, 1995, p. 3)

Well, as I said at the beginning, the 1990s are not the 1960s and revolt is a little strong; nonetheless, the next several months will prove interesting as members of the college community attempt to define and to contest the definitions of academic freedom. It is not impossible that management may now support the liberal individualistic defence of academic freedom as the freedom to be eccentric (within reasonable limits) but academic freedom in the larger sense may continue to be debated.

Note

I am indebted to Georgian College Professor Leslie Millson-Taylor for her notes on Naomi Levine's presentation on March 31, 1995, in Barrie, Ontario.

References

Black, Henry Campbell et al. (1979) Black's Law Dictionary, 5th edition (St. Paul: West Publishing Co.).

Doughty, Howard A. (1995) MacKinnon case a ‘personal vendetta,’ Kamloops Daily News (January 11).

Gallie, W. B. (1962) Essentially Contested Concepts, in Max Black, ed., The Importance of Language. (Englewood Cliffs: Prentice-Hall) Globe and Mail (June 23, 1995).

Ohliger, John (1989) A Cold Wind from Canada, Adult and Continuing Education Today (Vol. 19, No. 19).

Ontario Public Service Employees Union Local 560. (1995) The Local (March).

Ross, Murray G. (1976) The University (New York: McGraw-Hill).


Howard A. Doughty, editor of The College Quarterly, teaches Natural Science and Canadian Studies at Seneca College in King City, Ontario.