It's not about the speaker, it's about the environment: Some sketchy initial thoughts on a new/old way of understanding Academic Freedom
As Past President and member of the executive of my local Faculty Association (ULFA), president of the Confederation of Alberta Faculty Associations (CAFA), and a faculty member who has in the past, let’s say, taken advantage of my intramural right to criticise my university’s administration, I end up having to deal with — and especially defend colleagues with regard to — a fair number of questions having to do with the exercise of Academic Freedom in Canadian universities.
This is not something I generally have a difficult time doing: while a lot of discussion of Academic Freedom focusses on its philosophical and historical nature and limits, its practical implementation in Canadian universities is primarily a matter of contract law. With (as far as I am aware) the sole exception of Quebec, where the government recently passed a law governing some aspects of Academic Freedom, the bounds of Academic Freedom in Canadian universities are negotiated between representatives of University Boards and their faculty on an institution-by-institution basis. This means that the precise details of Academic Freedom vary in each institution and that the question in dispute in most Academic Freedom cases is ultimately what the Collective Agreement says about what is allowed.
But if Academic Freedom is in practical terms a contractual matter, it is also something more. People get excited about the exercise of Academic Freedom, even in Canadian Universities, in a way they do not about vacation entitlements or the selection of a dental fee charts (things that also show up in Collective Agreements). We may define the limits of Academic Freedom in our collective agreements; but those collective agreements pretty much universally have language about Academic Freedom because Academic Freedom is pretty much universally thought to be something that is important to the operations and purpose of a university. And, just as important, it is something that is thought to be uniquely important to such institutions: while it is probably rare to find a collective agreement in any industry that doesn’t have language about vacation entitlements, language about Academic Freedom — or any other kind of freedom of expression — is relatively rare (and perhaps non-existent) outside the Post Secondary Sector.
In the last few years I’ve found myself bothered by this larger issue: that is to say, while I’ve had no problem defending Members’ rights under the Academic Freedom provisions of our collective agreement, I’ve found myself to be more generally dissatisfied with the way people in the post-secondary sector talk about those rights in more general terms. Something — and I haven’t really known what — has seemed off to me.
The details of what has bothered me are too complicated for this preliminary post, but let me say that they have circled around two major issues.
- I have had a hard time reconciling the most absolutist positions in defence of Academic Freedom with actual academic practice as this appears in my daily work as a scholar; and
- I have had a feeling for a while that traditional understandings of Academic Freedom — again, especially some of the more absolutist ones — have proven particularly vulnerable to performative weaponisation: that is to say, to being invoked by actors who seem less interested in engaging with problems and people as academics than probing the limits of what they can get away with under the letter of Academic Freedom provisions.
(It is at this point I should say that this post is my personal, theoretical discussion of Academic Freedom, that it does not necessarily reflect the opinions of ULFA, CAFA, CAUT, or any other organisation I am involved with; and, finally, that it is made without prejudice or reference to positions I or my colleagues have or may take in specific cases involving Academic Freedom).
They don’t reflect my experience as an academic
The first concern I have had is that absolutist positions on Academic Freedom do not reflect my experience as an actual working academic. Thirty years ago, when I was starting out, academia was — pretty much universally, it seemed to me — a very rough place. People engaged in extremely destructive question periods at conferences, referees were frequently vicious, and very little attention seemed to be paid to ensuring our environment was open to participation by all.
Since then a lot has changed. While academics can still be very rough on each other, things have improved immensely: many conferences have codes of conduct that rule out of bounds some of the most egregiously aggressive behaviour one used to see and journals now commonly take a zero (or low) tolerance approach to abusive referee reports.
In the classroom too, there has been sea-change. Most of my colleague are far more solicitous than they used to be about ensuring students are supported in their learning: we try to grade and comment constructively and in question-and-answer periods make sure that space is created for participation by students other than the loudest, fastest, and most aggressive.
Definitions of Academic Freedom, on the other hand, often argue that protected Academic Speech doesn’t have to be nice, or polite, or temperate (this is, in fact, a long standing question in definitions of Academic Freedom, but that’s a matter for a different piece) — or, in other words, that Academic Freedom protects speech that would not be allowed, in fact, in many environments actually controlled by academics, including our conferences or in many of our classrooms.
They are vulnerable to performative weaponisation
The second concern I have had has been that the more expansive definitions of Academic Freedom seem vulnerable to a form of weaponisation that is, in fact, the antithesis of academic work.
The danger of this became particularly clear during the pandemic, when some members of the academe — that is to say people working under contracts that protect Academic Freedom — began to disseminate what was broadly asserted by people with specialist knowledge to be mis-, dis-, or simply mistaken information about things like vaccines, public health law, and epidemiology.
But the problem predates the pandemic. The rise of Social Media over the last twenty years and the development of “influencer” as a career path has also led to a new type of popular (or perhaps better said, populist) academic gadfly: scholars (broadly understood) who appear to understand themselves primarily as professional boundary-testers, rather than people particularly interested in participating in debate or changing opinions.
The most obvious of these are surely the cancel-culture-baiters: that is to say, speakers who show up at universities with a promise to deliver talks that will lead to “snowflake” student groups and cowardly administrators calling for them to be “deplatformed.” What they are actually going to speak about is almost always beside the point — the goal is not to open or change minds on issues of importance; it is to ensure that they are greeted by (a hopefully viral) controversy that they can then monetise through platforms like X, Facebook, or Patreon.
Once again, this approach to exercising Academic Freedom seems to me to have little in common with what Academics actually do — it is much more a form of performance art than it is an attempt at engaging with important issues that requires freedom from interference in order to explore.
Why this is a (philosophical) problem for me
These issues are a problem for me because I think they ultimately represent a danger to the exercise of Academic Freedom in its most essential form: as a way of protecting the academe by ensuring its participants can research, teach, and participate in intra- and extra-mural activities free of undue pressure or restraint from their employers.
The codification of (and near universal belief in) Academic Freedom in the context of North American universities is a relatively recent thing: it dates from the early years of the twentieth-century in the case of the U.S. and was not fully established in either Canada or the U.S. until the 1960s and 1970s. And as a contractual right, rather than a constitutional one, it is open to constant (re)definition: exactly what it means varies from year to year, institution to institution, and case to case. The history of Academic Freedom in Canada and the U.S. is really a history of famous cases: incidents whose resolution become understood as representing the bounds of what is an is not protected by the concept; the Harry Crowe case, for example, which established in Canada that intramural expression should be broadly protected; or the Nancy Olivieri case, which helped expand the limits of extramural expression and freedom to publish.
Defending the rights of (in essence) professional martyrs to say unpleasant things about non-binary people or to deny the Holocaust, or to promote fake theories about the connection between vaccines and autism — apparently all in the hope that they can later monetise their “cancellation” on Social Media — seems to me to be a different type of problem. It does not so much as establish the boundaries of Academic Freedom as call the entire concept into question: if we end up building our defence of Academic Freedom around what seem to me to be largely bad-faith attempts to exploit (rather than use) it, then we run the risk of losing ground in the ongoing conversation about why it is important to protect Academic Freedom when it is exercised in good faith — by people who have important but unpopular points to make on issues of social importance and who are actually trying to change minds and affect debate rather than profit from whatever controversy they manage to kick up.
The same is true for my first point. Too often, it seems to me, recent defences of Academic Freedom have required us to argue in favour of behaviour that, in an actual academic context such as a journal, conference, or classroom, would be considered beyond the pale.
I find this particularly true in the case of what we might broadly call “the creation of safe spaces”: i.e. an environment in which speakers are expected to argue in a manner that is respectful of all participants and, in particular, pays attention to the way that members of historically marginalised groups can be shut out of conversations by conscious or unconscious assertions of privilege.
That such safe spaces are essential to the academic endeavour is something pretty much everybody agrees on. While it was fashionable a few years ago for right-wing polemicists in the U.S. to pretend that this was really a way of pandering to “snowflake” millennials, the recent governmental assault on supposedly left-wing university campuses in Florida and bans on teaching content having to do with uncomfortable aspects of U.S. racial history in many states shows that worrying that students might be made uncomfortable when they are taught harsh truths is non-partisan. Less controversially, it has been a fundamental premise of good classroom practice for decades that instructors need to ensure they make room for students who are less willing to put their hands up — traditionally making sure that the girls in a class are not shut down by the boys, for example, or, more recently, finding ways and creating space for boys to participate in classes where girls are often doing much better.
In recent years, this too has become an area in which defending Academic Freedom seems to me at times to be opposed to its actual exercise. In addition to making use of superficially “controversial” topics, the type of boundary-pushing I’m describing above also often seems to attempt to create controversy by creating deliberately “non-safe” environments; “bravely” refusing to bow to pressure to acknowledge preferred pronouns and using terms that the speaker know will cause controversy simply because they will. This is not how we actually engage with each other in academia and it seems a shame that so many Academic Freedom cases end up resulting in us — i.e. the people who end up arguing for those being cancelled or disciplined — having to positively defend behaviour we wouldn’t accept in our conferences or classrooms.
So what to do?
This brings me to my actual point here, which is to sketch out my initial thoughts on how to defend Academic Freedom without having to endorse behaviour one wouldn’t accept in actual academia.
They key here, I think, is to recast the problem. In part because we consider Academic Freedom to be a positive and valuable right, we tend, in thinking about it, to see it as pertaining primarily to the Academic. That is to say, we tend to understand Academic Freedom as a right that individual Academics enjoy. Which means we can end up harming the cause of Academic Freedom when we try to defend the right of individual academics to engage in behaviour that we wouldn’t allow — or if we do allow it, certainly wouldn’t endorse — in our actual academic lives.
But there is a different way of understanding Academic Freedom, that, I think, avoids this problem: that is to return to the idea that Academic Freedom is not a right but a working condition. That is to say, arguing that Academic Freedom is not so much a right that individual academics enjoy as it is a necessary condition for their employment. This means that the issue in defending Academic Freedom is not so much to stand up for the right of individual academics to do foolish things like deny the holocaust, or engage in rude and demeaning behaviour, or attempt to provoke reactions for monetary gain; as it is to argue that Universities must be the kinds of places that do not police the opinions and actions of the people who work in them — including (perhaps) those who deny the holocaust, engage in rude or demeaning behaviour, or attempt to provoke reaction for monetary gain.
This is actually a return, as I understand it, to the philosophy behind the AAUP’s original 1915 statement on Academic Freedom, which attempted to establish a distinction between the normal contractual expectations of employers and employees outside of the University, and those involving University Boards and faculty “appointees.” Outside the University, employees have (in the U.S.) a First Amendment right to free speech — meaning they can say what they want free from government interference. But what they don’t have is a right to have their speech tolerated by somebody else — e.g. an employer. Even correct and true speech can result in private sanctions if your employer doesn’t like it: that’s why they can ban employees talking to the media or fire employees for giving candid interviews about the quality of their company’s products.
Inside the university, however, Board Appointees (i.e. Faculty Members) have an additional right — Academic Freedom — to engage in debate without threat of sanction from the organisation that pays their salary. So the Faculty of a University (under this model) should be able to criticise the quality of their employer’s “product” (e.g. arguing that the quality of education is declining or that there’s grade inflation) as well as pronounce inconvenient truths — on the value of socialism, or Critical Race Theory, or Thatcherism — without repercussions from their employer.
The one wild card in all this is that Academic Freedom does not — and never has — meant absolute impunity from any sanctions whatsoever. It is standard to say in Academic Freedom clauses that they don’t protect illegal speech — in Canada, for example, hate speech or criminal conspiracy. But there is also an exemption for speech that suggests the Faculty Member is unfit for their duties as a research or a teacher: falsifying research results, for example, is not protected by Academic Freedom; nor is deciding not to show up to class; or to teach something other than the required number of contact hours; or during term. In such cases, Faculty Members are subject to employer sanction: they can be disciplined, suspended, or fired.
These disciplinary procedures, moreover, are the real places where the defence of Academic Freedom takes place. Discipline is the way that employers actually sanction Faculty Members’ speech that they feel should not be protected. And (ideally at least) what makes Academic employer discipline with regard to Academic Freedom different from other employer discipline regarding Freedom of Expression is the degree to which the employer’s actions are then subject to peer review: i.e. whether or not the employer was correct in disciplining a particular instance of Academic Speech is then reviewed by Academic experts rather than, say, experts in labour law via arbitration or the Labour Board. If the Academics determine that the speech should be protected, then the discipline (again ideally) should be cancelled. If they don’t, then, presumably, it goes ahead.
What’s important here is that this understanding changes the onus of defence in Academic Freedom cases: the problem is no longer whether we can justify the absolute right of individual members to engage in behaviour that is sometimes fairly clearly sub-optimal; instead the debate is about whether the behaviour itself was so egregious as to affect the ability of the person in question to carry out their duties as an Academic. That is, it is not longer a question about whether an Academic has the positive right to do something; instead it becomes whether the University has a duty to sanction that something that specific action or behaviour: i.e. whether the activity or behaviour is such that the University would be derelict if it didn’t act.
This is, of course, what actually happens in Academic Freedom cases (at least in Canada): the most common way they arise is when an academic is sanctioned for something they have said or done; and the most common issue is whether that sanction is appropriate and proportionate to the facts of the case. The real test is not whether the Academic did something deserving of Academic Freedom; it is whether the institution can justify denying the academic that protection.
But I wonder if this is not also the way to more proactively defend Academic Freedom in the public sphere. That is to say, if we might not do better arguing that is it important that Academics have a wide latitude because institutions of higher learning require that latitude in order to operate rather than attempt to argue that every crank who happens to work in a university is in fact engaging in behaviour that is crucial to development of knowledge. The “better to let a guilty person go free than jail an innocent” argument; except in this case, better to let the occasional crank vent about mask mandates than force the next Galileo to recant.
As I say, these are initial thoughts, and completely without reference or prejudice to any cases I might have worked on the past or will work on in the future.
