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After 9.11, the war on terrorism is being waged on many fronts now, including on academic campuses. Thus, there are reports of academics being fired because of their opposition to the war or because of their critical views of the substantive issues that lie behind the war. Sami Al-Arian, a tenured engineering professor of Palestinian origin, has been fired by the University of South Florida because its funders and alumni expressed outrage at his involvement with a think tank that has been alleged to have links with terrorists, although no criminal charges have been filed against him. Similarly, the University of Jammu and Kashmir has completely banned its professors from talking to the media as a result of some allegedly critical comments made by a few faculty members to the Indian media. Clearly, academic freedom is under a cloud in many parts of the world.
Before one can defend academic freedom, it must be defined. A principal question is whether it includes the freedom of any academic to speak and engage in expressive activity only on the topics and issues with which he/she deals, or includes a general freedom to engage in any expressive activity that does not constitute a violation of existing laws. Thus, Al-Arian’s critics have argued that he was hired to teach engineering and that’s what he should stick to. This is an unduly narrow definition of academic freedom that does not fit its historical development in the U.S. nor reflect the role of the academic as a citizen. Historically, tenure grew out of the opposition to World War I by a Columbia psychology professor who was fired, and has been designed precisely to enable academics to speak the truth even if it transcends their narrow disciplinary boundaries.
Defending academic freedom is not so easy, however. It can be defended in the United States on at least three grounds: as a constitutional and legal right of the individual, as an institutional right of the academy, and as an international human right. Traditionally, academic freedom has been defended as a constitutional right as part of the First Amendment. As the Supreme Court famously stated, “academic freedom… is… a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” [Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).] Despite a seemingly absolutist commitment to the First Amendment, the government has not hesitated to take action against expressive activity in the interests of national security, and the Supreme Court has often gone along with such crackdown. This is especially the case when the country considers itself to be at war. It is thus not evident that academic freedom in the U.S. occupies such an exalted position that it protects academics’ unpopular opinions about national security. In most other countries, the status of academic freedom as a constitutional right is even weaker or non-existent.
A second way to protect academic freedom may be to think of it as a collective right of the academic body or as the corporate right of the University. While U.S. law has not taken this course, one can arguably see support for it in the language of the Supreme Court that the academy is a marketplace of free ideas where a “spirit of free enquiry” reigns. [Sweezy v. New Hampshire, 354 U.S. 234, 262, 263 (1957) (Frankfurter, J. concurring, quoting).] As it is obviously not possible to protect a marketplace without supporting the rights of individuals to transact in it, the Court’s language could be seen as supporting academic freedom as an individual right. Alternatively, the right of the academic body as a collectivity may be thought to be adversely affected by constraints imposed on its individual members. The constraint with this approach – besides its lack of grounding in U.S. law – is that the domain of academic freedom may well be constrained by the extent to which individual opinions are seen to advance collective freedom of inquiry. It is not clear that such constraints will protect dissident voices at a time of war. Worse, academic freedom may then depend on whether the University as a corporate body is prepared to endorse the individual views of its faculty.
A third option of protecting academic freedom is to defend it as an international human right. There are two ways in which this can be done. One is to defend academic freedom as part of freedom of expression and the other way is to defend it as part of a human right to education. Freedom of opinion and expression are protected as human rights by the International Covenant on Civil and Political Rights, while right to education is guaranteed by the International Covenant on Economic, Social and Cultural Rights. Under the former, the right to hold opinions is not subjected to any restriction, while freedom of expression can be curtailed only on specified grounds through legal measures that are deemed necessary. While this may sound elaborate, defending academic freedom as an expressive activity may be subjected to the same restrictions that it is subjected to under U.S. law. On the other hand, the United Nations has recently recognized academic freedom as part of a human right to education. [E/C.12/1999/10, CESCR General comment 13 on the Right to Education, Article 13, 8 December 1999, paragraphs 38-40.] As the UN Committee on Economic, Social and Cultural Rights has stressed, “right to education can only be enjoyed if accompanied by the academic freedom of staff and students” [Id.] and has emphasized that “in the Committee's experience, staff and students in higher education are especially vulnerable to political and other pressures which undermine academic freedom.” [Id.] This is an interesting and innovative way to defend core civil and political rights such as academic freedom by recognizing their importance for the protection of economic, social, and cultural rights. The U.S. is not a party to most of the important human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, and has not even recognized these rights as human rights. Although the effect of this shortsighted and arrogant posture has only been to deprive U.S. citizens of the benefits of international cooperation on human rights, this refusal to ratify treaties does not prevent U.S. citizens from taking full advantage of the ethical, political, and symbolic power of human rights as a global normative discourse.
Post 9.11, the war on terrorism has already sought to do away with many constitutional liberties and a defense of academic freedom cannot be left to the vagaries of domestic law. Defending academic freedom as a human right is therefore a moral and political imperative.
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