Presentation on Academic Freedom for Brian Haynes Class on July 21, 2004
Copyright © 2004 Bruce W. Hauptli
1. A definition:
Academic freedom refers to a freedom and responsibility of faculty in their role as teachers or researchers to pursue a course of study, carry out research, publish findings, teach, artistically create, and speak out in matters of controversy without fear of reprisal or censorship, and unhindered by pressures from internal or external groups. Academic freedom also refers to the freedom of the faculty to pursue their responsibilities in their role as citizens in the academic community and participants in the collegial governance systems and processes.
2. Some History:
The challenges to academic freedom are not by any means new. In democratic Athens, Plato “moved in doors” rather than face the fate which had befallen Socrates.
Moving ahead almost two thousand years to what is sometimes called “The Age of Enlightenment,” we might be tempted to adopt the picture of the times offered in an article in Time Magazine which offers the following characterization of the Netherlands during the time of Spinoza:
the Netherlands of William of Orange, Rembrandt and Descartes flourished through its diversity. The country welcomed immigrants fleeing persecution elsewhere in Europe. Its religious and cultural tolerance attracted merchants, artisans and financiers whose skills helped their new homeland dominate pre-industrial Europe.
This picture is a popular one, but as the citations above make clear, it offers a far too quick and facile a depiction of the tolerance of the times. While there was, indeed, far more tolerance in the Netherlands than elsewhere, Benedict Spinoza's story clearly indicates that there were significant constraints upon tolerance in the Netherlands at that time. After his excommunication, Spinoza composed an Apology (which is now lost) and began work on his Brief Treatise on God, Man and His Beatitude (posthumously published), On the Correction of the Intellect (posthumously published), Principles of Cartesian Philosophy (published in 1663), the Ethics (posthumously published), and Theological-Political Treatise (published anonymously in 1670). As A. Robert Caponigri notes, the publication of the Theological-Political Treatise:
...was made possible by the protection of powerful friends, especially the De Witte brothers: the work raised a storm of protest because of its pleas for tolerance.
The death of the De Witte brothers during an insurrection in 1672 left Spinoza bereft of protection; the succeeding regime was much less tolerant and he was unable to release the Ethics which had been prepared for publication in 1677.
R.H. M. Elwes notes that:
in the seventeenth century all men's deepest convictions were inseparably bound up with anthropomorphic notions of the Deity; Spinoza, in attacking these latter and endeavoring to substitute the conception of eternal and necessary law, seemed to be striking at the very roots of moral order: hence with curious irony his works, which few read and still fewer understood, became associated with notions of monstrous impiety, and their author, who loved virtue with single-hearted and saintly devotion, was branded a railer against God and a subverter of morality, whom it was a shame even to speak of.
Similarly, the English philosopher John Locke suffered from censorship. He worked for the Earl of Shaftesbury and when the latter became alienated from King Charles II, and fell from power, Locke traveled to France for study and rest, and then returned to an England deeply in turmoil from the ongoing political conflict between Parliament and the Stuarts—the conflicts between parliament and the monarchy continued until 1687 when parliament invited William of Orange to rule England. Shaftesbury was tried for treason in 1681 and had to flee to Holland, and Locke fled two years later. In 1681 Locke began work on his Two Treatises of Government [published anonymously in 1689], and during his stay in Holland he began work on his Epistola de Tolerantia [published anonymously in English as A Letter Concerning Toleration in 1689]. In 1689 he returned to England in a convoy which conveyed Mary of Orange (William’s queen). In 1690 the Essay was published, and the next year Locke moved to the country estate of his friend Lady Marsham (he lived there till his death). He published Some Thoughts Concerning Education , and The Reasonableness of Christianity [anonymously, in 1695], and served briefly as Commissioner of Trade and Plantations.
Finally, the great Enlightenment thinker Immanuel Kant did not lead his life in a free society. During the reign of Frederick the Great, there was little censorship, but this was not the case when Frederick William II came to rule. As Mary Gregor notes,
in 1788 Barron von Zedlitz—to whom Kant had dedicated the Critique of Pure Reason--was dismissed, and the notorious Woellner was appointed Minister of Justice and head of the state departments of church and schools. Together, the King, his favorite minister, and a coterie of likeminded officials they gathered around them launched a campaign to "stamp out the Enlightenment." Six days after his appointment, Woellner's Edict on Religion paid lip service to freedom of conscience while effectively silencing any criticism of orthodox ecclesiastical tenets....
Gregor continues by noting that
Kant was not looking for trouble when he wrote Religion Within the Limits of Mere Reason Alone, though he might reasonably have expected it.
This is a bit ironic given that Kant's view of the power of reason holds that it is incapable of comprehending the deity. Indeed
...after the second Critique had been published, some of Kant's friends feared that his denial of reason's ability to achieve knowledge of the supersensible [e.g., the existence, or nature of a deity] might be claimed by the fanatics in Berlin as support for their insistence on blind faith in matters of religion.
As Gregor notes, Kant did encounter difficulties with his views on religion, however:
in 1791 Kant sent the manuscript of Religion [Within the Limits of Mere Reason Alone] to Biester, editor of Berliner Monatsschrift, who planned to publish its four sections in four consecutive issues of his journal. The first section was submitted to the censor, received the imprimatur, and was published in the April 1792 issue. As for the fate of the remaining three sections, we can best quote Kant's account of the affair….
"The first part, "On the Radical Evil in Human Nature," went all right: the censor of philosophy, Herr Privy Counselor Hillmer, took it as falling under his department's jurisdiction. The second part was not so fortunate, since Herr Hillmer thought it ventured into the area of biblical theology (for some unknown reason he thought the first part did not), and he therefore thought it advisable to confer with the biblical censor, Oberkonsistorarah Hermes, who then of course took it as falling under his own jurisdiction (when did a mere priest ever decline any power?), and so he expropriated it and refused to approve it."
Biester twice appealed the decision, once to the Censorship Commission and once directly to the King.
On October 12, 1794 Kant wrote Frederick William II responding to the King's demand that he "give a conscientious account of himself for having misused his philosophy to distort and disparage many of the cardinal and basic teachings of the Holy Scriptures" in his Religion Within the Limits of Mere Reason. In that letter Kant promised that:
regarding the second point—not to be guilty in the future of (as I am charged) distorting and disparaging Christianity—I believe the surest way, which will obviate the least suspicion, is for me to declare solemnly, as Your Majesty's most loyal subject, that I will hereafter refrain altogether from discoursing publicly, in lectures or writings, on religion, whether natural or revealed.
Kant wrote his Conflict of the Faculties (especially the part entitled "The Conflict of the Philosophy Faculty with the Theology Faculty") to defend both academic freedom and to argue that the theological faculties and the clergy had usurped authority that properly belongs to others, and upon Frederick William II's death in 1797 he felt released from his promise, and he published this work.
Finally, to bring us to our side of the ocean, note that
1n 1900 when noted economist Edward Ross lost his job at Stanford University because Mrs. Leland Stanford didn't like his views on immigrant labor and railroad monopolies, other professors were watching. The incident stuck in the mind of Arthur O. Lovejoy, philosopher at Johns Hopkins. When he and John Dewey organized a meeting at Johns Hopkins University in 1915 to form an organization to ensure academic freedom for faculty members, the AAUP was born. "Academic freedom" was a new idea then.
3. My “Education, Indoctrination, and Academic Freedom:
The core point here is that talk of “academic freedom” requires correlative talk about academic responsibility. See, also my “Professional Responsibility and Ethics.” Donald Kennedy’s Academic Duty has an eloquent and extended discussion of academic freedom and duty.
4. Academic Freedom and the Law:
Many might believe that academic freedom is noting more than the constitutionally-guaranteed right to free speech within the academy. So the place to begin may be with a brief look at that “guaranteed right.” In his The Metaphysical Club, Louis Menand maintains that:
Holmes always insisted that his dissent in Abrams was perfectly consistent with his opinion for the court in Schenck, and he was correct. What made Abrams different was Holmes’s recognition that in order to justify his reading of the facts, he needed a theory. In upholding an individual right of free speech, he needed to explain why it was in the majority’s interest to grant such a right. He supplied his theory in his final paragraph. “Persecution for the expression of opinions seems to me perfectly logical,” he wrote.
If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition...But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of that thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is a part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death....Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law...abridging the freedom of speech.”...I regret that I cannot put into more impressive works my belief in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
It was not until 1925 that the Unites States Supreme Court recognized free speech as one of the liberties protected by the Fourteenth Amendment’s due process clause, and not until 1927, in the opinion by Louis Brandeis, that it adopted Holmes’s argument for protecting political speech from state sanctions.
In his decision in U.S. Supreme Court, Sweezy v. New Hampshire, 354 U.S. 234 (1957), Justice Frankfurter formulated what have come to be called the “four essential freedoms” when we speak of academic freedom in America:
progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities.[354 U.S. 234, 262] For society’s good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people’s well-being, except for reasons that are exigent and obviously compelling.
These pages need not be burdened with proof, based on the testimony of a cloud of impressive witnesses, of the dependence of a free society on free universities. This means the exclusion of governmental intervention in the intellectual life of a university. It matters little whether such intervention occurs avowedly or through action that inevitably tends to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor. One need only refer to the address of T. H. Huxley at the opening of Johns Hopkins University, the Annual Reports of President A. Lawrence Lowell of Harvard, the Reports of the University Grants Committee in Great Britain, as illustrative items in a vast body of literature. Suffice it to quote the latest expression on this subject. It is also perhaps the most poignant because its plea on behalf of continuing the free spirit of the open universities of South Africa has gone unheeded.
“In a university knowledge is its own end, not merely a means to an end. A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates—’to follow the argument where it leads.’ This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant [354 U.S. 234, 263] to the spirit of a university. The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself.
“Freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge. A sense of freedom is also necessary for creative work in the arts which, equally with scientific research, is the concern of the university.
“….It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” The Open Universities in South Africa 10-12. (A statement of a conference of senior scholars from the University of Cape Town and the University of the Witwatersrand, including A. v. d. S. Centlivres and Richard Feetham, as Chancellors of the respective universities).
I do not suggest that what New Hampshire has here sanctioned bears any resemblance to the policy against which this South African remonstrance was directed. I do say that in these matters of the spirit inroads on legitimacy must be resisted at their incipiency. This kind of evil grows by what it is allowed to feed on. The [354 U.S. 234, 264] admonition of this Court in another context is applicable here. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 63.
Building on this decision, in 1960 the Supreme Court—in Shelton v. Tucker, 364 U.S. 479 (1960) 364 U.S. 479—maintained that:
the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. “By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers...has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.” Wieman v. Updegraff, 344 U.S. 183, 195 (concurring opinion). “Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate....” Sweezy v. New Hampshire, 354 U.S. 234, 250.
In 1996, the Supreme Court, in Keyishian v. Board of Regents, 385 U.S. 589 (1967) 385 U.S. 589 stated that:
our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, supra, at 487. The classroom is peculiarly the “marketplace of ideas.” The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, [rather] than through any kind of authoritative selection.” United States v. Associated Press, 52 F. Supp. 362, 372. In Sweezy v. New Hampshire, 354 U.S. 234, 250 , we said:
“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”
Finally, in Pickering v. Board of Education, 391 U.S. 563 (1968) and several subsequent cases, the Supreme Court dealt with the questions which arise as one balances teachers’ academic freedoms with the interests of the state to maintain efficient educational systems.
5. Current Cases:
Of course all the definitions, history, and law are interesting, but, perhaps, more interesting is a discussion of current cases where academic freedom is being challenged. The AAUP web-site contains a number of interesting cases, and looking at a variety of them can help us understand the sorts of challenges which arise regarding academic freedom.
 Time Magazine, July 28, 1997, p. 54.
 A. Robert Caponigri, A History of Western Philosophy, (Notre Dame: Univ. of Notre Dame, 1963), p. 199.
 R.H.M. Elwes, "Introduction," in The Chief Works of Benedict de Spinoza v. 1 , trans. R.H.M. Elwes (N.Y.: Dover, 1955), pp. vi-vii. If this seems excessive, consult Pierre Bayle's Historical and Critical Dictionary [1697, 1702], trans. and ed. R.H. (Indianapolis: Hackett, 1991), pp. 288-388, esp. pp. 288-293.
 Marry J. Gregor, "Translator's Introduction" to The Conflict of the Faculties  by Immanuel Kant, trans. Mary J. Gregor (N.Y.: Abaris, 1979), pp. vii-xxix, p. ix.
 Ibid., p. ix.
 Ibid., p. xii.
 Ibid., p. xiv.
 Immanuel Kant to Frederick William II, reprinted in The Conflict of the Faculties, op. cit., pp. 13-19, p. 19.
 It is available at: http://www.fiu.edu/~hauptli/ProfessionalResponsibilityandEthics.html.
 Donald Kennedy, Academic Duty (Cambridge: Harvard U.P., 1997). There is some irony here, of course, given that Kennedy is President Emeritus of Stanford.
 Louis Menand, The Metaphysical Club (N.Y.: Farrar, Straus and Giroux, 2001), p. 430. Menand quotes from Abrams v. United States, 250, U.S. 616 (1919), 630-31.
 The Hon. A. v. d. S. Centlivres only recently retired as Chief Justice of South Africa, and the Hon. Richard Feetham is also an eminent, retired South African judge.
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File revised on 07/08/2008.