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Academic Freedom after September 11
What Does Academic Freedom Protect?
Reviewed by David M. Rabban
Beshara Doumani, ed.
New York: Zone Books; Cambridge, Mass.: Distributed by the MIT Press, 2006
Bashara Doumani, the editor of the six essays included in Academic Freedom after September 11 and the contributor of a substantial introductory essay of his own, has appropriately divided the collection into two parts. The essays in part one, entitled “Contending Visions,” address academic freedom from a theoretical perspective. The essays in part two, entitled “Praxis,” focus on specific controversies over academic freedom before and after September 11, 2001.
The opening essay by Yale University law professor Robert Post and the response by Judith Butler, professor of rhetoric and comparative literature at the University of California, Berkeley, raise the most interesting issues in the collection and are likely to become permanent contributions to the literature on academic freedom. Post identifies and regrets the transformation of academic freedom from its original meaning in the AAUP’s 1915 Declaration of Principles on Academic Freedom and Academic Tenure to an entirely different concept today. The 1915 Declaration, Post stresses, limited academic freedom to professionally competent speech as determined by expert faculty colleagues. Influenced by the American culture of rights that has developed over the past fifty years, academic freedom, in Post’s view, has become reconceptualized as an individual right of professors to pursue inquiry without any constraints, analogous to the free speech guaranteed by the First Amendment to every American citizen.
For Post, this reconceptualization is logically flawed and, therefore, pragmatically dangerous. As the 1915 Declaration asserts, academic freedom is justified by the socially valuable contribution to knowledge made by experts. If the scholarly work of faculty members fails to meet professional norms, it does not serve this social function. As a result, already tenuous public support for academic freedom is weakened.
The professional norms that constrain academic freedom, Post recognizes, are themselves subject to legitimate scholarly debate and reformulation. Enforcing professional norms too rigidly may undermine the very academic freedom they are needed to justify. While Post does not see any easy theoretical resolution to this paradox, he does not find it particularly troubling, largely because he believes that professional norms encompass substantial tolerance for debate over their validity. At times of extraordinary contention within academic disciplines, he suggests, even a suspension of professional norms may be appropriate. But he insists that professional norms cannot be abandoned. Rather, they should be applied in good faith and with good judgment in balancing stability and innovation. Butler criticizes Post for minimizing the difficulty posed by contested professional norms, even as she agrees with his basic point about the unfortunate transformation of academic freedom into an individual right. Post, Butler complains, does not sufficiently recognize that professional norms are historical conventions in a constant state of flux. She emphasizes that competing norms often exist simultaneously. New norms, moreover, repeatedly supersede traditional ones. In Butler’s view, dissension over norms is the norm in modern academic life, not the exceptional circumstance portrayed by Post.
To a significant extent, Butler exaggerates Post’s position. Post recognizes the historicity of norms more than Butler acknowledges. He does not consider norms stable and shared, the view she attributes to him. Their difference is mostly a matter of emphasis and degree. Butler herself agrees that academic freedom must be bound by disciplinary norms and concludes that professors are obligated to give reasons for the legitimacy of the norms they use. It is frustrating that she does not provide any elaboration.
The subsequent essays by Kathleen Frydl, assistant professor of history at UC Berkeley, and Joel Beinin, professor of Middle East history at Stanford University, are similarly frustrating. As part of their legitimate attack on government and private intrusion into academic affairs, they acknowledge that professors must remain accountable in enforcing professional norms. Yet they do not offer meaningful guidance about how to achieve accountability or what might constitute violations of those norms. Members of the general public are much less likely to defer to peer review if these issues are not addressed.
While I agree with Post about the continuing importance of the concept of academic freedom as defined by the 1915 Declaration, I do not think it has suffered from nearly as much collective amnesia as he maintains—but does not attempt to demonstrate. Post himself recognizes that universities today overwhelmingly require faculty adherence to professional norms. The university regulations that enforce this adherence are typically based on AAUP standards derived from the 1915 Declaration. Post also cites several recent scholars who endorse this traditional concept of academic freedom.
I worry, moreover, that Post’s repeated and appropriate rejection of academic freedom as the liberation of individual professors from all constraints might be interpreted as a denial that academic freedom is an individual right in any sense. From its opening paragraph, the 1915 Declaration emphasizes that it is addressing the academic freedom of the professor. Professional norms define the limits of academic freedom, but individual professors exercise it. Post acknowledges this once in passing, but it is submerged in his attack on the version of individual rights he convincingly deplores. Constitutional analysis raises complicated issues about the status of academic freedom as an individual right of professors, as Philippa Strum, director of the Division of United States Studies at the Woodrow Wilson International Center for Scholars, makes clear in her essay. Legal decisions have recognized the academic freedom of professors as individuals and of universities as institutions. In most of these cases, individual and institutional claims of academic freedom have not conflicted. Yet rare and worrisome recent cases have construed constitutional academic freedom as applying only to universities. Criticism of academic freedom as an individual right, even in contexts removed from constitutional litigation, might promote this unfortunate legal development.
In addressing specific controversies over academic freedom, the essays focus mostly on events after September 11, although Frydl revisits the famous disputes at Berkeley over the faculty loyalty oath in 1949 and the student free speech movement in the 1960s while maintaining that they demonstrate the connection between extramural speech and academic freedom. Many essays devote substantial critical attention to the proposed International Studies in Higher Education Act of 2003, passed unanimously by the House but not enacted by the Senate, which gave an advisory board authority to investigate the curriculum and promote “diverse perspectives” in university centers funded by the federal government. The extremely valuable contribution of Amy Newhall, executive director of the Middle East Studies Association of North America, places this legislation in the broader context of disputes over federal funding of university language and area studies programs during the past forty years. Many essays also criticize the Ford and Rockefeller foundations for conditioning grants in language that, although directed against terrorism and bigotry, could be read as covering controversial political views. Several authors stress that after September 11, in contrast to the McCarthy era, private citizens and organizations have presented more threats to academic freedom than the government. Many single out for particular criticism the American Council of Trustees and Alumni and the neoconservative, mostly Jewish individuals and organizations that Beinin pejoratively calls “the American Likud.”
While highlighting attacks on academic freedom after September 11, the essays collectively leave the impression of more severe recent repression than other observers have detected. Doumani, for example, quotes with alarm the preliminary assessment of a 2003 AAUP report that “sufficient proscriptions are already in place to justify grave concerns and deep apprehension.” Yet he omits the previous sentence of the report, which cautions against “overreaction” and against assuming that these proscriptions “forbid more than they actually do.” In evaluating individual cases, the report finds fewer bans than expected, adding that the responses by administrators generally—although with significant exceptions—“have been reassuringly temperate.” While observing that the academy has not been similarly tested for a long time, perhaps not since the Vietnam War, and warning that the “tragic lessons” of the McCarthy era teach the need for continued vigilance after September 11, the report concludes that university “policies already in place seem to have served the interests of academic freedom surprisingly well.” By contrast, many of the essays in this collection, relying mostly on the same incidents discussed in the AAUP
report, portray a sustained and effective campaign against academic freedom since September 11. For this differing assessment, as well as for their valuable theoretical discussions and information about specific controversies, these essays are important reading for anyone interested in academic freedom.
David Rabban is professor of law at the University of Texas and chair of the AAUP’s Committee A on Academic Freedom and Tenure.
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