Academic freedom is widely recognized as the foundation of the university’s mission to educate students and advance knowledge. But there are serious questions about the condition of that foundation in today’s university environment, with universities’ unprecedented and growing reliance on contingent faculty, their obsession with their “brands”, their embrace of students as customers, and their reward system that privileges serving private interests.
According to official statements, there would seem to be no problem. Virtually everyone in higher education claims to be a champion of academic freedom. Universities Canada (the association of university presidents) proclaims: “Academic freedom is fundamental to the mandate of universities to pursue truth, educate students and disseminate knowledge and understanding.”
The Canadian Association of University Teachers (representing virtually all university and college academic staff) states: “Post-secondary educational institutions serve the common good of society through searching for, and disseminating, knowledge and understanding and through fostering independent thinking and expression in academic staff and students. Robust democracies require no less. These ends cannot be achieved without academic freedom.”
Individual universities have comparable statements of policy.
Yet, ironically, within the academy and outside, it is not even clear that there is widespread understanding of what academic freedom is. Too often, it is confused with freedom of expression, as when there is reference to “student academic freedom” or when discussions of freedom of expression treat academic freedom as synonymous.
The difference is straightforward. Freedom of expression is a general right of all Canadians that the Charter of Rights and Freedom identifies as a “fundamental freedom.” Freedom of expression is the right to express one’s opinions or views in public without censorship, restraint, or legal penalty. Academic freedom, on the other hand, is a special right – a professional right of academic staff that is necessary for them to do their jobs of educating students and advancing knowledge.
Academic freedom is both more expansive than freedom of expression and more restrictive. It is more restrictive in that there are things an academic can say on a street corner that they cannot say in the classroom as academic freedom is limited by disciplinary norms and collegially-determined curriculum, guidelines and policies. Academic freedom is more expansive in that it gives academic staff more latitude in dealing with their employer than virtually any other category of employee.
Academic freedom in North America has four dimensions. The first is in relation to teaching: academic freedom ensures that academic staff are free to rely on their best professional judgment in educating students, without being beholden to prescribed doctrine.
In relation to research and scholarship, academic freedom ensures that academics can pursue their research and scholarly activities without regard for conventional wisdom, others’ preferences, or the views of governments, special interests, the university administration or board, or even colleagues. It includes the freedom to disseminate the results of one’s scholarly work and recognizes that academic scholarly work includes the freedom to acquire, preserve, and provide access to documentary material in all formats; the freedom to produce and perform creative works; and the freedom to participate in professional and academic associations.
The third dimension is intramural academic freedom – the freedom to express one’s views about the institution, its administration, and the system in which one works. Without this dimension, collegial governance would be rendered meaningless. And, without it, academics, like virtually all other employees, would have a “duty of loyalty” to the employer that would fundamentally undermine the university as a place for education and the advancement of knowledge.
The fourth dimension is extramural academic freedom, ensuring that the university administration or board cannot sanction academic staff when they exercise their civil and human rights outside the university, however much university authorities, donors, special interests or the public dislike their actions or are convinced it tarnishes the university’s “brand.”
Such extensive protections and rights have made academic freedom controversial, often highly contested, with the result that, like all freedoms, it is never secure, but always under threat.
Traditional threats have come from governments, wealthy donors, special interest groups, boards of governors, alumni, senior administrators, colleagues and students. In response, academic staff in Canada have almost universally negotiated protection for academic freedom into their collective agreements – making academic freedom an enforceable right through grievance-arbitration. For the most part, collective agreement protections have proven effective in sustaining academic freedom rights against these traditional sources of threat.
But, there are new sources of threat that are endangering academic freedom in the contemporary university. The most pervasive is the growing reliance on contingent academic staff – academic staff hired off the tenure track in part-time, per-course, or even full-time contract positions with no path to tenure or tenure-like job security provisions. Tenure has been an underpinning of academic freedom because tenured academic staff can only be fired through a rigorous procedure and for just cause – which cannot include any of the rights protected by collective agreement provisions on academic freedom. While most academic staff in contingent positions also have collective agreement protections for academic freedom, these are largely meaningless unless the administration cites the content of their teaching, their scholarship, their intramural or extramural utterances as reasons for ending their employment. This they rarely do – circumventing academic freedom rights and ending employment of contingent academic staff by simply not renewing their contracts – making it difficult for the contingent academic staff and their academic staff association to prove it was for academic freedom reasons.
This is a particular problem now because the percentage of academic staff in contingent positions has been skyrocketing over the past forty years. In the United States, only 29 percent of university and college academic staff are tenured or tenure-track, with 71 percent in contingent positions. We have no equivalently reliable data in Canada as Statistics Canada discontinued its part-time faculty survey in the 1990s and its full-time faculty survey in the latter years of the Harper Government. Fortunately, after a five-year hiatus, Statistics Canada has reintroduced its full-time faculty survey. There is substantial anecdotal indication that a significant portion of academic staff at Canadian universities are in contingent positions. The latest is a report from the Council of Ontario Universities, based on data from a majority of Ontario universities, showing that 58 percent of academic staff were in contingent positions.
Another more recent and serious threat to academic freedom is the widespread adoption by Canadian universities of respectful workplace policies – policies aimed at enforcing civility and respect. Based on existing anti-discrimination and anti-harassment policies, they conflate aspirations for respectful discourse with legal requirements for harassment-free, discrimination-free, violence-free workplaces. Typically, these policies lump together rightly proscribed harassment, discrimination and violence with ill-defined and ubiquitous disrespectful and uncivil behaviour – all leading to lengthy and difficult investigations and possible discipline.
For example, Ryerson University’s “Workplace Civility and Respect Policy,” like most others, starts with an aspirational statement that links disrespect and incivility with harassment while affirming academic freedom: “Ryerson University is committed to creating a culture of respect and civility that is free of harassment, where all members of the community share a commitment to academic freedom, open inquiry and the pursuit of knowledge… This policy applies to incidents and complaints relating to uncivil behaviour and, workplace harassment that may impact faculty and staff.”
As is common in such policies, it reiterates a commitment to academic freedom: “Nothing in this policy shall be construed to impinge upon the academic freedom provisions specified in University collective agreements or policies.”
And then takes it away: “However, faculty, instructors and others, who have academic freedom rights, have a responsibility to exercise these rights in a civil and respectful manner” [emphasis added].
It then defines “incivility”: “Incivility deals with a broad range of behaviours including, but not limited to, unprofessional behaviour; rudeness; shouting or swearing; intimidation or bullying; threatening comments or behaviours/actions; unsolicited and unwelcome conduct, comment (oral or written including email communication), gestures, actions or contact that cause offense, humiliation, or physical or emotional harm to any individual.”
Should there be ambiguity about the extremely broad range of expression and behaviour that is proscribed under the policy, the University spells it out further in the accompanying “Guide to Civility:” “At a basic level, incivility can be in the form of: rude comments; insensitive actions; unintentional slights; complaining; gossip; rumors; crude jokes; profanity. As issues escalate, incivility can become more verbally aggressive and can include yelling, belittling comments, intimidation and discriminatory comments. At its most extreme, incivility can take the form of violence or threats of violence.”
As a result of this policy, and others like it, the limits on academic freedom are stretched from rightful ones – violence, discrimination and harassment – to rudeness, complaining, gossip, unintentional slights, and expressions of anger. The problems are several and obvious.
First, the demand for civility fails to recognize that the means of expression can be a vital aspect of its content. As Justice Miller wrote recently in a decision of the Ontario Court of Appeal rejecting the position that everyone is free to say what they want provided they use temperate language: “Tone of voice, volume, facial expressions, and body language all convey meaning that cannot necessarily be conveyed effectively in words. The exercise of free expression is diminished by restrictions on the means that make it effective…To take a familiar example from US First Amendment case law, the meaning conveyed by shouting “fuck the draft” does not translate, without significant loss of meaning, to the quiet declaration, ‘I am implacably opposed to the draft’: Cohen v. California (1971), 403 U.S. 15.” (Bracken v. Niagara Parks Police, 2018 ONCA 261)
In the classroom and in scholarly discussions, disallowing the conveyance of meaning by tone of voice, passion, anger, satire, aesthetic mockery, hyperbole, outrage is clearly a violation of academic freedom rights of academic staff and free expression rights of students.
Further, what is experienced as uncivil or disrespectful is irremediably subjective. As John Stuart Mill noted in decrying as risky and hypocritical the notion that society should allow “the free expression of all opinions on condition that the manner be temperate and does not pass the bounds of fair discussion”: “Much might be said about the impossibility of fixing where these supposed bounds are to be placed: for if the test be offense to those whose opinion is attacked, I think experience testified that this offense is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them…an intemperate opponent” (J.S. Mill, On Liberty. London: Crofts Classics, 1947 (1859), 53. Quoted in Walter P. Metzger, “Professional and Legal Limits to Academic Freedom”, Journal of College and University Law20(1), 1993, pp. 3-4.).
Perhaps most seriously, much of what respectful workplace policies define as uncivil or disrespectful is so common it can never be fairly or consistently enforced. As Jamie Cameron has pointed out: “When and in what circumstances another person might take offense at things said in a certain way is unpredictable and highly situational. Civility policies necessarily lend themselves to selective enforcement: though most will not, some offenders will be singled out for institutional attention: by definition and in practice, even-handed application of the standard is impossible. Short of a pattern of behaviour that satisfies definitions of harassment and bullying, mere rudeness and a lack of courtesy is just too pervasive and constant to be sensibly regulated” (“Giving and Taking Offense: Civility, Respect, and Academic Freedom. In James L. Turk (ed.) Academic Freedom in Conflict. Toronto: Lorimer, 2014, p. 293.).
Academic freedom is the necessary foundation for a university to be able to fulfill its missions of educating students and advancing knowledge. If it is to survive, there are number of things that must be done – starting with ensuring that collective agreements have strong academic freedom language as that is the only way of providing enforceable protection. It is important to ensure that academic staff associations vigorously enforce that language. It is also vital to ensure that academic staff associations make it a priority to obtain job security protections for non-tenured, non-tenure-track colleagues (CAUT, Fairness for Contract Academic Staff). Academic staff should also challenge policies that treat disrespect and incivility equivalently to harassment, discrimination and violence. Finally, as the legendary Frank Underhill reminded colleagues nearly 60 years ago, “The best way to defend academic freedom is to exercise it.”