International Higher Education, Fall 2003

Defending Academic Freedom as a Human Right: An Internationalist Perspective

Defenders of academic freedom in the United States have argued for it as a professional or constitutional right of the individual or, less frequently, as an institutional right of the academy. Its practice has been quite vigorous in this country, especially when compared with its fate in closed political systems such as China's. Since the terrorist attacks of September 11, 2001, however, perceptions of threats to academic freedom have changed. Now, it seems, the war on terror has extended to academia.

Before one can defend academic freedom, however, it must be defined. A principal question is whether it limits an academic’s freedom to expressive and associational activity in that person’s field of specialization, or whether it provides for a general freedom to engage in any expressive activity that does not constitute a violation of existing laws. Does it, for example, prohibit an engineering professor from expressing her views on war in the classroom? An unduly narrow definition of academic freedom does not fit its historical development in the United States. Nor does it reflect the role of the academic as a citizen.

Historically, academic freedom in the United States was influenced by 19th century German ideas, but it has been defended at least since the formation of the American Association of University Professors and the adoption of its 1915 Declaration of Principles on Academic Freedom. But how real is academic freedom for all academics in the United States right now, regardless of their national backgrounds and citizenship status? Should it concern us that foreign-born U.S. academics have fewer rights than their native-born peers? If so, how should we react? I will argue that it is important to protect the academic freedom of everyone in U.S. academia, including the foreign born. A startlingly high number of foreign-born academics and students are in the United States, and therefore, many people could potentially be affected adversely by ill-conceived measures that interfere with basic rights. Such a possibility must concern us all in the current political climate. Since foreign-born faculty, researchers, and students are not entitled to full constitutional protection under U.S. domestic law, the only way to ensure academic freedom for them would be to argue for it as a human right.

How serious is the threat to academic freedom and how widespread is it globally? Worrying signs suggest that as freedom of expression, opinion, and association come under threat as a result of the global war on terror, academic freedoms are also being targeted. In the United States, some academics have reportedly been pressured because of their views on the antiterror war. A number have been singled out for being unpatriotic and dangerous by conservative foundations; others have been more directly challenged over their selection of course materials or their opinions.

As I noted, a major concern is that in the United States, many academics may potentially be subject to harsh laws that do not provide basic guarantees of rights. A 1999 survey by the U.S. Department of Education reported that out of a total of 590,937 faculty members in the United States, 94.4 percent were U.S. citizens, and 5.6 percent were noncitizens. This statistic is important, because in the United States, as in many other countries, not all constitutional rights automatically apply to noncitizens. Partly because of this difference in the treatment of citizens and noncitizens in the domestic laws of many countries, most countries have agreed upon a universal set of minimum human rights that apply to everyone in their territories.

But how secure is academic freedom as a constitutional right for U.S. citizens? As I said above, it has traditionally been defended in the United States on two grounds: as a constitutional and legal right of the individual under the First Amendment and as an institutional right of the academy. As the U.S. Supreme Court famously stated in 1967 in Keyishian v. Board of Regents, “academic freedom . . . is . . . a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

Human Right to Academic Freedom
As I have pointed out, a focus on constitutional rights for individuals remains inadequate for protecting the academic freedom of all scholars in the United States. A better approach is to defend academic freedom as a human right. To say that something is a human right is to assert two things: first, that protecting such a right does not depend on national legal systems, but on international law; and, second, that transnational action, including that by international agencies, becomes legitimate for protecting such rights. In the current political climate, only this argument has a reasonable prospect of ensuring uniform respect for the academic freedom of all scholars working in American institutions of higher education.

Academic freedom can be asserted as a human right in two ways. One is to defend it as a human right to free expression; the other is to defend it as a human right to education. Freedom of opinion and expression are protected as human rights by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by most countries, including the United States. The right to education is guaranteed by Article 13 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which most countries have ratified, although the United States has not. The ICCPR does not subject the right to hold opinions to any restriction, while freedom of expression can be curtailed only on specified grounds, such as protection of public order or national security, through legal measures that are deemed necessary. The covenant therefore subjects academic freedom to restrictions similar to those imposed by U.S. law. For example, the United States could legitimately discriminate against noncitizens under the ICCPR and prevent the application of Article 19 to private educational institutions. For noncitizen scholars working in the United States, this does not provide extra protection.

In 1999, through the ICESCR, the United Nations recognized academic freedom as part of a human right to education. As the organization's Committee on Economic, Social, and Cultural Rights stressed, the "right to education can only be enjoyed if accompanied by the academic freedom of staff and students." The committee further emphasized that, in its experience, "staff and students in higher education are especially vulnerable to political and other pressures which undermine academic freedom." This approach--recognition of the importance of core civil and political rights, such as academic freedom, for the protection of economic, social, and cultural rights such as education--is an interesting and innovative way to defend academic freedom. Unfortunately, the covenant does not mention in any detail issues such as individual academic freedom, university autonomy, or the right of members of academic institutions to participate in self-governance. Such matters are left for the jurisprudence of the committee.

The effort to defend academic freedom as a human right makes sense from a theoretical perspective as well. There are at least two ways to understand academic freedom. One is as an individual right, a collection of all the expressive freedoms that any member of the academic community has as an individual, including the rights to free expression, opinion, and association. This view defines academic freedom as a subset of a larger category that needs no special protection. The United States, where academic freedom is subsumed under the First Amendment, takes this approach, as does South Africa, where the constitution mentions it as part of the right to free expression.

A second way to think about academic freedom is as a right to education that has individual and collective dimensions that can only be discharged through complex relationships between students, faculty, institutions, the government, and the society. In this sense, academic freedom is not only an end, as it is under an individualistic conception. It is also the means for realizing other important ends, including individual freedoms that go beyond expressive freedoms to encompass all freedoms such as nondiscrimination. The ICESCR expressly states that education "shall be directed to the full development of the human personality."

Indeed, a human right to education injects an ethical dimension into academic freedom by broadening the objectives of education. That is, academic freedom exists so that individual professors and their institutions can pursue important educational objectives. Conversely, the right to academic freedom can be defended as an essential part of a right to education. In other words, academic freedom is not simply an individual right to something, but it is also a collective right for the realization of important societal goals. In our global age, these goals are themselves global, embodied in the idea of human rights.

A different version of this article appeared in Academe, the journal of the American Association of University Professors.