Academic Freedom & Its Limits

INTRODUCTION

“Academic Freedom” (AF) appears to be, in the USA, a special case of the constitutional protections of free speech and a free press as contained in the Bill Of Rights. Within public and most private colleges and universities it, as best applied, protects faculty (Or, at least tenured teachers) from punishment or retribution for what they say or write---Without regard to the arrogance, foolishness, “craziness” of such words or the extent to which they irritate others.

There are the academic world's own limits to AF, some of which are the products of the anti-free-speech movements, often based of “victimology”, which have appeared in recent years on some campuses. (For an excellent analysis of this issue, please see Professor Donald Alexander Downs' Restoring Free Speech and Liberty on Campus (1).

Certainly, universities and colleges accept, if not encourage, varieties of speech and writing that private and public employers in other sectors would not allow and would be likely to punish by various means up to and including termination-of-employment or even civil or criminal prosecution.

There are other limits to AF and issues as to applying that special case freedom to students AND as to the duties of university administrators and the general public or the government, especially the courts, as to AF. There are also the question as to just how much (Public) universities should be involved in actions against alleged violators of AF and other claimed “rights” to an extent which goes beyond those allowed or required of the general public.

GENERAL LIMITS TO AF FOR TEACHERS

AF for teachers does have some more limits, which include:
1.Not allowing civil or criminal punishment for accepting pay as a teacher and failing to teacher what is included in published course descriptions or other documents available
to the student, that being a form of fraud;
2.Not allowing civil or criminal punishment for accepting pay and teaching materials outside of or beyond professional competence or education (eg An art teacher instructing medical students in eye surgery, a political scientist attempting to teach forensic architecture or metallurgy, a teacher of philosophy attempting to instruct students in military science or “ag-science”), that being a form of gross fraud;
3. Not allowing the taking of overt actions, directly or through others, to limit the AF of others (Teachers, students, guest speakers a U-events);


4.Not allowing the active solicitation to or participation in actual criminal activity (eg Arson, Battery, Disorderly Conduct, Theft, “Violation Of Civil Rights” as defined by statute); And,
5.Having any expectation of avoiding “hurt feelings”, on any basis, as teachers are expected to be strong individuals free from such alleged injury (Or, “If you can not stand the heat, get out of the academic kitchen!”).

AF FOR STUDENTS (?) AND ITS LIMITS

Within public and most private academic settings, there is a general and growing acceptance of AF for students inside the class room, if not outside of it and still on campus. What are the AF “rights” of students?
1.To be free of unqualified teachers who inflict ignorance on others.
2.To be able to, respectfully, disagree with teachers and other students in or out of class as to the materials presented in class or being considered or debated otherwise at their schools---Even if such disagreement is that of a “minority of one”--Without retribution by teachers, students or others.

The limits on students AF is much like that of teachers (Noted above); But, without the expectation of competency or education beyond what is expected as a prerequisite for entry into any given class. Certainly, students' AF does NOT include any right to solicit or otherwise participate in any criminal activities or suppression of others' AF as individuals or organized/impromptu groups or mobs. It does not (Or should not?) create any expectations, in those adult students, of any “freedom from hurt feelings”. [eg A student who behaves in a discourteous manner or asks an off-subject question in a class has a reasonable expectation of being “called on that”---Without regards to that students “feelings”.]

A SHORT STEP BACK INTO HISTORY

It is worth a few words as to the “why” of AF and the greater expectations (Sometimes very unreasonable) of students and teachers for certain “rights” or privileges beyond that given to or expected by citizens outside of the academic world.

All of these date back to medieval times when universities had special charters allowing very much independence from the civil courts and having their own courts and laws and immunity from the civil or criminal actions to which non-academics were subject. As such universities were, in fact, the creation of the Catholic-Christian Church, some of hat may be due to the great privileges given any literate person to about 1800 on the assumption that most such persons were bound to be clerics.

However, civil law and literacy grew to today's level where no such special powers or rights are recognized by law in most places in the world.



Therefore, it is reasonable to ask if colleges and universities (And their students and teachers) should have in this age legal powers, protections and rights beyond what is given to the general mass of the People by democratically passed laws—As long as the right of qualified teachers and civilized students to search out truth and new knowledge is seen as a ongoing and very important societal need if both democracy and civilization.

This will be addressed below in more detail.

DUTIES/POWERS OF UNIVERSITY ADMINISTRATORS

To what extent should the administrators of (At least public) universities and colleges go beyond the normal range of the public law to protect all within their jurisdictions? There are certainly many (Perhaps, too many) laws on the books to punish, by civil or criminal actions, such acts as sexual assault, other physical assaults, robbery, theft, false imprisonment, riot, arson slander, perjury and false swearing, defamation-of-character, disorderly conduct, something called “hate crimes”, etc.

Certainly, as the administrators of a facility such administrators have a legal duty to protect those on their property as would the owner of a factory or office building or hotel. Violations of those general duties would and should leave such administrators open to civil or even criminal prosecution---Within the same laws as govern others. Of all those legal duties, the first is to insure that all violations-of-law are reported to the appropriate civil authorities---Something which school administrators, from graded schools to universities have historically been reluctant to do and therefore make themselves liable. The civil authorities have, I am sorry to say, tended to let them “get away” with such omissions.

I doubt that any school, in today's litigious society and very large jury awards, can afford to omit that particular duty. (eg If I were a student or teacher or guest speaker at a university where the authorities did not prevent individuals or a mob from attacking or limiting my exercise of my free speech rights or, at the least, actively seek out and file criminal charges against those that did so, I would bring a civil and, perhaps, criminal action against those administrators, as individuals, and the school as a corporation. This could make me and some attorneys very rich.)

What then should universities and their administrators do to protect students, teachers, other staff, guests, themselves and their schools? I suggest the following steps.
1.Make it very well known that any on campus violation of the criminal laws will be prosecuted by the very active efforts of the school and its administrators;
2.Take such “PR” efforts as will cause the local District/States/US Attorney to very
actively make public her/his intent to cooperate with such efforts and to execute such cooperation in a very public and, even, ferocious manner;
3.Ask for such changes in the law or public policy as will allow the school's security staff to be made “Special Deputy Sheriffs”--With jurisdiction limited to the property of the school; And,



4.Even, to have the local Chief Judge appoint some person as a “Special Prosecutor” for on-campus crimes (Including the making of false accusations against others).
5.Insist that the police (Or, if necessary, the National Guard) take every means necessary to immediately suppress any mob terrorism actions such as “take overs” of class rooms or other university areas. Negotiations with such terrorists is a waste of time and would be a matter of misconduct by university administrators.

Other steps which might be taken might be:
1.The video taping of the audiences at all public speeches by guest speakers or in other places where there is a reasonable expectation of disorderly or other criminal conduct (eg Overlooking newspaper distribution boxes in the event of such publications making “politically incorrect” statements);
2.The use of modern face-identification technology to ID persons who appear to have violated the law or to exclude previously banned persons from campus locations; And,
3.Use of restraining orders, where the law allows, to prevent any person who represents a clear-and-present danger to the safety or rights of others from all or selected on-campus locations

I think the above and possibly other like steps would combine the best of the ancient special case of universities with the need to comply with the laws that more democratically govern all People in the same, more public, jurisdiction---This to eliminate the need or justification for any in-house “prosecution” of offenses by universities and colleges. (Confinement in a jail or prison would make it impossible for a student or teacher to continue in the academic world and would make termination of such status automatic and self-inflicted. Personnel records and transcripts could and should record such actions.)

UNIVERSITY ADMINISTRATORS SHOULD MAKE IT VERY CLEAR THAT THEY HAVE NO LEGAL DUTY TO KEEP THE “FEELINGS” OF ADULT FACULTY AND STUDENTS FROM BEING (ALLEGDEDLY) HURT BY THE WORDS OF OTHERS AS LONG AS SUCH WORDS DO NOT VIOLATE CRIMNINAL STATUTES---AND THAT THEY WILL BRING LEGAL ACTIONS AGAINST ANYONE WHO FALSELY CLAIMS THAT THEY HAVE FAILED IN SOME DUTY THEREBY.

CONCLUSION

By all of the above and proposed steps, much of the controversy and wasted efforts (To poof up the academic world to some sort of society with laws beyond that set by the People through their democratic processes) of universities and their “people” could be eliminated and personal time and energy better expended on the seeking of rational and verifiable truths.

Perhaps, it well past the time for universities to join the larger democracy around them and not to believe or practice undemocratic and self-seeking qualities or conditions not allowed to or expected by the People.

(1)Downs, Donald Alexander
Restoring Free Speech and Liberty on Campuses
The Independent Institute (Oakland, CA) and Cambridge University Press
2005, ISBN 0-521-83987-4
[A most excellent book which I highly recommend !]

(2)Comments or reactions to this paper should be sent to me, under the topic of
“Academic Freedom”, to jamespawlak1 "at" hotmail "dot" com