Academic Freedom in the Universities Act, 1997

Academics for Academic Freedom logo, via their siteI’m sorry not to have been able to acknowledge the celebration of AFAF‘s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.

Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

This is why, to take the example presented by Rod Thornton in his contribution to the NRinI carnival, research and teaching about terrorism are protected, even as Beshara Doumani‘s edited collection Academic Freedom after September 11 (University Of Chicago Press, 1998 | Amazon) demonstrates the increasing antithetical pressures.

Article 13 of the Charter of Fundamental Rights of the European Union provides that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. Moreover, academic freedom is embodied in the non-binding provisions of the Magna Charta Universitatum (placed into fascinating historical context by Costas Douzinas in his contribution to the NRinI carnival) and of Recommendation 1762 (2006) of the Parliamentary Assembly of the Council of Europe concerning academic freedom and university autonomy (reaffirmed in 2009), but there are very few equivalent general legislative provisions elsewhere. Leaving to one side the many ethically questionable – and constitutionally dubiousUS bills which attempt to wrap the teaching of creationism in the garb of academic freedom, similar legislation to protect academic freedom is expected soon in Australia. In this respect at least, Irish legislation is particularly progressive, and this freedom must be jealously guarded and zealously protected. Universities cannot operate as universities if their autonomy, and that of their academics and students alike, is circumscribed or controlled. Society garners the fruits of such autonomy, and would surely rue its curtailment.

Even if the right to academic freedom weren’t legislatively secured, it may be constitutionally protected. Indeed, on the birthday of John Stuart Mill, it is appropriate that Denis Hayes, in his contribution to the NRinI carnival, points out the close connections between academic freedom and strong protections of freedom of expression – indeed, he argues that free speech should be absolute. This is a road on which both the US Supreme Court and the European Court of Human Rights are embarked, though neither has chosen to reach Hayes’s destination.

For example, in the US Supreme Court, in Adler v Board of Education of City of New York 342 US 485 (1952) (also here), Douglas J (dissenting ) equated academic freedom with the pursuit of truth and held that it was protected by the First Amendment guarantee of free speech. In Sweezy v New Hampshire 354 US 234 (1957), the appellant refused to answer questions, posed by an enquiry into “subversive persons”, relating to a lecture he had delivered at the State University. The Supreme Court held that his Fourth Amendment due process rights were infringed; Frankfurter J (concurring) went further:

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. … In a university, knowledge is its own end, not merely a means to an end. … 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 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.

Moreover, in Keyishian v Board of Regents of the University of New York 385 US 589 (1967) (also here), on First Amendment grounds, the Supreme Court struck down political “loyalty oaths” (which the applicant had declined to sign) and education laws against “treasonable or seditious speech”; Brennan J, for the majority, held that

… academic freedom … 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.

A similar line of authority is emerging under with Article 10 of the European Convention on Human Rights (see Belgian Linguistics 1474/62, 1677/62, 1691/62, (1979-80) 1 EHRR 252, [1968] ECHR 3 (23 July 1968) (concerning minority language rights in Belgian, including in academic contexts); Vogt v Germany 17851/91, (1996) 21 EHRR 205, [1995] ECHR 29 (26 September 1995) (concerning the Article 10 rights of a dismissed teacher); Hertel v Switzerland 25181/94, (1999) 28 EHRR 534, [1998] ECHR 77 (25 August 1998) (Article 10 rights of a laboratory researcher); Wille v Liechtenstein 28396/95, (2000) 30 EHRR 558, [1999] ECHR 107 (28 October 1999) (Article 10 rights of a judge making academic constitutional arguments); Stambuk v Germany 37928/97, (2003) 37 EHRR 42, [2002] ECHR 679 (17 October 2002) (Article 10 rights of an ophthalmologist discussing latest techniques); Acik v Turkey 31451/03, [2009] ECHR 66 (13 January 2009) (concerning the Article 10 rights of students protesting in favour of university freedoms)). In particular, in Sorguc v Turkey 17089/03, [2009] ECHR 979 (23 June 2009) the ECHR referred to Recommendation 1762 (above), and emphasised

… the importance of academic freedom, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction.

These two lines of authority would certainly be of strong persuasive value if an Irish court came to consider the place of academic freedom in the Irish constitutional order, whether as an element of the right to freedom of expression in Article 40.6.1(i), or of the right to communicate protected by Article 40.3, or even as an unenumerated right located in Article 40.3. In particular, they would provide a basis for arguing that academic freedom ought to be protected by Irish law even if section 14 of the Universities Act, 1997 were repealed. Moreover, if any such repeal were to be expressed in the language of abolition of academic freedom, these lines of authority would found an argument that such an abolition would be unconstitutional.

For these kinds of reasons, the Statutes of Trinity College Dublin expressly protect academic freedom in the following terms:

  1. Pursuant to the Act of 1997 and otherwise, College guarantees to respect, defend and vindicate the traditional principles of academic freedom and freedom of expression.
  2. Academic members of staff shall enjoy such freedoms in particular in the discharge of their academic functions, and in related participation both in the life of the Community and in society at large.
  3. In accordance with its long-established autonomy, College shall enjoy such freedoms in the conduct and regulation of its affairs.
  4. Board may provide in a Schedule that such freedoms may also be exercised in other fashions, in other contexts, and/or by other members of staff.
  5. Since such freedoms are fundamental to the pursuit of knowledge and the advancement of truth, they shall be enjoyed and exercised with integrity and with due regard to their concomitant duties and responsibilities.

As subsection 5 demonstrates, academic freedom is not absolute. There are many things that an academic does simply as a person which are not protected by academic freedom. If the Defamation Act, 2009 is constitutionally valid, then an academic cannot defame a colleague and claim to be protected by academic freedom. Neither can an academic rely on that freedom in a purely private dispute that does not have anything to do with academic matters. Moreover, academic freedom runs foresquare into universities’ claims to intellectual property rights in the original works or inventions of their employees (see, for example, the Australian case of UWA v Gray [2009] FCAFC 116 (3 September 2009); about which I have blogged here and here, and which is noted by Justine Pila “Academic Freedom and the Courts” (2010) 126 LQR 347 (SSRN)). These are difficult, though not necessarily intractable, issues, and they can be properly resolved if the right to academic freedom is fully protected, exercised with integrity, and restricted only where absolutely necessary.

These are no doubt the kinds of issues which will fill the pages of the AAUP‘s new Journal of Academic Freedom, of Rod Smolla’s forthcoming book The Constitution Goes to College, and of Eric Barendt’s imminent Academic Freedom and the Law: A Comparative Study. I look forward to discussing these books in due course on this blog. In a later post, I will consider the concomitant principle of academic tenure. For now, in belated celebration of academic freedom day, I am happy to conclude that the legislative (and perhaps even constitutional) protections of academic freedom at Irish law are actually rather good. Long may they continue to be so!