Random thoughts about current threats to academic freedom

Something different

DISCLAIMER: This post is in English, which may be disconcerting to my 12 or so followers, who basically came here to read my hot takes on niche issues in French constitutional law. Maybe I should have two substacks, one in English and the other in French, but then my friends would probably have me committed. Anyway. Here it goes.

I have been prompted by a conservative friend to spell out my thoughts on academic freedom, which I have done so in a rather fragmented way heretofore (via tweets or the occasional blogspot in French). My conservative friend basically asked me two things: 1/ you rail against eg Rufo’s takeover at New College Florida and Trump’s attempts to strong-arm universities, but what about interferences from the left (such as diversity statements or “oaths” required for academic hires, or the lack of viewpoint diversity in most Universities)? 2/ you rail against the defunding of universities and academic programs, but shouldn’t taxpayers and their representatives have a say as to what exactly they are funding? These are fair questions. I am going to try to answer them here.

My main contention will be that what makes the current situation so thorny is that academic freedom is being weaponized by its enemies. Defending academic freedom as a specific public good is therefore a more complex endeavor than it was at the time of the 1940 AAUP Statement or of the Kalven report, for instance.

Before I start, two caveats are in order:

Caveat 1: as will be easily noticeable, I share a completely outdated Humboldtian conception of what universities are, or ought to be, about (disinterested fora for the pursuit of truth and knowledge). That makes me a dinosaur, at a time when academic scholarship is supposed to be impactful, cost-efficient, and societally worthwhile. So I completely accept that what follows rests on a set of very passé assumptions.

Caveat 2: This is not a scholarly piece of writing. I do not intend to talk about the concept of academic freedom; I will not review the massive literature on it, with which I am only partially acquainted. I basically share JT Levy’s conception of it as an associational, rather than individual, freedom, but I will not explain why. This post is about some pressing moral issues surrounding academic freedom in the present context, and the current threats against it. This is why I’ll mainly focus on two aspects of academic freedom: the ability of academics, as parts of autonomous bodies, to govern themselves without external interference; the ability to freely conduct research and write scholarship without such external interference (on which more later). I will not directly address other aspects of academic freedom: the freedom in teaching, and aspects relating to extramural speech, but they’ll make an appearance too.

1/ Academic freedom entails the freedom of academics and scientists, qua members of academic communities (universities, research institutions etc.) from external interference. By external interference, I mean the ability of people with power, be it power of the purse or other kinds of power, to dictate, or at least influence, the content, or the outcomes, of research programmes and of academic scholarship. In that respect, threats to academic freedom can come from many directions.

Many incidents in the US have brought attention to the threat posed by students disrupting academic events and academic business. This goes for “woke”students disrupting talks by speakers they dislike; but the same goes for far right students (who abound in French law schools) who can be quite disruptive too. The prohibition of the heckler’s veto is an important part of the protection of freedom of speech; it is also an important part of academic freedom, even if for different reasons. Students should absolutely have the right to protest speakers they don’t like, or to protest university policies, or policies of the country at large. This includes the right to hold protests on campus. But they shouldn’t have the right to disrupt university business (basically teaching and research), including talks by controversial scholars.

However, students, woke and rightwing alike, are not the gravest threat against academic freedom in the current context. In France, a couple of highly publicized incidents, as well as a general atmosphere imported from US campuses have elicited a totally disproportionate moral panic, as if the main threat to academic freedom was woke students. They aren’t. Neither are their right-wing counterparts (who can sometimes be outright fascists, just google “GUD” for more info).

So I am all for denouncing student disruptions of academic activities; and I have done that, including at my own university. But they shouldn’t be the tree that hides the forest (as we say in French).

2/ The main threats to academic freedom come from powerful people. That much should be trivially evident. This is what I called external interference, even if some such interference often comes from within: such is the case with university bureaucrats, sometimes academics turned bureaucrats, which, again, abound in French universities. France has hitherto been spared the kind of petty managerialism that plagues UK or US universities, but, being always late, we’re slowly heading there too. Treating students as consumers, and making research dependent on its immediate societal usefulness is a direct threat to academic freedom. It removes the ability of academics and scientists to determine by and for themselves what they are supposed to teach and research.

One manifestation of that in US and Canadian universities has been what can be called the DEI frenzy: DEI statements or oaths required from academics upon hiring; research programmes funded contingent on their ability to show DEI-usefulness, etc. Let me clear: these have been very bad for academic freedom, for many reasons: institutional neutrality is an essential part thereof; pressuring academics to orient their research interests towards a closed set of moral principles, as laudable as they are, hinders the free pursuit of truth and knowledge. I’ll come back later to another aspect of why it’s problematic (the so-called viewpoint diversity issue). There is no doubt that although diversity, equality and inclusion are laudable moral principles, they have sometimes been used, especially in the US and Canada, to pressure academics, and in some specific cases to promote outright discriminatory practices (which is ironic, given the E in DEI). At heart, I think it is part of what Olúfẹ́mi O. Táíwò has called the Elite capture of identity politics, especially by neoliberal institutions.

3/ Be that as it may, nothing that precedes warrants or justifies the despicable weaponization of DEI by the far right in its attempts to bring forward even bigger threats to academic freedom. It was very clear when Christopher Rufo took over New College of Florida, and it is even clearer now in the Trump administration. “DEI” is now clearly shorthand for “anything done by women and non white people”, which entails the removal of whole pages from official websites and the use of “DEI” as slur used to bring suspicion towards any achievement by a woman or non white person. With regard to academic freedom it entails some of the gravest threats ever brought against it in recent history. Since the French far right, which is as close as ever to coming to power, has vowed to reproduce the Rufo/Trump crackdown on Universities (although, being always late, we still talk about “wokisme”, which is so 2020, rather than “DEI”), I have some reasons to be particularly adamant about the gravity of these threats.

It is clear now that the weaponisation of DEI (as well as antisemitism on campus) is a tool to subjugate universities into desisting from doing research on a series of topics which politicians in power deem verboten. Hence at New College of Florida, a whole bunch of academics were driven out, and research programmes defunded or partially de-staffed. The same goes with the current pressure exerted by Trump and his cronies on Universities to have whole departments closed or put into receivership or to fire academics working on specific issues. The same happened in Hungary when Orban defunded whole departments, and hounded the Central European University out of the country.

This is absolutely terrible, and if you are a conservative who lamented the aforementioned “DEI frenzy” but stay silent on what is being done right now in the US (eg at Columbia University), then you are not a consistent defender of academic freedom. You are just a conservative aiming to further conservative goals (which is fine, but has nothing to do with academic freedom).

4/ This brings me to the second question asked by my conservative friend. Shouldn’t the state and taxpayers have a say as to what they fund? On this, let me be clear: which research programmes are worthwhile and which are not is a matter which should be left to the scientific community, not political deciders. Of course the government can earmark some public money for programmes he deems particularly helpful BUT they cannot dictate the content of such programmes nor make the funding contingent on the programme's results or outcomes. So if government decides to fund academic research on, say, AI, this is perfectly fine. But in all cases the selection of the projects to be funded should be made by academics and scientists, and once the funds allocated, these programmes shouldn’t be arbitrarily defunded. Overall, decisions about funding should be made (either at the national level or by universities) by academic and scientific bodies (which may include representatives of the government).

Of course, academics and scientists should be held *accountable* for their use of public money. While the government has no say in the content and outcomes of the programs it funds, it has the right to ensure that funds have been spent appropriately, ie towards scientific activities, and that it was at least minimally cost-efficient for the government to fund them (ie that the program delivered the goods it promised, or if it didn't, that the negative results are nevertheless useful for further research etc.).

But it doesn’t mean that politicians in power get the right to dictate the content of research programmes, and it emphatically doesn’t give them the right to arbitrarily and capriciously defund the programmes they dislike once they get in power. They cannot pressure universities to close such programmes. or to ensure ideological conformity.

(I have talked mainly about public funding, but the same rules should apply to private funders of private universities, if they are committed to upholding academic freedom).

Of course defunding departments and programmes is among the bluntest tools a government can use. Sometimes, there is more nuance to the way the threat is brought, but it remains a threat. A while ago, the French minister of higher education caused an uproar when she said she intended to open an investigation into “islamo-leftism” among university professors; lawmakers tried to make academic freedom dependent on “respect for the values of the Republic”. These are blatant threats on academic freedom, and should be denounced as such.

I add that in some cases, defunding universities is consistent with academic freedom. This is the case when such defunding is not motivated by the content of research programmes or of scholarship, but because of bad behavior by university officials. Such is the case when, eg, a university engages in racial discrimination: see the famous SCOTUS case Bob Jones University v. United States from 1983. I see no problem in revoking Bob Jones’ tax-exempt status in this case. But again, one should be wary of weaponizing that by categorizing any behavior politicians don’t like as “discriminatory”. It is obvious that such weaponization is underway in the US, especially in the Harvard case: see the 11 April letter from the Department of Education, where student protests against the war in Gaza are deemed “discriminatory practices”… (NB: I won’t get here into the debates on affirmative action, which require more nuanced analysis than is usually available on the marketplace of ideas).

5/ One last point about viewpoint diversity, which is another worthwhile goal currently weaponized by the US administration. Two things can be true at the same time:

First, discriminatory practices, either in hiring, or in disciplining, academics are very bad. No academic should be discriminated against because of their (lawful) views. When academics are not hired, or they are fired, because of their views (be they conservative or progressive) it is a gross violation of academic freedom (as well, I'd think, anti-discrimination provisions of employment law). The same goes for pressures to leave academia exerted by university bureaucrats onto academics with verboten views. Here a couple of caveats are in order: a) when such views (eg. Holocaust denial in France) are not lawful, they are not protected by academic freedom. Whether they should be lawful or not depends on your conception of freedom of speech. So you can criticize the criminalization of Holocaust denial on freedom of speech grounds, but academic freedom doesn’t give you the right to break the law; b) protests by students, when non disruptive (see supra), against a professor’s views are a permissible use of their own freedom of speech; you cannot espouse provocative views and demand to be shielded from criticism (which is, I think, exemplified by the Stock case at Sussex, which has been, yet again, weaponized by enemies of academic freedom); c) viewpoint diversity doesn’t allow abuse in the classroom: you being an adherent of scientific racism (well, you probably shouldn’t be, but hey, YOLO) doesn’t justify your being fired, but it doesn’t give you the right to abuse or target students because of their perceived or alleged race. Be all these caveats as they may, the main point remains that hiring and firing should never be dependent on the lawful views of academics, whether expressed in their research or in extramural speech. I have sat on many hiring committees. Most of the time, I had no idea of the applicants’ politics. And if I had, it would have made zero difference. It should never be a factor. Never. Period.

Second, ideological uniformity is not necessarily the result of discriminatory practices. I will not opine here on the US context, except to point out that many “liberal” law schools and universities have prominent conservatives on faculty, and that there are conservative law schools and universities (think George Mason, or, to a lesser extent, Notre Dame) which do not seem too keen on ensuring viewpoint diversity themselves… But let me take the example of French law schools. Surprising as it may be, French law schools are traditionally deeply conservative places. A sizable majority of law profs are conservative (some are outright fascists, but they are a minority), with some exceptions. Faculty at Nanterre or Lyon II universities are traditionally more left wing, but they have many conservative professors there too. Faculty at Paris II Panthéon Assas or Lyon III Universities are usually very conservatives, but they have progressives there too. Overall, and taking into consideration that I have no idea of the politics of many of my colleagues, I would say that conservatives remain the majority, but there’s a bigger proportion of progressives than, let’s say, 50 years ago. Is this relative lack of viewpoint diversity (which is fading) due to discriminatory practices? No. It’s just that, sociologically, law students, who become law PhDers, and then law profs are statistically overwhelmingly more rightwing than their peers in say, history or sociology. This is sociological fact (which is itself currently shifting). I have zero problem with that. Some of my closest friends on the Toulouse law faculty are on the right, and they have had zero problem with me being more of a progressive liberal (we do have heated conversations about politics sometimes): it just isn’t a factor in how they treat me (and I treat them) as a scholar. Being among mostly right-wing colleagues has had no adverse impact on me whatsoever. It’s just, again, a sociological fact, which has nothing to do with the quality of the scholarship produced in my law school.

So, in a nutshell, I don't object to ideological uniformity per se, I object to discriminatory practices.

But again viewpoint diversity is currently being weaponized in the US in order to pressure Universities into practically discriminating in favor of conservatives, and to target research programmes deemed “woke”. This should be denounced by friends of academic freedom across the political spectrum.

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This was an insanely long post. If you’ve made it thus far, well, congratulations, you’re officially a masochist. The main takeaway from what precedes is: academic freedom is currently being weaponized by the enemies of academic freedom. Defending it means resisting all external interferences, both from the left (eg. mandatory DEI statements and oaths) and from the right (eg. well, the current higher ed policy of the US administration). It also means realizing that some people posing as friends of academic freedom are, in fact, its enemies, and that some threats are more serious than others. It means more consistency, and less hypocrisy.