The costs of academic freedom

What price liberty?

What price liberty?

Say what you want about Stanley Fish, the professor knows how to write a provocative essay.  In “The Rise and Fall of Academic Abstention“, published in the New York Times today, Fish laments what he believes to be an erosion of academic freedom by the meddling courts.  He argues that, although courts have traditionally practiced “academic abstention,” or deferring to the professional judgment of universities and colleges in academic matters, the doctrine has been declining in recent years.  Instead, courts have been inserting themselves into the middle of academic disputes with increasing frequency and boldness.

Fish then proceeded to rattle off a few especially egregious cases of this insertion: an incompetent medical student being awarded millions in lost income for being denied a degree by the medical school, a professor denied tenure successfully suing the school for visiting his class only once when the faculty handbook promised multiple visits, and so on.

Fish acknowledges that given the practical realities, we need to find a “balance point between the value of accountability through the courts and the value of limiting intrusion on the autonomy of academic communities.”  But he seems to be nostalgic for the days when courts did not monitor any academic processes and left the matter entirely to the discretion of the universities.  “Those were the days,” he said, “and they have their injustices as well as their advantages.”

Though there is much I disagree with about the essay, it addresses an important question: what role should the courts play in monitoring academic processes and ensuring fairness in school?  Fish answers that the courts should play an extremely minimal role in “academic matters.”  In matters where professional judgment is required, such as “promotions, curricula, admission policies, grading, tenure, etc.,” courts should respect academic freedom and not substitute their own judgment for that of the university.

“Academic freedom” has a pleasant ring to it.  But whenever I hear the word “freedom,” I wonder: at whose expense is this freedom being asserted?  Fish talks of balancing “accountability” with academic freedom.  The word “accountability” conveniently lacks an object.  Accountability to whom?  To the government?  To the public?  To the judges?

The answer becomes clearer when we consider what freedom means.  The philosopher John Finnis has some useful analysis here.  Employing a distinction first written about by legal scholar W.H. Hohfeld, Finnis points out that liberty to do X means the absence of duty to do “not-X”, which in turns means that no one has a right (or “claim-right”, as Hohfeld called it) to force one not to do X.  If Amy has the “liberty” to do something, say order a hamburger, she does not have a duty to not order a hamburger, which means that Betty, or Cathy, or Zina, has no right to force Amy not to order a hamburger.

The thing to notice about this is that as long as there is more than one agent in the world, liberty is a relational concept, and it comes at the expense of someone else’s rights.  When liberty expands, it means that someone else’s rights diminish.  If Amy has the freedom to eat what she wants, it means that others have no right to tell her what to eat.

In the case of the university, there are many parties who might conceivably have rights vis-a-vis the university. Some of these rights will concern academic matters.  Students might expect fair admissions, grading, and disciplinary procedures. Employees expect non-discriminatory, sensible, and just employment and termination processes.  The public, whose tax dollars might support a portion of the university funding, expect transparency in the budget and rationality in the use of the funds.

When “academic freedom” is used to shield the university and its officials from scrutiny and liability, this assertion of freedom comes at the expense of diminishing the rights of these other parties.  So the trade-off is not exactly one of “accountability” and “freedom,” whatever that means, it is about limiting the rights of the individuals who interact with the university in favor of the university’s asserted freedoms.

Seen in this light, the idea of academic freedom seems more disturbing.  Perhaps each of us have a different idea of where to draw the line between the university’s freedoms and the rights of those that interact with it, but we must be clear that this is in fact the trade-off we are making every time.

Related post: Is nothing sacred?

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