Predictably, Bologna-like programs have led to the expression of concerns about academic freedom by the American Association of University Professors (AAUP), whose president was quoted (in the story linked above) as saying that
if you’re teaching history of physics and for you it becomes central to teach the development of the atomic bomb, it may be difficult to shape your course in a way that is completely understandable to history-of-physics courses elsewhere. Being able to decide how you’re going to shape and weight your course is central to academic freedom.Is that right? Critics of academic freedom think not. For example, one leading voice, Stanley Fish, sometimes writes as though he thinks that academic freedom does not include any classroom freedom, although much of his argument rests on ridiculing professors who don't teach the assigned course at all. That's good fun, to be sure, but it hardly follows from the fact that a university can insist that a course called "history of physics" include instruction in the history of physics, that a university can also insist that a faculty member teaching the history of physics refrain from any discussion of the connections (that faculty member sees) between the development of weapons and the development of science.
Part of the confusion arises because academic freedom is best understood as having two dimensions. First, there is the question of where academic freedom can be exercised. Most defenses of academic freedom put the academic's research according to the standards of the discipline at the core, and then also protect academics to some extent in their teaching (subject to reasonable requirements of curricular coverage) as well as against firing for statements made wholly outside their professional work. Thus, it would generally be considered a breach of academic freedom to fire an otherwise excellent biology professor because she spoke (on her own time) at an anti-war rally.
There is also a second dimension, concerning the body of law that protects academic freedom. Typically, that is contract law and, for professors at state universities, the First Amendment. Fish rightly notes that strictly as a matter of contract, freedom to teach extends only as far as the professor's contract allows. A private university that strictly conditioned employment as a history professor on use of a particular textbook would not be in breach of contract for firing a professor who insisted on using a different textbook.
But so what? This only shows that contract law provides very weak protection for academic freedom. A private university would also not be in breach of contract for firing a professor for violating the terms of her contract in her research, even if the research were otherwise an exercise of what everyone deems well within the bounds of professional standards.
The real problem with Fish's analysis is that he makes a category error. The legal protection that contract law affords university faculty is limited by the terms of contracts, but the normative concept of academic freedom is broader. As the AAUP's 1915 statement on academic freedom puts the point, university faculty members
are the appointees, but not in any proper sense the employees, of the [university trustees]. For, once appointed, the scholar has professional functions to perform in which the appointing authorities have neither competency nor moral right to intervene. The responsibility of the university teacher is primarily to the public itself, and to the judgment of his own profession; and while, with respect to certain external conditions of his vocation, he accepts a responsibility to the authorities of the institution in which he serves, in the essentials of his professional activity his duty is to the wider public to which the institution itself is morally amenable. So far as the university teacher’s independence of thought and utterance is concerned—though not in other regards—the relationship of professor to trustees may be compared to that between judges of the federal courts and the executive who appoints them. University teachers should be understood to be, with respect to the conclusions reached and expressed by them, no more subject to the control of the trustees, than are judges subject to the control of the president, with respect to their decisions . . . .
The extent to which the First Amendment protects the foregoing conception of academic freedom for faculty at state universities is an open question. So too, one can legitimately disagree with the normative vision of the 1915 statement on its own terms. Just as one might think that, on balance, life tenure for federal judges gives them independence at too high a cost to democracy, one might think that on balance, the costs of academic freedom outweigh the benefits. But those are at least critiques of the norm of academic freedom as such. Arguments like those put forward by Fish---contract law only protects the terms of a contract---wholly miss the point made by champions of academic freedom, which is a point about what the terms of the contract should be.
Posted by Mike Dorf