Policy is only one piece of the puzzle

Yesterday on this blog, I published a summary of what some key organizations say in their policies (and policy-esque statements and agreements) about academic freedom, and an accompanying worksheet so that readers can investigate the academic freedom policies of their own higher ed institutions and organizations. Having completed that leg of the #dailyacademicfreedom (Yes! It’s a Twitter tag too!) project, let me now offer a brief caution: policy is only one piece of the puzzle of academic freedom.

Here are three reasons to be a bit deflationary about what policy can tell us:

1.

On some accounts, policy does not create academic freedom. Rather, academic freedom pre-exists policy, and policies just do their best to articulate it. As I understand it, this is CAUT‘s position, for instance. (This was conveyed to me verbally by a CAUT employee. I haven’t tracked down a written source for this view yet.)

To use a bit of scholarly language, we might say that this is a “realist” account of academic freedom, as opposed to a “constructivist” account that regards academic freedom as created by (rather than revealed through) policy documents. Realists about academic freedom, it seems to me, have two available options: (i) they can adopt the striking (and somewhat extravagant) view that academic freedom is a fundamental, inalienable right (a kind of “Platonic Form”), or (ii) they can take a more naturalistic view in which academic freedom evolved under particular conditions just as other cultural artifacts did. Either account would permit academic freedom policies to be attempts to understand something whose existence precedes those policies. And either way, that means that realists about academic freedom take the view that academic freedom policies describe what academic freedom “really is” more or less successfully. In this case, we may want to be deflationary about our current academic freedom policies because there is always the chance that a more veridical, complete academic freedom policy could emerge.

2.

Policy is less fundamental than law. Elements of academic freedom (not necessarily all of the elements of academic freedom) fall under not only institutional-level policies but also under the law, and in particular (but not exclusively) under federal constitutional law. While the Charter of Rights and Freedoms in Canada, and the First Amendment in the U.S. (and similar laws in other countries) can never tell the whole story of academic freedom, they tell part of the story. One of the reasons I started this project is that I worry that too much public discussion of academic freedom is dominated by discussions of freedom of expression/speech that derive from public understandings of the Charter and 1A. I wanted university scholars in particular to learn more about the distinctive character of academic freedom that emerges at the level not of law, but of institutional policy. However, it would be a mistake to assume that policy alone would carry the day if an academic freedom case were litigated. I am neither a lawyer nor a legal scholar, and so I will not on this blog undertake to discuss the implications for academic freedom of the Charter or 1A. However, it’s important to flag that such implications obtain.

3.

Even when we leave aside such august considerations as metaphysics (i.e., realism vs. constructivism about academic freedom) and constitutional law and confine ourselves to practical institutional realities, policy alone is only part of the story. Yesterday, I was discussing academic freedom with a very senior colleague who has held some of the largest portfolios that exist in academe. I ventured an interpretation of the scope of extramural expression by professors. (I’m planning an upcoming blog post about extramural expression. So far, I have only briefly discussed it once, at the end of this post.) I said something like, “The question is, whether the university can fire you for your extramural expression.” My senior colleague disagreed. “No,” he said, “the question is whether the university has to pay your legal fees when you get sued for your extramural expression.” Nothing in academic freedom policies of my senior colleague’s institution mentions anything about paying legal fees. However, over the years, he has repeatedly seen that question come up. Hearing this perspective helped to remind me of what anyone who works in a big organization like a university should know — policies are one part of a much larger system that also includes guidelines, memos, procedures, and a wide range of practices that become entrenched with precedent.

 

In sum then three reasons that policies are only part of the story: (1) policies approximate reality, (2) policies don’t override law, and (3) locally, policies are supplemented by conventions.