Academic freedom is protected by both
international human rights standards and
higher education principles. These areas overlap, and this is sometimes confusing. Why do we need both sets of protections? How are they different? How do we know which set of protections apply to a particular action, in a specific context?
In this article we will discuss these questions as we explore the difference between academic freedom and the more general human right of freedom of expression (sometimes also referred to as freedom of speech).
Differences between international human rights standards and higher education principles
Regarding protection for academic freedom, there are three principal differences between human rights standards and higher education principles.
The first difference is that international human rights standards are more general, and apply more broadly than higher education principles. Human rights standards apply to all persons
. Higher education principles apply to institutions and individuals in the higher education sector. Therefore freedom of expression is a right enjoyed by all persons, while academic freedom is exercised by persons engaged in research and teaching functions at higher levels.
As we shall discuss more below, an average person interviewed on a television news program might be protected by the general human right of freedom of expression, but not by academic freedom. Whereas an academic researcher, interviewed on the same television program, might be protected by both
freedom of expression and
academic freedom, depending on what the academic says, how she says it, and her area of academic expertise. (We will discuss this more below.)
The second difference is that international human rights standards generally focus on state action
. State action means the actions of governments and their agents. Private actors–including individual citizens and non-state organizations–generally are not obligated by human rights treaties (with some exceptions that are beyond the scope of this course).
Human rights standards generally protect against harmful action by states or their agents
that restrict or punish the exercise of academic freedom (or any other right). Harmful state action would include, for example, state-sanctioned censorship or discrimination in access to higher education. (Human rights standards also attempt to encourage positive state actions, for example by praising states for efforts to increase access to quality higher education for all qualified persons in their territories.) But human rights standards generally do not protect against harmful actions by non-state
individuals or groups that might threaten academic freedom (or other rights).
For example, if a state Ministry of Higher Education (a state actor) dismisses an academic for publishing an article or giving a lecture about a politically sensitive topic, that might violate international human rights standards and
higher education principles of academic freedom. But if the rector of a private
university (a non-state actor) dismisses the same academic for the same reason, that would likely not violate international human rights standards, because there was no state action. But it would still violate higher education principles of academic freedom.
The third difference between human rights standards and higher education principles regarding protection of academic freedom is that human rights standards generally apply to severe or systematic acts, such as unjustly putting a person in prison, or systematic discrimination against a group of individuals. Many threats to academic freedom are less dramatic or isolated acts that may fall short of human rights violations, but still undermine academic freedom. Revisions to national laws regarding student admissions or the funding of higher education, for example, may not violate human rights principles. But they might still conflict with higher education principles, which provide more detailed guidance on a much wider range of operational issues in higher education (e.g., university governance, tenure, faculty hiring, etc.).
Because of these three differences–general applicability, state action, and severity–defenders of academic freedom and core higher education values need to consider both
human rights standards and higher education principles when seeking protection against harmful actions.
Academic freedom versus freedom of expression
Confusion between international human rights standards and higher education principles most often arises around the difference between academic freedom and the general human right of freedom of expression.
Freedom of expression is recognized in the International Bill of Rights (and subsequent instruments) as the right every person has to freedom of opinion and expression, including the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. It is a broad right, limited only in certain circumstances (when restrictions are provided by law, shown to be as narrow as possible, and demonstrated by the state to be necessary for respect of the rights or reputation of others, for the protection of national security, public order, or public health or morals).
Is everything protected by academic freedom covered by free expression? Is everything protected by freedom of expression covered by academic freedom? The answer to both of these questions is “no.”
Is everything protected by academic freedom covered by free expression?
No. Academic freedom principles cover some forms of conduct by academics that are not covered by freedom of expression. For example, travel to conduct research and collect data may be essential for academics to do their work. State restrictions that improperly interfere with the ability of academics to travel therefore might violate academic freedom, without violating freedom of expression per se.
Similarly, discriminatory admissions, employment or promotion practices at higher education institutions which prevent women or members of ethnic, racial or other minority communities from fully participating in the research and teaching life of the university might violate academic freedom, but likely would not violate freedom of expression.
In both of these cases, and in other examples outside of freedom of expression, the claim for academic freedom might be rooted only in higher education principles, or it might be rooted also in other human rights beyond freedom of expression, such as the freedom of movement, right to the benefits of scientific progress, or right to education. (For more on other human rights implicated in academic freedom violations, see Quinn & Levine, 2014, in additional materials below).
Is everything protected by freedom of expression covered by academic freedom?
No. Opinions and expressions by persons who are not in any way engaged in research and teaching functions at higher levels are not protected by academic freedom. But these opinions and expressions generally are protected by freedom of expression.
Freedom of expression covers every person, including many who share opinions and expression as part of their professional work. These include journalists, writers, artists, lawyers, unionists, and political and religious leaders.
These also include academics and higher education students, who enjoy the same freedom of expression as any other person. However, in addition to general freedom of expression protections, the opinions and expressions of academics and others engaged in research and teaching functions at higher levels might also be
protected by academic freedom.
The difficulty–and much confusion–arises when trying to determine whether an opinion or expression by an academic is protected by academic freedom, freedom of expression, both, or not protected at all. We will explore that confusion in the coming steps.
Wearing two “protection” hats
In this step we explored how international human rights standards and higher education principles both protect academic freedom, but in different ways and contexts. We also explored how academic freedom and freedom of expression both protect academic’s opinions or expression, but again, in different ways and contexts.
This can be confusing. It might be helpful to think of academics as owning two hats. Some hats are useful for protecting a person from too much sun or heat. Other hats are useful for protecting a person from too much rain or cold. An academic has an “academic freedom hat” that might be useful for protecting opinions or expression in some contexts, such as employment disputes with a private, non-state university. The “freedom of expression hat” might be more useful for protecting in other contexts, such as when facing dismissal from a state institution, or state prosecution, for his or her opinions or expression.
What do you think? Do you agree that academics have two “hats”? Is that a good thing?
© Scholars at Risk, Inc. 2017-18