by Sophie Bisping

The views expressed in this blog are my own.

The Global Observatory on Academic Freedom, where I worked for a part of the summer, is hosted by the Central European University in Vienna. Primarily a private research university, the CEU was founded by philanthropist George Soros in 1991 in Budapest, with the mandate to provide high-quality free education in English for students from Eastern Europe and beyond. In 2019, CEU was forced to relocate to Vienna from Budapest after Viktor Orbán’s government passed a bill prohibiting its ability to issue internationally recognized degrees, nicknamed “Lex CEU”. This law and other governmental pressures (such as forbidding the existence of gender studies departments) were taken as direct moves to oust the university.

The move from Budapest to Vienna prompted the creation of the Global Observatory on Academic Freedom. This organisation conducts research not only on the status of academic freedom around the world, but also on different conceptions of this right as contextualised in different jurisdictions. I worked on the creation of a global mapping of regulatory frameworks on academic freedom at the international, regional, national, and intra-national level. This comparative exercise allowed me to gain an understanding of how this right has been conceptualised in legislation in Canada and beyond.

In 2020, LEX CEU was struck down by the European Court of Justice as violating Hungary’s obligations as a member of the WTO, and as infringing the provisions of the Charter of Fundamental Rights of the European Union relating to academic freedom. The judgment relies heavily on trade law, and only slightly on Article 13 of the European Charter which protects academic freedom. This is partly because there is little litigation that uses “academic freedom” specifically, as distinguished from freedom of speech or freedom of conscience. Whether it is in national or regional courts, the concept remains legally polymorphous.

Yet this does not prevent more and more countries from trying to legislate academic freedom, often in reaction to a political discourse. This was seen in Quebec’s recently passed Bill 32, “An Act respecting academic freedom in the university sector”, championed by the right-wing party in government, Coalition Avenir Quebec (CAQ). The bill has been criticised as itself harming academic freedom, as it forces universities to install a watchdog council of sorts, which will report back to the government the number of complaints made concerning academic freedom.

Based on the political debates around it, the law aims to protect the academic community from dangers it harbors within itself. There is a sense that a participatory censorship is threatening some members of the academic community, who are in dire need of help from a benevolent CAQ. But the government is not part of the academic community. Academic freedom is a right vested in a professional community; it is both an individual and collective right, unlike freedom of speech, which is simply an individual right. This is a crucial distinction (as explained here by lawyer Robert Post in the United States’ context) that should be taken into account in the legal definition and reach of this concept. As a collective right, it is also collectively defined by the academic community. Its definition has been evolving, and exploring different perspectives of academic freedom helps to understand why Bill 32 seems so mistaken to many members of the academic community.

Bill 32 relies on the commonly cited definition of  the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel. The latter defines academic freedom as the right to freely teach, carry out research, and publish results. The definition also includes the freedom to express one’s opinion about the institution or system in which one works, the freedom from institutional censorship, and the freedom to participate in professional or representative academic bodies. This might be seen as a minimum core understanding of what constitutes academic freedom, but it is only a starting point. Since 1997, many other aspects of the concept have gained traction.

First, perceptions of academic freedom vary depending on what kind of member of the academic community one is. Few people would disagree that students are part of the academic community. Yet their academic freedom is different from professors’: some students have argued that the restraint on the number of admissions constituted a pressure on their freedom to choose what to study. For teaching staff, the increasing precarity of the academic work environment has also become part of the larger conceptualisation of academic freedom: it is questionable if one is really free to do research if employment conditions are so unstable that they must gear all of their research towards what is seen as profitable and immediately applicable.

Definitions of the obligations that come with this right have also been evolving. As a right vested in a professional community, many see academic freedom as having to be supported by the quality of academic work, as defined by peers. Along the same lines, the European Higher Education Area states in its 2020 Ministerial Communiqué that this right is bound to professional and social responsibility, accountability for public funds, and equitable access.

If academic freedom is a collective right, it is important to look at who has access to this group. This community has constituted itself along lines of colonial power that still structure the way we approach knowledge. The movement Decolonize your Curriculum (which started with the 2015 Rhodes Must Fall campaign in Cape Town) is an attempt at creating ruptures in those lines, to works against the invisibilisation of marginalised communities in academia. Increasing their representation in school curricula recognises that a wide variety of actors have always participated in the creation of knowledge, though the credit was most often attributed to people in positions of power. For many, creating equitable access to this community is an integral part of a meaningful protection of academic freedom in society, and thus logically includes working towards epistemic justice. Epistemic injustice denotes precisely the exclusion of certain communities from what is perceived as valuable knowledge production. The bias that many people might have in giving higher value to the opinion of a professor from an American university than from a Nepalese university is an example of epistemic injustice. In Canada, this injustice is often expressed in the lack of consideration given to indigenous ways of knowing.

This is why movements to decolonise curricula, and in some cases create a different pedagogy altogether (see Indigegogy for example) are crucial: the current academic community needs to include previously excluded groups, and to be held accountable to them too when it comes to deciding the obligations that come with the right of academic freedom. If different perspectives are not included in defining what it means to be socially responsible as a researcher, or accountable to public funds as an administor, I doubt that these obligations can be fully understood and fulfilled.

Yet we should not conflate academic freedom with epistemic justice and see the latter as the only obligation members of the academic community have. Different aspects might resonate more or less strongly depending on one’s perspective, and they are all part of the definition, whether it is the independence of institutions from states, the freedom of research, or the importance of creating a stable work environment that is inclusive and resilient to debates.

It is precisely because this concept needs to remain open to a variety of perspectives that legislating it amounts to an over-judicialization of public life. Bill 32 enshrines a definition of academic freedom without understanding the societal phenomenon that needs to be addressed. This seems not to be the fear of censorship so much as the fear of losing a common ground for discussion within the community, thereby losing a common framework to establish the obligations that come with the right of academic freedom. Legislation antagonising the universities from the provincial government is not the solution to protect this common ground.

By contributing research on this concept, its instrumentalisation, and politicisation in different local contexts, the Global Observatory on Academic Freedom participates in preventing the erosion of this common ground. It is from there, in Vienna, that I could reflect upon Bill 32 and wonder how it will shape the community that I am entering as I begin my second year of law school.