Individual Academic Freedom and Aprofessional Acts

559 INDIVIDUAL ACADEMIC FREEDOM AND APROFESSIONAL ACTS Liviu Andreescu Department of English Spiru Haret University Abstract. In this essay, Liviu Andreescu examines the question of whether a certain category of aprofessional acts by academics (in particular, political speech) deserves protection against academic sanctions under the principle of academic freedom. Andreescu discusses two alternative views of academic freedom (the extensive and the restrictive) providing different answers to the question. He then examines some of the arguments advanced by the proponents of the more recent, restrictive theory of academic freedom against the broader, traditional theory, which in recent times has been on the defensive. Andreescu ultimately suggests that the choice between the two definitions of academic freedom is a question of sound policy in specific institutional contexts, rather than a matter of conceptual consistency. Introduction The days are long gone when Clark Kerr, former president of the University of California and victim of excessive government meddling in the business of his institution, could nonchalantly equate Lehrfreiheit — literally, ‘‘freedom to teach,’’ or ‘‘academic freedom’’ in plain rendition — with ‘‘the freedom of the professor to do as he pleases.’’1 What makes such phrases sound quaint today is not the fact that this putative definition of academic freedom is nonoperational, for its author almost certainly never intended it as such. Rather, it is the implicit but manifest optimism about the extent to which the professoriate should be shielded by the safeguards of academic freedom that appears out of place. And not because of today’s additional, or additionally intrusive, outside interference with the business of academics and their universities. As Kerr’s own career abundantly demonstrates, this was at least as much the case at the time his The Uses of the University was first published in 1972 as it is nowadays. More precisely, and somewhat ironically, the new conception of a university that Kerr’s ‘‘multiversity’’ heralded sits uncomfortably with the traditional understanding of academic freedom, which in the 1960s and 1970s was arguably in its heyday in the United States. After all, the Supreme Court had just placed it, albeit problematically, under the generous umbrella of the First Amendment. The advent of the entrepreneurial university and the more or less subtle changes of academic ethos it engendered have gradually eroded the symbolic prestige of academic freedom.2 The notion itself is rarely attacked head on these days. Only very infrequently does a contemporary William Buckley dare dismiss 1. Clark Kerr, The Uses of the University (New York: Harper and Row, 1972), 44. 2. Burton Clark’s Creating Entrepreneurial Universities (Oxford: Pergamon, 1998) and Sustaining Change in Universities (Maidenhead: Open University Press, 2004) are two standard works among the many that could be cited to illustrate this point. Volume 59 Number 5 EDUCATIONAL THEORY  2009 Board of Trustees University of Illinois 2009 560 EDUCATIONAL THEORY Volume 59 Number 5 2009 it as a ‘‘superstition’’ and a ‘‘shibboleth.’’3 Yet some of the chief mechanisms designed to ensure the protection of professorial liberties, such as tenure and shared governance, have been practice targets for sundry supporters of ‘‘proactive’’ universities. A different line of attack against some of the privileges of the professoriate was opened by commentators concerned with the allegedly excessive politicization of academia. The Academic Bill of Rights, an initiative that according to the American Association of University Professors (AAUP) ‘‘infringes academic freedom in the very act of purporting to protect it,’’4 is a well-publicized scheme aimed at limiting professors’ freedom in the classroom. In recent years, the political affiliation of American academics has been a relatively prominent subject of research as well as of much speculation. Last but not least, some highly visible cases of political speech by academicians in the context of the war on terror garnered considerable media attention.5 The question about academic freedom discussed in this essay is relevant not primarily to the related academic policy issues (tenure, shared governance, institutional autonomy) currently debated by higher education theorists, but to the ampler debate about the politicization of academic life. Specifically, I shall look at whether a certain category of academics’ aprofessional acts deserve protection against sanctions under the principle of academic freedom. I shall use the term ‘‘aprofessional acts’’ to designate what is more frequently, but in my view less felicitously, described as ‘‘extramural expression,’’ which, as Robert Post has recently noted, remains the ‘‘most complex and theoretically troublesome aspect of academic freedom.’’6 In practice, both terms refer to the same kinds of activities, mainly ‘‘speak[ing] in public. . . as a citizen in ways that are unrelated to professional expertise.’’7 Nevertheless, I prefer the term ‘‘aprofessional’’ for the sake of conceptual precision. ‘‘Extramural’’ is, strictly speaking, a misnomer: expressions delivered extra muros may well be related to academics’ professional pursuits, while aprofessional speech is commonly engaged in on campus. Also, the 3. William Buckley, Jr., God and Man at Yale: The Superstitions of ‘‘Academic Freedom’’ (Chicago: Regnery, 1951). 4. American Association of University Professors, ‘‘Academic Bill of Rights’’ (2003), http://www.aaup. org/AAUP/comm/rep/A/abor.htm. 5. William G. Tierney, ‘‘The University After 9/11,’’ Qualitative Inquiry 9, no. 2 (2003): 325–329; Robert M. O’Neil, ‘‘Academic Freedom and National Security in Times of Crisis,’’ Academe 89, no. 3 (2003); and Beshara Doumani, ed., Academic Freedom After September 11 (New York: Zone Books, 2006). 6. Robert Post, ‘‘The Structure of Academic Freedom,’’ in Academic Freedom After September 11, ed. Doumani, 82. 7. Ibid. LIVIU ANDREESCU is Lecturer in American Studies at Spiru Haret University, Ion Ghica 13, Bucharest, Romania 030045; e-mail <andreescul@gmail.com>. His primary areas of scholarship include religious education, academic freedom and university autonomy, and religious freedom and church-state issues. Andreescu Individual Academic Freedom and Aprofessional Acts acts that ‘‘extramural expression’’ traditionally designates (political speech) are for some academics (political theorists, for example) arguably professional. The second section of the essay examines two alternative views of academic freedom (dubbed the ‘‘extensive’’ and the ‘‘restrictive’’) that provide different answers to the question of the principle’s relation to aprofessional acts. The third section spells out and examines some of the arguments advanced by the proponents of the restrictive theory, which has made a recent comeback, against the broader and more established theory that, while still the norm in the United States, is today usually found on the defensive. I suggest that the choice between the two definitions of academic freedom is a matter of sound policy in specific institutional contexts rather than dictated by conceptual consistency (as supporters of the restrictive view frequently maintain). In the section immediately following this introduction, I offer a brief account of academic freedom and its main justifications, intended to serve as a background for the more detailed discussion that follows. An Outline of the Principle of Academic Freedom In a nutshell, the principle of academic freedom refers to the right of academics8 to be free from external constraints in teaching and research and, further, to freely criticize their institutions. An elaborate definition was proposed by legal scholar William Van Alstyne. It is worth quoting in full (it will be discussed in more detail later in the essay): ‘‘academic freedom’’ is. . . [the] personal liberty to pursue the investigation, research, teaching, and publication of any subject as a matter of professional interest without vocational jeopardy or threat of other sanction, save only upon adequate demonstration of an inexcusable breach of professional ethics in the exercise of that freedom. Specifically, that which sets academic freedom apart as a distinct freedom is its vocational claim of special and limited accountability in respect to all academically related pursuits of the teacher-scholar: an accountability not to any institutional or societal standard of economic benefit, acceptable interest, right thinking, or socially constructive theory, but solely to a fiduciary standard of professional integrity.9 Besides the principle itself, academic freedom is in practice associated with, to the point of being considered inseparable from, a range of academic policies. They include university autonomy (sometimes referred to as ‘‘institutional academic freedom’’), collegial self-administration or ‘‘shared’’ governance, and tenure (or other terms of employment and procedural arrangements ensuring a high level of occupational security). One of the chief purposes of these policies is to protect professional autonomy. Several justifications are commonly offered for academic freedom. They are usually of the consequentialist variety. One claims that academic freedom is necessary to the pursuit of truth for the general benefit of society, including the 8. I shall use the terms ‘‘academic’’ and ‘‘professor’’ interchangeably, to refer to faculty in general, including academic researchers and adjunct professors. 9. William Van Alstyne, ‘‘The Specific Theory of Academic Freedom and the General Issue of Civil Liberty,’’ in The Concept of Academic Freedom, ed. Edmund Pincoffs (Austin: University of Texas Press, 1975), 71. 561 562 EDUCATIONAL THEORY Volume 59 Number 5 2009 immediate advantages derived from scientific discovery, technological innovation, and creative work.10 A second argument sees academic freedom as essential in protecting societies against democratic tyranny by preserving universities as ‘‘institutional sanctuaries’’ of free thinking.11 A third consequentialist argument regards academic freedom as central to universities’ mission to foster individual autonomy. It is paralleled by another argument from autonomy, the structure of which is deontological: academic freedom is necessary to treat individuals, especially academic professionals (but also students), as autonomous beings.12 Finally, a distinct type of justification establishes not why academic freedom should be assured but that, once we have determined on independent grounds that it ought to be defended, the protection accorded must be especially strong. It relies on a version of the slippery slope argument. Two Definitions of Academic Freedom Most contemporary references to academic freedom, and especially those coming from outside North America, limit its protective range to professional activities. Few seem to do so as a self-conscious alternative to the view that academic freedom may also extend to particular types of aprofessional acts. This is especially true among higher education theorists, who tend to approach the matter from a broad perspective, often one that may be deployed in a comparative framework. Such theories of academic freedom are usually informed by the specific interests of higher education scholars, such as university autonomy, governance policies, or the pros and cons of tenure. It is therefore not surprising that most of these accounts assume that what academic freedom protects must be coextensive with teaching and research. Here is a typical sample from one of the leading theorists of university autonomy: ‘‘Academic freedom is that freedom of the individual scholar in his/her teaching and research to pursue truth wherever it seems to lead without fear of punishment or termination of employment for having offended some political, religious or social orthodoxy.’’13 In what follows I shall refer to this view as the ‘‘restrictive’’ (or ‘‘narrow’’) definition of academic freedom. Legal scholars are more parochial than students of higher education, and understandably so. This perhaps explains why the question of the relation between individual academic freedom and aprofessional acts has been addressed more directly in the United States, and has been considered in greater depth conceptually by the former. Historically speaking, the broader doctrine according 10. Robert T. De George, Academic Freedom and Tenure: Ethical Issues (Lanham, Maryland: Rowman and Littlefield, 1997), 74. 11. Amy Gutmann, Democratic Education, 2nd ed. (Princeton, New Jersey: Princeton University Press, 1999), 174–177. 12. Rolf Sartorius, ‘‘Tenure and Academic Freedom,’’ in The Concept of Academic Freedom, ed. Pincoffs, 135–136. 13. Robert Berdahl, ‘‘Universities and Government in the Twenty-First Century: The US Experience,’’ in Towards a New Model of Governance for Universities? A Comparative View, eds. Dietmar Braun and François-Xavier Merrien (London: Jessica Kingsley, 1999), 60 (second emphasis added). Andreescu Individual Academic Freedom and Aprofessional Acts to which teaching and research constitute the core domain of academic freedom without however exhausting its province has been the prevalent view in American academia (at least among the defenders of college freedom). The belief that academics speaking and acting ‘‘as citizens,’’ as the AAUP notoriously put it in an important 1940 document, are entitled to special protection against the zeal of politicians, boards of trustees, and administrators hostile to the critical function of the university has survived in U.S. higher education ever since the early days of the Association. I shall henceforth refer to this view as the ‘‘extensive’’ (or ‘‘broad’’) definition of academic freedom. Yet judicial attempts to fashion a doctrine of academic freedom in the United States have led a number of prominent legal scholars not only to cast doubt on the enterprise of the courts, accused of having ‘‘used academic freedom and free speech interchangeably or ambiguously,’’14 but also to challenge on conceptual and principled grounds the broad view.15 These scholars are harking back to the days when Lehrfreiheit was first provided with a theoretical formulation, around the date of the establishment of the University of Berlin (1809–1810), and with a legal codification in the Prussian Constitution of 1850. The German concept of academic freedom, which strongly inspired the American perspective at the turn of the twentieth century, offered a more limited view. As Walter Metzger explains, in ‘‘reflecting the philosophical temper of German academic thought,’’ Lehrfreiheit distinguished sharply between freedom within and freedom outside the university. Within the walls of academe, a wide latitude of utterance was allowed, even expected. . . . But outside the university, the same degree of freedom was not condoned. . . . Rather, it was generally assumed that professors as civil servants were bound to be circumspect and loyal, and that participation in partisan politics spoiled the habits of scholarship.16 Contemporary American legal theorists would preserve a revised version of the distinction between ‘‘within’’ and ‘‘without’’ the university but, unlike their German counterparts of yore, would insist that activity ‘‘without’’ ought to be governed by the same civil liberties guaranteed to all citizens in a democratic society. In the United States, the extensive understanding of academic freedom was first put forward by the AAUP in 1915. Although the German conception served as a model, its adoption on the opposite shores of the pond was a process marked by ‘‘dependence, selectivity, and modification.’’17 Interestingly, the extensive view 14. David M. Rabban, ‘‘A Functional Analysis of ‘Individual’ and ‘Institutional’ Academic Freedom Under the First Amendment,’’ in Freedom and Tenure in the Academy, ed. William Van Alstyne (Durham, North Carolina: Duke University Press, 1993), 236. 15. See Van Alstyne, ‘‘The Specific Theory of Academic Freedom and the General Issue of Civil Liberty’’; and J. Peter Byrne, ‘‘Academic Freedom: A ‘Special Concern of the First Amendment’,’’ Yale Law Journal 99 (1989): 251–340. See also Edward Shils, ‘‘Do We Still Need Academic Freedom?’’ American Scholar 62, no. 2 (1993): 191–192. 16. Walter P. Metzger, Academic Freedom in the Age of the University (New York: Columbia University Press, 1961), 114–115. 17. Ibid., 117. 563 564 EDUCATIONAL THEORY Volume 59 Number 5 2009 that would become prevalent in the United States was not accepted without misgivings. Echoing future critics, several of the founders of the AAUP believed that academic freedom would lose its rationale if stretched beyond the range of activities performed in the course of professional duty. Others would have gladly extended it to the public forum, but only to matters that academics were professionally qualified to discuss. Still others feared that ‘‘it would be invidious to make academics safer than nonacademics when both were saying the same thing.’’18 Nevertheless, the partisans of the broad conception eventually won. The reasons for this important departure from the German model are complex. Arguably the overwhelming motivation remains, however, the specific structure of the American university, with its distinction between nonacademic trustees and administrators, on the one hand, and faculty, on the other. American professors were generally more exposed than some of their European counterparts to interferences from a variety of outside groups, each with its own peculiar interests, legitimacy, and coercive leverage. Unlike in Germany, American professors were not assimilated to state officials and therefore did not enjoy the latter’s elevated status and the relative protection that it assured.19 Furthermore, at the time the founders of the AAUP associated to defend professorial freedoms, political speech seems to have been particularly apt to lead faculty into trouble. None other than John Dewey, the Association’s first president, had often brushed shoulders during his academic career with noted scholars who had suffered political repression.20 The extensive concept of academic freedom proposed by the AAUP in 1915 was refined and reasserted in 1940, in the form of a three-point definition that retained the broad compass of the original. According to the ‘‘1940 Statement of Principles on Academic Freedom and Tenure,’’ academic freedom consists of the following: 1. Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties. . . 2. Teachers are entitled to freedom in the classroom in discussing their subject. . . 3. When they speak or write as citizens, [college and university teachers] should be free from institutional censorship or discipline. . .21 Each of these propositions is followed by qualifications, including an account of the responsibilities on which the enjoyment of academic freedom is conditional. In the discussion that follows I shall leave those qualifications aside because 18. Walter P. Metzger, ‘‘Profession and Constitution: Two Definitions of Academic Freedom in America,’’ Texas Law Review 66 (1988): 1274–1275. 19. Franz Ringer, ‘‘Higher Education in Germany in the Nineteenth Century,’’ Journal of Contemporary History 2, no. 3 (1967): 126. 20. See Robert B. Westbrook, John Dewey and American Democracy (Ithaca, New York: Cornell University Press, 1981), 91, 210–211, and 511–512. 21. American Association of University Professors, ‘‘1940 Statement of Principles on Academic Freedom and Tenure,’’ http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm (emphasis added). Andreescu Individual Academic Freedom and Aprofessional Acts they are inessential to my argument and, furthermore, as practicing attorneys have sometimes noted, they are exceedingly vague and fraught with difficulties in enforcement.22 According to the AAUP’s 1940 definition, academic freedom should be construed as protecting both the professional acts (typically, research, teaching, and related activities) and relevant aprofessional acts (‘‘when they speak as citizens’’) of academics. Armed with this conception, not only professors who, for example, are prevented from teaching their subject as they see fit or from engaging in a particular field of research, but also those sanctioned for political statements or for other relevant nonprofessional acts (in particular, political association), may claim to be victims of violations of their academic freedom. To take one example, a tenured professor at Saint Xavier University was disciplined for rebuking (in an e-mail message) an Air Force Academy cadet who had requested advice on how to publicize a student political forum that the professor found offensive. This professor would likely be eligible to make a claim that in suspending him, university officials violated his academic freedom, though his use of intemperate language in his reply to the cadet remains objectionable.23 The extensive understanding of academic freedom was later contested from within the ranks of the AAUP itself, and in particular by some of the legal scholars affiliated with the Association. In one of the most perceptive essays written so far on the topic, William Van Alstyne, a prominent legal scholar and former president of the AAUP, defined academic freedom as a personal liberty to pursue the investigation, research, teaching, and publication of any subject as a matter of professional interest without vocational jeopardy or threat of other sanction, save only upon adequate demonstration of an inexcusable breach of professional ethics in the exercise of that freedom.24 In Van Alstyne’s view, a professor should be protected from sanctions by academic freedom only with respect to his or her professional speech and activities, irrespective of whether the professor engages in such acts inside or outside the university campus. Examples of violations are easily conjured up from recent history. The demotion of a professor at Johns Hopkins’ School of Advanced International Studies for allegedly insensitive remarks made during a professional panel speech almost certainly qualifies.25 So do punitive cuts in funding by 22. John F. Hunt and Terence R. Connelly, The Responsibility of Dissent: The Church and Academic Freedom (New York: Sheed and Ward, 1969), 65. Hunt and Connelly recount the difficulties in using the AAUP’s 1940 Statement to defend a group of theologians who protested a papal encyclical against retaliation by the administration of the Catholic University of America. As the authors noted, somewhat chagrined, ‘‘These norms, nearly three decades since their formulation [in 1940], may appear at first to be too vague to be enforceable and indeed unduly restrictive’’ (p. 65). 23. Richard Morgan, ‘‘Saint Xavier U. Suspends Professor for E-Mail Message,’’ Chronicle of Higher Education, December 6, 2002; available on the Web at http://www.thefire.org/article/4329.html. 24. Van Alstyne, ‘‘The Specific Theory of Academic Freedom and the General Issue of Civil Liberty,’’ 71. 25. Peter Beinart, ‘‘Talk Show,’’ New Republic, October 22, 2001; available on the Web at http://www. thefire.org/pdfs/67 3161.pdf. 565 566 EDUCATIONAL THEORY Volume 59 Number 5 2009 the Missouri House of Representatives in retaliation against a University of Missouri professor of political science who expressed, in an article published in an academic journal, what some believe amounted to a justification for pedophilia.26 Extramural professional utterances would be protected as well. Such as, say, those of a psychology professor who claimed that some races were natively inferior to others in terms of their intelligence. Under Van Alstyne’s definition, individual academic freedom does not, however, provide protection for the aprofessional speech or activities of academics, whether such speech or activities are engaged in within or outside of the walls of the university. ‘‘The professional knight-errant,’’ one critic of the extensive view put it, ‘‘leaves his academic freedom at home.’’27 This omission is usually justified by the fact that, since academic freedom is a professional privilege, aprofessional acts cannot legitimately fall within its compass. As one student of the issue noted, ‘‘using the professional functions of professors to justify. . .academic freedom means that their expressions on matters unrelated to professional concerns, though possibly covered by. . .free speech [jurisprudence], have no status [under this definition].’’28 In order to ward off sanctions visited upon them due to acts that are not, properly speaking, professional — political speech or political affiliation come to mind as relevant cases — university professors are urged to make recourse to their civil liberties, in particular the rights of free speech and freedom of association. The extensive definition of academic freedom is, as hinted previously, the result of historical circumstances that are certainly not specific to the United States, but that seem to have made American academics particularly likely to defend the wide-ranging conception of professorial freedom. Since the advent of the modern university and until well into the twentieth century, university professors in democratic states were occasionally persecuted on ideological grounds for their extramural political speech or affiliation,29 especially since in some of these states the protection guaranteed under the free-speech doctrine did not extend equally forcefully, if at all, to citizens as employees.30 The professional associations of academics therefore understandably attempted to squeeze out of the concept of academic freedom all the protection they could get and that the right of free speech could not secure at the time. 26. Louis Menand, ‘‘Silly Ideas,’’ New Yorker, May 13, 2002; available on the Web at http://www. newyorker.com/archive/2002/05/13/020513ta talk menand. 27. Kenneth C. Cole, ‘‘Academic Freedom as a Civil Right,’’ Western Political Quarterly 2, no. 3 (1949): 404. 28. Rabban, ‘‘A Functional Analysis of ‘Individual’ and ‘Institutional’ Academic Freedom Under the First Amendment,’’ 243. 29. Ellen Schrecker suggests that in the McCarthyist 1950s professional behavior was largely regarded as irrelevant in the trials of academics. Political affiliations were deemed a sufficient ground for sanctions, including dismissal. Ellen Schrecker, No Ivory Tower: McCarthyism and the Universities (Oxford: Oxford University Press, 1986), 82 and 99. 30. Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1995), 4 and 23. Andreescu Individual Academic Freedom and Aprofessional Acts As a result, the immunity conferred by academic freedom was extended not only to strictly professional speech, but to political speech as well. Nevertheless, the state of affairs has changed markedly over the past fifty years in most wellestablished democracies, and did so in two relevant respects. First, political speech and affiliation are now comparatively rarely accompanied by sanctions by the state or university administrators, even ‘‘during wartime.’’31 Second, at least some employees are today comparatively better protected by free-speech doctrine. As a consequence of this new social and political context, as well as in response to the sometimes confounding efforts of the U.S. Supreme Court to define academic freedom as a ‘‘special concern of the First Amendment,’’ many voices have been raised against the extensive theory of academic freedom and in favor of the narrow view. The question on which I will dwell in the following pages, and on the answer to which attempts to codify academic freedom ultimately depend, concerns the extent to which the broad conception of academic freedom remains defensible. The Case Against the Extensive Theory The proponents of the restrictive theory have marshaled several arguments in its favor or, to be more precise, against the extensive conception of academic freedom. The arguments discussed in this section seem to me to be the most influential. I will start with the more general and conceptually loose ones and advance toward the more principled. My purpose is not so much to provide a direct and definitive answer to the question of whether academic freedom legitimately covers some types of aprofessional acts, but rather to examine several of the arguments most frequently leveled against the extensive view of academic freedom that, I believe, has been dismissed too quickly. While this does not invalidate the restrictive theory, it calls into question what seems today to be the prevalent view among U.S. legal scholars, conservative educational theorists, and populist politicians, namely, that this theory is conceptually more respectable and practically more desirable than the extensive, established definition. The Argument from Conceptual Neatness The restrictive theory seems appealing because of its conceptual clarity: some acts are professional, others are not, so it appears intuitive to deal with different categories of acts in different ways and to use specific antidotes against specific types of attacks on academics’ liberties. While I have not encountered the argument offered in precisely this form, I suspect it is one of the reasons why supporters of the narrow conception intuitively see the extensive view as an instance of misguided or, in the words of Van Alstyne, ‘‘bad usage’’ of the term ‘‘academic freedom.’’ The argument from conceptual neatness points toward an insufficiently explored assumption harbored by several of the theorists quoted previously, 31. O’Neil, ‘‘Academic Freedom and National Security in Times of Crisis.’’ 567 568 EDUCATIONAL THEORY Volume 59 Number 5 2009 namely, that it is relatively uncomplicated to distinguish between academics’ professional and aprofessional acts. It is therefore appropriate to deal with this objection first, since our answer to the question of the demarcation between professional and aprofessional acts will serve as a background for the other three arguments. How difficult is it, in practice, to distinguish between professional speech and activities, on the one hand, and aprofessional speech and activities, on the other? Obviously, this distinction is quite unproblematic in some cases — when a physicist preaches a revisionist theory of the Holocaust on a street corner, he clearly commits an aprofessional act. But in the case of members of human or social sciences departments, it is often exceedingly difficult to draw the distinction. A historian who maintains the same theory as our physicist will obviously find it easy to claim that she is engaging in purely professional speech (and thus expose herself to criticisms concerning her professional competence), but one would hardly fault a professor of political science or a sociologist for claiming the same — especially during an age of academic interdisciplinarity. Affiliation with an extremist organization supporting discriminatory legislation or drastic measures against aliens may be considered a professional act by a historian, a political scientist, or a sociologist, but also by a legal scholar.32 Such scenarios are not limited to the Geisteswissenschaften (Humanities), although most academics in the variety of fields that can be grouped under this category could easily identify a reasonable professional interest in making statements on an indefinitely broad range of social, political, and cultural issues. A biology professor who speaks in favor of throwing Roma into ghettos because they are racially inferior or unable to adapt to society; a physics teacher who argues for the sharing of atomic secrets with communist countries or rogue states; a chemist acting as an outspoken advocate of legalizing banned psychotropic substances — all may more or less appropriately (and believably) invoke professional status for their speech or their actions. Where academic discourse starts and where speech ceases to bear any genuine relation to one’s profession is sufficiently problematic in so many cases that the neat, clear-cut distinction on which the restrictive theory tacitly or explicitly relies may be exceedingly difficult to translate into enforceable policy. Granted, this is not in itself a reason to abandon it. Perhaps when codifying academic freedom into policy one should draw the boundaries loosely, so as to encompass 32. Membership in the relevant academic community should suffice as a test of professional interest. In none of the scenarios imagined would it be advisable to condition the recognition of a professional act on proof that the academic in question has actually studied the Holocaust scientifically, lest one should advance perilously far on the slippery slope of defining what exactly constitutes an acceptable academic portfolio enabling one to discuss a question professionally. Will a paper read at an academic conference on the Holocaust be sufficient? If not, would a single academic article do it? Should the latter have been published in a peer-reviewed journal? How prestigious does the journal need to be? Does one also need to prove that one’s works on the topic were cited by other, perhaps established scholars? One should stress here, in order to stave off a possible confusion, that while membership in the relevant academic community should be enough as a test of professional interest, it is not necessarily sufficient as proof of professional competence. Andreescu Individual Academic Freedom and Aprofessional Acts all these borderline cases. But then we should also wonder whether, in practical terms, the extensive theory and its refusal to draw such lines would not actually serve the values protected by academic freedom better. The difficulties entailed by the gray area of the professional-aprofessional distinction are not lost on those who endorse the restricted conception. Robert Post, for instance, suggested recently that justifying the extensive view by pointing out the dangers in ‘‘artificially’’ marking ‘‘the limits of faculty expertise’’ is challenged by ‘‘clear cases’’ (such as an astronomer opining on the tariff), and he further asserted that such challenges can be met only if ‘‘it is claimed that nothing is theoretically beyond the legitimate professional purview of a scholar.’’ But then, if the latter is asserted, ‘‘extramural expression’’ would be indistinct from (professional) research activities and there would no longer be any need for an extensive theory.33 I find this analysis unconvincing. First, it is not clear how the mere existence of unambiguous cases undermines the argument that the recurrent difficulty, which both sides to the debate concede, of distinguishing between professional and aprofessional acts entails specific dangers. The extensive conception claims not that such a distinction is ‘‘impossible’’ (a term Post uses in passing in this context, at the peril of summoning a straw man), but that it is objectively difficult to draw in many cases and that the process of drawing it is potentially hazardous to the core values academic freedom aims to safeguard. Second, the way out conceded by Post — namely, claiming that no subject is really outside the professional range of a scholar — may be tempting. But it is a treacherous path (on this point, see the discussion of the final argument) and should not be taken. Rather, proponents of the extensive view should stick to their basic point: acknowledge that some acts are professional and others are not, but note that the professional-aprofessional distinction is sufficiently problematic to warrant extending coverage to both types of acts. This approach places the burden of proving that the values protected by academic freedom are on safer ground if the concept is defined restrictively on the supporters of the narrow definition. This is so in a formal sense, because the extensive view is (still) the standard of reference. But there is also the aforementioned practical concern: the scope of academic freedom was extended — self-consciously, it needs to be emphasized — to protect both professional and aprofessional acts because the ‘‘founding fathers’’ of academic freedom in the United States had reason to believe that the values at stake would be better shielded this way. As we shall see in the pages that follow, there is so far no persuasive argument that they were wrong with respect to these mundane concerns. The proponents of the restrictive theory often seem to be so preoccupied with the (rather blurry) conceptual trees, that they lose sight of the practical forest. 33. Post, ‘‘The Structure of Academic Freedom,’’ 85–86. 569 570 EDUCATIONAL THEORY Volume 59 Number 5 2009 The Argument from Generalized Tolerance The second argument against the extensive conception of academic freedom is circumstantial and practical. It is argued that, on the one hand, the speech of employees is now much better sheltered from abuses than it used to be when the broad theory took shape, so there is no longer any sensible need to extend (artificially, it is alleged) the domain of academic freedom to cover acts that would be well protected under the jurisprudence pertaining to the fundamental civil liberties. On the other hand, it is now less likely that teachers will be sanctioned or dismissed for opinions at variance with the beliefs held by their government, society, or trustees or university administration. In trying to answer the question of whether we still need academic freedom, Edward Shils documented today’s ‘‘refined’’ board of trustees, presidents who ‘‘no longer act as headmasters,’’ skeptical and liberal churchmen who ‘‘no longer tamper with the freedoms of their teachers,’’ a small-town press that is less antagonistic to collectivism and antinomianism, and a public opinion no longer shocked by teachers’ selfidentification as socialists or by their criticism of the U.S. government.34 As Robert Ladenson put it, Why would anyone have ever supposed that professors should have more liberty in the workplace than everyone else? Or, to state the question with its proper emphasis, why would anyone have ever supposed that everyone else should have weaker employee rights than college and university faculty? According to one explanation, in the second decade of this century, when professors in the United States first organized intensively to protect academic freedom, the general notion of rights in the workplace was virtually unrecognized. . . . Since that time, however, the greatly enhanced expansion of employee rights afforded by collective bargaining, civil service, equal opportunity statutes and the like has enormously changed the prevailing climate of opinion.35 Plainly stated, we now live in societies that are incomparably more tolerant than those contemporary with the birth of academic freedom. Professors are rarely sanctioned today for their aprofessional political beliefs or affiliations. Bringing aprofessional acts such as political speech or affiliation under the umbrella of academic freedom is therefore unnecessary, since that protection is already afforded by less ‘‘invidious’’ instruments. There are good reasons to call into question the notion that recent social circumstances have rendered irrelevant the extensive definition of academic freedom. It is true that Western societies are incomparably more tolerant today than they were immediately before or after World War II, not to mention earlier ages. But are they sufficiently tolerant to render the extensive theory of academic freedom obsolete? Can we be sure there is no danger of periodic, if short-lived, bouts of intolerance, perhaps ‘‘during wartime’’ or when societies are exposed to sudden threats? Furthermore, as Immanuel Wallerstein wrote four decades ago, the palpable existence in 1970 of professorial freedoms that were still unachieved in 1915 did not by itself demonstrate the existence of academic freedom at the 34. Shils, ‘‘Do We Still Need Academic Freedom?’’ 196–198. 35. Robert F. Ladenson, ‘‘Is Academic Freedom Necessary?’’ Law and Philosophy 5, no. 1 (1986): 68–69. Andreescu Individual Academic Freedom and Aprofessional Acts latter date, as these freedoms did not ‘‘touch on the central political struggles of the moment.’’36 Sympathy for the Reds may no longer cause reprisals in the new millennium, but ‘‘abetting’’ terrorists might. Should one not guard oneself against rare and infrequent abuses, even if they represent freak occurrences? Such rhetorical questions aside, the crux of the matter is not whether conditions have improved by comparison with 1915 or 1940, but rather whether the protection of employees under the free-speech doctrine or labor codes is strong enough to grant academics the kind of guarantees that the extensive theory now affords them. Note that the adepts of the restrictive theory usually dispute not the level of protection that academics currently enjoy under the extensive theory (in particular, their immunity from sanctions motivated by the content of their aprofessional utterances or affiliations), but rather the mechanisms by which such protection is attained (specifically, a particular right to academic freedom, rather than general free-speech jurisprudence). They argue that an extensive definition of academic freedom has become redundant in the context of labor codes and free-expression doctrines that guarantee an adequate level of protection for aprofessional discourse. Thus formulated, the argument from tolerance raises two distinct questions, one empirical and the other principled. The empirical question concerns the real ability of labor laws or free-speech jurisprudence to protect the acts in question. Here things will vary depending on the country and legal system in question. In the United States, at least, there seems to be no consensus concerning the ability of free-speech jurisprudence to adequately protect the relevant aprofessional acts of academics from sanctions. Indeed, some authors have argued that such protection would not be possible to the desirable degree.37 As to the question of principle, it can be expressed as follows: is it wise policy to tie the level of protection for academics’ aprofessional acts to the degree of protection guaranteed to other employees? Under the restrictive theory, a professor engaged in aprofessional speech or activities may invoke, like any other citizen, a general civil right in order to defend him- or herself against possible sanctions imposed by the employer. Academic freedom should not play any part in this defense. What this means, in effect, is that in a state where the protection of public or private employees under the free-speech doctrine is low (or, while it used to be high, is being lowered), the level of protection accorded to academics for the relevant aprofessional acts is correspondingly low — or lowered by changes in constitutional jurisprudence or the labor code, which changes are not always effected with the fate of academics in mind. This prompted at least one American legal scholar to assert squarely that ‘‘If academic freedom is to remain a special concern of the First Amendment, as the Supreme Court recognized in Keyishian v. 36. Immanuel Wallerstein, ‘‘Academic Freedom and Collective Expressions of Opinion,’’ Journal of Higher Education 42, no. 9 (1971): 714. 37. Rachel Fugate, ‘‘Choppy Waters Are Forecast for Academic Free Speech,’’ Florida State University Law Review 26 (1998): 187–218. 571 572 EDUCATIONAL THEORY Volume 59 Number 5 2009 Board of Regents, then courts should not apply [current free-speech jurisprudence] when dealing with professors’ speech at colleges and universities.’’38 Even though a society may accept low free-speech standards for employees in the public or the private sector, it need not do so for university professors. Sanctions against academics’ aprofessional speech may turn out to have a chilling effect, impairing the professional work of academics and thus universities’ ability to fulfill their democratic role and further the public good. When a chemistry professor has reasons to fear that her political affiliations (such as, say, sympathizing with the neofascist movement) cannot be protected under the labor code, her historian colleague may, given this climate, be tempted to teach history in a different way. The latter’s professional acts would of course be protected under (restrictive) academic freedom standards, but one can never be too sure. . . . Similarly, when an academic’s aprofessional criticisms of the employing institution (especially those that can be shown to have a detrimental effect on the latter’s reputation) are not protected under free-speech jurisprudence, he may become more reticent in offering professionally relevant criticisms.39 While a democratic society may at one point decide that its well-being is after all compatible with lower safeguards for the average employee engaged in some particular kind of speech, it may at the same time consistently hold that the academic profession needs to be guaranteed a higher level of protection, even for aprofessional expressive acts. (The justification of academic freedom is in part distinct from the justification of the general civil liberties.) If it were forced to tie the protection of academics’ aprofessional speech to the level of protection bestowed upon other employees, as the restrictive theory would have it, such a separate treatment for professors would become impossible. In other words, there might be good prudential reasons to craft a shield of protection around the academic profession independent of the safeguards offered citizens in general — as private persons or as (public or private) employees — out of consideration for its special role in a democratic society. Indeed, this was the original intent of the founding fathers of American academic freedom, if we give credence to the analysis offered by Matthew Finkin.40 38. Ibid., 215. 39. Criticism of higher education institutions by professors may take many forms, some professional, some aprofessional. Matters having a more or less direct impact on one’s academic duties, from questions of general educational policy to issues of academic governance, may be deemed professional unless one defines this term excessively narrowly, in terms of one’s strict professional expertise. Others issues are clearly aprofessional, such as, say, university policy on parking spaces. Still others inhabit a gray area. Academics may criticize their institution’s higher officials for their private political allegiances or morality (without necessarily alleging any impact on academic life), or they may denounce the university’s allowing or banning army recruiters on campus. These arguably aprofessional criticisms may adversely affect the institution, yet they should be protected by academic freedom. 40. Matthew Finkin, ‘‘Intramural Speech, Academic Freedom, and the First Amendment,’’ Texas Law Review 66 (1988): 1339–1340. Andreescu Individual Academic Freedom and Aprofessional Acts There is a further disadvantage in rendering aprofessional speech dependant upon the degree of protection accorded to employees in general. In a legal system such as that of the United States, state employees enjoy a degree of protection under the constitutional free-speech clause that individuals employed by private institutions may not claim.41 As Peter Byrne notes, the ‘‘anomalies of the state action doctrine’’ make it such that ‘‘faculty and students at state universities enjoy extensive substantive and procedural constitutional rights against their institutions, while faculty and students at private institutions enjoy none.’’42 The asymmetry resulting from the state action doctrine poses a distinctive problem in the case of universities, which some theorists of academic freedom acknowledge. The disparity between private and public universities occurs ‘‘despite the substantially similar functions usually served by state and private institutions,’’ as Byrne observes.43 Amy Gutmann offers a persuasive argument as to why the distinction between the public versus private nature of higher education institutions is irrelevant to the moral case for academic freedom, whether institutional or individual: Because the institutional right of academic freedom (‘‘freedom of the academy’’) is derived from the democratic value of scholarly autonomy and not from a private property right, the right may be claimed with equal force by public and private universities that are dedicated to defending the scholarly autonomy of their faculty. . . . The democratic purpose of a university, not the contractual arrangements between owners and employers, grounds the academic freedom of faculty, as well as the freedom of the academy.44 However, the narrow view would make it impossible, in a legal system that treats public and private employees differently (whether under state action doctrine or for other reasons), to protect all academics equally, irrespective of whether their institution is public or private. If academic freedom covered only professional acts, as the proponents of the restrictive theory would have it, professors in private institutions would be significantly more exposed to pressures or sanctions by employers because of their political beliefs or affiliations. In discussing a recent relevant case, one U.S. legal scholar suggested that a possible solution to the fact that ‘‘the law typically has no objection to the firing of private employees for expressing their political beliefs’’ is ‘‘the voluntary adoption by private universities of a ‘conscience clause.’ ’’45 But the broader theory’s expansive protection of academics would render such a fickle voluntary clause unnecessary. 41. See Robert M. O’Neil, Free Speech in the College Community (Bloomington: Indiana University Press, 1997). 42. Byrne, ‘‘Academic Freedom,’’ 299. 43. Ibid. This may be a good argument for de-constitutionalizing academic freedom, but not for giving up the extensive theory in favor of the restrictive one. On the contrary, it points to the dangers of making the protection of academics’ aprofessional speech conditional on their civil rights. 44. Gutmann, Democratic Education, 179–180. 45. Maureen Threaplton, ‘‘Free Speech in Private Universities: The Marketplace of Ideas vs. The Market,’’ Journal of College and University Law 28, no. 3 (2002): 681 and 683. 573 574 EDUCATIONAL THEORY Volume 59 Number 5 2009 The Argument from Expert Contribution This argument has already been hinted at. It says that since ‘‘academic freedom is justified by the social contributions of expert and independent scholars,’’ then ‘‘when professors do not speak as scholars. . . they are not engaging in speech to which academic freedom should apply.’’46 (I will not discuss the first part of the argument, namely, the assertion that the justification of academic freedom is based on the social functions of the university and the professoriate, which has been rightly seconded by virtually all of those who have discussed the topic, within the American context and beyond.47 Nonetheless, it is worth recalling here that social contribution is not the only justification of academic freedom, though it may be the one most commonly cited.) More specifically, the ‘‘argument from expert contribution’’ states that, as one author succinctly put it, ‘‘academic freedom should be understood to include only rights unique or necessary to the functions of higher education.’’48 In other words, since academic freedom is justified by the social contribution of expert professors and researchers, when professors or researchers do not speak ‘‘as scholars,’’ they do not engage in speech to which academic freedom should apply. To spell out the argument more clearly, its basic assumption is that if an individual enjoys a certain right of office or privilege on the basis of the social function he or she fulfills, only activities that are intrinsic to that function are covered by the right or privilege in question. But this assumption proves problematic. Consider the following analogy. A president or prime minister who has to make risky or even dangerous decisions on an almost daily basis is presumably entitled to claim some protection for his or her physical integrity, especially if it is assumed that the latter may be in danger. That is to say, such protection would be justified on the basis of his or her position as a high-level official. But the president or prime minister would presumably be entitled to protection not only when she acts as a high-level official, but also when fulfilling the role of a partner in the family, or when on vacation. It would be odd to withhold protection on the ground that recreational or marital activities are not professional activities and, as such, they are not covered by the official’s right to be protected. This analogy suggests that what is relevant in determining the domain covered by a privilege such as the one just discussed is not whether an activity is ‘‘intrinsically’’ related to the function that the individual claiming the privilege fulfills, but rather whether withholding protection from the activity may have a negative impact upon the functions that justify the privilege. In other words, 46. Rabban, ‘‘A Functional Analysis of ‘Individual’ and ‘Institutional’ Academic Freedom Under the First Amendment,’’ 243. 47. As argued by, for instance, Ralph Fuchs, ‘‘Academic Freedom: Its Basic Philosophy, Function, and History,’’ Law and Contemporary Problems 28, no. 3 (1963): 431–432; Gutmann, Democratic Education, 175; and De George, Academic Freedom and Tenure, 54–55. 48. Byrne, ‘‘Academic Freedom,’’ 264 (emphasis added). Andreescu Individual Academic Freedom and Aprofessional Acts it should depend on whether the role of the professional is impaired. To turn back to our example, citizens will want to make sure that their highest-ranking officials are protected during holidays because the absence of such protection could render the officials unable to properly exercise their public functions. Similarly, if the societal role of university professors is impaired by leaving aprofessional speech outside the domain of academic freedom (perhaps because the free-speech doctrine is not sufficiently powerful to keep the chilling effects of sanctions at bay, or for other reasons), then why should the fact that some acts are aprofessional automatically exclude them from the protection conferred by academic freedom? After all, if academic freedom has a function, it is to make sure that the university remains a privileged space for critical dialogue and investigation. Proponents of the restrictive theory are right to insist that, as Byrne urged, the ‘‘term ‘academic freedom’ should be reserved for those rights necessary for the preservation of the unique functions of the university, particularly the goals of disinterested scholarship and teaching.’’49 But they are wrong in inferring from the preceding statement that scholarship and teaching are the only activities in need of special protection as a matter of defending the ‘‘unique’’ role of the university. For if it can be shown that the university’s function is better preserved by putting in place a special shield for the ‘‘academic speaking as citizen,’’ then the protection of aprofessional speech is warranted by the same function that justifies academic freedom restrictively construed. The Higher Standards Argument The fourth argument against the extensive conception consists of a principled consideration reinforced by a practical one. It says that if academic freedom is justified by the role of universities and professors in society, and if this role presupposes a certain responsibility on the part of academics, then any act for which the latter claim protection under academic freedom should be judged according to the standards imposed by the aforementioned responsibility. As Van Alstyne notes, the ‘‘insistence that academic freedom is at the heart of an academic’s right to engage in political activity has repeatedly drawn the sharp riposte that, given this rationale, the political liberties of academics must be correspondingly reviewed by a higher. . .professional standard.’’50 Furthermore, while such a professional standard would clearly be acceptable in the case of professional acts (few would deny the fact that a professor whose statements betray crass incompetence in his or her discipline or seriously impair the students’ capacity to learn ought to be disciplined), in the case of aprofessional acts this clause is alleged to be downright onerous. For, the argument goes, while fundamental civil liberties protect (or, at least, should protect) the employee irrespective of the ineptness of his or her assertions, the higher professional 49. Ibid., 262. 50. Van Alstyne, ‘‘The Specific Theory of Academic Freedom and the General Issue of Civil Liberty,’’ 69. 575 576 EDUCATIONAL THEORY Volume 59 Number 5 2009 standard that comes packaged with academic freedom would impose too great a burden upon aprofessional speech. Hence, professors would fare worse under the extensive theory than if they claimed protection under the narrow theory for professional acts and, respectively, under universally available free-speech guarantees for aprofessional acts. This argument only works against the extensive theory if we accept its basic premise, namely, the proposition that all acts for which the protection of academic freedom is claimed ought to be judged according to ‘‘higher’’ professional standards. I am not aware of a cogent defense of this proposition (Van Alstyne discusses it as an argument often advanced by people bent on abusing academic freedom), though history has certainly provided many examples of such claims being made against politically active academics.51 It seems to be fraught with difficulties. For how can one apply a ‘‘professional standard’’ to an aprofessional act? Let us use the example of a mathematics professor who writes a column in the local newspaper in which she confidently claims that the Holocaust did not take place. The statement is in fact criminalized under the laws of several European democracies, which nevertheless except scientific work from the prohibition. How does one go about applying a professional standard to this assertion? It all depends on how one construes the notion of a ‘‘higher professional standard.’’ If by this term one refers to a disciplinary standard — that is, a standard internal to an academic field of study — then the notion that such a standard ought to be applied appears baffling. It would be very difficult to apply the standards of the academic discipline of mathematics, whatever those may be, to the political statements made by our professor. Indeed, any attempt in this direction seems plainly absurd. But what if the disciplinary standards in question are not those of the specific scientific discipline taught by the academic (mathematics, in this example), but those of the discipline to which the aprofessional statements would belong if made within a disciplinary setting — history, in our scenario? Even so, the process of applying a ‘‘higher professional standard’’ to aprofessional acts is plagued by problems. First, aprofessional acts such as those considered here might not always consist of propositions that can be easily placed within the boundaries of a particular academic discipline. (Indeed, they might not consist of explicit propositions at all.) Our mathematician might claim not that the Holocaust is a myth, but merely that the Holocaust receives too much attention. Or she might simply enlist as a member in a negationist organization. The standards of which particular academic discipline would be considered appropriate for judging such assertions (or affiliations) professionally? 51. Robert L. Church, ‘‘Economists as Experts: The Rise of an Academic Profession in the United States, 1870–1920,’’ in Europe, Scotland, and the United States from the Sixteenth to the Twentieth Century, vol. 2 of The University in Society, ed. Lawrence Stone (Princeton, New Jersey: Princeton University Press, 1974), 588–600. Andreescu Individual Academic Freedom and Aprofessional Acts Second, even in cases in which a disputed aprofessional statement may be properly ascribed to the domain of a certain scientific discipline, who is to judge whether it is professionally acceptable, and what weight would the final verdict carry? Presumably, in keeping with due process rules, the aprofessional statements ought to be assessed by the competent ‘‘peers’’ of the professor, in our case by academic historians. Let us assume that, since the occurrence of the Holocaust is a well-established fact in the relevant discipline, the mathematician’s ‘‘peers’’ find her incompetent as a historian for asserting a counterfactual. What is the force of such a judgment? How does being incompetent as a historian and yet engaging questions of history extramurally conflict with one’s professional responsibilities as a professor of mathematics? Should a churchgoing professor of literature be sanctioned because his stated or implied aprofessional belief in the account of the earth’s history as provided in the Book of Genesis is deemed by his biologist ‘‘peers’’ to be proof of incompetence? Taken to its logical conclusion, the basic premise of the ‘‘higher standard argument’’ would lead to preposterous consequences. It would also fall very short of the AAUP’s standard of ‘‘fitness for the position.’’ Alternatively, one might interpret the term ‘‘higher professional standards’’ to mean something akin to the set of general moral standards we normally associate with the scientific enterprise and the academic environment, such as tolerance and open-mindedness. But then it would seem reasonable to apply these standards not only to aprofessional acts, but also to — indeed, especially to — professional ones. Yet, should we accept this view, we would end up sanctioning not only the mathematician who claims that the Holocaust did not take place, but also, and for the wrong reasons, the historian claiming that the Holocaust is a myth. We would not bother to say that for a historian to hold such views betrays gross incompetence, but simply that such views are an example of intolerant and politically incorrect opinion and are therefore unsuited to an academic environment. This would amount to a crass violation of professorial freedom under any acceptable academic freedom doctrine. Conclusion Due to constraints of space and focus I have merely hinted in this discussion at a number of issues that might have otherwise deserved closer treatment. It is worth mentioning them at this point, if only to spell out why they were not explored in greater depth. First, the article has not engaged directly the question of academic responsibilities, from which professorial liberties are ultimately inseparable. A conception of professional duties is essential in determining whether a particular professional act should enjoy protection under the principle of academic freedom. This topic has recently received a lot of attention, fueled by the conservative effort disguised as the Academic Bill of Rights, or by the provocative but stunted ‘‘do your job’’ conception of professorial duty advanced by Stanley Fish in his 577 578 EDUCATIONAL THEORY Volume 59 Number 5 2009 Chronicle and New York Times pieces and in a book fresh off the presses.52 However, and despite the numerous and vexing questions raised by the problem of academics’ obligations, the latter remains an essential theme chiefly in the context of professional activities. (Though, conceivably, even extramural conduct may cast doubt on the ability of a particular academic to discharge his or her professional obligations adequately.) Given the limited scope of this essay, devoted to the relation of the principle of academic freedom to aprofessional acts, I have omitted an in-depth discussion of this matter. Second, I have offered a mostly indirect, negative defense of the extensive view of academic freedom. Though the bulk of the discussion was prefaced by a brief account of academic freedom justifications, the essay has not systematically engaged the values justifying academic freedom in order to outline a positive case for the broad conception specifically. Rather, the extensive view has been mostly defended from accusations of conceptual inconsistency and, on the more affirmative side, as preferable for prudential reasons.53 To sum up, the case mounted by supporters of the restrictive view against the extensive theory, while perhaps analytically appealing in the first instance, suffers from several shortcomings. Because it relies on a relatively clear-cut distinction between professional and aprofessional acts, the narrow conception is potentially difficult to implement in ambiguous cases. In light of past experience in the United States, it is likely that ambiguous cases will not be infrequent. In addition, the objections raised by supporters of the restrictive theory against the extensive version are unconvincing. This is true both of the more principled ‘‘argument from social contribution,’’ which fails to clarify why the social role of universities and academics exclude aprofessional acts from protection under the principle of academic freedom, and of the ‘‘higher standards argument,’’ which relies on the puzzling assumption that one can intelligibly apply professional standards to aprofessional activities. Finally, the practical benefits of the narrow view of academic freedom depend on the standing of employees as a general group under the prevalent free-speech doctrine or under labor law. This standing may and does sometimes change for the worse. In such cases, not only academics’ relevant aprofessional acts, but also their professional activities may be imperiled. Therefore, whatever our final answer to the question of the relation between academic freedom and aprofessional acts, one should not immediately rule out the more generous theory as either practically disadvantageous by comparison with the restrictive theory, or untenable on principled grounds. 52. See, for example, Stanley Fish, ‘‘Aim Low,’’ Chronicle of Higher Education, May 16, 2003; Stanley Fish, ‘‘Tip to Professors: Just Do Your Job,’’ New York Times, October 22, 2006; and Stanley Fish, Save the World on Your Own Time (New York: Oxford University Press, 2008). 53. For another, institution-centered prudential defense, see the penultimate section of Post, ‘‘The Structure of Academic Freedom.’’