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CAUT Bulletin Archives

April 2001

Redefining Academic Freedom Sets Dangerous Precedent

John Wilson
Every faculty association in Canada needs to know about the details of a recent arbitration decision at the University of Waterloo and needs to think about the defensive action which may need to be taken to guard against its consequences.

Decisions of this kind, once they are on the books, have a nasty habit of turning up as alleged precedents in the most peculiar places.

The report appeared only a short time ago and is still being considered by the parties but it is already clear that it has enormous consequences for the way we live at the University of Waterloo — to say nothing of its possible impact across the country — and so we have posted it on our faculty association's web site (www.uwfacass.uwaterloo. ca). I would encourage everyone to take a look at it. I doubt if there has been a more significant document produced in the last 50 years in the effect it could have on all of us.

The case was dealt with in hearings held in January regarding two grievances which began last fall, one by mathematics professor Stanley Lipshitz and the other by the faculty association, which were combined because of a number of elements they had in common.

In assessing the consequences of the arbitrator's report, however, we have to set aside the specific events which gave rise to it, namely the fact that an individual faculty member's grades in a mathematics course were changed by the dean without the instructor's permission, and look instead at the philosophy which underpins the analysis which explicitly informs the arbitrator's judgment. That philosophy was drawn by the arbitrator from the character of the argument developed at the hearing and it is — in short — wildly improper.

At its simplest, the case was that the assignment of grades to students is an integral part of teaching and is therefore a component of the academic freedom which we have always considered belonged to faculty members at the University of Waterloo and elsewhere and which is now enshrined in Article 6 of our Memorandum of Agreement with the university. Everyone involved, including the arbitrator, conceded that was so.

But then the administration, through its legal counsel, argued there were really two kinds of academic freedom in a university. One was of course the freedom of individual faculty members to ply their trade without improper interference and in the spirit of free inquiry which has always been taken to be the distinguishing characteristic between universities and other kinds of institutions in our society.

But there is as well, we were told, the academic freedom of the institution itself, and from time to time we had to expect these two kinds of freedoms would come into conflict. This perception was buttressed by numerous references to court judgments in the United States, but none, as I recall, from Canada or elsewhere in the Commonwealth.

When I first heard this argument being developed by the university's lawyer I thought I had never heard such a specious description of something most of us call "institutional autonomy" — which is no doubt important in a country where nearly all our universities are public rather than private but which has absolutely nothing to do with the principle of academic freedom as it is commonly understood.

But then as I listened, I began to hear something else. That's not academic freedom at all, I said to myself, it sounds more to me like what in the trade union movement used to be called "management rights" (you know, "it's our factory, you just work here") and I thought it would be easy to dismiss it as a quite inappropriate characterization of the nature of the managerial relationship in a university, where we are accustomed to notions of collegiality and cooperation.

The idea of academic freedom is fundamental to the idea of a university. It is what distinguishes us a from a factory. It surely cannot be abridged at the whim of the management.

I was wrong. In his judgment the arbitrator asserted the article on academic freedom in the Memorandum of Agreement protected both individual faculty members and the people acting for the institution as a whole. He said "Article 6.4 maintains the rights and responsibility of the dean within the purview of pursuing the legitimate interests of the institution."

I ask you to read Article 6.4 — the Memorandum of Agreement is also posted on our web site — and see what it says.

I very well remember that evening in 1998 when Fred McCourt and Ian Macdonald and I struggled over the proper wording for the academic freedom article. We had some sharp differences then but it never occurred to us that 6.4 — by asserting the claim to individual academic freedom rested on recognizing that same freedom for other individuals in the university — could ever be stretched to support the right of a dean, or any other administrator, to behave in a way that restricted the individual faculty member's freedom we all knew was fundamental to the university's purpose.

Academic freedom is by its very nature a concept which can only pertain to individuals and not to the collectivity. That there may be some kind of academic freedom for the whole institution can only be true in the sense that all individual members of the institution have academic freedom and desist from behaving in a way which restricts that freedom for any other member of the academic community.

But the suggestion that deans, acting as managers, have academic freedom for that activity as much as you or I have it for intellectual inquiry is appalling. Indeed, the idea that there may also be a kind of collective academic freedom — a kind of institutional imperative that is superior to individual academic freedom — is the very antithesis of what we have always understood academic freedom to be.

It makes individual academic freedom in effect irrelevant. It treats it with the same contempt that R. H. Tawney once described the concept of equality of opportunity as having in a capitalist society: "obviously a jest ... the impertinent courtesy of an invitation offered to unwelcome guests, in the certainty that circumstances will prevent them from accepting it."

All of us at Waterloo, and no doubt everywhere else in Canada, know the idea of individual academic freedom is not meant to be a jest — even though we also know its protection has always required extraordinary vigilance — and so it follows that the idea of institutional academic freedom is simple nonsense. The very idea that the institution's needs can make it legitimate to suppress individual academic freedom is repugnant and ought not to be given even a moment's consideration.

But the arbitrator's judgment has turned the tables on us all. By completely misunderstanding the meaning of Waterloo's Memorandum of Agreement in general and the character of academic freedom in particular, it is an assault on the very nature of our university and puts at serious risk customs we have taken for granted since the beginning. And its very existence represents a threat to all of us in the Canadian university system.

We will find ways to eliminate its impact at Waterloo but the general damage has been done. The report is, as I have said, on the books. It is not going to go away. Everyone must now be ready to take whatever steps are necessary to oppose its possible consequences everywhere in the country.

John Wilson is president of the Faculty Association of the University of Waterloo.

The views expressed are those of the author and not necessarily those of CAUT.