C Explanatory memorandum
by Mr Koloman Brenner, rapporteur
1 Introduction
1 Over the past few years, academic
freedom and institutional autonomy have come under increasing pressure
in many countries. Many scholars and policymakers believe that Europe
is living through a crisis of these values.
2 The initial motion
Note in June
2017 was triggered, on the one hand, by the growing commercialisation
of higher education resulting in a constant competition between
universities for teachers, students and funding, and the risk of
financing decisions being used as a tool to quell dissenting voices.
On the other hand, it was incited by alarming developments in some
Council of Europe member States.
3 Today, in almost all European countries, academic freedom
and institutional autonomy are subject to various threats, yet they
are of different intensity. This report will mostly focus on the
everyday aspects of academic freedom and institutional autonomy.
However, it will also look at several situations in which academic freedom
and institutional autonomy are in particular danger and threatened
for political reasons.
4 In addition, in the recent few months, academic freedom has
come face to face with new hurdles emerging from the Covid-19 pandemic,
in the situation where online education is increasingly becoming
a new norm. The impact of the Covid-19 crisis on academic freedom
will also be tackled in this report.
5 I am grateful to Professor Terence Karran, Director of Research
at the School of Education, University of Lincoln, United Kingdom,
whose expertise and study on academic freedom in the European Union
member States (hereafter the “
EU
study”) provides many of the arguments and the empirical background
information for this report.
Note I am also thankful to Mr Máté László
Botos, Head of the Committee on Humanities of the Hungarian Rectors´
Conference, Mr Liviu Matei, Provost of the Central European University,
Budapest; and Mr Tony Gallagher, Acting Dean of Research, Faculty
of Arts, Humanities and Social Sciences, Queen's University Belfast,
United Kingdom, for all their inputs.
6 Today, given the alarming developments in some member States
as well as the global trends and the sanitary crisis affecting the
sphere of education worldwide, I find it particularly important
to reaffirm our commitments to our own Council of Europe’s principles
and the principles supported by other universal and regional educational
agreements: UNESCO Recommendation,
Note International Association of Universities Statement
Note and the Magna Charta Universitatum.
Note
2 Why academic freedom and institutional
autonomy matter today
7 There are several reasons why
academic freedom and institutional autonomy are important. They
are fundamental, on the one hand, to furthering research, the pursuit
of truth, research collaboration and the quality of higher education;
and, on the other hand, they are essential to democratic societies.
As highlighted in the preamble of the Declaration of the Global
Forum on Academic Freedom, Institutional Autonomy and the Future of
Democracy held last year in Strasbourg (hereafter the Global Forum),
the future of democracy is at risk in the absence of academic freedom
and institutional autonomy, just as it is when the press, media
or civil society organisations are weakened and compromised.
Note
8 Academic freedom is not a privilege but a necessary condition
for higher education institutions to be able to fulfil their public
function to disseminate knowledge and education. It derives from
the right to education, but is also intimately linked with freedom
of thought, freedom of opinion and freedom of expression. New knowledge
cannot easily be developed if established dogmas cannot be questioned.
The quality of education and research therefore depends on academic
freedom and institutional autonomy. These are in fact two sides of
the same coin. It is difficult to imagine academic freedom in a
non-autonomous university. On the other hand, institutional autonomy,
as a set of freedoms of the institution, is a necessary but not
a sufficient condition for academic freedom.
9 The principle of institutional autonomy encompasses the right
of the higher education institution to determine its organisation
and administrative structures, to decide on priorities, manage budget,
hire personnel and admit students etc. As underlined in the Declaration
of the Global Forum, institutional autonomy is often understood
through the prism of the legal relationship between higher education
institutions and public authorities. Institutions cannot be autonomous
unless public authorities allow them to be so, but legal provision alone
can guarantee neither the pursuit of knowledge nor democracy, since
both depend upon open democratic values, attitudes and behaviours.
Any limitations on institutional autonomy must be based on essential
educational or legal needs (such as those reflected in accreditation
requirements or non-discrimination laws), not on political grounds.
Note
3 The
concept of academic freedom: the challenge of defining it
10 The modern development of the
doctrine of academic freedom is largely derived from the nineteenth century
German concepts of “Lehrfreiheit” and “Lernfreiheit’
Notewhich
are associated with the reforms at the University of Berlin by Wilhelm
von Humboldt, which subsequently provided the template for the development of
academic freedom, and the hallmark of the research university, initially
in the European States and the USA and subsequently across the globe.
11 Despite the primacy of the European States in the establishment
of higher education institutions, and the development and refinement
of the concept of academic freedom within them, there is no agreed
definition of academic freedom to date. The empirical research of
the EU study shows that this problem is compounded by a general
level of ignorance among academic staff.
12 The right of academic freedom has been largely ignored by
individual academics (most of whom have scant knowledge of the concept),
by institutions (most have an academic freedom institutional statement,
but, owing to the lack of any Europe-wide guidelines, these vary
considerably in length, comprehensiveness and accuracy) and by government
ministers and departments, who have often viewed academic freedom
as an impediment to the marketisation of university functions.
13 This lack of a common conceptual reference can have unwanted
consequences. For example, when the European Commission sued the
Government of Hungary for infringement of academic freedom in the
case of the modified Higher Education Law of Hungary, the Hungarian
Government contested that it could not be sued for the infringement
of academic freedom because there existed no legal reference for
it.
Note There
is no basis to make a case for academic freedom under the European
legislation. The case is still pending at the European Court of
Justice, but it cannot be judged by its merits.
Note
14 In the absence of consensus at European level as to the characteristics
and functions of academic freedom, the last 30 years has seen declarations
on academic freedom created by a diverse array of international
organisations including the Council of Europe,
Note the
Council for Development of Social Science Research in Africa (CODESRIA),
Notethe Magna
Charta Observatory,
Note UNESCO,
Noteand the
World University Service.
Note Most of these worthy declarations
encourage and exhort higher education institutions, in general terms,
to respect academic freedom.
15 However, such laudatory definitions are rarely sufficiently
detailed to enable the operationalisation of a benchmark against
which the level of (and changes to) academic freedom could be measured.
Such an interval measured benchmark (using a checklist encompassing
the different elements of academic freedom) would make it possible
to show how the level of protection in individual countries has
altered over time, or what the average score was for a group of
countries.
Note
16 In attempting to move towards a common definition, our expert
Dr Karran suggests that the following essential elements need to
be sewn together to create an instrument which enables comparative
evaluations:
17 First, academic freedom is a professional freedom granted
to individual academics, selected for their subject knowledge and
professional competence, so that they are entitled: to express their
informed opinions on subjects in which they have accredited expertise,
to a group of students chosen on the basis of academic criteria,
in order to educate them; and to undertake research to create new
knowledge, freely disseminated to their students and the wider academic
community.
18 Second, despite national variations, academic freedom has
two substantive and three supportive elements.
19 The substantive elements are: the freedom to teach and the
freedom to research. The freedom to teach habitually includes the
right to freely determine what shall be taught; how it shall be
taught; who shall be allowed to study; who shall teach; how students’
learning may be assessed and graded and who shall receive academic awards.
The freedom to research normally includes the right to determine
(without duress) what shall (or shall not) be researched; how it
shall be researched; who shall research, with whom and for what
purpose research shall be pursued; the methods by which, and avenues
through which, research findings shall be disseminated.
20 The supportive elements are: tenure, shared governance and
autonomy (both individual and institutional). Tenure requires that
academic staff with the requisite high level of competence in research
and teaching (as adjudged by a stringent and rigorous appraisal
by their peers of their performance during a probationary period),
are given protection from dismissal for the professional views that
they express. Additionally, where staff fails to meet minimum levels
of competence or professional standards of conduct in their teaching
and research, tenure may be revoked. To obtain tenure, it is incumbent
upon the probationer to demonstrate competence; for its revocation,
it is incumbent upon the institution to demonstrate due cause.
21 To guarantee academic freedom, in terms of shared governance,
academic staff must: have an equal right to voice their opinions
on their institution’s educational policies and priorities without
the imposition or threat of punitive action, and fulfil their collegial
obligations in a professional manner; have the determinant voice
and a prominent role in university decision-making processes; be
able to appoint people, from among their number and beyond, into
positions of managerial authority, and hold them to periodic account,
by agreed democratic processes. Governance processes will differ
with national and institutional variations in the decision-making
structures of universities, but the expectation is that executive
decisions will, perforce, require the support of the majority of
academic staff. Hence, protocols must exist to ensure that the voices
of the academic staff are primus inter
pares, yet guard against filibustering, policy gridlock
and professorial oligarchy.
22 Furthermore, individual autonomy requires that academics can
act as free agents in exercising their academic freedom rights,
with respect to their professional activities of teaching, research
and shared governance without interference by internal or external
individuals or bodies. Institutional autonomy requires that universities,
acting as corporate bodies and via a process of shared governance,
are able to make decisions concerning their strategic academic priorities
and day to day functions of teaching and research, without interference
from extra-mural entities and individuals, including local authorities,
governments, national and international organisations, religious
foundations, national and international NGOs, and private companies.
23 It is necessary for academic freedom to have these three supportive
elements interacting together. Each in its own right is insufficient
for academic freedom to flourish. Single elements are less individually
important than the fact that they mesh together. Thus, where one
of the mutually supportive elements falters, it necessarily undermines
the other two, and thereby weakens substantive academic freedom
for research and teaching.
24 I have been glad to learn while finalising this memorandum
that the Bologna Follow-up Group (BFUG) is currently preparing a
definition on academic freedom to be submitted to the forthcoming
Conference of Ministers of the European Higher Education Area (EHEA)
in November 2020
Note, The draft definition is not available
as yet and I hope that the drafting group could take into consideration
the above elements in order to produce a concise, unambiguous and
unanimous statement of meaning, to be used in carrying forward EHEA’s future
work to protect and enhance academic freedom among its member States.
Once adopted, the Council of Europe should adhere to the use of
this definition.
4 Raising
awareness of academic freedom rights among staff and students
25 Academic staff are unlikely
to defend their academic freedom if their knowledge of related rights
is limited. The recent EU study highlights the level of ignorance
among academics within the EU States as to their academic freedom
rights, and a consequent desire by these staff for further information.
The data also suggests that higher education institutions have been
negligent in their duties of informing the academic community as
to their legal and constitutional rights.
26 In this respect, the Council of Europe should consider a programme
of action to work with member States to develop and disseminate
authoritative materials for academic staff detailing the rights
linked to academic freedom within each nation.
27 There is also a concern about students’ rights and freedoms.
Academic freedom for staff is debated, within the media and also
in academic journals, but students’ academic freedom as scholars
(as opposed to consumers) is rarely, if ever, discussed.
28 In most European countries, students have representatives
on the relevant governing bodies of their institutions and the European
Students’ Union (ESU) is very active in European policy debates,
both in the EHEA and the EU context. The EHEA together with the
ESU could establish a research agenda, and thereby clarify and strengthen
the academic freedom rights of both staff and students, and to work
on producing and disseminating a students’ academic freedom rights
Charta, for use among member States.
5 External
and State funding of higher education research
29 There is a growing concern
regarding increased external funding for university research and
the possibility that external commercial interests might subvert
the focus of research towards increased profits and revenue flows
for the companies who sponsor such research.
30 On the one hand, external funding helps to boost research
capacity and provides higher education institutions with the opportunity
to perform larger and more complex research assignments. On the
other hand, “politically” initiated research and commercial interests
can compete with independent research and prioritise research satisfying
the financer’s needs. As a result, the balance between freedom of
research, society’s needs, and commercial interests risk the danger
of being skewed. Research intended to provide a knowledge base for
political decisions, business development and measures with consequences
for individuals or groups of people demands the researcher’s integrity
and independence, as well as the validity and reliability of the research
results. It is clearly necessary to increase State funding allocated
to higher education in order to reduce the risks arising from the
involvement of external sponsors.
31 The majority of respondents in the EU study thought that their
national research funding systems stopped them from exercising their
academic freedom to determine what topics they should research,
and made them focus on short-term socially focused applied research
projects, rather than address more fundamental research questions.
Additionally, they agreed that the existing research funding system
denied them the time to complete their research thoroughly.
32 Academic researchers believe that there should be transparency
with respect to the sources of funding for commissioned research
and the conditions for such funding (namely limits on the freedom
to publish research results), and that the proportion of representatives
on universities’ boards coming from business and industry should
be reduced. However, there is no evidence of withdrawing research
funding and equipment.
33 The Council of Europe may wish to examine the transparency
of commissioned research, the effectiveness of national research
funding schemes and the impact of university management systems
on the ability of university staff in its member States to enjoy
academic freedom in their pursuit of fundamental research.
6 Censorship
and self-censorship in academia
34 Addressing censorship (either
self-imposed or by others) in academia is problematic. First, censorship is
often surreptitious and covert, and hence difficult to assess. Second,
most academics lack an understanding of the extent of academic freedom
and may under/overestimate their powers of expression under the
national laws relating to freedom of speech and academic freedom.
35 Academic freedom is designed to protect individual scholars,
even against the institutions where they serve,
Note as well against
other academics.
36 By contrast, freedom of speech is a generic freedom granted
to all, to express their opinions and beliefs by whatever method
they deem appropriate, on any subject that they may choose, to all
other people, but for no particular purpose. Hence academics have
the right to express opinions outside of the university, but must ensure
that, when they are expressing such opinions in the public domain,
they are speaking as individuals, rather than university employees.
There are no moral or legal justifications for giving academics
greater freedoms of speech than are enjoyed by other individuals
in the public domain, when they are expressing opinions outside
of their subject expertise, or outside the university.
37 According to the EU study, 21% of respondents practised self-censorship.
This relatively high figure may relate to a lack of information
among academics as to their rights of freedom of expression and
academic freedom. For example, 68% agreed that there should be legal
protection for academic freedom, which extends beyond the right
of freedom of speech. Similarly, the same proportion of academics
thought academic freedom also applies to comments made by academics
outside of their expertise.
38 In fact, most commonly agreed definitions of the concept of
academic freedom consider it to be a specific professional liberty
which may be exercised outside of the university, but does not extend
to include subjects beyond those in which academics have professional
expertise.
39 Evidence shows that even in the absence of direct pressure
on academia, the political and ideological climate in a country
can cause unconscious and conscious self-censorship among academics.
For instance, a political science scholar may choose more “appropriate”
and “safe” terms to describe a political phenomenon instead of pursuing
the truth, which is the very purpose of science.
Note Becoming a usual part of day-to-day professional
practice, self-censorship hinders the development of science.
40 Apart from that, self-censorship can be a consequence of professional
ethics within the higher education environment “typified by the
tolerance of others’ opinions and beliefs, and freedom of expression”.
Note The issue of self-censorship can
be solved by ensuring non-interference of the State in the topics,
methods and hypotheses researched and discussed in the universities,
ensuring the general freedom of expression (and non-persecution
for expression) and creating the political climate in a country
that would foster discussion and pursuit of the truth.
41 The research into academic freedom in the EU member States
has revealed that bullying, psychological pressure and self-censorship
are all too commonplace within higher education institutions that
are supposed to encourage their staff to pursue teaching and learning
within an academic environment typified by the tolerance of others’
opinion and beliefs, and freedom of expression; 15.5% of respondents
reported being bullied by other academic staff. This indicates how
important it is for staff to be aware of their academic freedom rights,
and for proper processes and protocols to be established within
universities to deal with this problem. The Council of Europe should
address it through dissemination of information on academic freedom
rights, as enshrined in constitutions and legislative frameworks.
7 Academic
freedom under neoliberal trends and the marketisation of education
42 The rise of the neo-liberal
global knowledge economy, within which higher education is seen
as a catalyst for national success, and the consequent massification
of university provision across all continents, have been defining
features of the late 20th and early 21st centuries.
Note
43 The role of higher education institutions in the new knowledge
economy has created a critical shift in the dominant model of higher
education provision. Under the "traditional" view of higher education,
students acquire knowledge via an active collaborative teaching
and learning relationship with academic staff. In contrast, the
commodified view sees higher education as a monetised private good,
in which students invest their own human capital, so as to reap
high financial rewards, and in which academic staff fulfil a passive enabling
role, while the university is more concerned with maximising cash,
than delivering learning.
44 In such a consumerist system, students base their decisions
about their higher education on how it will contribute to their
future employment and career prospects, and not on whether they
find it intrinsically interesting.
Note Hence students’ “customer” motivations
and “market” expectations are critical, within the context of the
global knowledge economy and the contemporary massification and
marketisation of higher education, to the achievement of the aspirations
of the EU States (collectively and individually) to create a standardised market
for higher education provision (via the Bologna Process
Note)
which extends beyond meeting national needs, to attracting international
students in increasing numbers.
45 As a result, governments have become motivated to expand the
supply of higher education from serving a minority class elite to
a majority national provision, and beyond to international “markets”
in other countries. In consequence, “higher education is now in
the global competitive marketplace. It is now a client-driven environment
where individuals are able to choose what they wish to acquire rather
than accepting the dictates of institutions.”
Note
46 The adoption of neo-liberal policies in higher education undermines
the idea of higher education as a public good and replaces it with
that of a private commodity. The assumption behind this switch is
that ‘educational choice’ (by prospective students and their families)
is a key mechanism for promoting competition between universities
and for raising standards. However, the success of this policy,
and whatever quality and productivity gains may have accrued from
this new competition, may be undermined if the inculcation of a consumer
identity among university students has created a passive approach
to learning, in which students place more emphasis on their consumer
rights, rather than their academic responsibilities, and on getting
a degree, rather than the transformative process of being a learner.
Note
47 The results from the EU survey show that the overwhelming
majority of university staff are very concerned about the commodification
of higher education and believe that it has increased in recent
years. Conversely, nearly 60% of respondents disagreed that marketing
of their products and services should be a central activity of public
universities.
48 Much of the debate on the impact of the marketisation within
higher education has focused on the impact on individual academic
freedom. However, the impact of an open market for higher education
on the autonomy and well-being of individual universities, and national
university systems, also needs to be considered.
49 Latest research from the Cross-Border Education Research Team
Note reveals that in 2017, there were over
300 international branch campuses, which are owned, at least in
part, by a foreign higher education provider, operate in the provider’s
name and deliver entire academic programmes, substantially on site
outside the provider’s home country, leading to a degree awarded
by the foreign education provider. Of these campuses, 109 were operated
by USA higher education providers, in 40 different nation States
(including 12 EU nations).
50 For example, Schiller International University is an American
private, for-profit university whose main campus and headquarters
are in Largo, Florida, but which has campuses in Paris, Madrid,
and Heidelberg, through which it offers Associate, Bachelor, and
Master's degrees, all taught in English. If Microsoft and Harvard
decided to pool resources, and set up joint private, not-for-profit
university campuses offering face to face, and distance education
taught in English, in (say) the cities of Athens, Barcelona, and
Copenhagen, the huge resources that they could utilise for such
a university would obviously affect the status and viability of
the government funded universities in those cities.
51 Universities are icons of the intellectual accomplishments
of States, and act as repositories and custodians of artefacts of
cultural and historical importance. Clearly, private universities,
seeking to enter markets in EU member States, would have no interest
in assuming such broader responsibilities, and may ignore national
laws and norms regarding the academic freedom of institutions, or
individuals. The General Agreement on Trade in Services (GATS)
Note has the possibility of “undermining
local universities and colleges by creating provisions for foreign
supply that does not meet local needs”, such that “though a country
can maintain their public education system within GATS, the system
could still be overwhelmed and undermined by progressive liberalization
and an influx of foreign providers.”
Note
52 Students paying high tuition fees now have an expectation
that, because they have “bought” their education, they deserve a
“good” degree, irrespective as to the effort that have expended.
This trend has been accompanied by a decline in academic freedom
and the casualisation of academic labour. Little
empirical work has been done on the impact of marketisation; therefore,
the Council of Europe should consider conducting a meta-analysis
of existing research, in order to inform future policy in this area.
53 Under the aegis of the GATS, the commodification of higher
education has accompanied a growth in both the number of suppliers
of trans-national education and higher education institutions establishing campuses
outside their home nation. The Council of Europe should examine
the possible threat posed by such developments to individual universities
and higher education systems, especially in small European States.
8 Domestic
and international protection of academic freedom and institutional
autonomy
54 Academic freedom and institutional
autonomy require absence of interference by public authorities,
yet neither academic freedom nor institutional autonomy can be a
reality unless public authorities ensure this.
Note It means that public authorities
have an obligation to guarantee these two principles, but at the
same time must refrain from undertaking any action that would endanger
or impinge on them.
8.1 Domestic
protection
55 In the majority of Council
of Europe member States, some form of constitutional or legal protection
for academic freedom is provided. The 27 EU member States have constitutional
protection for freedom of speech or expression. Of the 20 non-EU
member States, 13 provide protection for freedom of speech/expression, without
conditions. Five of these States (Armenia, Iceland, Montenegro,
Republic of Moldova, Turkey) provide constitutional protection but
with conditions. The situation is not clear for San Marino and the
United Kingdom does not have a constitution.
56 As well as protecting freedom of speech, the constitutions
of many EU countries also provide direct protection for academic
freedom: 9 offer no constitutional protection for academic freedom,
11 provide protection for teaching, 15 provide protection for research,
and 8 provide protection for institutional autonomy. Concerning
the 20 non-EU member States: 8 provide no constitutional protection,
5 provide protection for teaching and for autonomy, and 4 provide
protection for academic freedom generically.
57 Domestic legal protection for academic freedom in European
higher education institutions is also provided by means of specific
higher education legislation. As examples: in Spain, academic freedom
is mentioned in the constitution but the legislation gives further
protection for the individual functions of teaching and research;
Bulgaria and the Slovak Republic offer specific protection for teaching
and research activities in law, along with direct protection via
their constitutions. Sweden is unusual, as it provides legal protection
for research but has no mention of academic freedom for teaching
in the Constitution or the law.
58 It is evident that the de jure protection
alone does not guarantee de facto academic
freedom and institutional autonomy. Just because a constitution
stipulates that academic freedom is protected does not mean that
the academic staff or students are not intimidated in practice.
Therefore, I tend to agree with those who say that it does not really
matter whether academic freedom and institutional autonomy are inscribed
in the constitution of States; what is more important is those States’
commitment to the academic principles and values of debate and solid
independent research and analysis for the good of the society.
8.2 International
protection
59 In addition to national legal
safeguards, protection also occurs at supranational level. Various international
or regional treaties protect the rights to education, to scientific
research, to freedom of thought and to freedom of expression, but
no treaty refers directly to the protection of academic freedom.
The EU Charter of Fundamental Rights states nevertheless that “The
arts and scientific research shall be free of constraint. Academic
freedom shall be respected”.
Note This Charter was incorporated into
the 2008 EU Revision Treaty.
Note
60 The basic standard for academic freedom and institutional
autonomy is the Magna Charta Universitatum (1988), which is signed
by over 800 universities around the globe. The Magna Charta Observatory
offers guidance and support to universities wishing to sign the
Charta, but it has limited effect, as it can only request voluntary
adherence by signatory institutions, and it probably lacks the capability
and resources to monitor individual universities’ activities (through,
for example, regular surveys) and hold them to account, or to recommend
changes to national legislation. Another European actor, the European
University Association (EUA), has great influence in defining, operationalising,
measuring and promoting the principle of university autonomy, but
has been relatively silent on the matters of academic freedom.
8.2.1 UNESCO
61 The most detailed international
protection for academic freedom is available via the UNESCO
Recommendation concerning the Status of Higher-Education
Teaching Personnel.
Note According
to this instrument: “the right to education, teaching and research
can only be fully enjoyed in an atmosphere of academic freedom...
the open communication of findings, hypotheses and opinions lies
at the very heart of higher education and provides the strongest
guarantee of the accuracy and objectivity of scholarship and research”.
Note It further notes that “Autonomy
should not be used by higher education institutions as a pretext
to limit the rights of higher education teaching personnel provided
for in this recommendation or in other international standards”
Note.
62 Although the 1997 Recommendation is sufficiently comprehensive
to protect academic freedom, in practice the reporting and assessment
mechanisms used by UNESCO to examine abuses of academic freedom
have not been fit for purpose as the information is solely supplied
by member States, its monitoring body meets only every three years
(therefore resolutions of complaints may take many years) and it
only assesses the veracity of individual complaints yet does not
deliver general comments to comprehensively interpret the substantive
provisions of the Recommendation.
8.2.2 Council
of Europe
63 The Council of Europe has long
recognised the need to address the threats to academic freedom and the
autonomy of higher education institutions in Europe. From the legal
point of view, the case-law of the European Court of Human Rights
is relatively limited. However, its various institutions have endeavoured
for long years to promote and defend both academic freedom and autonomy.
64 In 2012, the Committee of Ministers adopted a Recommendation
to member States on the responsibility of public authorities for
academic freedom and institutional autonomy.
Note The Recommendation points to academic
freedom and institutional autonomy as intrinsic values of higher
education which are essential to the overarching values and goals
of the Council of Europe – democracy, human rights and the rule
of law. Additionally, it underscores the responsibility of public
authorities in promoting institutional autonomy and academic freedom
as essential features of their national education systems as well
as in European higher education, and as values underlying the EHEA.
Note
65 In June 2019, the Council of Europe in collaboration with
the International Consortium for Higher Education, Civic Responsibility
and Democracy, the Organization of American States, the Magna Charta Observatory
and the International Association of Universities organised a Global
Forum on “Academic Freedom, Institutional Autonomy and the Future
of Democracy” in Strasbourg
Note. Its final declaration called on the
Council of Europe and other international institutions and organisations
to make academic freedom and institutional autonomy key elements
of their work, through normative standards as well as policy; and
to address violations of academic freedom and institutional autonomy
within their member States at a political level, including within
the EHEA, as well as through their educational programmes and projects.
It further urged the next ministerial meeting of the EHEA to recommit
to upholding academic freedom and institutional autonomy as part
of the foundation on which the EHEA is built and to include the
gathering of information on the respect for academic freedom and
institutional autonomy in the Bologna Process Implementation Reports.
Note
8.2.3 The
European Higher Education Area (EHEA)
66 In 1999, through the Bologna
Declaration, 29 countries expressed their willingness to commit
to enhance the competitiveness of the EHEA, emphasising the need
to further the independence and autonomy of all higher education
institutions: “This is of the highest importance, given that Universities'
independence and autonomy ensure that higher education and research
systems continuously adapt to changing needs, society's demands
and advances in scientific knowledge”.
Note
67 The EHEA 2015 Yerevan Communiqué made a commitment through
ministers to “support and protect students and staff in exercising
their right to academic freedom and ensure their representation
as full partners in the governance of autonomous higher education
institutions.”
Note This was further strengthened in
the 2018 Paris Communiqué where Ministers made a strong commitment
to promoting and protecting fundamental values throughout the EHEA:
“Academic freedom and integrity, institutional autonomy, participation
of students and staff in higher education governance, and public
responsibility for and of higher education form the backbone of
the EHEA.”
Note Conceding that these fundamental
values have been challenged in recent years in some EHEA countries,
the European Ministers of Higher Education mandated the BFUG Task
Force to develop proposals for more effective future reporting.
As a first welcome step, this Task Force is now in the process of
developing a draft definition of academic freedom, to be submitted
to the 2020 EFEA Ministerial Conference. However, the Bologna Process
still has a major challenge ahead in developing this work.
9 Handling
the infringements of academic freedom in Council of Europe member
States
68 Contexts of infringements and
restrictions on academic freedom come in many shapes and forms, ranging
from armed conflict and post-conflict, to the non-protection by
the State, or even criminalisation of researchers and scholars by
the State, not to mention the economic, social or ideological pressures
that weigh on the universities. When dictatorial governments take
over a country, one of the first things they would usually do is
to mute academics. However, other situations may be more counterintuitive.
Thus, academic freedom can develop in situations of armed conflict
in unexpected spheres, but be under various pressures in a democratic
context, when economic pressures are exerted, or groups hostile
to certain areas of research, such as gender, evolution or migration,
get the upper hand.
69 At State level, infringements may include higher education
laws, which limit the autonomy of higher education institutions,
politically motivated fiscal restrictions and the criminalisation
of professional organisations. Moreover, the passivity of the State
in certain contexts can be complicit in threats since the State does
not actively and explicitly protect threatened researchers. At university
level, they can mean classroom surveillance through recordings or
informants, political control of budget allocations, search committees,
and student bodies, as well as restricted access to academic literature
or the confiscation of research materials. Finally, at the individual
level, they comprise loss of position, political imprisonment, or
forced exile.
Note Again, the lack of
an agreed definition and a legally binding instrument impede the
sanctioning of any violation or infringement.
70 Research reveals that those higher education institutions
which best protect academic freedom also occupy the highest positions
in world universities’ rankings
Note. By a paradox,
university rankings measure only research quality in natural sciences
but not the quality of institutions as such, including their commitment
to academic freedom. Therefore, quite often universities in countries
that extensively violate academic freedom do not experience negative
effects to their international reputation as a consequence. In a way,
these rankings make it not only tolerable but – at times – even
rewarding to repress the freedom of scholars and students. Such
reverse incentive structures should be of great concern to the international
academic community.
Note
71 Systematic cross-country data about violations of academic
freedom is grossly missing, which prevents researchers and practitioners
from studying these phenomena in more depth. Until very recently,
the existing university indexes have not included a measure for
academic freedom. Existing data typically cover the tip of the iceberg:
higher education laws that do not sufficiently protect university
autonomy; and the problem’s darkest corner, the imprisonment of
scholars, killings and forced disappearances.
Note
72 For many years, the Scholars at Risk Network has published
an Academic Freedom Monitor, which identifies, assesses, tracks
and verifies incidents posing a potential threat to academic freedom
under six different headings. However, events data has critical
limitations; it is unfit to paint a representative and comprehensive
picture of global restrictions.
73 Finally, there can be a lot of variation in the degree and
type of infringements on academic freedom within a country itself.
Be it between different institutions: private or public, rural or
urban, historically critical of the government or not; or between
subject areas: natural sciences or social sciences, established
fields of study or newer ones. Looking at examples of authoritarian
governments: typically, the social sciences are under stricter control
by the State. In contrast, natural sciences are more easily exposed
to the influence of corporate money. It is important therefore to
assess the integrity of the academic community as a whole, and it
would be dangerous to excuse or relativise the infringements on
some subjects by the freedom of others.
Note
74 On 26 March 2020, the Global Public Policy Institute (GPPi),
the Friedrich-Alexander-Universität Erlangen-Nürnberg (FAU), the
Scholars at Risk Network, and the V-Dem Institute issued a new Academic Freedom
Index (AFI) that introduces a brand-new, global time-series dataset
based on expert assessments involving 1,810 scholars from around
the world. This new Academic Freedom Index is composed of five expert-coded
indicators that capture key elements in the de
facto realisation of academic freedom: (1) freedom to research
and teach; (2) freedom of academic exchange and dissemination; (3)
institutional autonomy; (4) campus integrity; and (5) freedom of
academic and cultural expression. In the dataset, the index is complemented
by some additional, factual indicators, assessing States’ de jure commitments to academic freedom
at (6) constitutional and (7) international levels, as well as (8)
whether universities have ever existed in a given country. In total,
this rich dataset includes more than 110 000 observation points.
75 This new AFI assesses academic freedom in 144 countries and
territories on the score scale from 0 to 1. Of the Council of Europe
member States, the five top-ranking countries are Portugal (0,971),
Latvia (0,964), Germany (0,964), Estonia (0,957) and Austria (0,948).
Of the EU member States, Hungary fares the lowest with a score of
0,662. At the very bottom of the global list, Russia ranks (0,364,
113th), Turkey (0,097, 135th) and Azerbaijan (0,086, 137th). This
is most timely information for the present report, which puts the
criticism voiced during our hearings, often refuted by members representing
the lowest faring countries, into a balanced perspective. The individual
cases of the lowest ranking member States are dealt with in the
appendix to this report. The list of infringements in those countries
is far from being complete; however, it serves to ring the alarm
bells of the seriousness of the problem in some member States, which
should be addressed first and foremost by the concerned States themselves
and by the international bodies such as the Council of Europe, UNESCO,
EHEA/BFUG, EUA and others.
10 The
impact of the Covid-19 pandemic on academic freedom
76 As this report is being finalised,
the global community has been facing months of sanitary crisis provoked by
the Covid-19. The pandemic has impacted both students and higher
education institutions, posing complex and unprecedented challenges,
requiring higher education to become more flexible and adaptable
while rethinking how it approaches educational delivery and recruitment.
77 Academics, both inside and outside of universities, are playing
a vital role in addressing the epidemiological, economic, political,
social and cultural dimensions of the response to the crisis. At
the initial stage, deliberate interference with the dissemination
of data and deliberate distortion of information, appears to have
contributed to delayed and disorderly responses. In countries with
greater degrees of academic freedom and freedom of expression, researchers
and medical experts have been more effectively disseminating reliable
information
Note. The situation
demonstrates how important the co-operation and transparency among
scientists and academics is for finding effective solutions to the
pandemic. As recently noted by the BFUG Working Group on Monitoring,
the protection of fundamental societal and academic values is currently
a condition for finding a path to live and interact together in
the future
Note.
78 The crisis has brought a variety of issues to the foreground.
These range from new (online) forms of teaching and learning, which
must be quality assured, and fully recognised cross-border mobility,
to guaranteeing adequate safety measures for reopening institutions,
while assuring equity and equal opportunities for all, and in particular
for the most vulnerable groups of students
Note. All these issues are affecting policy
development and funding of higher education, and go from short-term
contingency planning to the discussions about the future model of
international higher education.
79 While the outbreak of the pandemic has been in many ways disruptive
to the entire higher education sector, aggravated by having to implement
the ever-changing government regulations and recommendations, it
has also been a catalyst for lasting and positive change, encouraging
creativity and innovation. Higher education institutions have had
to adapt overnight to new requirements; incorporating online learning
into existing courses, creating new online courses, and adopting
new online platforms and processes to support these sudden changes.
Most notably, the outbreak has accelerated the development of institutions’
online learning capabilities and altered the way institutions communicate
their capabilities and reputations to students
Note.
80 There is a broad agreement amongst academics that online can
replace and complement parts of the regular lectures and lead to
improvements in student performance. At the same time, there is
an appreciation that in-person interaction is an invaluable and
irreplaceable component of teaching and learning. Universities realise
that online education is not an “off the shelf” process. Online
education goes far beyond the digitalisation of on-campus material
and activities. Instead, it requires careful planning and a substantial
investment of resources
Note.
81 Furthermore, among all other challenges, it should be at all
cost guaranteed that the new forms of digitalisation of higher education
do not lead to new infringements of academic freedom and institutional autonomy.
With entire institutions online, a digital record of class discussions
and a bureaucracy already in place to punish individuals for their
views, the potential negative impact on free and open dialogue,
and, in turn, student learning, emotional well-being, maturation
and cognitive gain, is immense. Political opportunists can easily
exploit this permanent, decontextualised record against their opponents.
82 A highly interactive classroom should not be the space where
every student utterance is achieved on a college-run server, regardless
of how supposedly secure that server might be. Students and professors
alike need concrete, credible guarantees that the virtual classroom
does not become like Twitter, where a statement can go viral, ruin
one’s career, and exist on a permanent record.
Note
83 In this context, as university campuses reopen, it is not
only important for universities to learn from each other and share
their ideas and insights for how to deliver education in a safe
and effective manner, but also to reinforce the competences for
democratic culture in the digital environment. There is a further
need to update free speech policies to reflect the digital nature
in the age of pandemic.
11 Final remarks
and ways forward
84 The constitutional and legal de jure protection for academic
freedom varies considerably across the Council of Europe member
States, as does the level of de facto normative
protection. Moreover, there is no agreed conceptual basis or international
law protecting academic freedom. Abuses of de
facto academic freedom do occur, despite legal protection.
Furthermore, there is a considerable lack of knowledge by academics
of their academic freedom rights.
85 Two important conclusions emanate from this report:
- First, that there are severe
deficiencies in the de jure protection
for academic freedom, which are compounded by a high level of de facto abuse of academic freedom,
which goes unchallenged, as few academics are aware of their legal
academic freedom rights.
- Second, that the formal procedures of the organisations
tasked with dealing with abuses of academic freedom within the Council
of Europe member States and beyond are very slow in operation and frequently
ineffectual in outcome.
86 It is not the purpose of the Council of Europe to make good
the deficiencies of the current UNESCO monitoring system, which
appears to be unfit for purpose. Moreover, it is uncertain whether
a rejuvenated version of the UNESCO monitoring system would meet
the specific requirements of the Council of Europe.
87 Policymakers in the Council of Europe and the EHEA/ Bologna
Process are therefore considering setting up a new monitoring mechanism
to better protect academic freedom across the region. This project
could succeed through joint multifaceted co-operation with all key
stakeholders, including the academic and student communities, drawing
on the strengths of different participating organisations, and complementing
their work with other empirical studies such as the Academic Freedom
Index, the latter providing a new relevant global assessment tool.
88 The Council of Europe could contribute to this process at
least with three of its strengths as a key standard-setting organisation
in Europe and beyond:
89 First, it should intensify its information gathering role,
relying on its national expertise and networks. Much work has already
been undertaken on examining the de jure constitutional/legislative
protection and creating research instruments to measure the de facto normative protection for
academic freedom in the EU member States, which the Council of Europe
could extend to include all its own and EHEA States. In this way, it
would be possible to create a “barometer” of academic freedom in
Europe, which could be easily updated annually, by making incremental
changes in light of changes to legislation.
90 Second, the Council of Europe should liaise with member States
to create a directory of academic rights in Europe, with the aim
of disseminating legal advice and better information for all academics,
to enable them to protect their academic freedom rights.
91 Third, the Council of Europe has a long-standing role and
expertise in treaty implementation monitoring. Its lead role should
be used to determine, within the work of the Steering Committee
for Education Policy and Practice (CDPPE), what remit, responsibilities,
organisational structure and operational system would be most appropriate
and effective, in order to create a body to (inter
alia) monitor abuses of de
jure and de facto academic
freedom, and achieve speedy restitution of academic freedom, when
abuses occur, within the universities of the member States of the
Council of Europe.
92 With respect to
de jure protection,
the CDPPE should be encouraged to assist the Council of Europe to draft
a Convention on academic freedom or alternatively consider drafting
an additional protocol on academic freedom to the European Convention
on Human Rights (ETS No. 5). With respect to the protection of de
facto academic freedom, the intention would be to:
- monitor violations of academic
freedom in the member States of the Council of Europe;
- make recommendations to the Committee of Ministers on
restorative action;
- develop support materials for use in different nations
and provide workshops and seminars.
93 I find it apposite and fitting that the Council of Europe
member States should take a determined and pro-active lead in defending
academic freedom. Moreover, it is likely that any policy initiative
undertaken by the Council of Europe to protect academic freedom
will have global credibility and political resonance and will be respected
(and probably emulated) in the wider world.
94 Finally, international parliamentary bodies also have a role
to play in helping national parliaments improve the quality and
competitiveness of higher education in their countries. If significant
deficiencies occur, national parliaments should assume their oversight
role and undertake inquiries into the cause or causes of infringements
and develop appropriate policy remedies. A parliamentary dimension
should therefore not be ignored in this process. This report is
specifically meant to contribute to the discussions of the EHEA
Ministerial Conference in Rome on 18-20 November 2020. However,
the Parliamentary Assembly itself should have a more permanent monitoring
role by including academic freedom and autonomy in the systematic
periodic monitoring process of the obligations and commitments of
member States even prior to the Organisation adopting a legal instrument
in this regard, and, in particular, include the situation of academic
freedom and autonomy within the ongoing preparation of reports on
Azerbaijan, Hungary, the Russian Federation and Turkey.
