"Measuring" the erosion of academic freedom as an international human right: a report on the legal protection of academic freedom in Europe.

• Author: Beiter, Klaus D.
• Position: V. The Legal Protection of the Right to Academic Freedom in Europe F. Overall Results through VII. Violations of the Right to Academic Freedom and the Right to Education, with footnotes and tables, p. 666-691

F. The Legal Protection of the Right to Academic Freedom in Europe: Overall Results

The following two tables provide an overview of the total scores and results in the main categories of assessment and further an overall country ranking for the legal protection of the right to academic freedom in Europe.

6. ANALYSIS AND OBSERVATIONS: THE STATE OF HEALTH OF THE LEGAL PROTECTION OF THE RIGHT TO ACADEMIC FREEDOM IN EUROPE

   The assessment has shown that by and large the twenty-eight EU member states formally ascribe to the value of academic freedom. In general, they have ratified relevant international agreements providing protection to the right to academic freedom (ICCPR, ICESCR, ECHR, etc.) and give recognition to the right (or related rights) at the constitutional level. Table 1 reflects countries to have scored an average of 78 percent in this category. Also at the level of HE legislation, academic freedom enjoys express recognition in most HE systems, Table 2 showing that an average of 59 percent compliance was achieved in this category. There are, however, some HE systems--those of Denmark, Estonia, Greece, Hungary, Malta, Slovenia, Sweden, and the United Kingdom--whose HE legislation does not or only inadequately refers to academic freedom. Whereas all HE systems, in a more or less satisfactory manner, expressly provide for the autonomy of institutions of HE in their HE legislation, rights of self-governance of academic staff and tenure in the sense of employment stability are accorded express recognition in fifteen and eight HE systems, respectively, with a rating of "full compliance" having been awarded in only three cases and one case, respectively.

   If one turns to analyzing the way the right to academic freedom has been concretized in the HE and other legislation of the states concerned, it will be noted that performance levels are far less satisfactory than those identified in view of its formal protection. The average score for institutional autonomy lies at 46 percent (Table 3), that for academic self-governance below that at 43 percent (Table 4), and that for job security (including "tenure") at a mere 37 percent (Table 5). Many commentators would perhaps disagree and consider institutional autonomy to enjoy a higher level of legal protection than is borne out here. However, as has been stressed above, "institutional autonomy" in the context of this study means "institutional autonomy as limited by academic freedom and human rights." HE institutions in many of the HE systems assessed do possess wide competences to include external members in their governing bodies, to levy and decide on the amount of study fees, to dismiss academic staff for reasons of "redundancy," and to freely engage in collaborative activities with private industry to acquire funding subject to only limited public control. Such unbridled powers, however, are not concomitant with institutional autonomy--rather, they expose a misinterpretation of the concept. Table 3 shows Finland and the United Kingdom to be the top performers in the category "institutional autonomy." At the bottom of the table is Hungary, Hungarian HE legislation reflecting a paternalistic role of the state in regulating HE. (261)

   The autonomy of an institution of HE, moreover, cannot be divorced from the guarantee of academic self-governance. HE institutions, which possess wide powers, but in which the academic community--encompassing academic staff, but also students--does not retain the competence to sufficiently participate in the taking of decisions directly or indirectly having a bearing on science and scholarship, can at most be seen to be nominally autonomous, and they are certainly not in accordance with the standards of the UNESCO Recommendation. The assessment has revealed that the HE legislation of European states inadequately protects the right of "sufficient participation," which is increasingly being eroded by promoting an "alternative model." At the institutional level, states achieve an average score of just 49.4 percent (the percentage average of the sum of the scores for indicators under D.2.) and, at the faculty and departmental level (where a large-scale failure to regulate aspects of self-governance whatsoever by way of legislation may be observed), merely 35 percent (the percentage average of the sum of the scores for indicators under D.3.) for their implementation of the right to self-governance.

   Legislative changes adopted in the past five to ten years, in some instances also before that, have accordingly witnessed the powers of senates (or their equivalents) having been restricted to purely academic matters (or worse, senates (or their equivalents) having been replaced by "committees of academics," often presided over by non-elected administrators); the introduction of institutional boards with strategic decision-making powers, composed of various stakeholders, many external and representing government and corporate interests (academic staff, in the worst case, not being represented and/or having no control over candidates appointed); (262) and the strengthening of the executive powers of rectors and deans and departmental heads, who frequently come from outside the institution, academic staff not being able to adequately participate in their election or dismissal. But also generally, governance structures in HE institutions increasingly exclude academics, recruiting instead a new "caste" of personnel with administrative, but little or no subject-specific academic expertise, responsible for "managing" HE institutions and their affairs. (263) Interestingly, states such as Bulgaria, Croatia, and Romania that are not yet in the tow of Bologna reforms perform best in the category of "self-governance." The United Kingdom, a top performer on "institutional autonomy," fares worst on "self-governance."

   Institutional autonomy is also limited by the requirements of security of employment, including "tenure or its functional equivalent, where applicable." HE institutions in Europe, however, in "managing" their affairs, have come to view their academic staff as strategic capital. If staff are not "useful" in accordance with "strategic objectives" anymore, they forfeit their right to remain with the HE institution concerned. The assessment has shown that states achieve an average score of just 47.3 percent (the percentage average of the sum of the scores for indicators under E.l.) and merely 43.8 percent (the percentage average of the sum of the scores for indicators under E.2.) for the assurance of stable employment in terms of the duration of contracts of service and the protection against dismissals on operational grounds, respectively.

   While the premise in academia used to be that "the university does not employ academics, it facilitates their work," this notion appears to be absent in HE institutions today. As Rebecca Boden and Debbie Epstein point out, "[a] facilitator provides resources and eases one's path towards one's goals. But an employer regards employees as resources--along with other inputs--to be managed to achieve organizational objectives." (264) The "HE institution as facilitator" notion underlies the UNESCO Recommendation and its conception of the right to academic freedom. States in Southern and Western Europe (Greece, France, Italy, Spain, and Portugal) are among the "top" performers in the category "security of employment." Only seven states altogether, however, achieved a score above 50 percent.

   Finally, turning to Table 7, showing the overall country ranking on the legal protection of the right to academic freedom in accordance with the assessment, it will have to be conceded that it is difficult to identify clear trends. One HE system--that of North Rhine-Westphalia (Germany)--scored 71 percent, eight scored between 60 and 69.9 percent, (265) twelve between 50 and 59.9 percent, (266) three between 40 and 49.9 percent, (267) and six between 30 and 39.9 percent. (268) HE systems that used to be steeped in the Humboldtian tradition with its emphasis on Lernfreiheit (freedom of study), Lehrfreiheit (freedom of teaching), Forschungsfreiheit (freedom of research), and further the Einheit von Forschung und Lehre (the unity of research and teaching)--those of Austria, Bavaria (Germany), and North Rhine-Westphalia (Germany)--still seem to benefit from this in terms of their position in the overall ranking. (269) The HE systems of Southern and Western Europe--those of France, Greece, Italy, Portugal, and Spain--also appear in the upper half of the table. The HE systems of the Benelux states--those of Flanders (Belgium), Wallonia (Belgium), Luxemburg, and the Netherlands--feature in the lower half of the table, as do those of Scandinavian countries--i.e., the HE systems of Denmark, Finland, and Sweden. (270) Also, the HE systems of Anglophone Europe--those of Ireland, Malta, and the United Kingdom--are found in this part of the table. The picture is rather diffuse for the Baltic states, as it is for countries of Eastern Europe. The HE systems of Latvia and Lithuania lie on positions ten and eleven, respectively, but that of Estonia in place twenty-eight. Croatia lands on the second place, Slovenia on the nineteenth. Bulgaria lands on the fourth place, Slovakia on the ninth, Romania on the seventeenth, and the Czech Republic on the twentieth.

   The overall average lies at 52.8 percent--demonstrating that the state of the legal protection of the right to academic freedom in Europe is one of "ill-health." While this is disappointing in itself, what is a matter of greater concern is that, when compared to the situation that existed prior to the changes in HE legislation effected during the last ten or more years in the states assessed, (271) a downward trend in protection levels may be observed. The concept of institutional autonomy is increasingly being misconstrued as autonomy not subject to the requirements of academic...