Just how severe an impact has September 11 had on academic freedom? The answer depends on whom you ask—and to some extent on when you ask. In the weeks immediately following the attacks on the World Trade Center and the Pentagon, perceptions varied. The conservative American Council of Trustees and Alumni charged that "college and university faculty have been the weakest link in America's response" to the attacks. "When a nation's intellectuals are unwilling to defend its civilization," the council asserted, "they give comfort to its adversaries." In a different vein, the Chronicle of Higher Education observed about a month after September 11 that "professors who criticize the U.S. government or society find little tolerance of their views," adding that faculty members "across the country have found their freedom to speak out hemmed in by incensed students, alumni, and university officials."
The same curious contrast persists a year and a half after the tragic attacks. The American Studies Association cautioned in early February 2003 that "free and frank intellectual inquiry is under assault by overt legislative acts and by a chilling effect of secrecy and intimidation in the government, media, and on college campuses." Some months earlier, however, the National Association of Scholars had questioned the motives of scholarly groups that raised concerns about academic freedom after September 11, charging that "many who have become outspoken defenders of campus dissidence now that radicals are among those threatened, have long been silent about the mistreatment of other brands of dissent."
Paradoxically, such dissonant views may be far closer to consistency than the words themselves would suggest. At least three things can be said with growing confidence about what has happened in the academy since September 11. First, academic freedom has indeed suffered as a result of government measures taken in the war against terrorism. Second, the impact of the governmental response has been less severe than many of us would have feared in the immediate aftermath. Third, the most important and troubling consequences of the war against terrorism differ from those that might have been anticipated a year and a half ago.
The AAUP's Role
The AAUP has been chief among the academic groups that has urged vigilance, but doubted that the sky was falling. At its early November 2002 meeting, the AAUP's Committee A on Academic Freedom and Tenure issued a brief but reassuring statement. Although its members were "aware of a few disturbing lapses in academic freedom," the committee declared itself, on the whole, "pleased . . . that the quality of discussion and debate, the commendable degree of interest, and the civility shown by members of the higher education community . . . have boded well for academic freedom and the pursuit of the common good." The statement closed by noting the "need to maintain a close watch on the situation."
Pursuant to the call for vigilance, the AAUP several months later created the Special Committee on Academic Freedom and National Security in Times of Crisis. Among its members are the chairs of the two parent committees within the AAUP structure: the standing Committees on Academic Freedom and Tenure and on Government Relations. Other members include faculty active in scholarly groups as diverse as the Society for Middle Eastern Studies and the American Association of Microbiology. The charge to the special committee was open-ended, and is in fact still evolving.
The reasons for convening such a group at this perilous time are several. Amid the discordant claims advanced by contending groups across the political spectrum, and the welter of often-confusing reports, it seemed appropriate for the AAUP to gather information, and to reflect upon what such a group could learn, before issuing statements that might well prove premature. Second, of all organizations within the academic community that should take the lead in providing accurate and timely information about threats to academic freedom, the AAUP seemed preeminent. Third, memories from a half-century earlier cast long shadows over prospects for the early-twenty-first century; during the McCarthy era, the AAUP (along with many other civil liberties groups) failed to exert the level of leadership that the academic community would now expect of such a consistently protective organization.
The committee held its first meeting in mid-November 2002. From that meeting emerged a working plan for the ensuing year and a half, during which the committee would continue to gather information, and would begin to address the most pressing challenges to free inquiry and academic freedom posed by the war against terrorism. Although the areas of concern to the committee form a rapidly moving—and subtly shifting—target, six primary topics drew the committee's attention: adverse personnel actions against individual professors; government policies that might impair teaching, research, and scholarly communication, including international collaboration among scholars; government policies affecting the academic freedom of graduate students, visiting scholars, and others within the academic community; government policies that impair academic freedom by denying or curbing access to information vital to scholarship; government policies or statements that could chill the climate for free inquiry and scholarship; and institutional actions or policies (whether or not governmentally compelled) that threatened to inhibit or impair free inquiry and academic freedom at the campus level. Soon after the initial meeting, members of the committee divided up these topics, anticipating a late spring meeting and a preliminary report to the parent standing committees and the larger academic community.
An Elusive Quarry
The actual impact of many measures that evoke predictable concern from the academic community has proved surprisingly elusive. For example, certain provisions of the USA Patriot Act, adopted in late fall 2001, clearly do not bode well for free inquiry. Yet it remains surprisingly difficult to quantify the precise impact of those provisions, such as enhanced government surveillance capacity, partly because the responsible federal agencies have not yet been compelled to reveal precisely how they have exercised such powers.
A classic example of the elusive quarry is the greatly increased federal authority to demand certain "business records," a term that potentially includes lists of materials a particular borrower has taken from, or obtained through, a university library, bought from a campus bookstore, or ordered from a university press. Although there is limited anecdotal evidence that such powers have been used to gather information about scholarly research, the data remain only anecdotal; persons (for example, librarians and bookstore personnel) to whom such demands have been made are barred by the Patriot Act from disclosing any such encounter with law enforcement. Indeed, one national association advised its members they were not even at liberty to report such demands to the university's attorney—a clearly erroneous, if understandable, case of overreaction. Obviously, it will be difficult, if not impossible, to report with any accuracy the extent to which the "business records" provisions of the Patriot Act have affected academic freedom—save for the unlikely prospect that the responsible agencies either volunteer such information, or a court compels its disclosure. Far more probable is that conjecture, and vague apprehension, will for some time represent the limit of feasible inquiry.
Not all the target areas of the committee's inquiry are quite so elusive. On the matter of adverse faculty personnel actions, for example, the data are both public and reassuringly modest. A rash of proposed sanctions against professors who spoke out in the days immediately after September 11 either failed to materialize, or took a milder form. The only continuing cause célèbre has been the case of University of South Florida computer science professor Sami Al-Arian. After initially declaring that it would dismiss Al-Arian because of reaction to partisan statements he had made about the Middle East, and an appearance on national television, the university filed a suit seeking a declaration it could terminate his tenured appointment with legal impunity. A federal judge dismissed the suit, relegating the dispute to a campus-based grievance procedure. Meanwhile, Al-Arian remained on indefinite suspension with pay, in a sort of academic limbo. The AAUP sent an investigating committee to the campus soon after the university's initial action. (The committee's report appears elsewhere in this issue.) Then, in February of this year, the case erupted again. Al-Arian was indicted, along with several others, on charges that he had raised money for the Palestinian Islamic Jihad. A week later, the University of South Florida terminated his tenured faculty appointment, citing the federal indictment, though insisting that dismissal would have occurred even without federal criminal charges. The AAUP expressed its continuing concern that, whatever the merits of the case, the university had never filed formal charges or granted any form of pretermination hearing.
Short of adverse personnel actions, a few skirmishes have broken out involving controversial campus events and visitors. Here again, the response of the academic community seems to have exceeded hopes and expectations. The University of North Carolina at Chapel Hill did not back down under intense pressure to withdraw a controversial book about Islam that it had asked all incoming first-year students to read. Both UNC and the University of Michigan stood firm against threats and lawsuits that sought cancellation of campus conferences about Middle East politics, one of which had originally scheduled Al-Arian as a guest speaker.
Two universities in Colorado refused to withdraw invitations to Palestinian spokesperson Hanan Ashrawi, even after a prominent legislator called her imminent appearance "a slap in the face to all who have died and suffered as a result of 9/11." Harvard wavered about an invitation to Irish poet Tom Paulin after learning about his publicized view that "Brooklyn-born Jews" who had settled in the West Bank "should be shot dead" since he saw them as "Nazis, racists," for whom he felt "nothing but hatred." But in the end that invitation was reinstated.
Less happy was the outcome of a similar incident at the College of the Holy Cross, where a British cleric scheduled to speak about Zionism and Christianity was disinvited after a faculty protest of his anti-Semitic statements. To what extent one such discordant note yields conclusions about the condition of academic freedom remains to be seen; the early (and obviously partial) returns suggest that, in such respects, colleges and universities have responded appropriately, and with respect for academic freedom, to the dramatically changed conditions that followed September 11.
Subtler forces and pressures on the nation's campuses have also created what many perceive as an unusually "chilly" or hostile climate, within which conscientious faculty and students may be wary of speaking as freely as they would have spoken before September 11. There is understandable concern about the growing number of Internet Web sites that monitor campus views and voices, targeting what the sponsors perceive as the unorthodox or deviant. Campus Watch, for example, systematically cites professors whose views it believes to be unacceptably hostile to Israel. Its founder, Daniel Pipes, became persona non grata on at least one North American campus because of the Web site's apparent bias. Another site, NoIndoctrination.org, invites students to post instances of what they see as political bias in the classroom. While such initiatives are of course nongovernmental—indeed, they almost certainly involve an exercise of their sponsors' freedom of expression—they bear close scrutiny as an inescapable part of a changing and increasingly worrisome campus environment. Especially troubling in this climate is the rising tension between pro-Palestinian and pro-Israeli activists, which has at times transcended the robust debate and healthy engagement in which the American academy justifiably takes pride.
Curbs on Research and Foreign Students
It is in the realm of research and the treatment of foreign graduate students that the most ominous signs have begun to emerge. University research administrators report, for example, that the number of government contracts containing restrictive clauses appears to be steadily increasing. One type of constraint that has evoked special concern imposes strict limits upon, or even bars altogether, the participation of non-U.S. citizens in projects involving classified data, as well as demanding that the grantee institution submit "employment eligibility documentation" for foreign researchers, even those working on unclassified projects.
Also troubling in recent months has been the steady rise in the number of defense-related research contracts that require submission for prepublication review of documents containing any information from unclassified contracts financed by the U.S. Department of Defense; universities must allow sixty days for defense department review of any proposed publication or disclosure, during which period the department can oppose the planned release. Under some such provisions, department approval is required even before posting research findings on electronic bulletin boards, sending them over unsecured e-mail systems, or posting them elsewhere on the Internet.
Of course, such restraints on research are not wholly a creature of September 11, for surely some such delays and encumbrances hampered the process of inquiry well before that fateful date. But while we may not yet have precise data on the frequency, or even the ultimate effect, of such curbs, reliable anecdotal evidence suggests that they have been imposed more often and more freely than was the case before September 11. Thus, at least in degree if not in kind, there is evidence that freedom of inquiry has suffered from tighter regulation of the scientific process.
Clearly, life has recently become much more difficult for students from certain parts of the world. Last December, several students in Colorado who were simply reporting to immigration officials in compliance with new strictures suddenly found themselves in jail, charged with enrolling in fewer than the required twelve credit hours. Meanwhile, a foreign student in Florida was jailed for reporting a day late, despite having a valid visa. The previous day, on which he was supposed to report, was the completion date for a major class project on which his grade (and thus continued eligibility) depended. Such incidents, the full extent of which needs to be better understood, not only disrupt the academic experience of the affected students, but threaten to discourage from U.S. study many other foreign visitors, including those from parts of the world not believed to pose any risk to domestic security.
The basic approach to the monitoring of foreign study in this country is in process of major change. Although the full implementation of the new and far more intrusive process—SEVIS (Student and Exchange Visitor Information System)—has been deferred until the start of the 2003-04 academic year, it is already reliably reported that the time and attention of most foreign student advisers have been largely preempted by the new duties already imposed upon them, and soon to be intensified, in response to concerns about terrorism and national security.
In most of the areas to which the special committee has turned its attention, remarkably little hard data exist even a year and a half after the catalytic events of September 11. Even where some accurate information is available, its implications are often ambiguous. Not every extension of the time required to process grant applications, nor every new screening step imposed on certain investigators, nor every new burden upon those who recruit and enroll foreign students necessarily causes a loss of academic freedom. What is needed, once the raw material is in hand, is a careful analysis of which policies, practices, and procedures genuinely do impair free inquiry within the academy, and which added burdens may be annoying or cumbersome but are not per se harmful to academic freedom. Sorting out among these options will require much time and scrutiny on the part of the special committee in the months ahead.
Finally, we need to be sensitive to the risk of self-inflicted pain. Not everything that has been burdensome since September 11 is the government's fault. I noted earlier the national association that told its members they could not even call their lawyers when business records were demanded under the Patriot Act; there have been other aberrations as well. Science magazine editor and former Stanford University president Donald Kennedy noted in a recent editorial that institutional response to ambiguity in the regulations that control exportation of sensitive materials and processes "can reach silly extremes. . . . Editors of some journals have been advised by attorneys that under current interpretations . . . they may receive manuscripts from banned countries but may not supply editorial advice or guidance because that would constitute 'providing a service.'" Such a ruling, warns Kennedy, is simply "bad advice."
Perhaps the classic case of such overreaction was the initial response of student affairs personnel at the University of California, San Diego, to the appearance of links to a revolutionary brigade in Colombia on the Web site of a radical campus student group. The UCSD administrators told the group they must immediately remove any such links, invoking a provision of the Patriot Act that bars providing "material support or resources" to a "foreign terrorist organization." There was an immediate outcry on campus and far beyond. A few days later, the powers in La Jolla reconsidered and relented. The vice chancellor for student affairs explained that "linking is free speech under the First Amendment" and added apologetically, "we went too far in mentioning links." The USA Patriot Act, properly interpreted, poses enough risks to academic freedom without contriving or fantasizing others. Prominent among the risks of this anxious period is the one of which the cartoon character Pogo wisely warned, during the darkest days of the McCarthy era, that "we have met the enemy and it is us."
Robert O'Neil is professor of law and former president of the University of Virginia, where he directs the Thomas Jefferson Center for Protection of Free Expression. He is also chair of the AAUP's Special Committee on Academic Freedom and National Security in Times of Crisis.