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a.
The disjunction between university autonomy and academic freedom in the EHEA.
Diverging paths of development of university autonomy and academic freedom can be traced looking into the existence, behaviours and evolutions of any organisation engaged in the defence, promotion, codification and regulation of the two principles, associated policy discourses and policy initiatives, and of course actual practices.
The first observation is the absence of European-wide or national organisations explicitly and effectively dedicated to the promotion and defence of academic freedom. Various organisations in Europe, for example, university associations and courts, do occasionally play a role in the defence of academic freedom. These organisations, however, are not dedicated to or focused on academic freedom, their role is uncertain (difficult to predict) and they are most often inefficient and rarely significant vis-à-vis academic freedom. This situation in the area of academic freedom in the EHEA is different from the U.S., for example, and also different from the situation of autonomy in Europe.
In the United States, the American Association of University Professors (AAUP), established in 1915, remains a powerful organisation until today, looming large over the entire higher education system in the U.S. regarding the definition, promotion, defence and practice of academic freedom. The principles on academic freedom and academic tenure, first put forward in the 1915 AAUP Declaration of Principles, modified later and endorsed also by the Association of American Colleges (currently the Association of American Universities and Colleges—AAUC), remain the most important reference for academic freedom in the United States. It is a powerful and influential form of codification of academic freedom, which bears, beyond conceptual and policy references, undeniable legal value, as evidenced by many court cases.
There had been no similar codification of academic freedom in Europe. None has emerged after 1999–2000 as part of the Bologna-stimulated developments either. There had been no organisation in Europe to represent the counterpart of AAUP earlier and none has been created since 1999–2000.
In 1988, the rectors of several European universities adopted the Magna Charta Universitatum, and a Magna Charta Observatory was created,Footnote 5 which could have played a role in Europe similar to that of AAUP in the U.S. Started as a European initiative dedicated both to academic freedom and institutional autonomy, Magna Charta has been signed by now by over 800 universities from over 80 countries from all parts of the world. Although Magna Charta Universitatum is a European document, explicitly identified as such in the text, this initiative has acquired a much broader international scope. Even more important for our discussion here are four additional aspects related to Magna Charta Universitatum and Observatory. First, the Magna Charta Observatory, as an institution, is a devoted guardian of the Magna Charta and its principles. However, it lacks the authority to effectively promote, let alone enforce, them. Second, the Magna Charta as a document serves as an important, worldwide by now, but overly general reference to a set of values. As an organisation, the Magna Charta Observatory is not operational in the way the AAUP or AAUC are. It has very limited resources and staff. It does not have a clear mandate to engage operationally in the defence of academic freedom, for example by taking up individual cases. Third, the Magna Charta Observatory has undertaken some good but limited work in promoting these values mainly through conferences and publications. It lacks not only human resources but also the tools to do more. Fourth, it is dedicated primarily to institutional freedoms, focusing almost all its work on university autonomy rather than academic freedom.
Unlike in the case of academic freedom, a very powerful actor has emerged in Europe and it asserts great influence in the definition, operationalisation, measurement and promotion of university autonomy: the European University Association (EUA). Since its establishment in 2001 as the collective voice of European universities, EUA has played a key role, in partnership with other organisations, in the design and implementation of key elements of the European Higher Education Area, such as European standards and guidelines for quality assurance,Footnote 6 or the European qualifications framework for higher education,Footnote 7 to mention only two. Today, we would argue, EUA is one of the most important actors in European higher education. Like all other major actors in the EHEA, however, EUA has paid little attention to academic freedom. In turn, it has made, possibly, the most important contribution to the definition and operationalisation of institutional autonomy in Europe, to the advent of a European notion of university autonomy as we experience it today, and which is probably here to stay for years to come. Three EUA hallmark reports on university autonomy in Europe published in 2009, 2011, 2017, a related report on autonomy country profiles published in 2017, and an interactive online toolFootnote 8 are formally only about monitoring, comparing, and measuring different elements of institutional autonomy in around 30 European higher education systems (Estermann and Nokkala 2009; Estermann et al. 2011; Pruvot and Estermann 2017; European University Association 2017). In reality, this series of reports has put forward and codified a new, European conception of university autonomy. As is often the case in public policy, an exercise in measuring has become an exercise in definition and codification. The EUA Autonomy Reports and the conception of university autonomy they foster have become very influential in Europe with individual higher education institutions, the media, national authorities and supra-national European actors. Moreover, this conception has become influential in other parts of the world as well.
We argue that the EHEA has “codified” institutional autonomy. Or, to be more exact, EUA has codified university autonomy in the EHEA, whether it intended to do so or not.
We may ask why it is relevant to expect developments in the EHEA in both areas, university autonomy and academic freedom, and perhaps synchronised, as opposed to diverging, paths. This is an important question for several reasons. First, as discussed above, academic freedom and university autonomy are intimately related concepts. They contribute to defining the university as an institution and represent key conditions allowing its operation as a particular, even exceptional, type of institution. Universities cannot pursue and fulfil their mission in the absence of a certain degree of freedom, or freedoms, both institutional and individual, which need to be codified and supported by regulations. Second, as a new space for dialogue and practice in higher education, the EHEA brought about new remarkable ambitions (e.g. supporting the emergence of a European demos and ethos; Matei 2015), new epistemologies and new regulatory realities for higher education, including the emergence of the EHEA itself as a new entity for higher education governance. All these advances could have been expected to result in, and even require, new developments in both academic freedom and university autonomy. For example, the new role of the state in view of the emergence of a supra-national, European-space for higher education governance could have been expected to result in new codification, regulations, tools and institutions at the European level in defence of the specific responsibilities and freedoms of the university, including academic freedom and institutional autonomy. So far, this has succeeded only for autonomy—which is not to say that no attempts have been made in the area of academic freedom. We can highlight the adoption of the Magna Charta Universitatum and the creation of the Magna Charta Observatory, discussed above, or the proposal to adopt a European Union definition of academic freedom (Karran 2009). The later initiative might be worth revisiting. The Council of Europe, an international organisation (different from the European Union) created in 1949 to uphold human rights, democracy, rule of law in Europe and promote European culture (47 member states at present) has endeavoured systematically to promote and defend both academic freedom and university autonomy. For example, the Parliamentary Assembly of the Council of Europe adopted a Recommendation in 2006 referring to the Magna Charta Universitatum and addressing a specific situation of restriction of academic freedom emerging at that time in Belarus. The Recommendation calls on the member states to assume responsibility for the protection of academic freedom and institutional autonomy (Council of Europe 2006). A more recent document from the Council of Europe points even more specifically and forcefully to the responsibility of public authorities for academic freedom and institutional autonomy as being directly linked with democracy, human rights and the rule of law (Council of Europe 2012). The European Union has also tried to promote a European attitude and action with regard to academic freedom. In the case of the attacks against CEU discussed briefly above, the European Commission initiated legal action against the Hungarian Government and deferred the matter to the European Court of Justice for a legal decision (European Commission 2017). One of the main arguments in the motivation of the Commission for turning to the Court was very specifically its assessment that the Hungarian Government, through its actions following the adoption of the so-called “Lex CEU” (the revised Hungarian Higher Education Law of 2017) acted against the European legislation, including European legislation on academic freedom. Interestingly, the Hungarian Government claimed in its responses to the Commission that legislating on higher education is a matter of exclusive national competence and that there is no European legislation on academic freedom anywayFootnote 9 (Hungarian Government 2017).
We see in these examples that attempts to develop new definitions, regulations and practice of academic freedom in the EHEA have been made. They represent perhaps a recognition of the need to act in this area. Only that these attempts have been few, not significant and fundamentally unsuccessful.
When discussing the lack of European or EHEA-wide codification in the area of academic freedom, we do not ignore the fact that some elements of codification for both academic freedom and university autonomy do exist (Beiter et al. 2016). They include national constitutions, many of which contain provisions regarding academic freedom (18 European countries) and institutional autonomy (15 countries, Beiter et al., ibid). National higher education legislation also occasionally includes provisions about one, the other, or even both areas (Beiter et al., ibid). In addition, certain international treaties and other documents include provisions that may apply, often indirectly and without binding legal force, to academic freedom and institutional autonomy at the national level. For Europe, the most important international references are the European Convention on Human Rights (adopted in 1950, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both of 1966) and the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel (1997). In a very few cases, national and European courts have passed verdicts on matters touching on autonomy and academic freedom, thus contributing in this way some new form of codification.
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b.
Development of institutional autonomy at the expense of academic freedom?
More diverging paths become visible when we assess whether developments in Europe in these two areas since 1999–2000 constitute progress. We argue that the Bologna Process and the emergence of the EHEA created conditions for the advancement of university autonomy, both conceptually and in practice. This was not the case with academic freedom.
The creation of a transnational, European-wide space for higher education has contributed to reducing the grip of the state on universities in most countries of the continent. The Bologna Process and the EHEA, as well as the ERA, brought about new transnational cooperation possibilities; European—as opposed to only national regulations and organisations (such as with regard to accreditation, for example); and the availability of European funding, directly to higher education institutions, as opposed to only national funding. All this has made possible for universities to take some distance and enjoy new freedom from their governments. The EHEA has indeed created a new space for more autonomous operations of European universities.
In the same period, the European Union also put great emphasis on developing university autonomy. As part of its modernisation agenda for higher education, the European Commission insisted that European universities have insufficient autonomy, mainly because they are “prisoners” in the hands of the state and subject to undue control by the state. The Commission also took issue with the prevalently national principles in the organisation of higher education in Europe. It considered that the lack of autonomy and leaving universities at the hand of national states are counterproductive and must be overcome. This is directly stated in one of the first documents outlining the parameters of the modernisation agenda:
Member States value their universities highly and many have tried to “preserve” them at national level through detailed regulations organising them, controlling them, micromanaging them and, in the end, imposing an undesirable degree of uniformity on them. (European Commission 2006, p. 11)
In line with global trends continuing from the previous periods, many governments in Europe introduced changes to national regulations and practices that brought about more institutional freedom for universities in managing their internal affairs, for example by replacing line budgeting with block grants. This may be interpreted as increased autonomy. In reality, however, the situation is more complex. To understand it, we need to go back to the characterization of autonomy as a multidimensional concept. We will find out in this way that, as documented by existing research, there has been progress on certain dimensions of autonomy, at least in some countries, but not on others and not in all countries (de Boer and Jongbloed 2012; Pruvot and Estermann 2017).
A comparative empiric study of university governance in several European countries (de Boer and Jongbloed 2012) found that many decisional prerogatives have indeed been devolved by the state to universities themselves, which might appear as increased autonomy. In another study, Enders et al. found increased regulatory autonomy for universities in the Netherlands in concert with increased institutional performance expectations from the state (Enders et al. 2012). At the same time, however, the state has preserved important control functions, in particular with regard to defining the functions and objectives of autonomy itself. The conclusion is that, while universities in the countries studied have indeed acquired “managerial autonomy” or “regulatory autonomy” (de Boer and Jongbloed 2012; Enders et al. 2012), they continue to lack what other authors would call strategic autonomy (Abrami et al. 2014; Zhao and Hayhoe 2014). Universities have more freedom to manage their internal operations than before, but not much freedom to decide what is the purpose of these operations and perhaps simply what universities are for. This remains largely a central government prerogative. We can speak of a new type of diverging path here: progressive developments in certain dimensions of autonomy but no or even regressive developments (new restrictions) in other aspects.
Additional diverging paths become visible when we look at differential developments in institutional autonomy and academic freedom. The new transnational space created by the Bologna Process has indeed contributed to freeing universities from “captivity in the hands of the state”, at least in some dimensions, thus making more freedom for the institutions (autonomy) possible. At the same time, it is not clear whether this process was accompanied by a corresponding progress in terms of freedom for the individuals in universities (academic freedom). It has been argued that rather the contrary has happened: universities as institutions have acquired some more freedom or freedoms, but the freedom or freedoms of academics have been reduced. Beiter et al. (2016) discuss the increased freedom of university with regard to hiring, promoting and retaining academic and administrative staff (staffing autonomy, in the EUA classification). The increased autonomy of universities to hire academic staff on limited and short-term contracts, in particular, made possible by new national regulations is interpreted as a departure from the previous tenure or tenure-like mode of appointment, resulting in limitations to academic freedom, at the same time with the expansion of university autonomy (Beiter et al. 2016).
To give another example, universities in most countries of the former Soviet Union have experienced increased levels of autonomy—academic autonomy in particular (Sagintayev and Kurakbayev 2015), although at a different pace. They were allowed to decide internally on an increasingly larger part of the curriculum, moving away from the previous centralised decision-making reflected in the so-called state-standards of the Soviet times. This meant more freedom for the institution but not necessarily more freedom for individual academics and students.
There are many situations of restriction of academic freedom in the EHEA during this period, by way of regulations and administrative action, and even extreme attacks in individual cases, such as those in Turkey in the wake of the 2016 coup, using as an argument, or pretext, the alleged involvement of students, academic and university administrators (Caglar 2017) in a coup d’état attempt in 2016. Unfortunately, there is no systematic research available on the evolution of academic freedom in the EHEA, not even simple inventories of individual cases of restrictions or attacks on academic freedom.Footnote 10 Existing evidence is more or less anecdotic. Nevertheless, if academic freedom and university autonomy are facets of a necessary principle or condition in higher education (freedoms in and for the university), these examples alone point clearly to divergent paths of developments between academic freedom and university autonomy.
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c.
Disjunction between instrumental aspects and moral or human rights aspects.
We discussed in the previous section diverging paths in the evolution of academic freedom and university autonomy in the EHEA. We propose a possible explanation for this situation, which has to do with another, broader path in university governance.
There has been a strong tendency during this period to focus on what we propose to call instrumental aspects of governance, at the expense of moral aspects, or related to rights. Research shows that policymakers, other external stakeholders and universities themselves tended to focus on instrumental aspects of governance, in search for increased institutional efficiency, or performance (usually externally defined):
Over the last decades many national reforms have been initiated in Europe with the aim of strengthening the executive capacity of public universities. The reform agendas had a number of items in common, including the enhancement of institutional autonomy, the professionalisation of institutional leadership and administration, and the introduction of more competitive, performance-oriented funding models (Gornitzka et al. 2017, p. 274)
Enders et al. point to the emergence of “autonomy policies for strengthening managerial discretion and internal control of universities that are combined with regulatory policies for external control that steer organisational choices”. They found that “regulatory autonomy (…) aims at aligning universities more closely with governmental goals and improve respective performance” (Enders et al. 2012, p. 5). This trend could explain other significant developments in university autonomy and academic freedom in the EHEA.
First, it could explain the relative disregard for academic freedom. Academic freedom is more directly linked to moral aspects, rights and other freedoms, and its link to institutional performance is subtler and more difficult to grasp and assert. University autonomy, in turn, is more directly prone to be put to the service of performance, in particular as seen from a public policy perspective.
A broader reorientation of the university has taken place in the age of the knowledge society everywhere, not just in the EHEA, leading to its gradual transformation into something more similar to other organisations (thus not that exceptional). Like other organisations, the university needs to “deliver” externally defined products, such as employability, jobs, patents or income, and not generic education, knowledge or truth. This trend has been extensively discussed, whether approvingly or not, in the higher education scholarship. It has been sometimes considered to have resulted in drastic changes with regard to autonomy and academic freedom. The question has been even asked whether, as part of this evolution, universities have sacrificed academic freedom and autonomy on the altar of commercialisation—that is, for money (Forsyth 2014). In studies concentrating on the EHEA, it is implied that, by focusing on efficiency in higher education (on “products”) and ignoring rights, autonomy arrived to be privileged over academic freedom. Beiter et al. criticise the EUA model of autonomy as revealing flows when analysed from a human rights perspective. They even imply that this model sacrifices academic freedom altogether on the altar of autonomy (Beiter et al. 2016).
Second, out of concern for efficiency, not only is autonomy privileged over academic freedom but autonomy itself is conceptualised in a manner that makes it much more, if not exclusively, an instrumental concept or principle that is supposed to serve the capacity of the university to “deliver” better. The EUA model could be considered a good illustration of this trend.
Third, the instrumental focus and the reduced or lack of consideration for aspects having to do with rights might explain the evolutions with regard to codification, in particular legal codification, of academic freedom and university autonomy. When recognised, rights need to be protected through legal regulations, whether national and international. If autonomy and academic freedom are not perceived to be linked to rights, we should not be surprised that there is not much progress with regard to their legal codification in the EHEA. This may also explain, again at least in part, why no organisation has emerged in Europe dedicated to the promotion and legal protection of autonomy and academic freedom. Moreover, even existing legal regulations applicable to these two areas tended to be forgotten and fell into desuetude, as deplored by Beiter et al. (ibid) or Karran (2009). Here too, some attempts in the opposite direction have been made, like the inclusion of provisions about academic freedom in the failed project of a European Constitution (Karran, ibid). Just that, once again, such attempts have been very few and unsuccessful. Even worse, in some countries, such as Hungary, we have witnessed negative developments: existing constitutional and other legal provisions that were favourable and progressive explicitly referring to academic freedom and autonomy have been replaced with new, restrictive ones for both areas after 2010, as discussed in this chapter. Finally, when important developments did take place with regard to codification, such as in the case of the EUA model of autonomy, the focus was on efficiency and there was no serious attention to rights, generically or from a legal perspective.
We may ask what is wrong with this trend, with the focus on instrumentality and efficiency. We can identify several problematic aspects:
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Moving away from the understanding, codification and practice of academic freedom and university autonomy in terms of, or with reference to, rights makes their defence more difficult. The lack of legal anchoring of the two concepts or principles makes their practice more difficult and uncertain. How do all the actors involved know what these principles are about, or has the authority to define and regulate them and issue guidelines?
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Ignoring the moral and rights facets of university autonomy and academic freedom leads to a confusing understanding of the two concepts, which might, in turn, have a negative impact on performance or efficiency.
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Finally, ignoring rights considerations is problematic in itself. Even more so as academic freedom and university autonomy are based on, or related to, important democratic rights and moral principles, such as freedom of speech, freedom of association, freedom of movement, or freedom to education.
For these reasons, we would agree with those, very few, who are calling for a reintegration of the moral and rights perspective in the discussion about academic freedom and university autonomy in the EHEA.
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d.
Diverging geographies. Scattered geographic picture of university autonomy and academic freedom within the EHEA, in spite of common trends.
As a common space for policy dialogue and action in higher education, the EHEA is not a monolithic area. There are many differences across and within its countries and sub-regions. The same is true for the evolutions of academic freedom and university autonomy, in spite of a certain unifying force of the EHEA and common trends. We can notice diverse and occasionally diverging everyday (informal) understandings of the two notions, as well as differences in their formal codification and practice.
The overall evolution of the understanding of the two concepts appears largely similar for the entire EHEA. As discussed in this chapter, a European notion of autonomy has emerged, at least nominally. As a common reference if not as a legally binding concept. At the same time, just about everywhere in the EHEA attention to academic freedom as a matter of policy reflection has been very limited.
We discussed above the codification of academic freedom and university autonomy in the EHEA. We would like to add an important observation here, which speaks to diverging paths as well, this time with respect to different political geographies.
The transformation of higher education on the continent through the Bologna Process and the involvement of the European Union was inspired and supported by new policy narratives, such as knowledge society and European integration (Matei 2015). These policy narratives have been accompanied by new epistemologies, which have influenced higher education, including in the area of academic freedom and university autonomy. Common European policy narratives and underlying epistemologies, together with a certain degree of coordinated action within the EHEA, have created the conditions for similar evolutions throughout the continent. This explains the common characteristics of university autonomy and academic freedom in the EHEA, as discussed here.
Not all countries, though, have been equally committed to these narratives, which may explain national and regional differences in higher education policy. Moreover, in the last several years, the dominant narratives have lost their extraordinary force (Matei 2015) and new policy narratives, mainly of a populist and nationalist breed, have gained prominence. Democracy is in recession in many parts of the continent, and this affects higher education significantly. European integration is stalled and in some cases even reversed (Brexit is only one example). Some countries, mainly in the East, are now expressing less faith in the virtues of the knowledge society. Previously, the bet on the centrality of knowledge as a source of economic and social development was one of the most important elements of consensus in Europe. Now, this consensus is dissipating. The most relevant case, once again, although not the only one, is Hungary, whose prime minister stated repeatedly that what the country needs is not more knowledge or more students,Footnote 11 but rather less higher education (which is somewhat of a “luxury”, in his view and that of his Government) and more reliance on manual labour (Matei 2015).
Recently, changing policy narratives and epistemologies have resulted in changes of attitude towards universities; for example, they are considered less exceptional or exceptionally important. This is reflected in new regulations and practices, including for autonomy and academic freedom. As we have seen above, Hungary adopted a new constitution in 2010 and amended it a few times after that, all but erasing the provisions on academic freedom and university autonomy. In Russia, a different mix of policy narratives (emphasis on the knowledge society, yes, but less focus on Europe and consideration for democracy and human rights) created the condition for a different approach to academic freedom and autonomy throughout this period. In Turkey, an authoritarian regime with a nationalist-Islamic ideology went all the way to closing down entire universities and putting academics, administrators and students in prison (Caglar 2017), on the basis of allegations of connection to the Gülen movement, which appeared to be used as a catch-all shot to strike against uncomfortable political opposition, regardless of its real link to the failed coup attempt.
We could identify restrictions on academic freedom and autonomy in the West as well, but they are far from being comparable in magnitude and degree of salience. There are new lines of fracture in European higher education. One of them appears to be once again between the West and the East, and this is explained by the deeper fracture in terms of types of political regimes and ideologies.
Concepts such as policy narratives and higher education epistemologies, discussed below in more detail, can serve to explain the mechanisms by which the changing landscape of political regimes affects higher education and generates national/regional differences in higher education policies and practices.