MIA SWART: Few university administrators truly honour academic freedom

The explosion of violent police reaction to campus protests in solidarity with Palestine that swept over the US in recent weeks says much about the state of academic freedom in the US and beyond. At least 50 professors and more than 2,400 students were arrested during the protests on more than 50 campuses. Some older professors must have had a sense of déjà vu: many campus protesters have adopted rhetoric reminiscent of the anti-Vietnam campus protests.

Academic freedom is a freedom very few question but few university administrators truly honour in its full depth and scale. Loosely defined, it is the freedom to teach, write and learn without outside interference. As in the case of free speech protection, generally, academic freedom protects speech even if such speech goes against the current of political correctness. In an importance sense, the protection of speech is content neutral. The line between acceptable and unacceptable speech should be drawn only at the point of hate speech.

But context matters in the determination of what constitutes hate speech. Expressions such as “river to the sea” are not inherently hateful or anti-Semitic. Under the First Amendment jurisprudence in the US, the test for hate speech is very strict. It must be asked whether the speech directly incites violence and criminal activity.

The campus protests in the US reminded me of the reaction to student protests during the high point of the Fees Must Fall movement in SA. When the protests became more intense on campuses, some university administrators called in the police to control security. This spilt over into police brutality and the arrest of students, creating a climate of chaos and fear. In the context of those protests, I wrote that by inviting the police on campus, management opened the door for indiscriminate force measures used against students, and how that hinders the ability of universities to be free spaces of experimentation and youthful inquiry. By pitting police against students, university managers in SA treated students as criminals or potential criminals, which should never be the case.

In SA as elsewhere, the meaning, value and weight of the right to academic freedom has not yet been constitutionally tested. Academic freedom is explicitly protected under the right to freedom of expression. The Constitutional Court has, however, not yet considered the meaning and value of academic freedom. But university managements’ close relationship to the government and funders has not created fertile conditions for academic freedom.

One of the problems of the protests in the US in the context of the suppression of pro-Palestinian demonstrations is precisely that university management has not acted on its own. As the congressional testimony of the presidents of the University of Pennsylvania, Harvard and MIT illustrated, university management has been supported by prominent funders. Without the mobilisation of powerful donors, two of these university presidents would not have been removed from their positions.

It is predicted that the suppression of speech in the US will soon be extended to other forms of speech. Academic freedom contracts during times of war, the rise of the right and political instability.

What are the conditions in the US causing academic freedom to contract? The era can be described as both post- and pre-Trump. It was Donald Trump who condoned and encouraged violence during his presidency. The spectre of a Trump presidency hovers heavily over the protests and arrests.

Protest belongs to a culture of free speech and academic freedom at universities. Curbing free speech on university campuses is a particularly damaging erosion of the right to free expression and has a chilling effect.

In the run-up to the fourth anniversary of George Floyd’s brutal killing by police in the US on May 25 2020, it is worth asking: what has become of police reform in the US? And what is this violence a sign of and precursor to?

• Swart is a visiting professor at Wits Law School specialising in human rights, international relations and international law. She writes in her personal capacity.