Academic Freedom as Academic “Oxygen”; a Legal Inquiry into the Notion of Academic Freedom as a Necessary Condition for Higher Education Institutions to Function

Academic freedom has been subject to contestation and controverse on several university campuses and in certain states. Recent incidents at American and Dutch campuses have highlighted an ostensible connection between academic freedom and freedom of expression. Furthermore, governmental decisions on higher education institutions related to funding and accreditation rules for educational programmes influence the content of teaching and research. E.g. the Central European University in Hungary has highlighted the tensions between institutional freedom and governmental influence. Against these backdrops, academic freedom and liberty of expression on the one hand, and institutional academic freedom on the other are vividly discussed, however not necessarily with a clear common understanding of what academic freedom means. Harari (Nexus, 2024) points out that academic freedom is needed to be able to ask questions, to test ideas, and to autocorrect previous misunderstandings of phenomena and to improve our understanding. Thus academic freedom safeguards the good functioning of the academic community and is beneficial for society. Nevertheless, recent political and societal developments show that the harbouring function of academic freedom is coming under stress and sometimes even is curtailed. With this paper, I aim to discuss legal notions of academic freedom and legal mechanisms to provide for the academic “oxygen”, scholars need to research and to teach to their best abilities. For a democratic society the liberty of expression is crucial, since it allows for the free flow of ideas and the possibility to discuss these ideas. Both academic freedom and the liberty of expression need the freedom of information to thrive. Therefore, it is understandable that academic freedom is seen as a specialised instance of the freedom of expression. However, I will argue that academic freedom fundamentally differs from the freedom of expression and a distinction between the two will be beneficial to protect academic freedom. Another crucial element for academic freedom is to provide for the necessary means to research. Balancing state budgets and the need to guarantee the quality of education with the academic freedom of higher education institutions to develop new avenues of teaching and research, is a sensible balancing act. This will be the topic of the second part of the paper. Firstly, I will discuss the argument that academic freedom either is a special instance of the liberty of expression or that both are, as I will argue for, inherently different. Secondly, I will discuss the legal relationship between institutional academic freedom and governmental influence in France, Germany, Hungary, the Netherlands, and the influence of the Council of Europe and the European Union. Enacted legal norms and subsequent case law from these states and international organisations show different modes and degrees to safeguard academic freedom. Then, in conclusion I will assess which norms may help to protect academic freedom and thus further research and education.