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Assessing the Impact of September 11
Is academic freedom in danger?

By Robert M. O'Neil

In the frightening days that followed the attacks on the World Trade Center and the Pentagon, the academic community was rife with apocalyptic prospects. One troubled professor analogized the potential hazards for academic freedom to the worst assaults of the past: "Today [the threat] is the September 11 attacks and terrorism. In the '50s it was McCarthyism. In the '20s it was the Red Menace." The Chronicle of Higher Education, normally guarded in its assessment, reported soon after the attacks that faculty members "across the country have found their freedom to speak out hemmed in by incensed students, alumni and university officials."

Such a scenario might well have, but in fact did not, play out in the ensuing months. Conditions some 17 months after the terrorist attacks are not necessarily better than what the pessimists feared, but they are markedly different from the dire predictions in those early weeks. Direct assaults on faculty status and academic freedom, for example, have been remarkably few, though one persistent case remains deeply troubling. Several invitations to controversial campus visitors were rescinded for reasons related to the attacks, though in the most visible such incident-that of an Irish poet invited to lecture at Harvard-the rescission was quickly withdrawn.

The anticipated student protests did materialize, but with themes quite remote from the forecasts. Instead of rallying on college campuses to protest a possible war in Iraq, much less to indict government curbs on free inquiry, the most volatile demonstrations in recent weeks have celebrated victories, or lamented defeats, on the football field. The intensity of such events, and the resulting damage to property, reached levels unknown at most institutions of higher learning since the infamous raids and riots of the 1950s. Anti-war protest has, by contrast, targeted mainly off-campus sites, such as military recruiting stations and civic centers.

Even where the actual course of events has followed a predictable path, the actual impact of September 11 is surprisingly hard to assess even after almost a year and a half. Certain provisions of the USA Patriot Act, and of laws and edicts that curb activities of foreign students or regulate sensitive research, are of deep and understandable concern to the academic community. Yet the direct impact of such measures remains remarkably difficult to quantify, partly because the responsible government agencies have seldom been forced to disclose the kinds of data that would normally permit an accounting of the consequences. Even more troubling has been the inchoate nature of the rules and regulations in many areas, where administrators and investigators still have to guess where the impact will ultimately fall.

The past year has been a time of testing for faculty academic freedom, though not primarily because of September 11. As a useful reminder that life goes on, the agendas of many outspoken faculty remain unrelated to terrorism. There have been, for example, threats to dismiss Dr. Moshe Gai, a controversial (and allegedly uncollegial) physicist at the University of Connecticut, and legislative outrage directed in Missouri at Dr. Harris Mirkin, who last spring was reviled as an alleged apologist for pedophilia.

Most recently, faculty at Texas A&M were startled when, in early December, the regents significantly diluted the value of tenure, confining its scope essentially to a professor's salary, and leaving most other facets of faculty status legally unprotected. Such events have little, if any, relationship to the war against terrorism.

The one faculty personnel case that does relate directly to September 11 is troubling enough to offset its novelty. In the waning days of 2001, Professor Sami Al-Arian learned that his tenured position at the University of South Florida was at risk, when the trustees urged the president to dismiss him. Al-Arian, a teacher of computer science at USF for nearly two decades, had once made a speech in which (in Arabic) he proclaimed "Death to Israel." Soon after September 11, he appeared on a Fox News broadcast, identified on the air as a USF professor, and acknowledged certain links to suspected terrorists. The trustees cited immediate student, parent, alumni and community concerns as the basis for targeting Al-Arian's faculty status. He was suspended with pay, placing him in a limbo where he remains to this day.

As the new academic year opened in late August, President Judy Genshaft informed the campus community of a radically new strategy. The university had just filed suit in state court against Al-Arian, seeking a declaration that he could be fired without abridging his free speech or academic freedom. (He has said that, if dismissed from his tenured position, he would sue the institution.) The president's announcement added that the case against Al-Arian had been substantially bolstered, with the legal complaint detailing "the actions [on his part] that have undermined the orderly and effective functioning of the University." Suing an embattled faculty member is unusual, though not quite unique. In the early 1970s Southern Illinois University went to court seeking judicial vindication of its claimed need to dismiss tenured faculty for fiscal reasons. The current case is, however, apparently the first time such a suit has been filed when a faculty member's individual activities and expression have triggered the institution's animus.

Soon after receiving the complaint, Al-Arian's lawyer had the case removed to a federal court, noting that important constitutional issues were implicated. He also sought to dismiss the suit, claiming not only that it lacked legal merit, but also that under the faculty collective bargaining agreement any such dispute should go to arbitration and not to court. In mid December the federal district judge dismissed the case, observing that so long as arbitration was available to the parties, the university's plea for judicial intervention sought to "fast forward past the final step in the dispute-resolution process." She added, somewhat disparagingly, that "the court system was not designed to dispense such advice" but rather to resolve real cases and controversies. Thus the dispute returns to the USF campus.

The continuing visibility of Al-Arian's case is hardly surprising, given its roots in a university's concern about the presence on its faculty of a scholar linked to terrorist activity. The absence of similar cases elsewhere might suggest that conditions at USF are unique. Or it may be that universities with comparable concerns are simply awaiting the outcome of the legal battle in Florida. It seems most likely, however, that other institutions potentially worried about faculty activists of Arab ancestry recognize that academic freedom almost certainly protects other Al-Arians, however controversial and even contentious they may be.

Faculty tenure is not absolute, to be sure. But the clearest precept of academic common law is that a tenured or continuing professor may not be dismissed without proof of derelictions that "directly and substantially impair" his or her membership in the academic community. Whatever transgressions have been attributed to professor Al-Arian seem to fall far short of that appropriately rigorous standard.

If challenges to tenured faculty have been remarkably few, the same cannot readily be said of visiting lecturers. To be sure, there are some bright spots-among them, the refusal of Colorado College and the University of Colorado at Boulder to cancel a scheduled appearance by Palestinian activist and adviser Hanan Ashrawi, even though a prominent state legislator charged that her appearance would be "a totally inappropriate slap in the face to the memory of all who have died and suffered as a result of 9/11." Nor did the University of Michigan accede to Jewish student pressure to cancel a conference of the Palestinian Solidarity Movement even though a battery of Muslim/Arab speakers, including professor Sami Al-Arian himself, might provoke disruption. (Indeed, university attorneys successfully resisted an eleventh hour suit asking a Michigan state judge to bar the conference.) Nor did the University of North Carolina at Chapel Hill rescind its plans for a mid-November Islamic Awareness Week, even under threat of litigation, and despite an unbalanced roster of Arab speakers and visitors.

Harvard's ambivalence about an outspoken Irish poet may have yielded the best of lessons. Tom Paulin had been invited by the English department to give the annual Morris Gray poetry lecture. His hosts learned in mid November that Paulin had, some months earlier, expressed to an Egyptian reporter his belief that "Brooklyn-born Jews" who had settled in the West Bank "should be shot dead," and had added, "I think they are Nazis, racists; I feel nothing but hatred for them." He had earlier published a poem which called Israeli soldiers a "Zionist SS." A sense of outrage greeted these revelations, and led to the withdrawal of the Paulin invitation. A few days later, however, as a result of intense pressure from other quarters, in Cambridge and far beyond, the English Department reinstated the invitation, citing considerations of academic freedom and free speech.

There have been a few incidents with less happy outcomes for prospective visitors. At the College of the Holy Cross, a British cleric scheduled to speak on Zionism and Christianity found himself suddenly disinvited after intense faculty criticism of his views, allegedly including evidence of anti-Semitism. The Stanford University Law School withdrew the title "mentor" from a visiting public interest lawyer, after she was indicted on charges of helping a client to direct terrorist activities from a prison cell. Yet such cancellations and rescissions have occurred far less often-or at least far less visibly-than one might have expected from the perspective of September 11.

Perhaps the most surprising area in which academic freedom has been tested this past year is that of the curriculum itself. The cause célèbre occurred at Chapel Hill, where incoming UNC freshmen were required last summer to read a recent book about Islam and the Koran. Though most students simply pursued the assigned task, the Family Policy Network, a conservative Christian group, filed suit in federal court, claiming that the university had breached the separation of church and state by seeking to proselytize its freshmen.

By the time a judge heard the case, the UNC administration had made clear the assignment would be optional for any student who objected. The trial judge dismissed the suit, recognizing the university's right to assign such a text, and noting the option that had been added. The federal court of appeals affirmed, and the school year opened as planned.

The UNC summer reading flap included one slightly jarring note. Senior administrators, at both campus and system levels, staunchly defended the assignment. However, the board of governors, which presides over the entire statewide system, considered-but flatly refused to adopt-a resolution that would have reaffirmed the historic commitment to academic freedom. Such silence, charged the moderate Norfolk Virginian-Pilot, was "a display of almost breathtaking cravenness," adding that "North Carolina's role model will be Islamic states that condemn the teaching of Christianity."

The lessons of September 11 for college curricula extend well beyond Chapel Hill, though the summer reading issue may have garnered most of the publicity. A number of institutions have seized a rare opportunity to focus student interest and attention on the most troubling and perplexing issues of our time. Dickinson College, notably, created a website called "Teaching 9/11" as a resource or compendium, augmented by the shared experience of other institutions.

An article in Change magazine early in the year, entitled "Discussing the Unfathomable: Classroom Based Responses to Tragedy" mirrored the same theme, offering a range of practical options for faculty and students wishing to engage more deeply with the tragic events that have so forcefully reshaped our times.

Apart from curriculum, one might have expected that the events of September 11 would have distorted students' choices of college, and surely would have altered study-abroad plans. But a national survey conducted early in the new school year seems to refute those quite logical assumptions. Not only did fewer than five percent of this year's matriculants report that their choice of campus reflected in any significant way the impact of September 11, even more remarkable, no more than five percent of those surveyed said they had altered study-abroad plans on this basis.

Indeed, nearly a third of the respondents reported they were more inclined to study outside the United States than would otherwise have been the case; as the survey director summarized this phenomenon, "they're more curious about what's happening in the world as a consequence."

Before leaving the subject of students, one slightly ominous event bears note. Last October, the University of California, San Diego, directed a radical student group, the Che Café Collective, to remove from its web page any links to the Internet sites of suspected terrorist organizations. That drastic decree was attributed to a provision of the USA Patriot Act, which forbids providing "material support or resources" to a "foreign terrorist organization." Though the actual links in question had nothing to do with September 11 or the Middle East-the suspect group was a Colombian revolutionary brigade-the UCS San Diego administration feared that, should there be any government inquiry into the website or the links, the implications for the campus could be far-reaching.

Many civil liberties and academic freedom groups across the country told the La Jolla campus it had severely overreacted. A few days later, the administration agreed, and rescinded the edict. Far from aiding a terrorist organization, acknowledged a chastened vice chancellor for student affairs, " protected as free speech under the First Amendment," adding, "we went too far in mentioning linking."

The Che Café incident brings us to the final, and most elusive, topic-that of research and inquiry since September 11. This subject remains largely a work in progress. What we do know is that a number of actions taken recently by Congress and the executive branch do potentially affect academic research and scientific inquiry, and may also imperil academic freedom. Certain provisions of the USA Patriot Act, for example, have inescapable implications for the scope and conduct of research. Much the same could be said of tighter controls on exports of information as well as materials.

The Homeland Security legislation and the Total Awareness Program, among other measures adopted during the fall, markedly expand the potential scope of government's information-gathering capacity. New rules announced in mid December will require registration and more tightly controlled access by institutions that possess potentially dangerous biological agents and pathogens for research purposes. The actual or planned removal from government websites and other databases of information valuable to researchers (in the social as well as the physical sciences) portends a shrinking of the resources available for scholarship.

Simply because so many of these policies remain to be implemented and applied, no accurate or detailed catalogue is yet possible-and may not be possible even a year hence. Moreover, some tightening of research policies in recent months may not be primarily driven by the terrorist attacks; certain visible new federal constraints may (noted the Chronicle of Higher Education) "also stem from lapses within the Department of Energy's national laboratories in recent years." Finally, and quite understandably, there is far less than unanimity within the academic community on the degree to which the terrorist attacks and the nation's response do jeopardize freedom of inquiry.

While many of the more ominous measures remain largely speculative at this stage, a few trends seem to have some clarity. University research administrators report, for example, that the number of government contracts containing restrictive clauses seems to be steadily increasing. One type of constraint that has evoked concern imposes limits upon, or even bars participation of, non-U.S. citizens, while also demanding that the grantee institution submit "employment eligibility documentation" for foreign researchers, even those working on unclassified projects.

Also troubling in recent experience has been a rise in the number of defense-related contracts that require submission for pre-publication review of documents that contain information from Army-financed, unclassified contracts; universities must allow 60 days for Department of Defense review of the proposed publication or disclosure, during which period DOD can oppose the release. Under some such provisions, DOD approval is required before such research data can be posted on electronic bulletin boards, passed over unsecured e-mail systems, or placed on the Internet. While we do not yet have hard data on the frequency of such curbs, there is at least reliably anecdotal evidence that they have been imposed much more often and more freely than was the case before September 2001.

While we await greater clarity and harder information in such areas as these, one matter seems to be nearing an earlier resolution. The academic community has closely followed and monitored the Student and Exchange Visitor Information System (SEVIS), a new approach to the monitoring and reporting of most international students enrolled at U.S. campuses. Some welcome relief has recently come in the form of an extension of the first reporting date to August 1, 2003 (postponed from a potentially much earlier deadline which universities with large numbers of foreign students would have been hard pressed to meet).

The new system obligates institutions to gather and report substantially more information than was earlier the case-for example, practical experience that foreign students gain in their fields of study, and related work experience not only during the student period but for as much as a year thereafter. These rules apply only to those visitors who hold student visas; the potentially far more complex status of foreign scholars and researchers (whose visas come from the State Department) remains for another day.

As we await greater clarity on the precise scope of the new policies, the academic community and those who advise it risk serious overreaction. Science editor and former Stanford University President Donald Kennedy noted in a recent editorial that response to ambiguity in the export controls "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.'"

Similarly overreacting, an organization of scholarly publishers recently warned its members that, if asked for "business records" regarding journal or book purchases under section 215 of the USA Patriot Act, they could not even notify their attorneys-a stark example of what Kennedy calls "bad advice." Indeed, there is mounting concern that one of the enemies we have met is ourselves.

A final question one might ask about the status of research and inquiry after September 2001 is, "What will we know and when will we know it?" In late November, the Justice Department agreed by mid January to tell the American Civil Liberties Union (which had brought suit demanding such information) what data it would release about the exercise of powers newly conferred by the USA Patriot Act. Among the ACLU requests was the number of times libraries and bookstores had been asked for lists of books that had been borrowed or bought by particular persons. Such information would have potential import for the academic community, since university libraries and bookstores are affected.

The initial euphoria that greeted the Attorney General's announcement proved short-lived, however. Early expectations that, on January 15, we would learn how often and where the Patriot Act powers had been invoked soon encountered reality. The nation learned on that date only what information the Justice Department has agreed to release, and what it will withhold. Getting the actual information in hand may take much more time along a tortuous and arduous path.

Seventeen months after the attacks on the World Trade Center and the Pentagon, one can find many areas in which academic freedom has fared surprisingly well-not only better than the pessimists would have posited, but outpacing the hopes of many optimists as well. In a few areas, however, notably the threatened dismissal of professor Al-Arian, there remains ample cause for concern. In other sectors, notably the realm of academic research, it is too early to pass judgment. Here we do best to observe closely, and prepare to do battle for the cause of academic freedom as conditions may warrant.

Robert M. O'Neil is a professor at the University of Virginia School of Law and director of the Thomas Jefferson Center for the Protection of Free Expression.

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