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Touro Law Review

Abstract

The paper analyzes the scope of scholars’ academic freedom and maintains that it is composed of two pillars. First, inclusion, which is subject to capacity, equality, and the provision of a pro-educational academic environment. Second, academic expression, which refers to teaching and research, freedom of opinion, political participation outside academia and freedom to receive academic materials. Scholars’ academic freedom is limited by professional standards and is subject to the respect of the rights of fellow scholars.

The paper argues that scholars’ academic freedom is not confined to a scholar-state relation but is also relevant to scholar-scholar relations. Hence, scholars’ academic freedom can be breached by peers, for instance, by firing them on the basis of gender. The paper proposes three tests for balancing clashing scholars’ academic freedoms. First, the closer in nature the activity is to academia, the greater its weight (the relevance test). Second, “seclusion v. exclusion” test. According to this test, a “seclusive” exercise of academic freedom, namely one that does not interfere with peers’ rights, should override an “exclusionary” exercise of academic freedom, namely one that interferes with peers’ rights. Third, within academia, activities promoting pluralistic notions should override contrary endeavors (the virtue test).

Finally, the paper applies its conclusions to a test case—the Campaign against Israeli academia, also known as the academic boycott of Israel. It concludes that teaching and research activities, performed in a seclusive manner that does not advance discriminatory notions should take priority over non-academic political activities.

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