Origin and evolution of the concept of autonomy in Latin America and its crystallization in national constitutions

It is argued,Footnote ¹ with reason, that the conceptual matrix of the post-independence, nineteenth-century Latin American University was ‘Napoleonic’ – that is, it sought to emulate the idea of a single state university exercising centralized control over all education from secondary upwards, coexisting with a panoply of stand-alone faculties and schools for the instruction in the professions of future civil servants and other professional elites needed for the advancement of economic progress and nation building.Footnote ² In Simon Schwartzman’sFootnote ³ words:

This description loosely fits the intended mission (not the functions, as we will see) of universities founded in the nineteenth century as national universities. Good examples are the University of Chile (founded in 1842)Footnote ⁴ and the University of the Republic in Uruguay (founded in 1838).Footnote ⁵ Other cases in the same generation of universities include the University of Buenos Aires, Argentina (1821), the Central University of Ecuador (1826), and the University of El Salvador (1841).

However, the institutional weakness and poverty of the new republics of America, the threadbare hold the new states could muster over their territories and populations, the frequency and devastating effect of recurrent civil wars and the thinness of the idea of a nation within their borders are a far cry from imperial France and its schools and universities of the nineteenth century. There was no education, higher or basic, ‘strictly supervised by the central government according to uniform, nationwide standards’ (in the words of Schwartzman, cited above) not because of lack of will but because of lack of means for anything centralized according to standards. Freedom of religion was not available either, for separation of church and state generally occurred later. Schwartzman is right, though, in that early republic universities ‘were meant to be part of the effort to transform the old colonies into modern nation-states’ and that they had professional training – not scholarship, let alone science – as their sole instrument for that purpose.

Back to our theme: nineteenth-century national universities were not autonomous from the government. Their rectors, and sometimes their deans and even professors, were appointed by the government. They had no budget independent from that of the Ministry of Education, and programs of study and curriculum reflected the government’s priorities.Footnote ⁶ Schwartzman is also correct in pointing out that a legacy of the Napoleonic model (as opposed to the ideas of W von Humboldt and the experience of the University of Berlin, contemporary of the French Imperial University) was the late and slow reception in Latin American universities of the practice and ethos of scientific research – later than in France, which moved to the idea of a research university from the Third Republic onwards.Footnote ⁷ The political predominance of professional schools within the universities, such as Law, Medicine and Engineering, exerted a chokehold on the modernization of universities according to the idea of a research university, as the case of the rebellion at the University of Córdoba in 1918 illustrates.

It is almost obligatory to start any account of university autonomy in Latin America with the reforms that began in 1918 at the University of Córdoba, Argentina. There is much mythology about these events, retrospectively interpreted by commentators through the lenses of the posterior evolution of the concept throughout the twentieth century. The student revolt of 1918 was, most poignantly, not about autonomy but rather a successful attempt, led by students, to modernize a university that had let itself decline to a boiling point through its adherence to scholasticism, outdated libraries, reluctance to update curriculum, authoritarian governance vested in mediocre professors and general avoidance of change on the part of university authorities.

The best account of the actual demands of the rebellious students is from Mark van Aken. In his telling, the demands of the students were the following:Footnote ⁸

These petitions are compatible with the liberal script in the sense that students wanted to modernize a very conservative institution and exert the rights of choice over attendance, professors and the curriculum. At a deeper level, we see a willingness to expand the opportunities to learn and to replace scholastic repetition with true science, in line with the ideals of emancipation and progress.Footnote ⁹ At the same time, students and their associations were swayed by elements of anti-imperialism, anti-clericalism, socialism, positivism and pan-American nationalism.Footnote ¹⁰

However, ‘autonomy’ was not part of the student’s plan for reform at the University of Córdoba (a point also made by Marsiske).Footnote ¹¹ The leading association between this programme and the current Latin American notion of university autonomy rests on the first item in the list: the representation of students, alumni and professors on university governing councils. This was quite revolutionary. This tripartite governance model adopted the name of co-governance (cogobierno) later on, as it was almost invariably introduced in the governing model of public universities in Latin America in the following decades (with the alumni share often eliminated or replaced by non-academic staff), and to this day represents a distinctive element of the Latin American model of the university.Footnote ¹²

It is possible that the 1918 stance on student participation in governance was more a matter of strategy than of principle: from a majority position in the governing structure of the university, students and alumni would be able to ensure that reforms would actually be enacted in the face of a reluctant professoriate.

Be that as it may, Córdoba is the origin and ideological inspiration for a surge of reform proposals led by students’ unions and national and regional students’ associations that swept the region in the following decades.Footnote ¹³ Since the 1920s, a notion of university autonomy began to take shape, tightly coupled with aspirations for co-governance.Footnote ¹⁴ The form of autonomy was slightly variable from country to country and over time, but it always featured self-rule as opposed to government control. The issue of co-governance, despite its centrality at Córdoba, had a more chequered reception: while governments throughout the region had granted autonomy to public universities since the 1920s and into the 1950s, student participation was not always part of the menu, even though students were often rifle fodder (sometimes literally) in the political struggle to persuade governments to acquiesce to autonomy.Footnote ¹⁵

University autonomy was typically first established in public university’s by-laws or other national law during the first half of the twentieth century (a bit later in Central America, as GutiérrezFootnote ¹⁶ shows) and then elevated to constitutional status throughout the region, with the exceptions of Cuba and Chile,Footnote ¹⁷ as countries reformed or established new constitutions in a process that began in the first half of the twentieth century and extended into this century, as the timeline in Janika Spannagel’s article in this special issue shows.Footnote ¹⁸

I have reviewedFootnote ¹⁹ the constitutional provisions pertaining to universities and higher education in all countries of the region. I find that:

Moreover, in half of the constitutions of Latin American countries, a specific provision guarantees that universities are autonomous in defining their governance structure – that is, the legislator has no constitutional power to dictate the form of that structure.Footnote ²¹ A corollary of this prerogative, and more generally of the self-rule notion of autonomy prevailing in the region, is that public universities in Latin America typically do not have boards of trustees or directors representing stakeholders as their superior governing body.

While university autonomy is present in almost all the region’s constitutions, the cognate notion of academic freedom stricto sensu – that is, the professional scholars’ freedoms of research and teaching, which constitute the essence of their vocation and social function, and merits protection from encroachment in the interest of the fulfilment of the idea of the universityFootnote ²² – appear in 63 per cent of the nineteen constitutions I reviewed, and the idea of access to knowledge as a human right is mentioned in 40 per cent of the cases.

The notion closest to academic freedom typically appears as ‘libertad de cátedra’ in the constitutions, which I will take to mean freedom of teaching. Arguably, ‘libertad de cátedra’ could, in principle, encompass both the freedom of teaching and the freedom of research and thus be taken as Spanish for academic freedom. Indeed, the constitutions of Nicaragua, Costa Rica, El Salvador, Paraguay and Peru speak of libertad de cátedra as a stand-alone concept.Footnote ²³ But it turns out that the constitutions of Mexico, Honduras, the Dominican Republic and Colombia distinguish between the freedoms of teaching (libertad de cátedra) and of research, and mention each in sequence. While this is no place to disentangle the ‘true’ meaning of libertad de cátedra, I will come back to this notion and elaborate further on why I think a restricted meaning associated only with teaching is more precise in the Latin American context (not to mention that a Spanish language perfect equivalent to academic freedom is available in the expression ‘libertad académica’ – which, it is worth noting, only appears in the Constitution of Ecuador among the eighteen constitutions sifted here).Footnote ²⁴

It is also worth noting that a human right to enjoy the benefits of science or any other formulation of knowledge as a human right is only present in 40 per cent of the constitutions surveyed here (Brazil, Honduras, Argentina, Nicaragua, Dominican Republic, Colombia, Ecuador and Paraguay). My filter is rather broad, as I include statements of rights that could also be deemed as more traditional expressions of freedom of education (freedom to teach and to learn) in the cases of Argentina, Colombia, the Dominican Republic and Ecuador. Yet clear examples of access to knowledge as a human right include, for instance, Brazil – ‘freedom to learn, teach, research and express thought, art, and knowledge’ (art 206 II)Footnote ²⁵ – and Nicaragua – ‘The state promotes and protects the free creation, research, and dissemination of the sciences, technologies and arts and letters, and guarantees and protects intellectual property’ (art 125, my translation).Footnote ²⁶

It is somewhat puzzling that the momentum of the American Declaration of the Rights and Duties of Man approved by what would become the Organization of American States in 1948Footnote ²⁷ would have seemingly fizzled away across constitutional development in the region. As Katrin Kinzelbach reminds us in her contribution to this special issue,Footnote ²⁸ the Americas pioneered recognition of a human right to ‘participate in the benefits that result from intellectual progress, especially scientific discoveries’ (Article XIII of the American Declaration). Moreover, Kinzelbach found that Latin American delegates were instrumental in promoting what became similarly worded Article 27 in the Universal Declaration of Human RightsFootnote ²⁹ later that same year. This is, I would surmise, another example of how the hegemony of university autonomy over the twentieth century has trumped other interpretations or sources of academic freedom in Latin America.

This seems to be a consequence of the locus of scientific freedom in Latin America: it is vested in the universities, not the professoriate, and even less in the general population. It is assumed that free universities will foster an environment of academic freedom within. By and large, academic freedom ensues from the institutional prerogative of autonomy of universities. This understanding contrasts with the general thrust of the institutionalization of academic freedom at the international level described Börzel and Spannagel’s article in this special issue.Footnote ³⁰ They document how academic freedom began to be institutionalized internationally in the 1960s, following the impulse of transnational higher education organizations rather than national governments well into the late 1990s and this century. The 1997 UNESCO Recommendation Concerning the Status of Higher Education Teaching Personnel, as Börzel and Spannagel recount, first defines academic freedom as a professional right and then conceptualizes ‘the autonomy of institutions of higher education as the institutional form of academic freedom’.Footnote ³¹ Note that this conceptual construction inverts the logic of the dominant Latin American understanding of academic freedom as a consequence of university autonomy.

The contrast with the origins and evolution of academic freedom in the United States is eloquent. In the United States, the notion and protection of academic freedom emerged from the bottom up from the professoriate, beginning with the American Association of University Professors’ (AAUP) 1915 Declaration of Principles on Academic Freedom and Academic Tenure. The Declaration, widely endorsed by the academic profession and by universities, was revised in 1940 in the Statement of Principles on Academic Freedom and Tenure, jointly formulated by members of the academic profession and the Association of American Colleges.Footnote ³²

In Latin America, university autonomy evolved over the course of the twentieth century as a protection of the university against the encroachment of governments, often authoritarian or outright dictatorial, so they could carry out their missions as they defined them. Since the 1990s, threats to autonomy have been expanded by authors to include business interests, higher education policies espoused by supranational agencies, and marketization and academic capitalism in general.Footnote ³³ Freedom of the university is the overriding principle; in the case of public universities, it defines a sphere of self-determination within the structure of the state. In the United States, in contrast, freedom of the university – hardly ever called ‘autonomy’ – is a secondary effect of the freedom of the professoriate.

So far, we have dealt with the autonomy of public universities. The private sector of higher education, however, is vast in Latin America and has deep roots in the universities established by the Spanish Crown, the Pope or both during colonial times, some of which continue to exist, either as private entities or morphed into public universities in the nineteenth century.Footnote ³⁴ Private enrolments in higher education hover at over 80 per cent in Chile, 70 per cent in Brazil and El Salvador, 60 per cent in the Dominican Republic, and 50 per cent in Colombia and Costa Rica,Footnote ³⁵ and exist with a minority share in every country of the region except Cuba.

The autonomy of private universities, the vast majority of which were founded since the 1950s,Footnote ³⁶ has had a very different itinerary from those in the public sector due to the universal constitutional protection of the freedoms of association, education and speech. The autonomy of private institutions from government intervention, like that of any other civil society organization, follows constitutionally from the freedoms of association, education and speech of their members. In other words, no specific recognition of autonomy for private universities is needed in the constitution as those more general guarantees are in place.

The status of private higher education vis-á-vis the sate reminds us, without too much of a stretch, of the British case, insofar as autonomy derives, in British universities, from their status as ‘legally independent corporate bodies’,Footnote ³⁷ closer in juridical nature to private corporations than to state organs. However, the conceptual construction of autonomy stemming indirectly from the academic freedom of scholars – independence of the professoriate from governmental influence and freedom of speech in teaching – that characterizes the British idea of autonomy,Footnote ³⁸ and that has acquired statutory legal protection only as recently as 1988,Footnote ³⁹ differs from the direct grounding of autonomy of private universities in Latin America on the constitutional rights of the corporate body – rights of the university as such, not of its members.Footnote ⁴⁰ We can see that while the legal structure of autonomy differs for public and private universities, the result is not much different regarding the lesser place of academic freedom in that structure.

The evolution of the concept of university autonomy in Latin America shows no tracks of diffusion into the region of trends found elsewhere in the world. The Latin American understanding of academic freedom seems to be entirely indigenous. Likewise, no diffusion from Latin America to the world seems to have taken place, except for the role of Latin Americans in drafting Article 27 of the Universal Declaration of Human Rights in 1948. The Organization of American States (OAS) has insisted, very recently, on the idea of a human right to ‘seek, generate, and transmit knowledge’, and on the individual and collective right (including that of academics) to engage in knowledge production and dissemination and to the enjoyment of scientific progress in the 2021 Declaration on Inter-American Principles on Academic Freedom and University Autonomy.Footnote ⁴¹ However, national constitutional language across the region has remained largely distant from this doctrine as the basis for academic freedom, preferring to anchor it in university autonomy, a point also underscored in the same 2021 OAS Declaration, which states that ‘autonomy is an essential prerequisite for academic freedom’.Footnote ⁴²

Current status and contestations of autonomy and academic freedom in Latin America

Perhaps reflecting the challenges of the time, recent scholarship on university autonomy in Latin America has enlarged the concept to include specifically the academic dimension of autonomy along with the administrative and financial ones. GutiérrezFootnote ⁴³ offers a representative catalogue of university freedoms under the umbrella of autonomy:

In a more concise rendering, Serrano Migallón focuses on academic, administrative (or normative) and financial autonomy. This is how he describes it:Footnote ⁴⁴

Note that academic freedom is just another expression of autonomy here, not its purpose or justification, and exists in the same plane of importance as the other freedoms. Note also that while academic freedom, administrative freedom and financial freedom seem to be freedoms of the university, ‘the authority to teach and to learn [which] manifests itself in the search for truth without restriction or coaction’ seems to represent freedoms of the scholar rather than being a prerogative of the university.

This vision was confirmed in the declarations stemming from the III Regional Conference on Higher Education (CRES) convened by UNESCO’s International Institute for Higher Education in Latin America and the Caribbean (IESALC, for its acronym in Spanish) and held in Córdoba, Argentina, to commemorate the hundredth anniversary of the Córdoba movement. Some 3000 delegates were in attendance, mostly rectors and other university representatives, leaders of professional associations and unions, functionaries in government agencies, representatives of non-government organizations and representatives of student organizations.

The CRES 2018 final Declaration has this to say about autonomy in paragraphs scattered across the text:Footnote ⁴⁵

This Declaration, the most recent official statement of the regional higher education community, underscores my point about the subordinate position of academic freedom within the concept of university autonomy: academic freedom is absent. The Declaration only grazes on the concept of academic freedom once, mentioning freedom of teaching as a tradition in this context:

In its Latin American version, autonomy has two sides: a negative ‘freedom from’ and a positive ‘freedom to’. The ‘freedom from’ refers to external interests and powers – ‘the governments of the day, religious beliefs, the market or particular interests’, as expressed in the Declaration. According to the Declaration, positive freedom enables the university to contribute ‘to practical, political definitions which shall influence the changes needed and desired by our communities. Higher education should be the emblematic institution symbol of the critical national awareness of our Latin American and Caribbean region.’

In the Latin American concept of university autonomy, the holder and actor of the prerogative is the university as a corporate agent, not its scholars. Autonomy may enable academic freedoms on campus, but that is not its principal value. Universities are autonomous to be able to ‘speak truth to power’. The role is highly political, and autonomy is a corporate freedom that holds a buffer of independence from external political and economic actors. Knowledge figures only as the position from whence criticism is exercised: ‘a political influence based on knowledge and reason’, as stated in the Declaration above.

The single mention of anything close to academic freedom in the Spanish version of the Declaration is made to libertad de cátedra, translated in the official English version of the Declaration as ‘freedom of teaching’. This brings me back to the earlier discussion of the language related to academic freedom in the Latin American constitutions and to my contention that freedom of teaching is a better translation of libertad de cátedra than academic freedom. Freedom of teaching is a part of academic freedom elsewhere in the world. Why would the CRES Declaration reduce academic freedom to ‘freedom of teaching’ as if this were the defining function of the academic work encapsulated in libertad de cátedra? I venture a historical reason: libertad de cátedra seems to be a traditional designation for academic freedom in parts of Europe and in all of Latin America. It is telling that only the constitution of EcuadorFootnote ⁴⁶ has use for the notion of libertad académica (art 355), while all other constitutions prefer libertad de cátedra.

In this vein, we could see libertad de cátedra as inclusive of freedom of research if we consider cátedra as a ‘chair’ – that is, an academic subject area or specialization in charge of a full professor. In this interpretation, the mention of libertad de cátedra as a synonym for academic freedom would be a flashback to tradition. This understanding may hold for early twentieth-century France, Germany or, to a lesser extent, Spain, where chairs included research and teaching. But it hardly applies to Latin America, where the teaching function preceded research for several decades. Prior to the development of the sciences in the region – a change that, with few exceptions, began in a few universities in the region in the 1960s and took hold as late as the last three decades – the academic profession was a teaching profession. The only effective freedom professors could claim was the freedom of teaching or, in this narrow sense, ‘libertad de cátedra’.Footnote ⁴⁷

The contrast is telling with the 2017 report on academic freedom by the University and College Union (UCU), the association of higher education faculty in the United Kingdom, according to which the elements of academic freedom are freedom to teach, freedom to do research, self-governance and tenure.Footnote ⁴⁸ It is not that guilds of faculty in Latin America could not concur to a similar catalogue of academic freedoms. What is striking is the distance between this discussion and the doctrine of university autonomy.

The need to establish independence from the state while at the same time remaining part of the state, in the case of public universities, resonates perhaps with the plight of German universities since the times of von Humboldt. As in Latin America, the grounds of the freedoms of universities in Germany are expressed in the constitution. However, it is again significant that the German Basic Law recognizes freedom to art, science, research and teaching, not to universities.Footnote ⁴⁹ The organizational configuration of this protection for those exercising these freedoms in the university has to be developed further by legislation and court cases.Footnote ⁵⁰

In Latin America, as explained, we have the inverted the order of the elements: freedom is a prerogative of the university, from whence freedoms of art, science, research, and teaching may obtain. The subordinate position of academic freedom in Latin America seems to evoke the current situation in France, a higher education system that, two centuries ago, was – as explained above – influential in the minds of the founders of universities in Latin America in the nineteenth century. BeaudFootnote ⁵¹ argues that the French concept of ‘university freedoms’ has traditionally eclipsed the idea of academic freedom. He maintains that university freedoms are a contemporary holdout of medieval franchises. In his account, two expressions of this privilege stand out: the immunity of university campuses from police intervention, unless authorized by the rector of the university; and a form of trial by peers of faculty members that exempts them, in the case of alleged wrongdoing, from the ordinary disciplinary procedure applicable to other civil servants. The former – territorial immunity – was a part of the Latin American discourse about autonomy but has faded away, possibly as a result of its sterility in the face of authoritarian or dictatorial regimes and more recently as a consequence of society’s little patience for anything that smacks of softness on crime. At any rate, it is intriguing how, in France, as in Latin America, the title holder of freedom is the university corporation, not the professoriate. It should be noted, though, that Beaud believes that notwithstanding these concepts and the French law on universities, French universities ‘have, de facto, no autonomy at all. In reality, they have no educational, administrative, or financial autonomy, for they are, de facto, under state supervision’.Footnote ⁵²

State supervision, or anything resembling it, is the bête noire of Latin American universities. Recall that the CRES Declaration lists ‘restrictions and limits imposed by the governments of the day, religious beliefs, the market or particular interests’ (my emphasis) as those to be rightfully shunned by autonomous universities. Since the 1990s, governments in Latin America have turned their attention to higher education. Concern with quality and equity were paramount, and governments across the region sought to expand access, especially among underserved populations, diversify types of institutions of higher education (including private provision), set up accreditation mechanisms for the assessment of quality and make increases in funding available based on performance indicators, contracts with performance targets negotiated with the government or funds gained in competitive bidding towards goals defined by the government.Footnote ⁵³

The flag of university autonomy has invariably been hoisted to oppose such policy-driven changes in the status quo. Claiming autonomy, for instance, public universities in Argentina successfully resisted accreditation in the mid-1990s, so the Law of Higher Education Nº 24.521 of 1995 created a watered-down version of accreditation (art 44), called evaluation, to be carried out by academic peers every six years, with no other consequences than the publication of the evaluation report.Footnote ⁵⁴ In Bolivia, at around the same time, public universities effectively neutralized accreditation legislation so that evaluation is carried out only for private institutions. In contrast, public universities established their own self-run system of assessment.Footnote ⁵⁵ In Peru, autonomy was unsuccessfully invoked by public and private universities alike to oppose legislation passed in 2014 to evaluate all universities to ascertain whether any of them merited closing for failing to meet minimum quality standards (49 universities were closed).Footnote ⁵⁶ The constitutional and legal reforms passed in Ecuador between 2008 and 2012 to streamline higher education were met with a similar opposing argument (fourteen universities were closed).Footnote ⁵⁷

But, as the case of Mexico illustrates, universities have also accommodated to a landscape of increasing government regulation. Since the 1980s, Mexican governments at the federal level have pushed for the ‘modernization’ of higher education through conditional, differentiated and competitive funding, evaluation and accountability, and the use of performance indicators. Universities responded – not without internal tensions – changing their academic and bureaucratic discourses and practices to capture new sources of funding and improve their indicators of quality and productivity in what has been called ‘responsible autonomy’.Footnote ⁵⁸

University autonomy and academic freedom in Chile

Chile also experienced the reception of the Córdoba ideas. The University of Chile acquired its administrative and financial autonomy and greater academic autonomy in its by-laws of 1931.Footnote ⁵⁹ These recognize the freedom of university professors to express their opinions or doctrines in the subjects they taught and granted to the university the decisions over admissions of students, but the creation of new schools (faculties) had to be approved by the government. Full autonomy, in the Latin American vein, was obtained in the by-laws of 1971.Footnote ⁶⁰

Private universities, the first of which, the Catholic University of Chile, was established in 1888, with three more founded in the 1920s (both Catholic and lay), had the autonomy of private corporations, discussed above, but were subject to the examination of their students by the University of Chile well into the 1950s, when these examinations began to be phased out. Co-governance, in contrast, was adopted much later and in a very mild version. As a result of the university reforms of 1967 and 1968, initiated by students, the eight universities then in existence gave students and graduates or non-academic staff minority participation in governing bodies and the election of the rectors and deans.

Before these reforms, the discussion of the concept of academic freedom and its relationship to university autonomy had appeared in Chile more in academic writing about the universityFootnote ⁶¹ than in legislation. The university reforms of the late 1960s brought about a more nuanced reflection of the university communities about themselves. They marked the beginning of the modernization of universities along the lines of the Humboldtian ideals.

The next milestone in Chile’s juridical expression of university autonomy was the constitutional amendment of 1970, Law 17.398, which lasted until the military coup in 1973. Article 7°, Number 10 of the amended Constitution prescribed (my translation):

While the validity of these norms was brief, their contents are of interest as they have much in common with the general idea of autonomy prevailing in Latin America at the time. We can see the three primary forms of autonomy (academic, administrative, and economic), coupled with a partial acknowledgment of academic freedoms: freedom of teaching and learning are there, both for faculty and students. Freedom of expression is also recognized. However, freedom of research is absent.

The choice of freedoms to be protected may well be a reflection that this amendment, together with numerous others introduced at the same time to expand fundamental rights, was required by the centrist Christian Democratic party as guarantees to consent to Salvador Allende and his leftist coalition becoming President of Chile after the election had failed to give either of the three presidential candidates the vote spread needed to gain the presidency without congressional ratification. In the heyday of the Cold War and the fear among the opposition to Allende that Chile may turn into another Cuba, the protection of the freedoms of teaching and choice of teachers by students, unbiased placement of students, and entry and promotion in an academic career based only on merit may have seemed of more immediate ideological relevance than the freedom of research.

Also worth noting is that the obligation of the State to provide universities with adequate funding to fully accomplish their functions is geared toward the country’s educational, scientific and cultural requirements. Who is to define those requirements of the country that justify public funding is a matter of importance. Still, in any case, it seems it is not just the universities who have a say, as would be the preferred interpretation of the Latin American idea of autonomy – reticent, as it is, to liberal contestations of autonomy based on the public good democratically defined by the representatives of the people.

The military dictatorship of General Pinochet (1973–90) abolished the constitution in 1973, removed the rectors and replaced them with military officers, and began a political purge of professors, students and non-academic staff. The bases for a new higher education system relying on expanded private provision were laid in Law Decree N° 1 of 1980 (DFL N° 1) on universities. Academic, administrative and financial autonomy were recognized and developed in greater detail (arts. 3 and 4), and academic freedom was instituted (art 5) thus (my translation):

These declarations may seem protective enough, but other norms in the same law blunted them. Articles 6–8 went to great lengths to proscribe behaviour contrary to the juridical order and to ban political or ideological activism in universities. Second, all university rectors were appointed by the government at the time. Third, the general purpose of this law was to open the field of higher education to new, private universities. These had to be approved by the Ministries of Education and the Interior. Therefore, new private universities would be able to enjoy their autonomy and academic freedoms as long as their founders and projects were to the government’s liking to merit approval and permission to operate.

Owing to that DFL N° 1, new private universities and other non-university institutions of higher education (also autonomous in Chile) boomed as the conditions for creating new institutions were relaxed towards the end of military rule (1988–90). In addition to political control, it is likely that throughout most of the 1980s, the growth of private institutions was also stunted somewhat, as an anonymous reviewer for this article suggested, by dire economic conditions (Chile was in recession for most of the decade), lack of academic personnel and uncertainty about the long-term business model.

Democracy was restored in 1990, and rectors began to be elected again by the professoriate. Still, the legal foundations of higher education put in place during the dictatorship remained unchanged for a long time, as reforms of the primary and secondary levels of education were prioritized in the 1990s and 2000s. The Constitution of 1980, left by Pinochet, was enormously difficult to modify due to the high congressional majority needed to pass amendments.

The most important overhaul of those legal foundations came with the Higher Education Act of 2018 (Law 21.091), which is currently in force. University autonomy and academic freedom are protected by its Art 2° in this manner (my translation):

…

Note that the grantor of autonomy is ‘the system’ (the Chilean higher education system, that is) and not the law or the state. This is quite unprecedented to our knowledge and somewhat tautological: the ‘system’ grants autonomy to itself. Libertad de cátedra shows up in the definition of autonomy but – and this is quite puzzling – as a form of freedom different from academic freedom.

In its definition of autonomy, the Law on Public Universities (Law N° 21.094) follows a path that resonates more closely with the Latin American concept of autonomy. It recognizes and develops (art 2) the canonical three aspects of it: academic, administrative and economic autonomy. Within academic autonomy, the principle of academic freedom (libertad académica) is highlighted, ‘which includes the freedoms of teaching (libertad de cátedra), research and study’ (my translation). Note how here, again, libertad de cátedra is a different freedom than those of research and study, which bolsters my earlier contention that libertad de cátedra in the Latin American context is better understood as freedom of teaching.

Then, in the paragraphs cited above, there is the usual conflation between freedom of speech and academic freedom, rights of an unequal nature but often confounded in academia. Here again, the exercise of these freedoms is bound not just by law but also by respect for the institutional project and the institution’s mission.

Indeed, it is noteworthy in the Higher Education Act of 2018 (Law 21.091) that the exercise of academic freedom has boundaries in that it must not only conform to the law and the constitution but also to the framework of each educational project and be directed ‘towards the fulfilment of the purposes and other principles of higher education, aiming to achieve the common good and the development of the country and its regions’. Not much freedom, one could argue, amidst so many conditions of exercise.

The legislative record of the discussion of Law 21.091 is of little help in understanding how these concepts came about, for the final approved texts follow very closely the wording of the original bill sent by the Executive Branch, in matters of both autonomy and academic freedom. In the case of autonomy, a sentence was removed that required institutions to exercise autonomy responsibly, which was redundant, as the constitution and the Law bracket the exercise of autonomy, and institutions are expected to steer their exercise of autonomy ‘to the fulfilment of the goals and other principles of higher education, seeking to contribute to the common good and the development of the country and its regions’. Next, the Education Commission of the Senate unanimously approved a motion by Senator Ignacio Walker (Christian Democratic Party, centre) to add to the original phrase ‘within the framework of the law’ a mention of the constitution so that the final text reads ‘within the framework of the Constitution and the law’ as limits to autonomy.Footnote ⁶² According to the record, the reason for this addition was a recommendation by professors of constitutional law based on the lack of constitutional recognition of university autonomy in Chile. The stated argument makes no sense, for what is the point of calling up the Constitution as a limit to autonomy if there are no provisions about it in the Constitution? My interpretation of the norm, as it stands now, regardless of the intent of legislators, is that the regulatory framework of autonomy is not solely a matter of law but of constitutional rights as well, which are of importance in the case of private institutions, as noted above.

In the same session, Senator Andrés Allamand (National Renovation Party, right) gathered the unanimous support of his senatorial colleagues for his motion to rephrase the core of the concept of autonomy to add to it academic freedom and freedom of teaching, not in the original bill. There is no explanation of the grounds of this motion in the record. There is in it the annoying – but by now expected – bit of speaking of academic freedom and freedom of teaching as if the latter were not part of the former, but the proposed and approved motion has the merit of making university autonomy at least in part a question of academic freedom.

The concept of academic freedom was even less altered in the congressional discussion of the government’s bill. Only the last sentence – ‘with respect for the institutional project and its mission’ – is of congressional origin: a motion by Senators Walker and Allamand, in slightly different wording, unanimously approved by the Senate’s Education Commission.Footnote ⁶³

Why does the mission of each institution and its project feature so intensely in the current Chilean concepts of academic freedom and autonomy? That the exercise of university autonomy should consider the constitution and the law goes without saying in the liberal (that is, not absolute) understanding of the exercise of every right. But why should academic freedom restrict itself out of ‘respect for the institutional project and its mission’ (meaning the mission of the university and its educational project)? Likewise, why should academic freedom and freedom of teaching be exercised ‘within the framework of each educational project’?Footnote ⁶⁴ In my understanding, this is a consequence of Chile’s higher education system’s great ideological diversity across, but not necessarily within, universities, not just from universities maintained by the Catholic Church and other confessions but also among the public and private lay universities. In other words, it is deemed legitimate in Chile that a university would have a certain philosophical orientation, be it fostering the entrepreneurial spirit among its students, instilling radical citizenship, sharing the Gospel, or building a more humane society. Faculty and students tend to coalesce to universities espousing their world views, but what if they didn’t?

Case law on faculty or student behaviour that is ‘deviant’ from the prevailing orthodoxy of their universities is hard to come by. Moreover, most universities are amply capacious in their ideological overtones, so narrowly defined institutional worldviews tend to be exceptional. Chilean courts have granted extensive deference to university decisions if due process is observed in sanctioning students or faculty, and the sanctions are justified in the contract between the university and the student or professor and other regulations (in private institutions) or the by-laws of the university and in administrative law in public institutions.Footnote ⁶⁵ The Chilean Constitutional Court, in turn, has upheld legislation limiting autonomy with the argument that such limitations are needed to ensure students’ right to quality education.Footnote ⁶⁶

While academic freedom can be moderated by the framework established by law and must respect the institutional project of the university and its mission, autonomy is also heavily regulated in Chile. Accreditation by an autonomous public agency is mandatory for all institutions of higher education, public and private, lest they lose their authorization to operate. Doctoral programmes and professional programmes in medicine, dentistry and education must be accredited to operate.

Another regulatory agency, the Superintendence of Higher Education, ensures that higher education institutions comply with the law. The Superintendence’s powers, aside from imposing fines in case of breach of the law, include the option to move to appoint a general manager to replace the leadership of the university in case of a severe crisis and to recommend to the Ministry of Education the revocation of the authorization to operate if the problem is terminal.

Public universities operate under a general law for public universities (Law N° 21.094), which establishes their shared mission and principles of organization and operation. This law also defines the purposes of public universities thus: ‘to contribute to the strengthening of democracy, the sustainable and comprehensive development of the country and the progress of society in the diverse areas of knowledge and domains of culture’ (art 1, my translation). They must also collaborate in public policy for the country’s cultural, social, territorial, artistic, scientific, technological, economic and sustainable development (art 4).

The Ministry of Education runs a common process for admission of applicants to the university system: universities are free to set their admission requirements, but there is a single national test of academic aptitude administered by the Ministry of Education that sorts out applicants based on their scores. Applications for admission to higher education are processed by a single internet portal administered by the government.

Free tuition is available to students in accredited institutions who belong to the lowest six income deciles. Still, as the government pays tuition in lieu of students, both tuition levels and available slots are capped by the government.

The case of Chile adopts the general Latin American notions of autonomy and academic freedom but also departs from them in notable dimensions. Most of this regulatory framework would be politically impossible to set up in other countries of the region. It is tempting to relate Chile’s lack of constitutional recognition of university autonomy to the extent of state regulation in this country, larger than the Latin American norm and possibly the most intense found anywhere in the region.

My hypothesis is different. In the matter of quality assurance and compliance with the law, the history of the original accreditation Law of 2006 (Law 20.129), which introduced voluntary institutional and program accreditation, and its amendments in 2018 suggest that the basis of strong state regulation of higher education in Chile has been the perception that the private sector had proliferated as a result of loose regulation in a period beginning in the late 1990s and extending into the mid-2000s. There is much presence in the legislative record of arguments expressed by politicians and policy-makers along the lines of ‘the abuse of autonomy’ on the part of many higher education institutions. Politically, the left has pushed for more regulation, while the right has pulled back, arguing on the grounds of autonomy understood as the constitutional right to freedom of education. The current situation reflects shifts in the political balance of forces, first making accreditation possible, albeit voluntary (from 2006 to 2018), and next turning it up a notch to make it mandatory and reinforced by a Superintendence. Public universities (a minority in numbers of institutions and enrolments) have been swept by this momentum, under the argument that regulation should not distinguish universities based on the nature of their ‘ownership’.

The extent of privatization and market competition in Chilean higher education is a concurring explanatory element. Not only are 84 per cent of enrolments private, but private funding accounts for over 50 per cent of all spending in higher education, mostly in the form of tuition payments (both public and private institutions charge significant tuition). Student aid, consisting of free tuition, loans and grants, is demand-driven – that is, disbursed to institutions based on their enrolment of deserving individuals. Chile is an extreme case of academic capitalism: institutions steeped in new public management compete for tuition-paying or subsidized students; they compete for faculty members in a highly mobile market; they compete for research grants, which are the sole means of research funding; they compete for graduate students (also a demand-driven sector); and they compete for consulting and technology development contracts with local firms.Footnote ⁶⁷

Through this lens, the rather heavy hand of regulation can be understood as a counterbalance of higher education as a market-driven industry. The state has favoured this political economy of higher education, but at the same time has established increasingly strong regulations to deal with market failures such as information asymmetry, free riding, under-provision of public goods, externalities and the like.