Academic Freedom – by Eric Barendt

I was granted a year’s study leave to work on my book, Academic Freedom and the Law, spending time in Germany and the United States. Nobody at UCL questioned whether it was appropriate for a professor of media law to write on academic freedom, although there is no close link between these subjects. Earlier in my career at UCL I had taken leave to work in Heidelberg on German constitutional law. On both occasions on a broad view of academic freedom I was exercising that freedom to determine what topics to research and how to study them. UCL, like every good university in the United Kingdom, respects the freedom. The Provost at this time, Malcolm Grant, told me that he would not have dreamt of reprimanding a lecturer who had written to the press to protest against UCL’s decision to sponsor an academy school: one aspect of academic freedom is the right to criticise, even in public, the administration of the university, what in the USA is termed ‘the freedom of intramural expression’.

Of course, the scope of academic freedom is unclear. Is someone appointed to teach the law of torts free to decide after a year or two that she will not give another course of lectures on this subject because she would prefer to teach property and tax law? Might she be disciplined, or even dismissed, for refusing to carry on the work for which she had been appointed? When I was an Oxford don in the 1970s, I knew a Fellow of Merton College, who had decided after a few years teaching law that he wanted to teach English literature instead. He was allowed to do this and became a distinguished Wordsworth scholar. It is hard to believe that this would now be regarded as an acceptable exercise of academic freedom.

Let’s take another problem regarding the scope of academic freedom. We have freedom of speech in the UK to downplay the Holocaust or disparage a particular religion, as long as the expression is not threatening or insulting. Is a professor of history or theology free to blog these views, and if so is that an exercise of freedom of speech or academic freedom?  Surely she would not have academic freedom to deny the Holocaust in a history seminar or abuse Islam in a comparative religion course? These are among the hard questions about the scope of academic freedom and its relationship with freedom of speech.

These difficulties may have been responsible for the disinclination, at least in the UK, to take academic freedom seriously. The concept has perhaps been thought too vague to value very highly. But such difficulties provide no excuse for neglecting the freedom; similar problems beset the rights of privacy and to free speech, and indeed human rights generally. When I did the research for my book from 2005, I found virtually no quality legal literature in the UK – by contrast there was a lot in the USA – and there was not much discussion of any depth by political philosophers or education specialists. My impression is that this has changed in the last decade. Scholars in this country have begun to explore the foundations of academic freedom and its relationship to freedom of speech and to examine the range of threats to its exercise: see, for example, Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Macmillan, 2016), and the essays in Why Academic Freedom Matters edited by Cheryl Hudson and Joanna Williams (Civitas, 2016), and in Academic Freedom edited by Jennifer Lackey (Oxford University Press, 2018) though many of the essays in this volume are by US scholars. Another development has been the establishment of new organisations to protect the independence of universities and defend academic freedom, notably the Council for the Defence of British Universities and Academics for Academic Freedom (AFAF).

These developments are surely a response to recent changes in the working environment in universities, largely a response to government initiatives: the demands of the Research Excellence Framework (REF), increasing emphasis on teaching excellence and on student satisfaction with their courses, and the Prevent strategy, which have all been seen as posing new dangers to the independence of universities and the academic freedom of their staff. So it is certainly a good time to revisit some issues I canvassed in Academic Freedom and the Law.First, I will look at the questions of principle touched on earlier: the meaning of academic freedom and its relationship with freedom of speech. Secondly, I will examine current threats to academic freedom, many of them the result of government initiatives and the response of university administrators to these steps.

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There are perhaps two broad views about the meaning and scope of academic freedom. On the first perspective it is inseparable from freedom of speech. According to a statement by AFAF, academics have complete liberty, within and outside the classroom, to put forward controversial and unpopular ideas, however offensive they may be, and their institutions have no right to discipline them for exercising this liberty. The statement uses similar language to that used in the definition of ‘academic freedom’ in the Education Reform Act 1988, but without the qualification in that statute that academics enjoy the freedom only ‘within the law’, while the AFAF statement extends it explicitly to speech outside class. But it is surely wrong to equate academic freedom with freedom of speech. The latter right is enjoyed by everyone, not just academics. There is no justification for according university lecturers special free speech rights not shared by others. Indeed in some contexts academics do not, and should not, enjoy full freedom of speech; a torts lecturer, for example, is not free to devote a class to the perils of Climate change or Brexit, but is constrained by requirements of relevance to the subject on which she is lecturing. Further, academic freedom covers conduct as well as speech, for example, the equipment by a research scientist of her laboratory and the choice of her staff.

The second view of academic freedom is that it is a professional freedom to be enjoyed by qualified university scholars and scientists to research and teach their subject according to standards of accuracy, coherence, and competence established and interpreted by their peers, not by the government or by university administrators. The freedom enables them to work with a degree of independence, not shared by, say, the employees of an industrial company laboratory or a social science think-tank, who must work according to the specific brief given them. The freedom certainly covers a right to publish research findings independently. But these findings must be coherent and supported by argument if they are to be covered by academic freedom. This is quite different from freedom of speech, which covers emotional outcry and protest as well as rational argument.

A complicating factor is that academic freedom has often been asserted by universities themselves, anxious to defend their autonomy against excessive state regulation. Without some autonomy, they would be unable to protect the freedom of individual scholars. But independent universities may also use their autonomy to regulate the teaching and research of academics, so raising potential conflicts between institutional and individual academic freedom, a problem I discussed in Academic Freedom and the Law, 38-45. This difficulty has now been exacerbated by the recent UK statute, the Higher Education and Research Act 2017, which treats in section 2 the freedom of academic staff as an aspect of the institutional autonomy of ‘higher education providers’, together with the institutions’ freedom to determine the content of their courses and the criteria for the appointment and dismissal of staff. It is impossible to predict how a court, or employment tribunal, would resolve a dispute between a lecturer dismissed for refusing to teach a prescribed course and her university, both of which could claim academic freedom under the 2017 law.

What is surely clear, however, is that academic freedom cannot be understood simply as uninhibited freedom of speech for academic staff. Their freedom to speak within the classroom and in publishing their research is limited by standards of relevance and coherence, which do not apply to the expression of other people. A harder question is whether academics enjoy full freedom of speech at, say, student meetings held on campus, on the media or when blogging, or whether academic freedom imposes limits in these contexts  on what professors and lecturers are free to say. If they do have this freedom, it is surely part of their right as citizens to freedom of expression, not an aspect of academic freedom. Indeed, a strong argument has been made that the values of academic freedom – the requirement of evidence and rational argument for an opinion – would justify a ban on a (visiting) scholar, say, denying the Holocaust or climate change at a student meeting: see Robert Simpson and Amia Srinivasan, ‘No Platforming’ in Academic Freedom 186-209. There is here a conflict between the implications of freedom of speech on the one hand and academic freedom on the other.

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I remember on an occasion when I was a member of a committee at UCL to appoint a new Professor that one quite plausible candidate was excluded from serious consideration on the ground of the low quantity of publications. The view was that we simply could not appoint someone who might not produce the number of publications required by the REF. This perspective raises the question whether the requirements of the REF (and its predecessor exercise) for all scholars to submit for scrutiny four pieces of work in the prescribed period  amounts to an interference with their academic freedom of research. The REF emphasis on quantity, as well as quality, might lead to an academic’s reluctance to tackle a large subject, particularly one which involves developing proficiency in another language or spending a long period abroad. Similarly the requirement to produce evidence of likely social or economic impact, imposed as a condition of eligibility for research grants, may inhibit pure research where these dividends are unlikely to be evident. Of course these demands are not tantamount to a ban on researching particular topics which would certainly amount to an infringement of academic freedom, but they do inhibit its effective exercise and should have been more strongly resisted by universities than they were: see Anthony Stanosis, ‘No Time for Muses: The Research Assessment Framework and the Pursuit of Mediocrity’ in Why Academic Freedom Matters 128-144.

Freedom of research would probably also be at issue in this hypothetical case. Suppose a junior lecturer decides to research a topic well outside the field in which she was expected to work when she was engaged by her department. Might her Head of Department (less sympathetic to academic freedom than those of UCL Laws when I was granted study leave) refuse her study leave to work on this topic? Would her decision be a good reason to reject her application for promotion, no matter how good the quality of the research she actually did? These questions concern the scope of research freedom. It is clear that academics must have some ‘elbow room’ or discretion to work on topics related to the one on which they were expected to research, but it is less clear the department should give them a completely free hand and ignore its own expectations at the time of the initial appointment (see the essay by Brian Weatherson, ‘Freedom of Research Area’ in Academic Freedom 102-115).

Much the same issues arise in the context of teaching freedom, another important aspect of academic freedom. A lecturer appointed to teach the law of torts is surely free to spend more time than most of her peers do on defamation or economic torts, but she would not, I think, be free to more or less omit the law of negligence altogether. And she would certainly not be allowed to teach principles of contracts law in the torts course. Indeed the scope of teaching freedom is much more circumscribed now than that of research freedom, largely because a department owes obligations to their students to teach the subjects promised in the syllabus and increasingly to meet their expectations.

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Is academic freedom imperilled by the increasing demands of students for ‘trigger warnings’ if a lecturer plans to discuss a sensitive topic in her lectures? For some students a graphic depiction of rape or sexual violence in a course on criminal law or family relations may awaken previous traumatic experiences, while others (not necessarily Muslims) might want notice if certain topics, say, sexual freedom or freedom to choose religious dress are to be canvassed in a human rights course. Students may even assert a right not to be taught a topic, as happened notoriously at UCL a few years ago when students walked out of a lecture by the distinguished biologist, Professor Steve Jones, when he was discussing evolution.

If in response to student requests, a department requires its lecturers to issue ‘trigger’ or ‘content warnings’, or more radically to avoid some topics altogether, their academic freedom to teach their subject as they think right would surely be infringed. Of course, pressure may be applied less formally by students themselves when they mark a lecturer down in course evaluations if she does not meet their requests for warnings or against the coverage of certain topics (see the discussion of these issues by Jennifer Saul, ‘Beyond Just Silencing: A Call for Complexity in Discussions of Academic Free Speech’ in Academic Freedom 119-134).

These risks to the effective exercise of teaching freedom are an aspect of the increasing emphasis on student satisfaction with their courses, and on students as ‘consumers’ rather than pupils of their lecturer. Further, there is the argument that some students may be ‘vulnerable’, if they are exposed to novel or challenging ideas which take them out of their comfort zone (see Kathryn Ecclestone, ‘Changing the Subject: the Rise of  “Vulnerable” Students’ in Why Academic Freedom Matters 163-181, and Jenny Jarvie, ‘Warning: a Fear of Words and Ideas’, ibid, 182-199). The acceptance of this argument poses a real danger to academic freedom and indeed to the role of universities, one purpose of which is to engage students with novel, even controversial, ideas which they should be prepared to discuss. Universities should not be regarded as ‘safe spaces’ if by that term is meant classrooms where students are immune from intellectual challenge.

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Another threat to academic freedom may be posed by the requirements now imposed on universities under the government’s Prevent strategy. Under the Counter-Terrorism and Security Act 2015 specified authorities, including universities and other providers of higher education, are required to have ‘due regard to the need to prevent people from being drawn into terrorism’, and to take official guidance into account when discharging this duty. The Higher Education Funding Council (replaced by the Office for Students) Guidance for universities requires them to formulate policies and procedures to implement their Prevent duty. Academic staff are typically required to take training courses to alert them to their Prevent duties; they should report to a designated officer if a student indicates sympathy for terrorist aims. Universities must consider carefully before allowing a visiting speaker on campus whether the views likely to be expressed are ‘extremist views’ which risk drawing people into terrorism.

The implementation of these obligations may well inhibit freedom of speech on campus. Under the Counter-Terrorism Act universities must pay ‘particular regard to the duty to ensure freedom of speech’ when exercising their duties under the legislation. The duty to prevent people being drawn into terrorism must therefore be balanced against this free speech duty. Indeed, the Court of Appeal has recently held a paragraph of the Higher Education Guidance for universities ultra vires in that it did not in its drafting appropriately balance the two statutory duties: R (Butt) v Secretary of State for Home Department [2019] EWCA Civ 256. The Guidance wrongly suggested that visiting speakers should not be permitted on campus if there was any risk that extremist views might draw people into terrorism and implied there was no scope for particular university authorities to reach a different assessment of the correct balance. Does the Prevent duty also inhibit the exercise of academic freedom, which, as was argued earlier, should not be equated with freedom of speech?

I think it does insofar as it limits the freedom of lecturers and the supervisors of theses to draw their students’ attention to material – say, terrorist propaganda – relevant to their course or their research which could be regarded as expressing ‘extremist views’ shared by members of terrorist groups. The broad definition of extremism in the official Guidance as including vocal opposition to ‘fundamental British values’, subject to criticism by counsel in Butt (at para 152), suggests a wide range of material could be caught by the Prevent duties, whether or not it explicitly urged support for terrorism. The episode at Nottingham University when a research student was referred to the police by the university for reading the Al-Qaeda training manual – available on websites and from Amazon (see Academic Freedom and the Law 258-60) – shows the risks to academic freedom. More recently a graduate student at Staffordshire University taking a Masters course in terrorism and global security was reported under the Prevent strategy for reading Terrorism Studies in the library (Tara McCormack, ‘Academic Freedom in an Age of Terror’ in Why Academic Freedom Matters 146-62 at 152).

A lecturer disciplined, or dismissed, for neglecting her departmental duties, could certainly claim that the measure would undermine her academic freedom guaranteed both by the law and by university statutes. Academic freedom arguments could also be used to strengthen a claim of unfair dismissal brought on other grounds, say, by a whistle-blower under the Public Disclosure Act 1998. Regrettably there are few decisions – either of the courts or employment tribunals – which discuss academic freedom. University authorities understandably prefer to settle claims informally; they do not want it to be known that they might have failed to respect academic freedom. But that does not mean universities always do respect it, though, as I said at the outset, the better ones generally do.

 

Eric Barendt is Emeritus Professor of Media Law at UCL. His principal research has been concerned with freedom of speech/expression and related constitutional and legal questions.

(Suggested citation: E Barendt, ‘Academic Freedom,’ UK Labour Law Blog, 1 August 2019, available at https://wordpress.com/view/uklabourlawblog.com).

 

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