The Government is planning to amend the Higher Education Support Act and the Tertiary Education Quality and Standards Agency Act to strengthen campus protections of academic freedom and freedom of speech. Last week it released for consultation a new legal definition of academic freedom.

While I strongly support freedom of speech and academic freedom (and have a newly-acquired personal vested interest in academic freedom), I have reservations about the proposed definition.

The French review of freedom of speech in Australian higher education, which is the basis of the proposed amendments, recognised that freedom of speech and academic freedom are related but distinct concepts. But the proposed legal definition blurs them.

“Academic freedom”, for the purposes of this Act and the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) and any standards made under that Act, comprises the following elements:

• The freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;
• The freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research;
• The freedom of academic staff and students to express their opinions in relation to the higher education provider in which they work or are enrolled;
• The freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities;
• The freedom of academic staff to participate in professional or representative academic bodies;
• The freedom of students to participate in student societies and associations; and
• The autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which they are taught and the choices of research activities and the ways in which they are conducted.

 

Academic freedom is both more limited and more protected than freedom of speech. It is more limited because is embedded in scholarly practice, with rules about what counts as evidence, which methods of analysis are acceptable, and what counts as a logical argument. These rules are legitimately policed, principally by fellow academics who have a shared interest in the academic enterprise. People who are unlikely to follow these rules are not appointed as academics. Academics who stop following the rules can be denied publication, promotion and funding, and can be dismissed from their jobs.

But if academics do follow these rules, they have an unusual level of discretion in choosing the topics they will be paid to pursue within their field and in publishing their results – what we call academic freedom, the freedom to do their jobs as academics. Their employers, the universities, cannot sack them simply for disagreeing with published findings. Funders of academic work, including governments, land themselves in political strife if they try to interfere. Academic freedom has strong public support.

Under the principles of free speech, by comparison, academics and others can say whatever they want, regardless of whether it is supported by evidence or logic. But academics cannot expect their colleagues or employer to protect or defend them if all they are doing is offering unsubstantiated opinions that fall short of acceptable scholarly standards.

The core of academic freedom is in the first dot point above, as modified by the last dot point – universities can legitimately decide which courses should be taught and set priorities for research spending. The second dot point, discussed below in relation to students, seems for academics to be very similar to the first point. It’s not clear that both are needed.

Other dot points I would class as part of the institutional protections of academic freedom. The NTEU is a strong defender of academic freedom, and the Peter Ridd case (which is subject to an appeal by JCU) highlighted that enterprise agreements are its main legal protection. The  ‘freedom of academic staff to participate in professional or representative academic bodies’ is therefore necessary to give practical effect to academic freedom.

Similarly, I see ‘the freedom of academic staff … to express their opinions in relation to the higher education provider in which they work …’ as part of giving academics a real power to criticise university administrators if they try to limit academic freedom. It is also part of the broader collegial structures of universities, in which academics are members of the university community and not just employees.

By contrast, the ‘freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities’ I see as more a freedom of speech rule. But it is sensible for universities to allow this, both from a general perspective that employers should not regulate what employees do outside of work unless it has significant implications for their employer, and to minimise the grey areas around the edges of academic freedom. Academic freedom here also protects the university, as it is widely understood that academics do not speak for their university as an institution.

The second dot point, ‘the freedom of  academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research’ seems to extend academic freedom to students, in creating a limited sphere is which their statements are protected by the university.

I’m not convinced that this is the right conceptual approach. Rather, I would say that students should have a general right of free speech that universities can only limit in narrow circumstances to do with the university as an academic enterprise and to protect other students and staff. If students say stupid or offensive things that don’t involve the university, such as on Facebook or Twitter, then their reputations will suffer, but it is not the university’s business to punish them. As with academics, it is widely understood that students do not speak for their university.

Within a subject, a student’s freedom of speech is qualified. The student has to stay on topic and learn what counts as evidence and a valid argument in the relevant field. If they do that then they have something analogous to academic freedom to express views that their teacher may disagree with – I think this might be the point of this provision. But I am not sure that academic freedom is the right conceptual framework. Students have the right to be treated fairly, and to be rewarded with good marks if they master the content and methodology of their subject, but this right is founded in the academic professionalism of their teachers, not the academic freedom of the students. Academics should be penalised if their personal or political animosities interfere with their grading.

As academic apprentices, students do not have full academic freedom, which includes the right to choose research topics and to be supported by the university. Academic freedom derives from the intellectual authority of an academic, acquired through getting degrees, receiving academic appointments, and being published and cited in reputable publications. Students are in a different category.

In creating a student version of academic freedom, with the limiting words ‘in relation to their subjects of study and research’, the definition seems to leave open the possibility that universities could more broadly regulate student speech, other than speech covered by the third dot point, which protects students offering views on their higher education provider.

I doubt that this narrowing is intended. Based on their general freedom of speech, students should be free to participate in public debate and that freedom should not be restricted to topics related to their study or research. Outside narrow academic and campus concerns, universities should neither prohibit what students say nor protect them from the consequences of their statements.

The second last dot point is ‘the freedom of students to participate in student societies and associations’. As with the equivalent academic clause, this is more about freedom of association than freedom of speech, but it can be seen as helping to give practical effect to protecting other freedoms and interests.

The blurred and perhaps confused concepts in the proposed definition of academic freedom may not matter too much in practice. For example, the University of Sydney’s policy, based on the minister’s preferred model, firmly places academic freedom and freedom of speech within the scholarly functions and standards of the institution. Universities have shown no interest in regulating the general speech of their students.

But to help avoid future problems it would be better to distinguish between academic freedom and freedom of speech, and to clarify that students have a broad freedom of speech, with only narrow university-related exceptions.