The State of Academic Freedom
From legislation to cultural change
21st May 2021
Joanna Williams argues that the time has come to move on from pitching cultural change against legal change and instead look at how both can work together to create possibilities for more open debate on campus.
Academic freedom is under threat.
Sadly, this sentence could have been written at pretty much any point in the history of higher education. As I note in Academic Freedom in an Age of Conformity, there has never been a golden age of unfettered free speech on campus.
However, something has clearly changed in the past few years. Today, threats to academic freedom come from multiple directions. Students campaign to have lecturers sacked and invited speakers no-platformed. Diversity officers and administrators encourage the anonymous reporting of academics alleged to have committed microaggressions, such as a raised eyebrow or a misplaced compliment. Government policies, such as the Prevent Duty, compel universities to monitor and report students deemed at risk of radicalisation and bar extremist speakers. Meanwhile, academics themselves sign petitions and share social media posts calling for their colleagues to be fired, or, at very least, silenced.
The upshot is a campus culture where debate is discouraged and ‘correct’ speech – be it declaring pronouns or pledging allegiance to Black Lives Matter – is compelled. Academics and students alike quickly learn that when the costs of mispeaking are so high, it is better to say nothing. Academic freedom is, at best, an empty slogan to be wheeled out only when politically expedient, or, at worst, stigmatized as a right wing trope.
The Higher Education Bill
Within this context, the government has recently published its Higher Education (Freedom of Speech) Bill. If passed, the Bill will commit universities to protect freedom of speech within the law for staff, students and visiting speakers and to ‘promote the importance of freedom of speech and academic freedom’. In relation to lecturers, academic freedom is defined as:
their freedom within the law and within their field of expertise (a) to question and test received wisdom, and (b) to put forward new ideas and controversial or unpopular opinions, without placing themselves at risk of being adversely affected
(a) loss of their jobs or privileges at the provider; (b) the likelihood of their securing promotion or different jobs at the provider being reduced.
The legislation recognises the role played by students in agitating for censorship and puts a particular onus on students’ unions to uphold freedom of speech with the Office for Students (OfS) monitoring both universities and students’ unions to ensure they comply with legal duties. The OfS will create a new role for a Director for Freedom of Speech and Academic Freedom (a so-called ‘free speech tsar’). Anyone who considers their academic freedom to have been breached will be permitted to bring civil proceedings against the offending institution via a ‘free speech complaints scheme’.
The government’s plans to intervene in higher education to uphold academic freedom have sparked considerable controversy. Some argue that the new legislation is unnecessary because the whole idea of a campus ‘free speech crisis’ is a myth. Despite considerable evidence to the contrary, those who take this position argue no-platforming does not take place beyond half-a-dozen oft-recycled high profile examples. In any case, academics such as Evan Smith argue, those at the heart of such controversies have not been silenced because they go on to command a public platform in national media outlets.
Sustaining this denialism requires turning a frequent blind eye not just to people (and views) that have long-since been driven off campus (those labelled fascist, for example) but also to the plight of feminists, mainstream politicians and gay rights activists. It requires adopting a narrow and disingenuous definition of ‘no platforming’ that considers an invited speaker who withdraws from debate only after facing a barrage of online abuse, petitions and the threat of protests, as simply having made a personal decision not to participate. It requires a belief that student societies cancel long-planned events, not because they have been presented with huge bureaucratic and financial hurdles, but just because the organisers had a change of heart. Above all else, it requires ignoring the chilling effect that narrowing the terrain of acceptable debate has on the impetus for academics and students to speak freely.
Law vs Culture
A further debate about the government’s proposed legislation is playing out among those who agree that academic freedom is under threat. Some argue that the problematising of free speech has become so firmly entrenched within the higher education sector that new legislation is now vital to protect academics who fear for their livelihoods. Writing in a letter to The Times, Nigel Biggar argues, ‘No one claims that the law will suffice to keep campus culture liberal. But it will give university authorities pause while encouraging intimidated staff and students to voice their dissent.’ Kathleen Stock agrees, noting that, ‘argument is useless if no one in power listens’.
Others have been far more critical of the Higher Education (Freedom of Speech) Bill, arguing not just that free speech cannot be legislated into existence but that government interference will actually erode academic freedom still further. Index on Censorship, English PEN and Article 19 wrote in a letter to the Education Secretary that the proposed legislation ‘may have the inverse effect of further limiting what is deemed “acceptable” speech on campus and introducing a chilling effect both on the content of what is taught and the scope of academic research exploration.’ Daniel Finkelstein succinctly summarises the problem: ‘the more authorities, the more complaints, the less free speech.’ Critics of the government’s plan to impose free speech argue that social and cultural change is necessary for academic freedom to be truly meaningful. In other words, defenders of free speech must win the argument rather than opting for the shortcut of legislation.
They are right, of course. It would be naive in the extreme to assume that a government that has been content to oversee hate crime legislation, the police recording of non-crime hate incidents, the Malicious Communications Act, the Prevent Duty and the Online Harms Bill, suddenly has a deep understanding of and appreciation for free speech. More specifically, there are problems with the Higher Education (Freedom of Speech) Bill, which illustrate exactly why free speech cannot be legislated into existence in the absence of broader cultural change.
As previously noted, the Bill defines academic freedom narrowly. For lecturers this means, ‘their freedom within the law and within their field of expertise.’ Not only does ‘within the law’ provide a huge caveat on what can be said, but restricting academics to ‘their field of expertise’ means that those who engage in public debates that encompass wider intellectual, political, social and cultural issues will not qualify for any of the new protections. Many academics see their role as not simply confined to the lecture theatre and the inaccessible journal article but feel a commitment to engage in national debates. Indeed, this is one reason why academic freedom is distinct from more general free speech principles. Academia is not (and should not be) a 9-5 day job but a broader public intellectual project.
When the concept of academic freedom was first defined over a century ago, it included crucial rights for lecturers to comment on and criticise the governance of their own institutions. This was considered necessary to ensure the pursuit of knowledge could proceed without institutional hindrance or interference. Over the course of the intervening decades, the management of universities has been increasingly professionalized and bureaucratized in order to ensure institutions can compete in a higher education marketplace. In Saving Britain’s Universities, academics Lee Jones and Philip Cunliffe argue there is a need to ‘restore academic self-government’. Currently, academics are not only cut out of decision making but can be disciplined for voicing criticism of their institution. The need to do just this has become increasingly apparent as the capture of institutions by pressure groups such as Stonewall and the influence of ideologies like Critical Race Theory is exposed. Yet, unusually, the Bill includes no protections for academics who speak out about what goes on in the universities where they work.
Similarly, plans to force universities to issue statements about the importance of free speech ring hollow when we consider that universities have long since produced such bureaucratic documents. As I argued back in 2013, ‘codes of practice on freedom of speech’ serve the same purpose as US campus speech codes. They say one thing but mean another. They use the language of free speech to limit what can be said and restrict the parameters of debate. It may well be possible for universities to comply with the letter of the Higher Education Bill without changing campus culture one jot. At very least, as James Murray at TaylorVinters concludes: the Bill will add further complexity to university governance and will introduce significant new compliance requirements.
Academics Against Academic Freedom
For all these reasons, the government is unlikely to be successful in its bid to impose free speech upon universities. Ideally, there should never be any need for this even to be considered. Academics themselves should be at the forefront of championing open debate and inducting students into the value of free speech. Sadly, this is far from the current reality. Right now, it is academics who are most responsible for undermining academic freedom in practice and defaming it as a value. Let’s look at some recent examples.
Academics are currently busy sharing Tweets from the Birkbeck Students Anti-Racist Network, a group that appears to have just one aim: the firing of a professor of politics from the institution: Eric Kaufmann. In an open letter, students, staff and alumni ‘call for Birkbeck management to fully investigate the activities of Eric Kaufmann, and make public its findings.’ They note that:
Birkbeck prides itself on its commitment to inclusion, diversity and critical scholarship. The University claims that the college community is ‘safe, supportive and inclusive of all’ and furthermore, was ‘committed to addressing racism and challenging injustice in all that we do, including our educational programmes’. Clearly, Kaufmann does not align with these core values.
As an aside, it is worth noting the signatories’ condemnation of Kaufmann for his failure to align with core institutional values. That a university should have values above and beyond the pursuit of knowledge is simply taken for granted. Holding (or being assumed to hold) opposing values is considered justifiable grounds for public denunciation and calls for the heretic to be cast out of academia. Also worth noting is the claim that Kaufmann ‘manipulates’ free speech and uses its guise to ‘reproduce racist and anti-migrant discourse’. That academics – and indeed Kaufmann’s own Birkbeck colleagues – are prepared to sign and share such a statement reveals the extent to which academic freedom is not only misunderstood but demonised. Heterodox views are not welcomed as a prompt for debate but publicly rejected in a display of moral outrage and political conformity.
This campaign against Kaufmann comes off the back of Neil Thin’s suspension from the University of Edinburgh following complaints from students about his social media posts. Thin, a senior lecturer in social anthropology, is accused of making ‘racist and sexist’ comments and for Tweets ‘variously described as ‘triggering’, ’offensive’, ‘bigoted’, ‘racist’, ‘misogynistic’, and ‘transphobic’’. The evidence for such crimes amounts to his Twitter biography declaration that ‘civilisation is for everyone’, a defence of J.K. Rowling and a joke questioning whether NASA will announce that the ‘man in the moon’ is ‘actually non-binary’. Rather than defend a member of staff, Edinburgh appears to have cravenly acquiesced to the students’ demands.
Essex University, meanwhile, has been praised for thoroughly investigating and publicly apologising for cancelling lectures by gender critical feminists. Back in 2019, Open University criminology Professor Jo Phoenix had been scheduled to speak on the topic of ‘Trans rights and justice: complicated contours in contemporary sex, gender and sexualities politics when thinking about issues of justice and punishment’. After a threat of protests, the university cancelled Phoenix’s lecture. A subsequent independent review of the cancellation led to a public apology from the University’s Vice Chancellor and the wider revelation that staff and students feel: ‘constrained to self-censor their speech and activity because of concerns about how we manage the balance between freedom of speech and our commitment to diversity, equality and inclusion.’
The public apology from Essex is worth celebrating. However, the fact remains that Pheonix (and, in a separate incident, Professor Rosa Freedman) were disinvited in the first place. The findings of the investigation reveal the extent to which the institution had been captured by Stonewall. It points out that, ‘the University’s Equality, Diversity and Inclusion Annual Report for 2018-19 states that one of the University’s equality objectives is to consistently be ranked in the Stonewall Top 100 employers list.’ The report notes that the university’s harassment policy ‘states the law as Stonewall would prefer it to be, rather than the law as it is. To that extent the policy is misleading’ and that the relationship between Stonewall and the University, ‘appears to have given University members the impression that gender critical academics can legitimately be excluded from the institution.’
Perhaps inevitably, Essex is now facing a backlash for having apologised to the cancelled speakers. Academics have signed (yet another) open letter expressing their ‘deep disappointment’ with the report into events and urging the University to continue its relationship with Stonewall. They go on to describe the report as a ‘clear threat’ to a ‘higher education system that is inclusive to all.’
The lecturers’ union, UCU, issued a response to the Higher Education (Freedom of Speech) Bill. It makes clear: ‘There are serious threats to freedom of speech and academic freedom from campus, but they come from the government and university managers, not staff and students.’ UCU is currently running a survey on its members’ attitudes towards academic freedom. But, as Professor Alice Sullivan points out, both the questions and the preamble indicate the ‘correct’ answers and appear expressly designed to dissuade those who disagree from participating. In fact, the survey becomes an object lesson in how not to collect data and a useful example of how ideological conformity is enforced.
Deep-rooted structural and cultural change is clearly needed in our universities to assert the significance of academic freedom. Unfortunately, as the above examples show, a majority of university staff show little inclination to fight for such change and a vocal minority are openly hostile to the cause of free speech on campus. When so many in our universities are intent on denying there is even a problem, we cannot underestimate the monumental scale of the cultural change that is needed.
It would undoubtedly be better not to have academic freedom policed and enforced by a government that shows scant regard for the importance of free speech and, indeed, little understanding of what academic freedom actually entails. We should also not underestimate problems with the proposed Higher Education (Freedom of Speech) Bill.
Despite the appearance of tuition fees, universities remain state-subsidised institutions not woke private members clubs. Government money should, at very least, be conditional upon compliance with the law. The Education Act (1986) states:
Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
As far as this statement is concerned, the Bill currently making its way through Parliament reiterates and strengthens existing legislation as well as recognising the changed institutional status of students’ unions that has occurred over the intervening three decades. This should be welcomed.
Sadly, the state of academic freedom in our universities appears so parlous that perhaps the time has come to move on from pitching cultural change against legal change and instead look at how both can work together to create possibilities for more open debate on campus.
Joanna Williams is Director of Cieo.