Academic freedom can’t be legislated into existence

You might be tempted to say that today’s announcements from the Department for Education (DfE) indicate that academics in England have lost the war for free speech and academic freedom. It is certainly startling that the government has felt the need to resort to threatening universities and students’ unions with fines if they don’t actively promote free speech. But the truth is that universities never even fought a skirmish in defence of free speech, never mind a war.

Instead, with the exception of some notable individuals, academics passively watched free speech and academic freedom disappear though institutional indifference and fear of challenging the political consensus on campus.

Institutional indifference begins at the most senior levels. This is not an attack on vice-chancellors. Many express strong support for free speech and academic freedom, both personally and in public. What they must ask themselves, however, is whether they know enough about what is happening at lower levels in their institutions to ensure that free speech and academic freedom are upheld.

One of my doctoral students recently interviewed a sample of vice-chancellors of English universities and concluded that they had left it to departmental managers and others to adjudicate over academic freedom. They rarely instigated institution-level debates or reports because they do not believe there is a problem.

But they are wrong. There exists in England a “shadow university” in which free speech is quietly restricted, behind a veil of confidentiality clauses and gagging orders. Many of the incidents concern breaches of the political consensus on equality and diversity policy promoted by human resources departments and adopted in units promoting “pedagogical” innovation.

This consensus often amounts to a fashionable form of identity politics, based implicitly, or explicitly, on a vague understanding of how critical race “theory” sees universities through the prism of race and how “intersectional theory” sees many academics and students as victims. Academics dare not openly challenge this consensus but many inadvertently and unintentionally fall foul of it, making unguarded and often trivial comments that someone in authority finds “offensive” and may even label as “gross misconduct”.

One vice-chancellor suggests in Times Higher Education that in pursuing its free-speech agenda, the government is merely “confecting conflict with and within universities, when the reality – more prosaically – is that we work together well, including with our students and staff, to manage and deal with legitimate argument and disagreement”. But that statement merely reflects the myopia from on high that has led the government to feel that it needs to act.

Three recent reports by Cieo, Policy Exchange, and Civitas have highlighted restrictions on free speech – as Academics for Academic Freedom (AFAF) has done for several years via its “Banned List”. I suggest that vice-chancellors familiarise themselves with all of these.

There will be much talk about the Office for Students (OfS) now being able to fine universities for failing to uphold free speech. People will say it is draconian – even though the OfS already has this power.

Equally, the proposal will confirm the view of the University and College Union (UCU), and others, that free speech is an authoritarian Tory project to protect bigoted academics and students. But this proposal might not be on the table if we had a union that opposed no-platforming and was prepared to defend the freedom of all academics, whatever their views.

As it is, the UCU is only willing to defend those whose views conform with its own political consensus – whose blatantly censorious ethos mirrors that of higher education institutions. It is left to AFAF and the new kids on the block, the Free Speech Union and Counterweight, to defend the free speech of academics regardless of ideology.

All of that said, it would be far more effective if the government were to confine its interventions to promulgating the arguments for free speech and academic freedom rather than try to legislate the concepts into existence. In particular, the proposal to appoint a national “free speech and academic freedom champion” to the OfS board may backfire, especially if universities adopt this practice themselves and appoint local champions. From my own experience, this will make it all too easy for fearful academics to leave issues of academic freedom and freedom of speech to the champion and keep their own heads in the sand. Vice-chancellors may do the same, in the belief that by appointing a champion, they have resolved the problem of institutional neglect.

What we really need is a national “great debate” on free speech and academic freedom involving every institution, academic and student in England. Debate topics for academics and students at institutional level could be: “Are there limits to academic freedom?” “Can we defend free speech with no ‘ifs’ or ‘buts’?” and “How are free speech and academic freedom embodied in every department in the university?”

These open debates could challenge the consensus that some forms of speech deserve greater freedom and others must not be expressed. It won’t be easy, but challenging people to make their positions explicit may lead some to think again.

To kick this great debate off, the DfE and the OfS should organise a national debate on “Are free speech and academic freedom still the values that define the university?” With that, the war might yet begin.

Dennis Hayes is director of Academics For Academic Freedom.