The Idea of Academic Freedom, Explained by Stone and Forrest*

Reposted from Jennifer Marohasy’s Blog

June 25, 2021 By admin

Does the principle of academic freedom protect Australian academics who engage in pointed public criticism of their academic colleagues, and university governance? A case in the High Court this week provides a rare opportunity to consider academic freedom in Australian universities.

The case has its origins in an academic dispute about the threat climate change poses to the Great Barrier Reef. Peter Ridd, a professor at James Cook University, believed his academic colleagues at a research centre at the University and at a partner institution, the Great Barrier Reef Marine Park Authority, overstated the risk.

In comments to print journalists and in appearances on television, Ridd criticised reports produced by those researchers as flawed and untrustworthy. Specifically, he said that his colleagues knew they were ‘likely … telling a misleading story’, and that they would ‘wiggle and squirm’ under questioning.

A disciplinary process began. Ridd was directed to maintain the confidentiality of the process and, more unusually, not to ‘trivialise’, ‘satirise’ or ‘parody’ the process. Perhaps predictably, Ridd ignored these directions and continued both to publicise and disparage the proceedings against him. After two formal censures, the University terminated Ridd’s employment.

Ridd’s action against the University succeeded in the Federal Circuit Court but that judgment was overturned on appeal by the Full Federal Court. This week, the High Court heard Ridd’s final appeal.

There has been a lot of media focus in recent years on freedom of speech in universities. But this case raises questions about a related but distinct idea: academic freedom. That is, the case concerns the freedom of academics to discuss their field of research and to challenge the work of others as part of the process of academic inquiry. This freedom is unique to universities and protects their core and most important function: the advancement of knowledge through teaching and research.

The academic freedom issue is contained within a more prosaic legal question. At its core it concerns the interaction between two employment instruments. The first, the University’s Enterprise Agreement, contains a commitment to ‘intellectual freedom’ and provides staff rights to, for example, pursue critical inquiry, participate in debate, and express opinions, including on university operations and policy. The right to express opinions extends to expressing ‘unpopular or controversial views’ but not to harassing, vilifying, bullying or intimidating those who disagree. The second is the University’s Code of Conduct. Among other things, the Code obliges staff to treat fellow staff with ‘courtesy’ and ‘respect’ and to uphold the University’s reputation.

Neither instrument is unusual. Similar or equivalent instruments are found in many other Australian universities. In simple terms, the question in the case is: do these conflict, and if so, which instrument gives way to the other? Ridd, of course, argues that the commitment to intellectual freedom contained in the Enterprise Agreement is the primary commitment. The University argues that there is no conflict and that the Code is fully consistent with the Enterprise Agreement.

It is not a simple question, and there is not space in this piece to address the legal complexities of the case in full. In our view, the resolution of the legal question requires returning to the more fundamental idea: academic freedom. It has a long provenance and internationally well-recognised elements, including:
1. the freedom of academics to freely research, critically inquire and teach;
2. autonomy of universities; and
3. the involvement of academics in university governance, whether through formal participation in governance or through the freedom to criticise university governance.

While the way in which these principles are implemented necessarily varies, the principles themselves are well-recognised in Australia including by the Independent Review conducted by former Chief Justice Robert French into freedom of speech in universities and in the very law which established James Cook University.

The commitment to ‘intellectual freedom’ found in the Enterprise Agreement must be understood against this backdrop. The rights comprising the commitment to ‘intellectual freedom’ are entirely familiar elements of the principle of academic freedom. The use of the term ‘intellectual freedom’ indicates not a narrowing or rejection of the principle of ‘academic freedom’ but an expansion: in the Enterprise Agreement, the principle of academic freedom is extended beyond academic staff to include non-academic staff.

With that in mind, the commitment to ‘intellectual freedom’ is better understood as the primary commitment, to which the obligations of the Code must give way in some circumstances. This view gives priority to the core purposes of a university, and the practical realities of the exercise of academic freedom. Some essential expressions of academic freedom, such as allegations of academic fraud or of university mismanagement or maladministration, are simply unavoidably discourteous and reputation threatening.

Here, Ridd’s conduct, however unpleasant, involved the exercise of two important elements of the principle of academic freedom: the expression of opinions on scientific matters, and criticism of university governance.

As a matter of principle, limits on such expressions of academic freedom should be rare, carefully confined and very well justified. Neither inconvenience, irritation, disputation between colleagues, nor the embarrassment of university partners is justification enough. Given the importance of the principle of the academic freedom, the burden on justifying restrictions to it should be very heavy indeed. In this case, that burden was not met.

*This article by Adrienne Stone and Joshua Forest was first published by Graham Young at On Line Opinion, click here, and is republished here with permission. Adrienne Stone is the Redmond Barry Distinguished Professor in Law at the University of Melbourne and the Kathleen Fitzpatrick Laureate Fellow. Joshua Forrest is Research Associate at the Centre for Comparative Constitutional Studies at Melbourne Law School.

****
The feature image was taken by Clint Hempsall in January 2020 at a place called Gotham City, which is a well known dive site at The Ribbon Reefs. It shows Red Bass and Giant Trevally circling the top of a bombie before one smashed corals to extract a smaller fish, its prey.

4.8 12 votes
Article Rating
26 Comments
Oldest
Newest Most Voted
Inline Feedbacks
View all comments
Dave Fair
June 25, 2021 6:43 pm

I am Authority … shut up.

Hal McCombs
June 25, 2021 6:44 pm

We’re totally behind you Peter!

MarkW
June 25, 2021 7:05 pm

Liberals are fully committed to free speech.
So long as you only say what they tell you to say.

Izaak Walton
Reply to  MarkW
June 26, 2021 6:55 pm

when was the last time a liberal banned teaching of critical race theory? Conservatives are attacking free speech just as much if not more. Look at the situation in Florida where students and staff at public universities are now required by law to tell the state their political affiliation.

beng135
Reply to  Izaak Walton
June 27, 2021 10:25 am

WTF? Why would libtards ban CRT? That’s their immoral/corrupt bread & butter, you idjit.

Paul Penrose
Reply to  Izaak Walton
June 28, 2021 9:37 am

when was the last time a liberal banned teaching of critical race theory?

Never, and that’s a big problem because CRT is just as wrong as teaching children that black people are subhuman. And if you can’t understand that, then there is no hope for you.

commieBob
June 25, 2021 7:23 pm

Does academic freedom provide any protection against the petty fascism of cancel culture? Mostly not I would say.

ray g
June 25, 2021 7:25 pm

When do we hear the outcome?

Herbert
Reply to  ray g
June 26, 2021 7:24 pm

ray g,
Ideally, one to two months after hearing.
Realistically,two to three months.
Rarely are High Court judgements withheld for lengthy periods.
The High Court has a Judgement Delivery Notification alert service which each week identifies the cases that will be delivered in the following week.
So we will get an early notice of the forthcoming Judgement.

Richard (the cynical one)
June 25, 2021 7:35 pm

We all stand to win a little if Peter Ridd wins, or lose more if he loses.

Reply to  Richard (the cynical one)
June 26, 2021 2:38 am

We all stand to win a little if Peter Ridd wins, or lose more if he loses.

We all stand to win a little if Peter Ridd wins, or lose everything if he loses.
All hail the irreproachable wisdom of case study lawyerism! Him losing here, would raise climastrology to the level of law.
Because, legal precedent!
Funny how ‘legal precedent’ only ever works in the negative for the less well funded party. I quote: “…what stops the two lawyers from agreeing to split the much larger fee of the wealthier respondent?”

Ferdberple
Reply to  paranoid goy
June 26, 2021 5:47 pm

Zwhat stops the two lawyers from agreeing to split the much larger fee of the wealthier respondent
=====
A more typical approach is to tell the client to fight when fees are below 30% of the projected – agreed between lawyers – award and settle once they reavh 30%. Without mentioning the 30% figure..

Felix
June 25, 2021 8:41 pm

Sounds like this conflict has always been present, but no one wanted to fix it “because that’s how we’ve always done things”, and besides, legal beagles thrive on uncertainty. It’s never erupted before because the academics had the tenure they wanted and were just coasting to retirement; why rock the boat? which certainly meshes well with not questioning the current climate alarmism fad which gave them so many cheap research papers.

Smart Rock
June 25, 2021 9:42 pm

The university administration took sides in a scientific debate.

That shows how much they are invested in climate alarmism – because of the grant money it brings in and/or because they believe in it and/or because they believe in the social changes that a post-fossil fuel economy will lead to.

Duker
Reply to  Smart Rock
June 25, 2021 11:28 pm

Good point. Not only was Ridd undermining the climate consensus about damage to the reef, but his work could derail the funding gravy train of ever more money required to study the reefs problems

alastair gray
June 26, 2021 12:45 am

“Among other things, the Code obliges staff to treat fellow staff with ‘courtesy’ and ‘respect’ and to uphold the University’s reputation.”
It is not discourteous or disrespectful to point out to a colleague where they have strayed into error. Not to do so trashes the reputation of an institution. Imagine a government witch hunting a whistle blower and burying an inconvenient truth.. That could never happen as it would betray the trust of the voters.

Rich Davis
Reply to  alastair gray
June 26, 2021 3:57 am

“ That could never happen as it would betray the trust of the voters.”

As Kamala Harris would say:

HA HA HA HA HA snort
HA HA HA HA HA!!!!!

StephenP
June 26, 2021 2:00 am

Cambridge University academics recently voted greatly in favour of the expression to ” tolerate ” rather than ” respect ” other academics’ viewpoints., which would still allow robust academic discussion.

http://Www.bbc.co.uk/news/education-55246793

As for the universities being worried about losing funding, I thought the Australian government had given $500 million with no strings attached for research into the Great Barrier Reef.

Oddgeir
June 26, 2021 3:16 am

I’ll be flabbergasted if a judicial institution would allow political dogma to trickle down education institutions and employer/employment structures.

Not would it only tell a lot about that judicial institution, it would also describe the jurisdiction in which it operates.

Let’s hope the “Full Federal Court”overturned the “Federal Circuit Court judgment” because they wanted to deliver a verdict at the highest institution, and thus settle matters like this for eternity.

With all judges present (Grand Chamber)

https://www.fedcourt.gov.au/law-and-practice/appeals/full-court-original-jurisdiction

https://www.fedcourt.gov.au/about/judges/current-judges-appointment

Oddgeir

Buckeyebob
June 26, 2021 3:21 am

The article seems fairly neutral but the writer betrays bias by saying (paraphrased) that Ridd’s conduct was ‘unpleasant’. How is standing up for free speech and your rights unpleasant?

Jay Willis
Reply to  Buckeyebob
June 26, 2021 6:14 am

I agree, it avoids mentioning a case of projection: “The right to express opinions extends to expressing ‘unpopular or controversial views’ but not to harassing, vilifying, bullying or intimidating those who disagree.”

How is firing somebody not bullying them? The authors appear to totally forget the chilling effect of the legal process using employment contracts that people practically always sign when under extreme stress to accept a job, and so rarely actually read.

Do the University admin staff have any rights or obligations under their own code? These authors are overlooking the glaring case of hypocrisy. Why can’t the admin team at the University not be held responsible for bullying and intimidation? In fact – named and personally shamed, rather than hiding behind some sort of collective responsibility. It is disgraceful.

Geoff Sherrington
June 26, 2021 4:55 am

Different times (1970-80s), different peopole (mineral exploration scientists), different sensitivities.
Every couple of years we would organise an in-house seminar with selected outsider from academia and institutions like CSIRO. Usually some 40-70 professionals of both genders for 3-4 days of debate.
One senior geologist was nicknamed. “Tube” because that sounded close to his surname. After a careful and considered 20-minute presentation, he invited questions. Another geo took the floor and said “Tube, your arguments are like your nickname. Long, hollow, circular and devoid of meaningful content.” Lively discussion followed.
Nobody was a precious snowflake taking offence. I chose this example of discouirse because it was printable – most of the others were far, far worse.
What has turned people into such delicate pink petals? Geoff S

Olen
June 26, 2021 7:06 am

It is a simple question and is mentioned in the article. Academic freedom to openly discuss anything connected to the profession as opposed to pride and hurt feelings.

Barroom language leading to a fight is not allowed but civil talk is allowed no matter how offensive it may be in it’s content.

The simple truth is if there is no academic freedom there are no academics except as stated in the book Extraordinary Popular Delusions and the Madness of Crowds.

Wikipedia: Although the notion of academic freedom has a long implicit history (Leiden University, founded in 1575, birthplace of the modern concept)[citation needed], the idea was first clearly formulated in response to the encroachments of the totalitarian state on science and academia in general for the furtherance of its own goals.

We wait for the wise judges to tell us how free we are.

H. D. Hoese
June 26, 2021 7:18 am

I have had several discussions on this with academics, even a couple of administrators, the latter of which have come to dominate the former. Long ago a lab director produced a large tome of regulations, one of which was to have all office doors locked at 5PM regardless, as some sitting in their office found out. A visiting researcher came back from a long, exhausting field trip and found his office door locked. There was apparently no key available for his office, so he used a small shovel he had to break the small window to enter. The director was stoic about it, said something like you might expect such from an active academic. Suspect the director realized his overkill, and went off to another job a few years later.

The point is that tolerance seems to have disappeared, along with so much rise in advocacy where the ‘educated’ either actively pursue an agenda or preach about it. I just read a review paper about the loss of 2% oxygen in the ocean, done by a committee, some of which have previously produced good science. Apparently they missed out on statistics and the history of oxygen measurements.

Every year some formerly credible media talk about the Gulf ‘dead zone’ as if everything in its reach is killed, despite several papers and other evidence showing that this is greatly exaggerated like so many others, burying the situation.

https://www.theatlantic.com/science/archive/2018/01/suffocating-oceans/550415/
From a calculated 2% reduction in oxygen “Last summer [2017], scientists in the Gulf of Mexico watched with growing alarm as the largest dead zone in recorded history spread across the sea, from Texas to the mouth of the Mississippi. This almost-9,000-square-mile swath of oxygen-poor ocean rendered one of the country’s most productive fishing grounds almost completely lifeless.” https://science.sciencemag.org/content/359/6371/eaam7240

Correcting such obvious error should be covered by academic freedom, although it does get misused.

Ferdberple
June 26, 2021 5:58 pm

In law the general must give way to the specific.

The university charter is the general. The empliyment agreement is the specidic.

You cannot reduced the terms of the employment agreement by application of the university terms. This is conmon law going back centuries.

If the king says death for poching, but the king says ferd berple can poach, in sherwood, then ferd berple cannot be put to death for poaching in sherwood .

This is the p ridd case in a nutshell.

Ferdberple
June 26, 2021 6:03 pm

It is a red herring to talk about a conflict between the specific and the genwral. No such conflict exists in law.

Rhe university is right the is no conflict but theu are wrong to see the employment agreement contained within the university charter.

They mistake an organizational hierarchy for a legal hierarchy. The charter is subordinate to the employment agreement in law, for the reasons already given.

%d bloggers like this: