A Six-point Plan to Defend Freedom of Speech in our Universities

The new McCarthyism as a call to action

Gavin Williamson brought attention to free speech at the recent virtual Conservative Party Conference.

This continues a running theme of alleged censorship on campus, and a perceived hostility in the academy to conservative thinkers and ideas, about which he was animated.

One of his predecessors, Sam Gyimah, had to assert that universities were not “left wing madrassas” in reply to Toby Young, but warned we should avoid being seen as “ideological echo chambers.”

A similar political challenge is faced by universities on the other side of the pond. A recent article in The Chronicle of Higher Education read:

“It was the view of many in the new Republican majority that the system, governed for decades by a board of Democratic-friendly appointees, had allowed unchecked liberalism to crowd out conservative viewpoints in the classroom and wasted taxpayer money on professors’ left-wing indulgences.”

The Charities Act, the Higher Education and Research Act 2017, and the newly published CUC Higher Education Code of Governance might be enough of a redoubt to see off such political attack. Perhaps this public space can be defended.

But what should our universities do?

This article presents a six-point plan.

1. Admit a need to act

The first is to ask if this is an entirely unreasonable criticism.

After all, it was hard to find voices on campus prepared to speak in support of Brexit during the referendum. As a result, debates largely presented the case for remaining in the EU.

But then again, it’s hard to insist that students and staff must hold views that they don’t hold, or have those views debated if nobody will come forwards to do so.

Nevertheless, it’s fair to ask whether universities are indoctrinating their students with liberal propaganda, or are guilty of intellectual conformity. If the charge were true, universities would be failing in their duty to develop a culture of intellectual enquiry.

But equally, governments (of a particular political colour) could be accused of seeking to single out universities on the basis that they are politically-inconvenient parts of the civic architecture. A similar charge is made against the BBC, and even the judiciary.

It is dangerous for politicians to enter this debate with politicised, one-sided alarms about the state of free speech. It may appear that they simply don’t like independent civic institutions who critique, rather than support, the dominant political orthodoxy of the time.

Meanwhile, the danger for universities lies in failing to recognise the issue, failing to firefight when the next incident and (social) media storm comes along, rather than taking positive steps to hold the space.

2. Recognise a specific and unique role

However, it is not the role of universities to jump on the bandwagon of populism, or to court controversy by hosting writers and speakers simply to cause a reaction.

Surely, universities engage with topics that support students’ learning, or which will add to knowledge. Faculty should engage with topics and speakers susceptible to reason, enquiry, facts, and a dispassionate approach which takes the debate where the evidence leads.

In The Idea of a University, the classic work on university education, John Henry Newman refers to a “cultivation of mind.” In short, a training in the capacity to think for oneself.

And that requires being challenged by, and seeking to comprehend, a range of views you:

• have not heard before
• may not agree with
• might be offended by
• might choose to accept (or reject) based on an open-minded engagement.

Intellectual debate, the desire for new knowledge, to understand the causes of things, is at the heart of campus culture. Other platforms, such as TV talk shows, exist for other forms of debate.

3. Promote understanding of the inherent complexities

Some argue ‘no platforming’ and ‘trigger warnings’ have not helped the university cause.

But these have not arisen because students are ‘snowflakes’ (a new and derogatory term) but because a campus is always properly at the edge of these societal issues, where people and ideas clash.

This generation of students are exposed to a wide range of views, through various forms of new media. These include views which some may consider extreme, and students have to decide, as never before, what they choose to attend to.

Campuses are more diverse, more open, and encompass a larger view of society then they once did. An honest debate about free speech would necessarily see complexity, including what speech sits outside of acceptable parameters, whether that be hate speech or incitement of violence.

In the United States, the cherished first amendment makes freedom of speech one of the most sacrosanct freedoms. However, even there, a variety of exceptions to the general principle exist, including incitement to violence, fighting words, obscenity, defamation, and blackmail.

The right is not absolute, and must give way to competing interests that are more compelling.

4. Defend the university from interference by public authorities

The government is acting on its own rhetoric that it must defend freedom of speech.

For example, according to the Department for Education guidance, universities in England needing bailouts to survive the impact of COVID-19 have to “demonstrate their commitment” to free speech.

The danger here is that the government ends up not promoting free speech, but falling into the authoritarian trap of promoting the freedom to agree with (or promote the ideas of) whatever political stripe is in office at the time.

An essential condition for freedom of speech is academic freedom. Specifically, the right of academics, individually and collectively, to:

• determine the curriculum and course content they teach
• draw what conclusions they find consistent with their research, however unpopular
• do so without outside interference.

Universities must be alert to avoid political interference in their curriculum and teaching.

At the same time, they must defend freedom of speech, ideas, and expression as the best training of the mind. This will allow students to become “a just estimate of things as they pass before us,” which is the object of a liberal education, as set out by Newman.

The Higher Education and Research Act 2017 (HERA 2017) had useful clauses added to the general duties before it hit the Statute books. These include:

• institutional autonomy to determine the content of particular courses
• the manner in which courses are taught, supervised and assessed
• academic freedom to question and test received wisdom
• academic freedom to put forward new ideas, and controversial or unpopular opinions.

This became directly relevant when Mr Heaton-Harris MP, a Eurosceptic, wrote to most vice-chancellors in October 2017. He asked for “the names” of professors involved in teaching about Brexit, and requested “a copy of the syllabus and links to the online lectures.”

University governing bodies need to stand ready to defend the rights of the institution and its academics from such external interference.

5. Avoid politicisation of the University itself

The new CUC Code rightly says:

“The governing body should also understand their institution’s legal responsibility to uphold freedom of speech within the law.”

The degree to which this agenda is currently being adopted and politicised is not dealt with.

In the US, to quote The Chronicle of Higher Education once more:

“In recent years, a number of politically appointed public-university boards have used their broad powers to wade into contentious territory that often splits along partisan lines — setting policies around free speech, scrutinizing the perceived ideological underpinnings of curricula, targeting protections of tenure, and restraining collective-bargaining rights.”

In the UK tradition, university governing bodies are not political, and members are not political appointees. Where universities are charities, they are protected by Charity Law, to some degree, from becoming political or partisan bodies.

But the CUC Code fails to assert, and perhaps takes for granted, that University Councils (or Boards, as preferred) are not political bodies. Appointments to them are not political appointments.

The Code does assert that governing bodies:

“In protecting institutional reputation and autonomy … must ensure that its decision-making processes and those of the institution are ethical and free of any undue pressures from external interest groups, including donors, alumni, corporate sponsors and political interest groups.”

That is, the University Council should not promote the views of any political party or individual. All decisions are to be made in the best interests of the university, and in pursuit of its objectives in relation to teaching and research.

6. Avoid complacency

You might think HERA 2017 and the Charities Act offer enough protection. Surely, the government’s interest in freedom of speech is benign and well-intended.

However, consider the Central European University (CEU)…

The CEU was based in Budapest, Hungary, in 2018. The CEU is no longer based in Budapest, but in Vienna. The President and Rector, Michael Ignatieff, has explained the populist political campaign by the Hungarian government against the university. The campaign ultimately forced the CEU to leave the country.

At the time, some saw the CEU move as alarming evidence of the wider attempted destruction of institutional and academic freedom. It showed what can happen when populist governments, and not universities, become the arbiter of what is (and is not) acceptable intellectual enquiry, and free speech on campus.

To quote George Orwell in On Truth:

“Freedom is the freedom to say that two plus two make four.”

Universities should remain guardians of that right.

Tony Strike is University Secretary at the University of Sheffield, convenor of AHUA North, a member of the board of the European Association of Institutional Research, editor of Higher Education Strategy and Planning (2018) and co-editor of Governing Higher Education Today (2019), both published by Routledge. Follow Tony on Twitter.

Smita Jamdar is a Partner, Higher and Further Education law specialist and the Head of Education at Shakespeare Martineau LLP, one of the top UK law firms for advice to universities and colleges. Follow Smita on Twitter.

They write here in a personal capacity.