How academic freedom isn’t free speech.

By Jack Heinemann

In this article I’ll compare freedom of expression (“free speech”) and academic freedom.[1] For the working academic - staff or student - the differences matter.

Conflating the two freedoms has become a tool of ideological manipulation, writes Joan Scott in her acceptance of the American Academy of Arts and Sciences Talcott Parsons Prize for outstanding contributions to the social sciences. The same manipulation is evident in Aotearoa New Zealand politics (Heinemann 2024).

Definitions

Freedom of expression is defined in the New Zealand Bill of Rights Act (NZBR) 1990: “the freedom to seek, receive, and impart information and opinions of any kind in any form.” “It includes the right to remain silent.”

Academic freedom is defined in the Education and Training Act (2020): as “(a) the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas, and to state controversial or unpopular opinions: (b) the freedom of academic staff and students to engage in research: (c) the freedom of the institution and its staff to regulate the subject matter of courses taught at the institution: (d) the freedom of the institution and its staff to teach and assess students in the manner that they consider best promotes learning: (e) the freedom of the institution through its chief executive to appoint its own staff.”

Academic freedom has aspects in common with freedom of expression (Kaye 2020) and also “Freedom of thought, conscience, and religion, and belief” which includes “the right to adopt and to hold opinions without interference” according to the NZBR Act, but is not mentioned in the NZBR Act.

Academic freedom is the freedom to do academic work (Moshman 2017)

Academic staff and students must be enabled to seek knowledge, such as happens in research and through study. They must be allowed to hold and interpret that knowledge separately from a choice to say something about it, as in public commentary or professional publications.

Academic freedom has individualistic and collective aspects (Moshman 2017; Vrielink et al. 2011). The collective “freedom” is the institution’s and it is called autonomy (UNESCO 1997). Autonomy gives the university independence from what public (government) and private entities want it to do.

The individual right is a protection from an employer (staff) or registrar (student). The Hon Robert French, former chief justice of the Australian High Court, put it this way:

it seeks to protect, from constraints that might otherwise exist in an employer/employee relationship, that freedom of expression which is the accepted incident of the academic role. (French 2019)

Contextual differences

Individual academic freedom rights cannot be used to suppress the rights of another person with academic freedom. It carries “the obligation to respect the academic freedom of other members of the academic community and to ensure the fair discussion of contrary views” (UNESCO 1997).

Likewise, collective rights (autonomy) cannot be used to suppress the rights of individuals (UNESCO 1997). Where conflict between the university and either academic staff or students is unavoidable, “a careful balancing of rights and interests may be needed” (Vrielink et al. 2011).

The test of the balance is suggested by French (2019). It follows from the requirement that academic freedom be “within in the law” that law constrains the non-legal instruments, such as university policies or values, that may be used to constrain academic freedom.

One reasonable constraint on freedom of expression as an aspect of academic freedom is that it is based on the standards associated with scholarship. “Academic freedom is what distinguishes education and research from indoctrination and propaganda” (Moshman 2017).

Those invoking academic freedom must disclose selfish interests. They are scholars on “an honest search for knowledge with due respect for evidence, impartial reasoning and honesty in reporting” (UNESCO 1997). In contrast, free speech is “the right to express one’s ideas, however true or false they may be” (Scott 2017).

A university can reasonably treat invitations by staff or students to external parties differently to “unsolicited approaches by external organisations seeking to use publicly available university facilities for a visiting speaker” (French 2019).

Individuals’ academic freedom or freedom of expression rights don’t override institutional autonomy when it comes to issuing (or not) invitations to external people, organisations, or even academics making non-academic expression. “The decision whether or not to invite a speaker does not of itself involve an issue of freedom of speech – nobody has a right to be invited” (French 2019).

It matters

Competing everyone’s freedom of expression against academic freedom could make it harder for some members of the academic community to exercise their rights under the legitimate constraints of the university. Muddying academic freedom with general free speech, as in public commentary, strips it of its inseparability from all academic work.

“[C]ollapsing the distinction between free speech and academic freedom, [denies] the authority of knowledge and of the teacher who purveys it” (Scott 2017). We, the academy, do this at our peril.

[1] The author writes from a university perspective but without prejudice to the rights of others in education in general and the tertiary sector in particular. Thanks to Heather Hendrickson for comments during the development of this essay.

French, R.S. Report of the independent review of freedom of speech in Australian higher education providers. Australian Government; 2019 https://www.education.gov.au/higher-education-reviews-and-consultations/independent-review-adoption-model-code-freedom-speech-and-academic-freedom

Heinemann, J. How Phoebe Robertson gets it wrong on the free speech panel debacle. 2024;87:4 https://issuu.com/salientmagazine/docs/10boysboysboys

Kaye, D. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. United Nations; 2020 https://undocs.org/en/A/75/150

Moshman, D. Academic freedom as the freedom to do academic work. JAF 2017;8:https://www.aaup.org/JAF8/academic-freedom-freedom-do-academic-work#.WcpbTrJ94dU

Scott, J.W. On free speech and academic freedom. JAF 2017;8:https://www.aaup.org/JAF8/free-speech-and-academic-freedom#.WcpcJ7J94dU

UNESCO. Recommendation concerning the Status of Higher-Education Teaching Personnel. United Nations Environmental, Scientific, and Cultural Organisation; 1997 https://unesdoc.unesco.org/ark:/48223/pf0000113234.page=2

Vrielink, J.; Lemmens, P.; Parmentier, S.; LERU Working Group on Human Rights. Academic freedom as a fundamental right. Procedia Soc 2011;13:117-141