Academic freedom, free speech and the law—a human rights’ perspective

Arianna Andreangeli, Senior Lecturer in Competition Law, Edinburgh Law School

“Academic freedom and institutional autonomy of higher education institutions are not only crucial for the quality of education and research; they are essential components of democratic societies.”

(Parliamentary Assembly of the Council of Europe, Resolution no 2352 of 20 November 2020)

Academic freedom is an essential aspect of democracy in European society. It is linked closely to freedom of expression and comprises the right to freely research, disseminate findings and distribute knowledge, including through teaching. A necessary complement to it is the protection of institutional autonomy for universities: institutions should be free from undue interference when it comes to the design of education programmes, the establishment of assessment frameworks and quality assurance mechanisms.

Academic freedom, therefore, is a right of an individual academic and an individual student, as members of university communities, and refers to all aspects of the acquisition, formation and dissemination of knowledge, as individual and dialogical processes. It is also a right of each university as an institution to organise and govern itself and its activities in full autonomy from “undue interference” from political authorities. In its institutional facet, this right constrains the power of the state to regulate research and teaching beyond the creation of, inter alia, qualification frameworks and external structures for quality assurance for teaching as well as research—such as research assessment structures. It also entails a positive obligation for public authorities to foster dialogue concerning higher education, to encourage the creation of a working environment that is supportive of students and staff’s academic freedom and freedom of expression.

In its individual and personal facet, freedom of expression means not only that staff and students should be allowed to teach, research and disseminate knowledge without fear of sanctions or retribution. It also means, at a more general, institution-wide level, that individual universities must ensure that knowledge develops independently of allegiance to particular political, social or economic views. This obligation calls for particular vigilance in encouraging respect and trust among students and staff to ensure that, albeit within the constraints of the law, discussion can be open and full and does not privilege particular viewpoints or ideologies. Importantly, this also includes the ability of individual staff members or of students to criticise their own institutions or the education systems to which they belong.

The European Court of Human Rights stated very clearly in its jurisprudence that individuals should be free, in their exercise of their right to disseminate knowledge in their professional environment, to challenge features of their institutional structure without the threat of reprisals, such as dismissal or disciplinary sanctions. The Convention also recognises the existence of interaction between freedom of expression in civic debate as well as academic discussion and domestic legislation designed to attain legitimate aims, such as the protection against racism or xenophobia. However, any limitations placed on the freedom of historical and scientific enquiry on these grounds must be narrowly crafted. According to the European Court, Article 10 of the ECHR, which protects freedom of expression, leaves very little scope for interference with the right to debate questions of public interest in all contexts, including historical debate or academic discussion in other fields. Thus, statements that address issues of public interest without being a mere “call of hatred and intolerance” against the protected group should not be proscribed. Similarly, scholarly statements that question the nature of particular events perpetrated against a protected group but did not merely amount to a flat, intolerant denial of them, should not be prohibited, for a ban would have a chilling effect on academic and historical discourse.

For academic freedom to truly flourish, however, it is essential that each University cultivates an environment where trust and respect among staff and students are fostered. To this end, university authorities must commit to the equal recognition all political, social and economic views. Only a climate based on these values can lead to mutual ownership of knowledge and to a collegial and supportive working environment, all of which are essential to a democratic society.

In Scotland, Universities are subject to the Higher Education Governance (Scotland) Act 2016. The Act provides a framework of institutional arrangements to which universities must adhere. It sets out rules concerning the creation and running of governing bodies, their powers and the safeguards designed to protect their efficiency, fairness and transparency in decision-making. Importantly, Part 2 of the Act expressly states that academic freedom must be protected, intended as the right to “hold and express opinions, (…) question and test established ideas or received wisdom, (…) develop and advance new ideas (…) and present controversial or unpopular points of view”. Section 26(1) obliges universities to “aim to uphold (as far as the body considers reasonable) the academic freedom of all relevant persons”, namely persons engaged in teaching, the provision of learning or research at the institution. The latter must especially ensure that the views expressed by these individuals do not adversely affect them in, inter alia, career progression or the grant of entitlements or privileges to which they may be entitled in the course of their employment.

What happens when individuals belonging to the same university community and holding different and conflicting views cannot agree? How can Universities prevent and address the implications of a polarised environment? And when clashes happen, how should they be resolved? It is suggested that the ECHR’s position is clear, to the extent that it upholds firmly the equality of views, whether political, social or economic, as part of academic life. Individuals, be they members of staff or students, must not be adversely affected in any aspects of their academic work by their allegiance to one or another persuasion or ideology, including the conduct of research and teaching or in the course of professional progression.

What is more, it emerges that the principle of “ideological neutrality”, has broader, institution-wide implications. It is submitted that Section 26 of the Higher Education Governance (Scotland) Act 2016 and the acquis of the ECHR point to a general obligation for institutions to foster an environment where difficult, unpopular contents and ideas, including those at odds with what is seen as “established wisdom” or “accepted views” can be expressed and discussed. Any limitations to this obligation should be regarded as an exception, and be narrowly read, as well as being subjected to narrow scrutiny in light of human rights principles. In this context, what is ‘reasonable’, as expressed in Section 26, should be read strictly and in light especially of the human rights’ acquis summarised above. In this context, it appears that mere passivity on the part of universities’ governing bodies in the face of ideological conflicts resulting in one view being silenced is very difficult to reconcile with the spirit of academic freedom as it results from Article 10 of the European Convention. Allowing what seems a “heckler’s veto” or, in less extreme and more covert cases, imposing additional conditions on the expression and discussion of certain ideas or theories as opposed to the requirements imposed on those espousing other views, is hard to accept in light of these principles.