The right to be unpopular

Universities need to be careful about equating academic freedom and outspoken opinions with employee misconduct

July 10, 2014

With the World Cup final this weekend, bloggers and commentators have only a few days left to draw strained analogies between the footie and whatever they happen to be writing about.

In an example of the genre posted last week, a lawyer drew parallels between the biting incident involving Uruguay’s star striker Luis Suárez, and what universities might do when they decide that “enough is enough” with talented but challenging academic staff.

David Browne, a senior associate in the employment team at SGH Martineau, argued that just as Liverpool Football Club, Suárez’s current employer, is seeking to offload the striker “in the interests of self-preservation”, so universities may also “encounter high performing employees who, although academically brilliant, have the potential to damage their employer’s brand”.

So far, so fair enough – but what is the academic equivalent of sinking one’s teeth into an opponent?

“This could be through outspoken opinion or general insubordination,” Browne wrote, adding that “irrespective of how potentially valuable these employees may be…in consistently accepting unacceptable behaviour, institutions may be setting dangerous precedents”.

The Education Act of 1988 states that academics ‘have freedom within the law to question and test received wisdom’

The blog provoked criticism on social media, prompting some hurried amendments to clarify that “the lawful exercise of academic freedom does not amount to misconduct”.

What makes the blog even more sensitive – as we report this week – is that Browne’s firm is advising the University of Warwick in relation to its case against Thomas Docherty, professor of English and an outspoken critic of the marketisation of higher education, who has been suspended by his employer.

The details of the case against Docherty have not been revealed, but the appearance of Browne’s blog just days before a disciplinary hearing prompted the Warwick University and College Union branch to table an emergency motion in defence of academic freedom.

The motion notes that the Education Act of 1988 states that academics “have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs”.

In the revised version of the blog, Browne states that academics may damage their employer’s brand “through outspoken opinions (where these fall outside the lawful exercise of academic freedom or freedom of speech more widely) or general insubordination, e.g. a failure to comply with the reasonable requests of an employer, or other behaviour such as bullying”. The question then is what “outspoken opinion” falls beyond the limits of academic freedom – there will be some, but it’s hard to imagine any that materially addresses matters of academic concern, or the business of higher education, that would be classed in this way.

This week, we carry a characteristically forthright piece by Docherty on the “canard” that higher education cannot be funded by the nation rather than the individual. It’s an argument that few in power have been willing or able to make, with the result that higher education has fundamentally – perhaps irrevocably – changed in the course of the recession.

Resisting the temptation to talk about own goals, it’s clear that we stand to lose far more than anyone will gain if we kill off outspoken opinion.

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