06 October 2020

Fighting Words

'Public Universities, Speech Policies, and the Law: Fourteen Maxims' by Bruce Pardy in (2020) 29 Education and Law Journal 27 comments 

Universities have no legal rationale for restricting the content of speech. Laws that limit speech automatically apply to university campuses as they do everywhere else. Having more limitations on expression inside a lecture hall than on the sidewalk mocks the university’s mission to facilitate the pursuit of truth and the education of its students. While universities have no legitimate reason to control the content of speech, ‘‘time, place and manner” rules protect expression by prohibiting students from disrupting speakers from speaking or audiences from listening. When public universities refuse to respect free speech, provincial governments could require them to do so with simple statutory directives. However, directives that call upon each university to develop its own policy invite policies that instead restrict speech. If public universities will not voluntarily protect speech and provincial governments will not require them to do so, does the Charter of Rights and Freedoms compel them? The answer is unclear and the jurisprudence inconsistent. In any event, in many scenarios the question is a red herring. Academic freedom provisions in collective agreements typically provide faculty with more robust rights than the Charter would provide. Freedom of expression under the Charter is a negative right and therefore of limited utility to students. Public universities have become ideological institutions prone to political correctness and conformity. Prospects for reform seem dim. Without a genuine commitment to free and open inquiry on contentious subjects, there is little reason for the university to exist.

Pardy's article offers one perspective on the 2019 French Report regarding free speech noted elsewhere on this blog (eg here and here) and the Independent Review of Adoption of the Model Code on Freedom of Speech and Academic Freedom currently being undertaken by Professor Sally Walker AM for the national Minister for Education. 

Adoption of the Model Code was recommended by the Hon Robert French AC in his 2019 Review of Freedom of Speech in Australian Higher Education Providers. It has a voluntary basis and is intended to 'ensure a culture of free speech and academic freedom is strongly embedded in institutions across the Australian higher education sector', with all Australian universities having agreed to implement the Code by the end of this year. 

Alongside radical defunding of universities the Minister asked Walker to 

review implementation of the Model Code by universities, to offer institutions with advice and suggestions on options to address any evident gaps in policies and to provide the Minister with advice on the overall alignment of relevant polices across the university sector with the principles of the Model Code. 

Prof Walker’s advice is intended to help and support sector-wide adoption of and consistency with the principles of the Model Code, while acknowledging the autonomy of universities to adapt the Model Code to each institution’s particular context and circumstances. 

 Prof Walker will: 

  • Validate the alignment of universities’ suite of relevant policies with the principles of the Model Code on freedom of speech and academic freedom in higher education providers; 
  • Consider whether there are areas of particular strength or weakness in institutional responses and offer any suggestions to institutions where she considers alignment with the Model Code could be improved; 
  • Identify exemplars of particularly good practice that could be shared or promoted within the higher education sector; 
  • Provide advice to the Minister for Education on the overall alignment of universities policies with the principles of the Model Code and, if warranted, any suggestions on how the alignment could be further improved; 
  • Provide advice to the Minister for Education on whether the Code needs further refinement or change. 
That advice will be  provided next month.