Australia needs a ‘quick march’ through our universities to reclaim free speech and the spirit of intellectual inquiry, argues IPA Research Fellow Brianna McKee.
The cyclical relationship between education, culture, and politics drives societal change. Each informs and shapes the other. A change in one area will have a flow-on effect on the others. However, institutions of learning may be the most powerful of them all because they have the greatest reach and influence. The rise of universal access to education has given schools and universities unprecedented influence over those who will dictate the future of a nation. The business of shaping hearts and minds has a clear downstream effect on the cultural and political spheres.
It is for this reason that democratic values like freedom of speech must be protected and promoted in our tertiary education sector. The failure to do so on Australian university campuses has allowed the “long march through the institutions” to take place unimpeded. This slogan was coined by Marxist student activist Rudi Dutschke in the 1960s and describes the intellectual takeover of a society as an alternative to violent revolution. To turn back the tide of censorship and groupthink, Australia needs top-down political intervention, a ‘quick march through the institutions’, before it’s too late.
Already, cancel culture is having a profoundly detrimental impact on the future of our nation. This article examines international best practice on free speech charters, based on information from US and Canadian universities, and how this could be applied in Australia.
FREE SPEECH UNDER ATTACK ON CAMPUSES
New research from the Institute of Public Affairs shows free speech is under attack. The ‘Free Speech on Campus 2023 Audit’—the fourth such audit conducted by the IPA—examined 279 policies across Australia’s 42 universities and found university hostility to freedom of speech has more than doubled since 2016. Today, 90 per cent of universities have policies explicitly hostile to free speech.
Increasingly, universities are adopting formal positions on ideological issues. Every Australian university has now signed up to at least one ‘social justice’ policy or strategic commitment (77 in total) which focuses on contentious issues such as sustainability, indigenous affairs, or gender equity. It is clear there are only some ‘acceptable’ viewpoints. The rise of the activist university signals the prioritisation of political and social change over education in the tertiary sector.
By promoting one side of an issue, universities attach a value judgement to it and suggest it is the superior position to hold. This closes debate and crushes viewpoint diversity.
Speaking on the Jordan Peterson Podcast in 2022, Senior Fellow at the Manhattan Institute, Christopher Rufo claimed we are seeing a ‘soft superstructural revolution’ taking place in the university sector:
When ideology gets attached to administrative power in a permanent and meaningful way, you have a revolution … These ideas are wholly subsidised by public dollars, whether that is universities which are directly financed by the public, or private universities that are subsidised by student loan guarantees.
The core purpose of a university is to impart knowledge and hone the mind through debate and challenge. The contest of ideas is not only the very essence of university life, but the very essence of political life in a flourishing liberal democracy. The failure to protect free speech at universities is enabling the rise of censorship and groupthink on campus. Increasingly, universities are becoming little more than echo-chambers for postmodern narratives.
USA’S LEGISLATIVE SOLUTIONS
The First Amendment of the US Constitution provides a protection for free speech in America that does not exist in Australia. Despite this guarantee, research by the Foundation for Individual Rights and Expression (FIRE) reveals one in six public universities in the US uses ‘free speech zones’ to restrict speech to certain areas on campus. To combat censorious actions like this, 23 States have passed laws reinforcing free speech protections. For example, the Campus Free Expression Act (CAFE) is designed to prohibit public universities from limiting speech to ‘free speech zones’. CAFE-style legislation has been passed in both Missouri and Virginia. Some legislation requires universities to have a standalone policy protecting free expression, invalidating policies that limit it.
Australia attempted to go down this pathway in 2018. It came after the IPA’s third ‘Free Speech on Campus Audit’ sparked a national debate that culminated in the government asking former Chief Justice of the High Court Robert French to review the issue. He produced a report in March 2019 which recommended all universities implement free speech policies using the French Model Code as a template.
The French Model Code was a band-aid solution which sought to override existing policies undermining free speech. It provided a definition for freedom of speech and academic freedom, stated that lawful speech would not attract penalty, and asserted that visiting speakers could not be banned solely due to content. This helped to an extent but failed to address the fundamental issue, which was the problematic policies and the mindset giving rise to them. Additionally, the adaptation process was so vaguely defined that IPA research shows only one third of universities adopted the six pro-free speech criteria embedded in the French Model Code.
The key problem here was the flexibility given to universities to adapt the French Model Code. It produced mixed results. The University of New England left out key protections included by most other institutions, while the Australian Catholic University produced a code that far exceeded the French Model Code. Another example is Newcastle University’s free speech code which says that the principles outlined in the Code do not have “overriding status to the University’s institutional values or strategic commitments”. Newcastle University’s Strategic Plan 2020-2025 outlines equity and sustainability as key values, meaning the university could arguably prohibit speech in opposition to the proposed Voice to Parliament or comments not aligned with the prevailing views on climate change.
Censorship on campus remains an ongoing problem.
In hindsight, clearly some sort of enforcement of a minimum standard would have been helpful. Additionally, the French Model Code could be strengthened by removing the provision which bans speech ‘likely to humiliate’. The term ‘humiliate’ is inherently subjective and can be interpreted broadly by activists to limit speech they dislike.
Other legislation adopted in the US includes measures requiring universities to remain neutral on issues of public debate, prevent universities from cancelling speakers, and mandate disciplinary sanctions for students repeatedly interfering with the free speech rights of others. These present an untapped opportunity in the Australian tertiary landscape. Laws requiring universities to avoid taking a stance on issues of public debate would help to encourage a broader array of viewpoints. This could represent an effective response to the sharp rise in universities adopting formal ideological policies.
UNIS TAKE A STANCE ON POLICY DEBATES
Increasingly, universities are adopting formal ideological positions on highly charged political issues. This is illustrated most clearly by unprecedented tertiary sector engagement in the public policy debate ahead of the Voice to Parliament referendum in 2023. More than half of the nation’s 42 universities have publicly backed the Yes campaign, including six of the elite Group of Eight universities.
The University of Sydney announced its support for the Yes case in late August. The Chancellor and Vice-Chancellor acknowledged in a joint message that the University of Sydney had not previously taken an institutional position on contentious societal matters such as the 1967 referendum and the marriage equality debate. This shift away from institutional neutrality on public policy issues directly threatens viewpoint diversity and free speech on campus.
Signing up for formal institutional commitments on social justice issues may seem harmless, but it ultimately has a chilling effect on debate and discussion. A university cannot be dedicated to an ideological agenda and simultaneously open to challenging perspectives. By supporting the Yes case, universities are necessarily positioning themselves against the No case. As society becomes increasingly politicised, universities must remember their role is to facilitate informed debate and discussion, not promote a political agenda. Legislation preventing institutions from adopting an ideological mantra as an institutional goal would reinforce protections of intellectual inquiry and open debate on campus.
FREE SPEECH POLICY SOLUTIONS
While State legislation provides a level of protection for free speech on campus, censorship remains an ongoing problem. It is interesting to note that FIRE found only two of the five top-rated US universities for free speech are in States with legislation safeguarding free speech. An explanation for this phenomenon is provided by former Chief Justice Robert French’s 2019 review, which highlighted the key role played by an institution’s culture in determining the prevalence of viewpoint diversity and free speech:
A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately a more effective protection than the most tightly drawn rule … A culture not so predisposed will undermine the most emphatic statement of principles.
So, even if the government were to legislate for broad free speech protections, this would not necessarily change the culture of the institutions.
Campus activism threatens the free flow of ideas.
The response by American universities has been to adopt free speech policies in a bid to combat censorship on campus at a more grass-roots level. As the problem lies mainly with the people working and studying at tertiary institutions, the solution must come from the same place. In 2012 the University of Chicago pioneered the protection of free speech through a formal restatement of the values of intellectual inquiry, tolerance, and viewpoint diversity. The ‘Statement on Principles of Free Expression’ has since been adopted by many other universities.
The document recalls a series of events in 1932 after a student group at the University of Chicago invited then US Communist Party presidential candidate William Foster to deliver a lecture on campus. The event sparked a wave of criticism, and the university was condemned for giving Foster a platform. However, then university president Robert Hutchins advocated for the freedom of students to engage in open discussion on all topics. He asserted that the remedy for objectionable ideas lay in open debate rather than censorship. He later insisted that “free inquiry is indispensable to the good life, that universities exist for the sake of such inquiry and without it they cease to be universities”.
While the Statement was designed to capture “the spirit and promise” of the university, subsequent actions put this commitment into practice. The Committee on University Discipline for Disruptive Conduct was appointed in June 2016. Its role was to review procedures for student disciplinary matters, balancing the right to protest with the right to free speech. Shouting down speakers is a form of mob censorship which directly crushes viewpoint diversity and free speech on campus.
Universities must address this sort of disruptive behaviour or risk a situation where debate on campus is dictated by a noisy minority. Therefore, a passive commitment to free speech alone may not be sufficient. Further actions may need to be taken by the university to prevent on-campus activism which threatens the free flow of ideas, however controversial they may be.
DISRUPTIVE CONDUCT UNDERMINES FREE SPEECH
A recent protest at the University of Sydney illustrates the inherent censorship that can be associated with disruptive behaviour. In September 2022, student activists staged a protest at a speech given by former Prime Minister Malcolm Turnbull to the Sydney University Law Society. Unable to be heard over the shouting and chanting, Turnbull was eventually forced to leave and police were called to defuse the situation.
Two students who were members of The Socialist Alliance were later suspended for their involvement in the protest. However, they later claimed in an article published by The Guardian that their right to protest and express their point of view had been compromised. “It’s outrageous and concerning for people to violate one of the most basic democratic rights, the right to protest and express oneself freely,” third year Arts student Deaglan Godwin claimed. It was an act of free speech, fellow activist Maddie Clarke added.
This is a common conflation of the key issues at play. Godwin and Clarke have mistaken the right to protest with an act of disruptive conduct which undermines the free speech rights of others.
The protests at the University of Sydney do not represent the legitimate exercise of free speech rights. This is because Turnbull’s free speech rights were themselves violated, and the situation then escalated to the point where police had to be called. Disruptive conduct and protests cannot be cited as proof of free speech being alive and well when the free speech of others is threatened.
This activism must be addressed to protect free speech.
Disruptive activism on campus must be addressed by university administrators if free speech is to be protected. The University of Chicago’s Committee on University Discipline for Disruptive Conduct demonstrates that stated commitments to free speech can and should be backed up with a body that has the power to enforce certain behavioural standards.
SHOULD FREE SPEECH POLICIES BE COMPULSORY?
The growing hostility towards free speech on campus as found in the IPA’s latest audit demonstrates a sector-wide lack of institutional will to protect it. What is notable about the Federal government’s attempt to protect free speech in 2020 by requiring all universities to implement the French Model Code, is the lack of external accountability mechanisms surrounding the process. Legislative intervention as seen in the US is the natural next step towards ensuring universities comply with their obligations to freedom of intellectual inquiry. However, US-style legislation also lacks accountability mechanisms, instead relying upon public criticism to provide the impetus for universities to self-regulate free speech compliance.
If University of Chicago-style freedom policies are to be implemented effectively by universities, they cannot be voluntary, and they must include a robust regulatory framework which may include sanctions. A compliance model adopted in Ontario, Canada, provides an example of such a free speech policy.
In 2018, under the administration of newly elected conservative premier Doug Ford, Ontario’s publicly funded universities were told to implement and comply with a free speech policy that meets a set of minimum standards. The free speech requirements are linked to higher-education funding, thereby providing a direct financial incentive for compliance. Additionally, universities are required to submit to Higher Education Quality Council of Ontario (HEQCO) annual reports detailing the implementation of their free speech policies. This ensures greater external accountability for university measures relating to freedom of speech.
So, Ontario universities are required to submit reports that are assessed by the HEQCO, and a public report determining whether institutions are compliant with the minimum standard is then published by that body.
The free speech principles Ontario universities are required to implement are based on the University of Chicago’s ‘Statement on Principles of Free Expression’. The key difference from US-style legislation is the inclusion of external accountability mechanisms. Under Ontario-style free speech policies, universities are required to deal with “ongoing disruptive protesting” and must “consider official student groups’ compliance with the policy as a condition for ongoing financial support or recognition”. Compliance is regulated by the HEQCO and failure to meet the minimum standards can lead to financial sanctions.
GOVERNMENTS MUST PROTECT FREE SPEECH
It is true that legislative solutions often cause more harm than good. And we have seen that free speech legislation developed by the government can be limited so severely by caveats, it ironically restricts the very speech it is designed to protect.
The current situation is, however, untenable, and the system shows no sign of change without external force being applied. Australia therefore urgently needs a ‘quick march through the institutions’. Our political leaders must exert greater influence over education to protect free speech before it is too late. If a Federal government were to implement Ontario-style accountability mechanisms, this would provide universities with a powerful incentive to protect free speech.
Meanwhile, State governments—predominantly responsible for the legislation found in the various universities around the country—should also examine what powers they have to undertake such reforms.
It is reasonable for Australian taxpayers to expect this. Australian universities are established by government legislation, built on public property, and largely backed by government grants and State-subsidised loans. Consequently, universities are effectively public institutions dependent upon, and therefore responsible to, taxpayers.
The IPA’s ‘Free Speech on Campus Audit 2023’ shows that universities lack the institutional will to self-regulate free speech effectively. It is therefore entirely appropriate for government to ensure universities protect free speech by implementing external accountability mechanisms and imposing financial penalties for non-compliance.
IPA Research Fellow Brianna McKee is also the National Manager of Generation Liberty, a youth network sponsored by the IPA and dedicated to advancing the ideas of economic, political, and individual liberty among young Australians.
Brianna McKee’s ‘Free Speech on Campus Audit 2023’ report can be downloaded from: www.ipa.org.au/campusaudit23
*Erratum: On page 35 of the hard copy of this IPA Review article, it states that “The University of Sydney announced its support for the Yes case in late August”. This is not technically correct. Sydney University did not take a position on the Voice as an institution. However, the Chancellor and Vice Chancellor personally supported the Voice as did other major faculties and schools including: School of Law, School of Chemistry, School of Geosciences, School of Science, Faculty of Medicine and Health, and Conservatorium.