Academics ‘obliged’ to criticise employers, says lawyer

Criticising one’s institution is not just a right but an “obligation” for New Zealand academics, according to high-profile employment lawyer Catherine Stewart.

Ms Stewart said the “unique” responsibilities on academics, students and universities, imposed under academic freedom clauses in New Zealand’s Education and Training Act, were not “ring-fenced” to disciplinary expertise.  

“The distinctive nature of this employment relationship, unlike every other employment relationship, protects you from…disciplinary action [for] criticising your university,” she told delegates to a Tertiary Education Union (TEU) conference.

This characteristic placed academics in a vastly different position from that of staff at other types of organisation, who face retribution for breaching contractual obligations to “act with loyalty to the employer” or “not bring the employer into disrepute” – even if they do so outside the workplace.

“Some might say you are expected – or, even greater than that, it is an obligation on you – to bring to the attention of your employer or the public matters which are of concern to you, which may go against the reputation of the employer,” she told the conference.

What can universities do to protect academic freedom?

“As long as it’s ethical, it’s within the law and it’s for the betterment overall of the university…you are not bringing your employer into disrepute.”

Ms Stewart said this aspect of universities’ academic freedom obligations was routinely misinterpreted by academics and particularly by university administrators.

“The threats to academic freedom, from my perspective,…largely relate to misunderstandings and a lack of knowledge about what academic freedom is and what it means.”

Ms Stewart represented University of Auckland bacteriologist Siouxsie Wiles in a landmark academic freedom court case. The high-profile academic claimed that the university had not adequately protected her from harassment and vilification over her Covid-19 commentary.

An employment court judge found that the university’s efforts to shield Dr Wiles had been “deficient” but disagreed that the case was about academic freedom. Ms Stewart is pursuing an appeal of the ruling and said the outcome could provide a “definitive pronouncement from the courts on what academic freedom really means under the statute”.

TEU president Julie Douglas said this would benefit both staff and management. “If we aren’t on the same page, we’re going to be at loggerheads consistently,” she told the conference.

TEU secretary Sandra Grey said staff’s “ability to critique” teaching and assessment was paramount. “One of the biggest disagreements we have [is that] vice-chancellors…believe ‘area of expertise’ means the limited area you are currently researching,” she said.

“That is not the union’s perspective. All academic staff are experts on teaching and learning, because that’s one of the things they do.”

Andrew Bonnell, vice-president of the National Tertiary Education Union in Australia, said the latest round of university enterprise agreements in his country had enshrined “good definitions” of academic freedom. They included the right of “all staff” to comment on their institutions.

john.ross@timeshighereducation.com