Source: James Fryer

No academic may say ¡®by virtue of their sex, women are less able scientifically than men¡¯, but an academic should be able to ask, ¡®women do not rise up the academic ranks in proportion to their numbers; I wonder why not?¡¯

When in 2005 Lawrence Summers, the president of Harvard University, wondered why women were under-represented in the highest academic ranks, his comments provoked a storm of protest. Summers was already an unpopular president but, as the storm grew, the Faculty of Arts and Sciences passed a motion of ¡°lack of confidence¡± in his leadership, and he was soon driven from office.

Summers¡¯ argument was scrupulous. He did not suggest that the female brain was smaller than the male¡¯s, ergo it should not worry its pretty little head over complex issues. Rather, he argued academically, positing credible theses against credible theses. So does Harvard ¨C the world¡¯s most important university ¨C not?actually understand academic freedom?

No, it does not. Which brings us to the key definition of academic freedom: it exists to protect academics from each other.

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In the West we live in societies that are freer than any in human history. Freedom of speech is prized, and although legislation has imposed constraints ¨C on racist and defamatory statements, for example ¨C academics have never made a credible claim for greater freedom of expression than that enjoyed by other citizens.

So if citizens are so free to speak, why would Western scholars need to invoke the concept of academic freedom? The answer can be found in the story of Summers¡¯ fate: Larry Summers as a citizen was entirely free to speculate as he did, but Larry Summers as an employee ¨C even of a university ¨C was not.

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Employees generally sacrifice some freedom of speech on becoming employees: so commercial confidentiality, for example, is enjoined on many employees, just as most employees are contracted not to damage their employers by bringing them into disrepute.

Academics are also employees, so their freedom of speech is as constrained as any employee¡¯s, which in itself is unexceptional: the scholar who sought every opportunity publicly to urge the forcible repatriation of immigrants would probably lose his or her job, but so too would the milkman who jumped on the same soapbox.

However, there is one area where academics enjoy freedom of speech precisely because they are academics ¨C we could call it the Larry Summers Exception. Scholars will invest in a particular paradigm (women are held back in their research careers by patriarchy) and in defence of their investment those scholars may act against critics ad hominem. Max Planck noted that scholars adhere so passionately to their paradigms ¨C however effectively they are criticised ¨C that ¡°science advances one funeral at a time¡±. How tempting it must be, therefore, for a scholar to kill the critic (or at least his or her career).

The solution is simple: every academic must be free to defend his or her thesis, however paradigm-shifting, on the grounds that he or she has used the conventional apparatus of scholarship. No academic may say ¡°by virtue of their sex, women are less able scientifically than men¡± but an academic should be able to ask, ¡°women do not rise up the academic ranks in proportion to their numbers; I wonder why not?¡± Consequently every university, however grand, should retain a committee that tests the methods of paradigm-shifters, and should that committee find that the paradigm-shifter has employed the conventional apparatus of scholarship, then he or she should be free to shift away.

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But universities have every right to sack academics who mouth off in unscholarly ways. That right arises not just out of concerns for the university¡¯s reputation but also out of concern for its balance sheet: under the legal doctrine of vicarious liability, a university can be sued for the inappropriate words of its staff.

Academic freedom is widely misunderstood. Different jurisdictions vary, but in most countries the concept has no standing in law because it is the solution to a problem that lies in the conventions of HR rather than in actual human rights: how much licence might a university afford one of its academics who says uncomfortable things?

The answer seems clear: universities exist to foster the ideals of scholarship, so if an academic employs the apparatus of scholarship to defend an idea, then that academic should be free to do so. But an academic otherwise enjoys no particular licence to speak his or her mind saloon bar-wise.

Difficulties arise when the conventions of scholarship are themselves contested, so each disputed case has to be judged individually, but the judgements should be rooted in respect for the apparatus of scholarship, not in respect for a blanket freedom of speech.

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