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According to a recent study for the European Parliament, academic freedom in the Netherlands is under pressure. The report, which drew some attention in the Dutch debate, identifies three main sources of pressure: “developments in the system level and intra-institutional science governance modes, structures and practices, developments in society leading to more intense impacts on scientists in the form of threats and harassment, the emergence of a ‘cancel culture’ and ‘wokeness’ inside the academic community, and trends in research funding, including the growing impact of external funding”. These trends take place against a backdrop of a somewhat meager legal bulwark against interference.  Legal protection of academic freedom, is not great according to the scoring systems (the country ranks 24th in the EU in the Academic Freedom Index!), but also according to the law itself and the few lawyers who take an interest in the issue, such as Tilburg  University public law professor Rob van Gestel (whose work is also extensively relied on in the report).

Not only is academic freedom as such weakly incapsulated in legislation – the relevant provision (art 1.6 of the law on higher education) could be alternatively constructed to mean that academic institutions “respect” academic freedom ot that they “consider” it; its realisation is positively undermined by the current rules on the status of academics as private law/private sector employees, a transition which happened without much fuss a couple of years ago.

Take the case of Susanne Täuber, associate professor in Organizational behaviour with a focus on organizational ethics and gender dimensions. Dr Täuber is in the process of being dismissed by the University of Groningen (henceforth: UoG) due to a “disrupted employment relationship”, in line with relevant provisions of Dutch employment law. In other words, her managers no longer like the idea of working with her. Nota bene, nobody at the University questions dr Täuber’s teaching and research credentials or output. This is remarkable: for good or for bad, in most academic systems, doing your core tasks well enough is more than sufficient to keep your job – in most systems, but not in the Dutch system, where academic employment is not specifically regulated. It is also ironic: Susanne Täuber, who had co-written a report on the systemic failures of the UoG’s complaint handling and victim protection systems, has now become the subject of a case study on victimization and silencing of critique.

From the court case, it is striking to see how at some distinct points the issue was framed in terms of dr Täuber lacking “soft skills”, in other contexts often worded as  “institutional sensitivity” – which is managerial jargon for, essentially, knowing when to speak and when to be silent. In my daily activities I have heard this term very often, usually as a quality. Recently, however, I have heard it more often in exactly the same terms – and with the same connotation of indicating to someone that they were not “functioning” as expected and thus were being considered a problem.

What was so insensitive about dr Täbuer’s behaviour? Mainly, two things: first, she insisted on being promoted at a speed that her managers did not approve of or agree with; second, she published a short article about her experience at UoG in an academic journal. The core subject of the piece was not her department as such, but rather – and here we see the entanglement with social justice and glass ceilings become clearer – the Rosalind Franklin fellowship programme through which she had been hired. In this programme, the article explained, young female scholars from outside the Netherlands were recruited by Dutch universities because of their particularly promising early steps in academia; practice was, however, to hire them in any event at the lowest possible paygrade and let them grow from there. This meant that for someone like dr Täuber, who had already gained some experience before starting in Groningen, complying with the requirements for the first couple of advancements would be a matter of months rather than years. Such quick promotions, however, were doomed to alienate other colleagues outside the tenure-track scheme promised by the Franklin fellowships. This background made it attractive for managers to heighten the requirements, but also deteriorated the underlying collegial relationships – in this case, we can infer, the relationship between dr Täuber and those managers as well as her relationship with colleagues at her department. Such tensions, the article concluded, resulted in huge othering – as a woman and as a foreigner, Susanne Täuber had felt she had been let down by a programme that promised enticing opportunities but had not bothered to invest in its own acceptance on the ground. As you may imagine at this point, the department managers didn’t like the article. We are, in fact, not required to imagine this, but know for sure that they didn’t – among other reasons because, according to the judgement (para 5.9) the head of department wrote a letter to the journal to complain against the publication!

Suspicions that Susanne Täuber’s demise within the department had to do with the publication – hence, with her exercise of academic freedom – were at the core of the court case through which the University asked a court of justice to authorize termination of the employment contract. Dr Täuber’s defense against the termination claim countered that the University should relocate her – surely another department at some point would have a position for an interdisciplinary scholar who had only a couple of years earlier drawn 250 000 euros in external funds? In court, the University claimed that they had exhausted all reasonable efforts towards such relocation, but the defense suggested this was not enough: since the tensions ultimately boiled down to the critical article published by dr. Täuber, the problem was by now a matter of protecting her academic freedom, translated into legal jargon by referring to her freedom of expression – as protected by article 10 of the European Charter of Human Rights. In order to do so, the university was under a reinforced duty to relocate her.

The outcome of the court case is bitter – while the Court agreed with dr Täuber’s defense that ultimately the fault for the “deteriorated employment relation” lay mainly with the employer, it authorized the firing: it was not its prerogative to invent such a reinforced duty to relocate, which would be essentially tantamount to the duty to create a new job for her. Interference with freedom of expression may be an argument in claiming damages for wrongful termination, according to the judgement; it cannot, however, be a reason to interpret the duty to relocate differently from what is done when the origins of a disrupted work relation lie elsewhere. Hence, the court also decided to abstain from extensively investigating the claim that the termination constituted a wrongful interference with dr Täubers freedom of expression. Can you imagine, one can see the Court think, what would happen if for every employee whose freedom of expression is violated, employers would have to create new positions for them rather than fire them?[1] Freedom of expression is in itself a weak guarantee in employment contexts – this has been again indirectly reflected recently by the adoption of additional guarantees for whistleblowers, which the 2019 EU rules leave exposed to (in essence) retaliatory termination under the banner of “disrupted employment relationships” (not covered by art 21 in the Directive).

But academic freedom is not freedom of expression. It is both more and less – as has been recently argued by another colleague, Sarah Bracke, from the pages of  Dutch magazine De Groene Amsterdammer. It entails more responsibility and abiding by certain rules that do not apply to expression as such. It also deserves more robust guarantees – because the institutions of research and teaching cannot meaningfully play their social role without it. Translated to the problem of “disrupted employment relations”, it seems that there are very good reasons to think that serious protection of academic freedom against retaliatory termination does at the very least require a reinforced duty to relocate – especially since the current requirements make such relocation quite unactionable for somewhat senior academic personnel. Such reinforced duty to relocate would not be such a far-reaching interpretive exercise:  if the availability of an “appropriate function” (passende functie) would be judged on the basis of contents rather than on the basis of paygrade (which is what the court did at 5:18), for instance, the later announced space within gender studies would “count” a feasible option, even though the position in question would hardly require someone on Täuber’s seniority level. This outcome may be an unacceptable imposition for other employers, but is a very necessary route to prevent the “disrupted relation provision” from becoming a very significant threat to critical voices (see also again van Gestel’s comments, published as this post was being finalised). Irrespective of the coming court decisions, the issue should be taken up in upcoming negotiations of the University and higher education collective agreements with a view to proper regulation of requirements, timelines and internal remedies. Such clearly articulated duty to relocate would make clear that, as long as they fulfil their core tasks, academics are truly independent in their choices and hence free to pursue their inquiry without fear of internal pressure or repercussions.

To conclude, a final thought: executive managerialism, one of the three sources of pressure on academic freedom identified by the European Parliament report, is reinforced by the qualification of academics as employees. Another of the mentioned factors, “woke” pressure, is arguably also tightly connected to managerialism: “cancel culture” only holds sway when PR-concerned managers try to find easy answers to complicated questions raised by, among others, involved students. In Groningen, concerned students have stood up for Susanne Täuber, social safety and academic freedom, winning partial concessions.  This is a good development – if we can’t fix the law for now, reinvigorating the social contract between students and faculty which should be at the core of Universities is something that we can all work on. It is also necessary: academic freedom is, ultimately, just too important to be left in the hands of managers.

[1] This is a crucial difference between the Täuber case and the recently decided Dutch Supreme Court “ROC docent” case that some have seen as a source of hope for a revision of the judgement in appeals: an assessment that the termination is wrongful for interfering with the employee’s freedom of expression would not yet mean that the employee keeps her job.

(Photo: Tanbir Mahmud)