My distinguished former colleague, brilliant jurist, reactionary Catholic ideologue, and career homophobe, John Finnis, is once again attracting the attention of Oxford’s law students. This comes in waves. In the past, it was triggered by things like John’s attempts to defend frightening moral views, or by his legal interventions on the side of prejudice and superstition, or by his disowning Oxford’s standards of academic integrity (when breached by students who share his views). What could have triggered the ludicrous new petition to have him ‘removed’ from Oxford?
I’ve been away on sick leave, so I may have missed something. But reliable sources tell me there has been no fresh controversy. Of course, each year there is a fresh group of students to be shocked by Finnis-type views. That encounter can be like reading Hastings Rashdall for the first time. (Rashdall argued that the well-being of the ‘higher races’ matters more than the well-being of the ‘lower races’. I was first made to read Rashdall in a tutorial at Oxford.) Actually, it is more like reading Rashdall and then, just when you stop trembling, walking into your seminar and there is Professor Rashdall! And now it’s your turn to engage in ‘more speech’.
Still, the petition to ‘remove’ Finnis from Oxford is seriously wrong in principle and mistaken in fact. Principle: To fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom. As my friend Brian Leiter rightly says, it is pretty embarrassing to see Oxford Law students signing up for this. (I’m hoping none of the signatories was in my classes on freedom of speech.) Fact: one cannot ‘remove’ someone from a post he does not hold. John Finnis is long retired from Oxford Law, though it is true that he is still occasionally invited to teach seminars, and also to participate in hiring decisions. (At Oxford, ‘compulsory retirement’ is fully compulsory only for those who lack friends.)
But is academic freedom the only thing at stake here? Consider whether, when Hastings Rashdall retired from New College, Oxford, they should have gone looking for a replacement to defend his articulate, philosophical form of racism, or whether they should have kept Rashdall on an occasional basis, to ensure that students of the ‘lower races’ would have some controversial views to take on. (It was 1910—philosophical racism was still a thing.) If such a case could be made, it would have to appeal to something like intellectual diversity or pluralism. (‘We need someone to stand up for racism around here!’) But it couldn’t be advanced on grounds of academic freedom: that protects those who have an academic role, it doesn’t tell us who should have an academic role in the first place. If there is an objection to not replacing (or re-hiring) racists or sexists or homophobes, it is not an objection from academic freedom.
Now, back to the future: Oxford’s official response to the Finnis petition was as distressing as the petition itself, though for different reasons. (I have never understood why, but this particular issue is something our administration gets wrong, time after time.) The University says, ‘We are clear we do not tolerate any form of harassment of individuals on any grounds, including sexual orientation. Equally, the University’s harassment policy also protects academic freedom of speech and is clear that vigorous academic debate does not amount to harassment when conducted respectfully and without violating the dignity of others.’
Fair enough. But the petition does not allege that John Finnis engaged in ‘harassment of individuals’ and, myself, I would consider any such allegation incredible. John is a kind teacher, a generous colleague, and a gracious man. However, our student lawyers do understand the University’s obligations under the Equality Act better than the University does. The University has an obligation not only to eliminate individual discrimination against, and victimisation or harassment of, gay students, but also a positive duty to advance their equality of opportunity and to foster good relations between gay people and straight people at the University. In its garbled (and partly unlawful) proposals, the petition fairly demands that the University take more seriously its positive equality duties, at least by clarifying how it sees those as relating to academic freedom.
We never run out of opportunities not to discriminate or not to harass, but serious opportunities to advance equality or foster good relations come up only now and then, and only in certain contexts. In a University, retirements are among those contexts. Every retirement frees up resources to do new and, if we can, better things. Instead of replying in its familiar, defensive, way, Oxford should have explained to the petitioners all the ways it has used things like Professor Finnis’s retirement to advance the equality of gay students. But perhaps that list was too short to merit mention?