Non-Disparagement Clauses and How They Hamper Academic Freedom

July 23, 2021 Updated: July 25, 2021

Commentary

Australian universities have reportedly been slow to implement the “Model Code for the Protection of Freedom of Speech and Academic Freedom in Australian Higher Education Providers.”

Principle 2 of the Code, prepared by former Chief Justice of Australia, Robert French, states that, “a person’s lawful speech on the university’s land or in connection with a university activity shall not constitute misconduct nor attract any penalty or other adverse action by reference only to its content.”

By the end of last year, only nine out of Australia’s 42 universities had completely adopted the Code.

The slow uptake is caused, at least in part, by the political correctness movement, which is very well entrenched in university policies and practices.

This movement aims at prohibiting discussion of sensitive legal, social, and moral issues, which do not accord with the anti-discrimination, pro-diversity and pro-neutrality views of many university policy makers and trendsetters.

For them, the Code is an unwelcome intrusion into the governance of universities and frustrates their attempts to introduce and enforce their own restrictive speech codes.

Epoch Times Photo
In this file image, students arrive for their graduation ceremony at the Royal Festival Hall in London, England, on Oct. 13, 2015. (Dan Kitwood/Getty Images)

Using the language of American Prof. Walter P. Metzger, these codes essentially deny academics the right to discharge their professional duties “outside the chain of command” of the university’s hierarchy.

Lately, rather than facilitating freedom of speech, universities have relied on other approaches to repress the freedom of speech of their academics.

One convenient and increasingly used method is the incorporation of “non-disparagement clauses” in employment and severance contracts.

A typical example, adapted for university use, could read as follows: “The academic employee agrees not to make, publish, ratify or endorse any disparaging remarks, derogatory statement or comments to any party, in any forum, using any type of communication. Further, the employee agrees not to make any public statement with respect to any claim or complaint against the university, its leadership, and employees.”

These clauses purport to prohibit academics, or university employees in general, from making disparaging comments—even if they do not legally amount to defamation—that the university deems to be derogatory.

While defamation typically applies to false statements, “disparagement” addresses any negative comments made by an employee. Essentially, a non-disparagement clause is a “speak-no-ill” clause imposed on an employee.

The terms of a non-disparagement clause thus prohibit staff from making any comments, both during employment and after severance, which somehow affects the reputation of the university.

Sometimes, these clauses may even apply to past practices that the employer is not yet aware of when the employment contract is signed.

Of course, it is not altogether surprising that university administrations use these restrictive clauses because, in the borderless digital era, employees could cause serious damage by posting a comment on social media to tarnish the image of their employers worldwide.

In this context, Madhubanti Sadhya has argued in a recent article that the risk of employees damaging the organisation’s image using social media websites has increased. Hence, organisations have used non-disparagement clauses “to avoid the possible disparagement from its present or former employees.”

However, the clauses do muffle an academic’s ability to criticise or even critically assess university governance.

University of New South Wales Australia UNSW
Students walk around the University of New South Wales campus in Sydney, Australia, on Dec. 1, 2020. (AP Photo/Mark Baker)

For example, if academics were to criticise the university’s decision to amalgamate existing faculties or centralise the administrative and research functions of the university, such criticism would violate the clause if it were made in a public forum.

The New Zealand legal case of Vice-Chancellor of Victoria University of Wellington v Sawyer 2017 illustrates this. In this case, both parties were signatories to a settlement deed that included a non-disparagement clause.

Sawyer was accused of sending five emails containing allegations of serious dishonesty, professional incompetence and impropriety, falsification of records, fraud, and blackmail against two individuals mentioned in the settlement. She was fined by the Employment Relations Authority and forced to pay a penalty of NZ$50,000.

The clauses are also problematic because they limit the capacity of academics to freely undertake research with impunity and disseminate their research. They can constitute severe limitations on a person’s academic freedom to expose dubious practices or corruption.

A university that is professionally managed should not try to prevent academics from exercising their right to express an unpopular opinion. Such efforts indicate a lack of confidence and robustness on the part of the university.

What is worrying is that these clauses cloud the distinction between an individual and a university’s academic freedom.

Typically, when academics criticise the institution—relying on individual academic freedom—the university could rely on its institutional freedom to respond appropriately.

But the trend of illiberalism in universities seems to be a never-ending development. This is because non-disparagement clauses are part of an array of intimidating measures, used by overscrupulous university administrations to silence staff, and further dilute the impact of Justice French’s Model Code.

Popular, but ultimately specious, methods embraced by university administrators, include the stamping of meeting agendas as “strictly confidential” to ensure the content is not disclosed or discussed publicly.

Additionally, some employment contracts include “termination for convenience clauses” which permit the university to arbitrarily dismiss people for any reason whatsoever.

Non-disparagement clauses—as well as other methods to silence academics—should play a limited role in employment relations and should, ideally, be excluded from employment contracts. Yet, they remain popular, especially in severance contracts.

As stated by the late U.S. Associate Justice Felix Frankfurter of the Supreme Court in Wieman v Updegraff, academics must have the freedom of “responsible inquiry, by thought and action, into the meaning of social and economic ideas … They must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bounds of understanding and wisdom.”

Of course, I entirely agree with him.

Gabriël A. Moens is emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean of law at Murdoch University. He has published a novel about the origins of the COVID-19 disease, “A Twisted Choice” and recently published a short story, “The Greedy Prospector” in an Anthology of short stories, The Outback (Boolarong Press, 2021).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Gabriël Moens
Gabriël Moens
Professor Gabriël A. Moens AM is an emeritus professor of law at The University of Queensland, and served as pro vice-chancellor, dean, and professor of law at Murdoch University. He has published a novel about the origins of the COVID-19 disease, “A Twisted Choice,” and recently published a short story, “The Greedy Prospector,” in an Anthology of short stories, “The Outback” (Boolarong Press, 2021).