Monday, 19 April 2010

Orr and the end of Privilege

The Orr case, even more than discussions about ‘service station’ and ‘ivory tower’ universities, was a prominent topic in university corridors, at intellectuals’ dinner parties and libertarian push pubs from its start in 1955 through to the mid-1960s.[1] It had all the elements of a delicious scandal: an already controversial professor, Sydney Sparkes Orr had been dismissed from the University of Tasmania for misconduct, having seduced one of his students. Unsuccessfully appealing against this finding in court, Orr persuaded some of his colleagues that he had been set up, that in fact his dismissal was an attempt to get rid of him for political reasons. The Cold War added an air of secrecy to the case and the idea that academic staff were being dismissed for holding unpopular opinions on campus reeked of political repression. Orr’s ardent supporters, RD (Panzee) Wright and Harry Eddy, promoted his cause and Eddy published (with, according to Cassandra Pybus, substantial contributions from Orr himself) a lengthy and inscrutable book, simply entitled Orr.[2] Many Academics across Australia – especially the Sydney libertarians – were convinced that seducing a young woman was unlikely to be the real reason for dismissing a philosopher and it was widely believed that the dismissal of Orr was a violation of academic freedom.[3] A large number also thought he was guilty – in trying, like all other Vice-Chancellors, to find a place for Orr (preferably elsewhere), Baxter, for example, said: “few of us would care to contemplate his being put in charge of students”.[4] Letters to Baxter from colleagues stated frankly that their authors considered Orr to be guilty of the misconduct leading to his dismissal. But the authors of all these letters, held now in Baxter’s archived papers, were universally keen to see the Orr case resolved by his employment somewhere.[5] This was because the staff association’s involvement in the case was then disrupting the entire Australian university system.

In 1962 the Vice Chancellor of the University of Tasmania, Keith Isles, wrote to Philip Baxter and Louis Matheson (Vice-Chancellor at the brand new Monash University in Melbourne) begging for help on the Orr case. Isles thought that if one of the universities could give Orr a job, that everyone “including FCUSAA” could get out of the mess the case had created without losing face. As for him, he was keen to be able to get philosophers to Tasmania again, for the staff association, under pressure from Orr’s supporters, had put a black ban on his university.[6] An initiative of John Anderson at Sydney, members of the staff association agreed that no philosopher would take a position at Tasmania and that no university would later employ a philosopher who did.[7] The ban was not implemented for a few years after the dismissal, however, a fact that Pybus, in her reconsideration of the Orr case, found suspicious.[8] The staff association, she claimed, used the high profile of the Orr case and the suspicions that Orr promoted to raise issues of tenure, academic freedom and the conditions under which universities may dismiss professorial staff. These were all important issues, Pybus maintained, but the injustices to both the University of Tasmania and the young woman who complained about Orr were heavy costs.[9]

After visiting the University of Tasmania in 1958, Ken Buckley and Roland Thorp of the federal staff association, wrote:
Just as disturbing as the actual Court ruling (that the relationship of the University to a professor is that of master to servant) is the fact that the University itself, through the lawyers it briefed, propounded this false concept long before the Court so ruled – and the University has not since disavowed it.[10]
Pybus, like Orr’s lawyers when presented with this argument, was not impressed. “No matter how some people attempted to dress it up”, she said, “the concern with the master-servant relationship was a trade-union issue, to do with the protection of academic tenure and the terms and conditions of academic appointments”.[11] Worse, she claimed, it was elitist – the general community understandably “did not care for the suggestion that academics were superior to the legal obligations which govern contracts of employment”.[12] But to describe it as arrogance is to misunderstand the point. The staff association’s concerns about the master-servant relationship and tenure were not about preservation of privilege, but rather protection of the conditions that enabled academic freedom.

In the recent case UWA v Gray, the Federal Court pointed out that most universities in Australia are structured as membership-based organizations. That is, the Acts enabling the public universities each describe the university as consisting of, among other members, its academic staff. For the Federal Court in 2008, this meant that academics do not have fiduciary obligations to the institution so much as they are the institution. This structure, the Court recognised, was designed to protect academic freedom. The reasoning is that the authority universities possess is based on the fact that inquiry conducted within them is untainted by motives of profit or politics.[13] Inquiry, under this structure, is conducted freely by experts who have not been compelled by external forces to come to predetermined conclusions.[14] Through this freedom, university-based knowledge is deemed trustworthy and has traditionally been granted higher esteem than other types of knowledge.[15] If the academics of which the university consists are instead positioned in a servant relationship to the institution as master, this system is put at risk. Obviously, the highest risk attached to the master-servant relationship is that if an academic comes to a conclusion their employer does not approve of, they may lose their job. This is why tenure, ensuring sufficient security in academic employment to enable academics to hold even unpopular opinions, has been considered central to academic freedom and the consequent authority of the university over knowledge. In UWA v Gray, the tone of Justice French’s Federal Court judgement seems to express surprise that any university would prefer to position academics as employees and undermine the basis of their own authority.[16]  It is this same reasoning that so disturbed Thorp and Buckley – when the University of Tasmania made the case that their dismissal of Orr was acceptable since the relationship was a master-servant one it betrayed the principles on which it could claim its status as a university. Of course, as the staff association became increasingly unionised, as we will see in a later chapter, the association gained advantages from positioning staff in opposition to the institutions as ‘management’ and strengthened this objectionable structure themselves.

[1] Cassandra Pybus, Gross Moral Turpitude: The Orr Case Reconsidered (Melbourne: William Heinemann Australia, 1993).
[2] W.H.C. Eddy, Orr (Brisbane: Jacaranda Publishers, 1961).
[3] Pybus, Gross Moral Turpitude: The Orr Case Reconsidered.
[4] J.P. Baxter, "Letter to Sir George Paton," in Baxter Papers UNSW/CN1053/Box49 Orr Case (Sydney: UNSW Archives, 1961).
[5] Baxter Papers UNSW/CN1053/Box49 Orr Case (Sydney: UNSW Archives, 1962).
[6] Keith Isles, "Letter to Philip Baxter," in Baxter Papers UNSW/CN1053/Box49 Orr Case (Sydney: UNSW Archives, 1962).
[7] Buckley, "Early Years: The Origins of Fcusaa."
[8] Cassandra Pybus, "Academic Freedom or Academic License? The Orr Case Reviewed," in 40 Years of Fausa: 1952-1992 Four Decades of Representing University Staff, ed. Peter Chapman (Melbourne: National Tertiary Education Union, 1992).
[9] Pybus, "Academic Freedom or Academic License? The Orr Case Reviewed."
[10] R.H. Thorp and K. Buckley, "Report on a Visit to the Tasmanian Association," Vestes 1, no. 5 (1958): 4.
[11] Pybus, Gross Moral Turpitude: The Orr Case Reconsidered, 76.
[12] Pybus, Gross Moral Turpitude: The Orr Case Reconsidered, 74-75.
[13] J French, "University of Western Australia v Gray (No 20) [2008] " in FCA 498 CORRIGENDUM 2, ed. Federal Court of Australia (Perth: Federal Court of Australia Western Australia District Registry, 2008).
[14] Conrad Russell, Academic Freedom (London: Routledge, 1993).
[15] Corynne McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property (Cambridge Massachusetts: Harvard University Press, 2001).
[16] French, "University of Western Australia v Gray (No 20) [2008] ".

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