Category: free speech

  • Have we been looking at free speech all wrong?

    Have we been looking at free speech all wrong?

    This blog was written by Rose Stephenson, Director of Policy and Advocacy at HEPI.

    Free speech is back in the news. Implementing the Higher Education (Freedom of Speech) Act 2023 was paused shortly after the general election to allow time for the Secretary of State for Education, Bridget Philipson, to consider whether the law should be repealed.

    Many expected that to be the case and were perhaps surprised to hear that the Government will implement the ‘Free Speech Act’ after all – with only two measures being considered for repeal – the duties placed on Student Unions and the statutory tort (the proposed legal route for individuals who suffer a loss due to a breach of their free speech). Bridget Philipson announced in the House of Commons that she proposes ‘keeping a complaints scheme in place with the OfS’. This scheme will consider complaints from staff, external speakers and university members, but not students (who can seek external review of a complaint with the Office of the Independent Adjudicator for Higher Education – the OIA). There are a couple of nerdy regulatory points to note here:

    1. There is still the possibility of the following scenario: A student raises a complaint of harassment from a member of staff. The institution concludes that the staff member did harass the student, and the staff member receives a written warning. The student believes that the outcome of the case was inappropriate and (following an unsuccessful appeal) takes the complaint to the OIA, who upholds the complaint and instructs the institution to compensate the student financially. The staff member feels that their free speech has been impinged by this process and raises a complaint with the OfS, who considers the complaint justified and instructs the institution to compensate the staff member financially. Therefore, we end up with a perverse scenario where two external bodies reach contradictory conclusions about the same event.
    • The OfS will not have a duty to assess every complaint it receives; rather, it will have the power to consider complaints. Bridget Philipson’s speech specifically mentioned the OfS not having to assess poorly put-together or nonsensical complaints. However, a robust, published decision-making framework will need to outline which cases the OfS will consider and which it will not, lest it be perceived that this loophole could be influenced by political persuasion.

    Policy wonks and those who must implement this legislation in institutions wait with bated breath….

    The quite extraordinary amount of time this legislation took to pass, plus the stopping and starting of its implementation, gave me time to ponder its practical implementation. I wonder if the focus of the free speech debate has missed the mark.

    Thousands of column inches have been dedicated to discussing free speech in university, including my own previous blog series:

    Much of the discussion has focussed on individual speakers being invited to campus to speak on particularly polarising topics. This may be an important part of promoting free speech, but if it doesn’t change anyone’s mind, is it just someone shouting into the void? Creating an in-person version of Twitter is unlikely to effectively promote free speech if only those who already agree with the speaker attend and those who feel offended by the topic or the speaker stay away. By almost solely focusing on this approach, we risk missing a significant opportunity.

    I’ve reflected on the circumstances that have led me to change my mind or opinion – or just to be genuinely interested in someone’s different belief or values system. It was not someone yelling polarising opinions but a considered conversation with someone who thinks differently from me. I have the genuine privilege of working with colleagues from across the political spectrum and engaging in debate and discussion, often publicly, on a daily basis. My ideas and beliefs are constantly challenged and given a chance to develop.

    One of the first lectures of my PGCE explained that ‘unlearning’ is much harder than learning. Therefore, if your pupils already believe that they know something, it is much more difficult to change their perception than to paint information on a blank canvas.

    If we truly want to promote free speech, we have to teach the skills of unlearning: curiosity, open mindedness, resilience and tolerance. This isn’t to say that all students should change their minds or perceptions. This might happen, but what we also need to develop is the curiosity to understand why someone thinks or believes differently from us. What led them to this belief? Why is it important to them? And, in turn, why do we hold the belief that we do? What led us to that viewpoint and why is it important to us?

    I appreciate that this becomes more complex when students’ own identities may be intertwined with these topics. While the right to speak freely is crucial, the choice to disengage from a topic that causes deep distress should also be respected. However, there are myriad interesting and challenging topics we can explore to learn from one another. One memorable experience from my time at the University of Bath was when a student explained to me that she found it patronising and incorrect for UK universities to teach that democracy was always the right way to organise society, especially when she observed greater poverty and inequality in the UK than in her home country. This didn’t alter my view on the importance of democratic rights or that it is the best way to organise society – but I’m so grateful that my ingrained belief and perception were challenged in this way and that I had the opportunity to consider an entire societal structure through the perspective of someone from a different background to my own.

    This conversation occurred by chance. As universities strive to promote free speech amidst the new registration requirements, how can we encourage the sharing of diverse, and at times challenging, opinions? Additionally, how can we teach the skills not only to debate our own views but also to listen to the opinions of others? Stimulating debate is, of course, the foundation of university teaching and research, and many institutions create spaces for this to occur daily. However, with ongoing criticism that universities are stifling debate and the new regulations coming into effect, providers will need to formalise and promote these opportunities. (Please write a blog for us if you would like to highlight your best practice in this area!)

    In the age of disinformation, where critical thinking is increasingly important, how can we expect students to critically analyse information shared by others if they cannot first critically analyse their own thoughts?

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  • HR and the Courts — March 2024 – CUPA-HR

    HR and the Courts — March 2024 – CUPA-HR

    by CUPA-HR | March 13, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Dartmouth College May Appeal NLRB’s Decision Allowing Basketball Players to Unionize

    The Dartmouth College men’s basketball team voted 13-2 to unionize, selecting the Service Employees International Union Local 560 to represent them in collective bargaining. While student-athletes at Northwestern University voted to unionize some 10 years ago, the National Labor Relations Board declined jurisdiction in that case. Here, the NLRB appears to be taking a different approach and has affirmed the regional director’s decision that the basketball players are employees of the college.

    Bloomberg reports that Dartmouth stated it has “deep respect” for its unionized workers but does not believe this path is “appropriate” for basketball players. Dartmouth has argued to the NLRB that its student-athletes are not employees and that its basketball players are participating in a voluntary extracurricular activity. The NLRB, with one dissenting vote, denied Dartmouth’s motion to stay its decision, ruling that the basketball players are employees of the institution. The legal path forward is complex, and we will report on developments as they occur.

    Separately, the NLRB is conducting a hearing on the West Coast involving an unfair labor practice complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA regarding their refusal to bargain with a union representing football and basketball players at USC. The NLRB general counsel has publicly stated that she believes student-athletes are employees who should be able to unionize.

    Student-Athlete Employee Status Could Lead to Student Visa Problems

    The classification of college student-athletes as employees could lead to F-1 visa problems for international athletes enrolled in U.S. colleges and universities. The F-1 visa restricts work to 20 hours per week when classes are in session and 40 hours per week when classes are not in session. The F-1 visa is used by roughly 20,000 international athletes enrolled in U.S. colleges and universities.

    Possible workarounds are either the P-1 visa, which is a nonimmigrant visa used by professional athletes, or an O-1 visa, which is used by individuals with extraordinary ability. Commentators conclude that these workarounds are not feasible on the scale necessary to accommodate the number of international student-athletes involved. A legislative solution will probably be necessary to address this problem should the employee status of college athletes be confirmed by the NLRB, or in other litigation under statutes such as the Fair Labor Standards Act.

    Union Membership and Strike Activity Rose Dramatically in 2023

    Bloomberg Law’s statistical analyses show that union membership and strike activity rose considerably in 2023 to levels not seen in years. Unions organized almost 100,000 new workers in NLRB-supervised elections in 2023, the largest single year total since 2000. This is the fourth-largest total one-year organizing gain since 1990, according to Bloomberg Law statistics. This is also the first time since 1990 that unions have managed to increase their annual headcount for three years in a row.

    The news is similar on the strike activity front. Over 500,000 workers participated in work stoppages in 2023. This is the second-highest number since Bloomberg Law began collecting this data in 1990. The only year that saw more strike activity since 1990 was 2018, the year of multiple city- and state-wide teacher strikes.

    SpaceX’s Challenge to NLRB’s Administrative Procedures Is Transferred From Texas to California

    A federal district court judge in Texas recently granted the NLRB’s motion to transfer SpaceX’s constitutional challenge from federal court in Texas to federal court in the Central District of California, where the underlying facts, NLRB hearing, and decision took place (SpaceX v. NLRB (S.D. Tex., No. 24-00001, Motion Granted 2/15/24)).

    SpaceX argued that the Texas venue was proper because SpaceX has operations and employees in Texas who received and were subject to a company letter, distributed nationally, that the NLRB ruled violated employee rights under the National Labor Relations Act.

    The Texas federal judge rejected SpaceX’s arguments, concluding that the underlying California-based administrative proceedings were brought against a California-based company and involved its California employees. With the transfer of the case to California, SpaceX lost a potentially more favorable appeals court precedent and appellate review. The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) is viewed as more conservative than the 9th Circuit, which covers California. In addition, the 5th Circuit has in the past ruled that aspects of decisions by other federal agencies, including the Securities and Exchange Commission, violate the U.S. Constitution.

    Employer Risk Associated With Targeting Remote Workers for Termination

    Remote work is not in and of itself a protected classification under federal or state civil rights laws. Nonetheless, the reasons for remote work could be protected, such as a disability-related concern. Bloomberg Law commentators conclude that remote workers are more likely to be laid off or miss out on promotional opportunities than peers who work in the office or in hybrid environments. Also according to Bloomberg Law, studies demonstrate that remote workers are more likely to be women, persons of color and those with disability accommodations. Evidence that any of those protected factors contributed to the termination, layoff or failure to promote could give rise to a successful challenge of the employment action under either the Americans with Disabilities Act or applicable state or federal civil rights statutes.

    Disney Actor Tests California State Law Protecting Employees From Discharge for Off-Work Political Comments

    An actor in the Disney show “The Mandalorian” filed a lawsuit claiming that she was unlawfully terminated from the show because of political comments she made outside of the workplace. Actor Gina Carano claims she was terminated after social media posts comparing the treatment of Trump supporters to how Jews were treated during the Holocaust. The plaintiff also alleges that Disney took issue with other comments she made on the COVID-19 vaccine, gender identity and voter fraud during the 2020 election.

    The lawsuit has been filed in federal court in the Central District of California and is being funded by Elon Musk. The suit was filed under a California statute that has broader protections than Title VII in protecting off-work political comments and has no cap on damages. Section 1101 of the California Labor Code protects a worker’s right to political expression outside of work, including speaking up for a candidate or cause.

    The plaintiff also alleges sex discrimination and that Disney treated male actors more favorably in similar circumstances. She alleges that male stars Mark Hamill and her co-star Pedro Pascal were treated more favorably when they engaged in off-work political statements. The breadth of the protection and scope of the California statute will be tested by this litigation brought against Disney.

    NLRB Reverses Decision, Finds Home Depot Violated NLRA Over Employee’s Black Lives Matter Slogan

    A three-member panel of the NLRB ruled 2-1 that Home Depot violated the NLRA when it told an employee that he could not work with a “BLM” slogan on his company-issued apron, thus forcing his resignation (Home Depot USA (NLRB Case no. 18-CA-273796, 2/23/24)). The NLRB panel reversed the decision of the administrative law judge who had handled the trial of the case and had ruled in favor of Home Depot, holding that the company had the right to maintain its rules about company uniforms.

    The NLRB panel reversed, concluding that Home Depot violated the NLRA because the record demonstrated the employee’s protest was in furtherance of earlier group complaints about racism in the Home Depot workplace. In these circumstances, the NLRB concluded that the employee’s action in working with a Black Lives Matter slogan on his work apron was protected, concerted activity under the NLRA, as a “logical outgrowth” of earlier employee protests of race discrimination at the specific Home Depot store. The dissenting board member stated in his decision that the majority holding was an “unprecedented extension” of the “logical outgrowth” theory.



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