Category: Freedom of speech

  • The balancing act goes on

    The balancing act goes on

    Balancing free speech and protection from harassment is a complex, evolving challenge with no one-size-fits-all solution.

    Decisions must be made based on the specific context and facts of each case.

    However, our experience shows these risks are dynamic – over time, new challenges emerge, stretching our policies, processes, and understanding. The question for HEIs then, is how to navigate such a landscape.

    Recently, OfS’ Regulatory Case Report for the University of Sussex has sparked extensive commentary. Jim Dickinson, in multiple articles on Wonkhe, has explored its implications for effective regulation, rightly emphasising the crucial role of collaboration and trust.

    Efficiency is the watchword of the day and the approach in the case report risks fostering a more expensive American-style adversarial legalism. But the stakes are higher than just the streamlined effectiveness of our regulatory system.

    The rights, experience and outcomes in education and career for HE students and staff often depend on our approach and decisions in these critical cases.

    Challenges and priorities

    The UK higher education sector has faced a significant challenge. Free speech has at times been overlooked in our policies and work, especially in areas of equity, diversity, and inclusion.

    The policy template in the Sussex case report was drafted by one of Advance HE’s predecessor organisations, the Equality Challenge Unit. However, the sector now shows a shared intent to prioritise free speech. Universities UK states:

    “It’s absolutely essential that universities uphold freedom of speech and academic freedom, and they are legally bound to do so. Universities must also create an environment where all people can work and learn together.

    There is increasing clarity on the “presumption in favour of free speech” in UK law and in higher education practice. This is evident in relation to free speech and protected beliefs, such as in the recent Court of Appeal judgment in the Higgs case, as well as in areas like Prevent and institutions’ responses to protests on Israel/Gaza.

    We would benefit from more openly recognising this shared intent and commitment to free speech and academic freedom. However, the answers to many of the difficult cases and questions that arise in these areas are not settled.

    New incidents will create different circumstances and illuminate different boundaries of law and regulation, and there will be new court cases and judgments to learn from (such as the Supreme Court ruling on the definition of a woman in the Equality Act 2010).

    We will continue to grapple with the challenging interplay between free speech, inclusion, and harassment. This tension is now explicit in the OfS regulatory framework, particularly between freedom of speech and Condition E6 on Harassment and Sexual Misconduct.

    The most important decisions about free speech and inclusion happen in our classrooms and offices. Academics navigate contentious topics and sensitive discussion, while managers respond to concerns about speech and harm, or debates that turn into allegations of harassment.

    These decisions are often uncertain, taken in individual contexts without clear legal precedent or direct policy instruction. Our staff and students therefore depend on our collective ability to make reasonable and proportionate decisions in heated, highly contextualised, and risky environments.

    These challenges are dynamic and will continue to evolve. Many HE policies and solutions from five or ten years ago are not fit for purpose now. We would be naïve to think our current approaches will not again need to evolve to meet future circumstances and challenges.

    How then can we ensure the rights to free speech and protection from harassment are upheld for staff and students under these circumstances?

    The way ahead will require proactive leadership, horizon scanning, and a willingness to collaborate and innovate in sensitive areas.

    Collaboration is key

    OfS itself has emphasised the importance of collaboration. Arif Ahmed, the Director for Freedom of Speech and Academic Freedom at OfS, noted:

    “I believe that there is much to be gained from collaboration with [the sector] on these important issues. I am therefore keen to engage with stakeholders now on the most effective ways to approach the promotion of freedom of speech.

    As a sector, we need to work collaboratively to find opportunities for innovation and allow UK higher education to experiment at the edges of promoting and protecting free speech while openly addressing clear instances of unlawful harassment. UUK, GuildHE and Advance HE alongside many individual institutions have been proactive recently in creating spaces for discussion and practice in balancing free speech and inclusion.

    We are not alone in this challenge. Other nations and HE sectors have similar values and intent but slightly different legal frameworks. The recent Hodgkinson Review from the University of Sydney demonstrates the potential that a more global conversation might offer to horizon scanning and innovation in the UK.

    Beyond collaboration, innovation and horizon scanning, securing free speech and protection from harassment will test institutional resilience to difficult and complex cases. This will require institutional competence, but more importantly, any long-term success demands individual capacity and judgment from academics and staff.

    One-off training programs will be quickly outdated. Staff will be more effective engaging with policies in context, with clear opportunities to escalate challenges and receive responsive feedback and support. Leaders and front-line staff will need to be supported to engage with and share learning from the most complex cases.

    The approach to regulation demonstrated by the Case Report on Sussex encourages institutions to prioritize free speech and embed it into policy and practice. But this is already well understood and underway. What the Case Report won’t do is encourage institutions to step into difficult and complex cases more openly and engage in challenges that don’t have clear answers.

    The hazard here is the possibility of an environment where HEIs and staff may feel compelled to remove risk from engagement with speech. Staff and students might avoid contentious topics in research and teaching and withdraw from activities where there are concerns about harassment and discrimination. This would limit the innovative and provocative speech we should protect and undermine our ability to add value at the boundaries of societal debate.

    New regulation, such as the complaints scheme, could be a powerful mechanism for horizon scanning and supporting learning and consistent practice across institutions. To build a more robust approach to free speech in UK higher education, we need more collaboration and trust, and to build on our shared commitment to free speech and protection from harassment.

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  • Explaining Sussex v the Office for Students

    Explaining Sussex v the Office for Students

    The University of Sussex has published a pre-action protocol letter to the Office for Students (OfS).

    The letter notifies the regulator of the university’s intention to seek judicial review and appeal the decision – which imposed a £600k fine over breaches related to academic freedom and freedom of speech.

    Thus far we’ve had a war of words – now we see the legal basis for the argument. Sussex argues that OfS acted ultra vires (ie beyond its powers), misinterpreted legal principles, misapplied statutory definitions, and demonstrated irrationality in its findings, particularly over the Trans and Non-Binary Equality Policy Statement (TNBEPS).

    It also asserts that OfS overstepped its authority, failed to engage in procedural fairness, and ignored safeguards already in place – putting meat on the bones of its eye-catching “free-speech absolutism” claim.

    Some of it concerns a regulatory regime that’s set to be replaced – but some of it concerns an allegation of “absolutism” about how the regulator is interpreting the law. The second of those could go on to matter quite a bit once the Higher Education (Freedom of Speech) Act 2023 actually gets implemented.

    Chilling effects and balancing acts

    Sussex’s disciplinary statement classified “transphobic abuse, harassment or bullying” – including name-calling and derogatory jokes – as serious disciplinary offences, and it argues that OfS made a legal error in finding that the statement breached regulatory requirements around freedom of speech.

    It arguies that the language targets conduct already covered by existing laws – like section 5 of the Public Order Act 1986, which prohibits abusive speech likely to cause harassment or distress.

    In 2023, the university introduced clarifications – a “harm threshold” requiring speech to be reasonably expected to cause fear or distress, and an explicit statement safeguarding lawful academic freedom and speech, stating that the policy should not justify disciplinary action for expressing controversial or unpopular views.

    It claims OfS ignored those contextual safeguards and wrongly interpreted the policy as restricting lawful speech, even though its objective meaning, when read in full and in context, demonstrates otherwise.

    Broadly, this is about the “chilling effect” – Sussex is saying that universities can lawfully discipline harmful or abusive speech, as long as there’s an alignment with existing legal prohibitions, and as long as there are clear safeguards for lawful expression – limiting OfS’s power to challenge policies based on hypothetical misreadings. Doing so gives universities freedom to uphold respectful environments without breaching free speech duties.

    Expression that you can restrict

    Next, Sussex argues that OfS misunderstood what “freedom of speech within the law” actually means – taking the position that universities can’t prohibit any speech unless it’s already explicitly banned by civil or criminal law.

    Sussex’s argument is that universities, like other institutions, are allowed to set standards of conduct and discipline behaviour – like plagiarism, abuse, or poor academic quality – even if those behaviours aren’t technically illegal:

    The University would have to tolerate academics designing curriculums which lack academic rigour, for example a curriculum which seeks to reinforce stereotypes (as distinct from a curriculum that discusses stereotypes).

    The University would have to tolerate an academic starting every lecture by swearing at and demeaning students, so long as such action did not relate to protected characteristics.

    The University would have to tolerate an academic conducting every lecture through the medium of song or mime (noting that freedom of speech protects the manner of speech as well as the content).

    The argument is that lawful speech can still be restricted if the restriction is lawful and proportionate, as allowed under Article 10 of the European Convention on Human Rights, and that the mere possibility of disciplinary action doesn’t amount to an unlawful restriction on speech, citing European case law to back this up.

    This one’s interesting because it’s a key part of the “absolutism” argument – in its draft guidance on the new legislation last year, for example, OfS said:

    It is likely to be extremely difficult, if not impossible, for higher education providers and other relevant organisations to comply with their free speech duties if they seek directly or indirectly to restrict the particular content of speech. For instance, a provider, constituent institution or relevant students’ union may wish to restrict or prohibit speech because it has made a negative value judgement about the content of the speech. There is likely to be very little scope to restrict or prohibit lawful speech in this way.

    Sussex is basically saying that the case law suggests that it’s not nearly as difficult or impossible as OfS claims – and that universities retain the lawful authority to set and enforce standards of behaviour, academic integrity, and professionalism – even where those rules affect speech that isn’t illegal. It’s also saying that having disciplinary procedures in place isn’t, by itself, a breach of free speech obligations, so long as they aren’t used to punish lawful expression improperly.

    Stereotyping standoffs

    One of the things we’ve reflected on before is the apparent refusal of the regulator to accept that the case law puts a higher value on free speech in academic contexts than in others – and of course a university encompasses all sorts of contexts.

    Put another way, what a student writes in an essay or what an academic teaches (with all the usual qualifications about proper rigour) that might, say, stereotype a trans person is a world away from stereotyping banter on a society social.

    In the letter, Sussex challenges the logic and legality of OfS’s conclusion about the 2023 “Stereotyping Statement” in the TNBEPS. OfS accepted the statement didn’t infringe academic freedom, noting the policy included a safeguard against constraining academic freedom or imposing disproportionate limits on free speech. Yet it still found the same policy breached freedom of speech duties, because it could chill other lawful speech, particularly by students or non-academic staff.

    Sussex argues this is irrational because the Stereotyping Statement only relates to how the curriculum is designed – something that exclusively involves academics. If OfS was satisfied that the policy didn’t infringe the academic freedom of those academics in setting the curriculum, it argues there is no rational basis to then conclude that their freedom of speech was infringed by the same policy.

    This standoff matters. OfS is saying that even if a policy respects academic freedom, it can still breach free speech duties if it chills broader expression – while Sussex argues that in curriculum design, those duties converge, and protecting academic freedom inherently protects speech.

    Is a policy statement a governing document?

    Sussex argues that the Trans and Non-Binary Equality Policy Statement (TNBEPS) is not a “governing document” as defined by section 14(1) of the Higher Education and Research Act 2017 (HERA), which it says only refers to foundational legal documents like a university’s Charter and Statutes.

    In comments to the Guardian at the end of last month, Sussex vice chancellor Sasha Roseneil argued as follows:

    This is a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university are its charter and statutes and regulations. So that’s the core of the problem

    In the pre-action letter, Sussex claims OfS has wrongly expanded the definition through its regulatory framework, which includes broader policy documents, without the legal authority to do so – insisting that only Parliament can define those terms – and that interpreting TNBEPS as a governing document is beyond the OfS’s powers (ultra vires).

    You might argue that it’s sensible for both the law and the regulator to only look at proper, formal governing documents when assessing breaches of things, you might not – but if Sussex is right on that, it does underline a key difference between the law operating in 2021 and what would be the position if the Higher Education (Freedom of Speech) Act 2023 was fully in force.

    It goes on to argue that the regulator “misunderstood and misapplied” its regulatory role, because OfS was supposed to determine whether the university’s governing documents were consistent with principles of academic freedom and freedom of speech – not to speculate on how someone might misread a policy.

    It criticizes OfS for relying on “hypothetical misinterpretations” rather than objectively interpreting the actual text, ignoring contextual safeguards like the university’s disciplinary rules and Free Speech Code – which the university says led to a flawed and unlawful decision.

    If Sussex is right, it’s saying that OfS may have failed a basic legal duty – to interpret documents in context and according to their actual effect, not based on imagined misunderstandings.

    Delegation and proportionality

    You’ll recall that the other big fine for Sussex was about delegation. Sussex argues that OfS acted beyond its legal authority by making findings about whether the university properly followed its internal rules on who has the power to approve policies (its delegation arrangements).

    Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King.

    It cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

    Sussex says HERA 2017 doesn’t meet the test, because it neither expressly nor necessarily implies that OfS can judge whether a university has followed its internal delegation rules.

    OfS argues that cases like Thomas v University of Bradford [1987] AC 795 make clear that HERA 2017 grants it the power to impose conditions as long as those conditions fall within its statutory mandate.

    This one’s interesting because it has echoes of arguments about the powers OfS has over consumer protection. In that area, C1 allows it to assess whether a provider has paid “due regard” to guidance, but OfS doesn’t have actual powers to judge whether a provider is in breach – which is partly why it’s busy proposing to remix consumer law as a “fairness condition” of its own, and partly why interim Chair David Behan has been arguing to DfE that it needs to be given proper powers to become an enforcement body.

    Poking around in the annex

    As such, Sussex also argues that OfS exceeded its legal authority by including Annex H in its Final Decision.

    That contains OfS’ views on whether the university may have breached other legal obligations – like Article 10 of the European Convention on Human Rights (ECHR) and the Equality Act 2010. Sussex asserts that HERA 2017 doesn’t authorise OfS to investigate or make findings about compliance with these separate legal duties, which fall outside its jurisdiction.

    OfS tries to justify its actions by saying that potential non-compliance with these laws might indicate whether Sussex breached Condition E1 (the requirement for governing documents to support freedom of speech and academic freedom).

    But Sussex argues this logic is flawed – it says E1 is about the content of governing documents and whether they align with public interest governance principles – not about whether the university might have violated unrelated legal duties that OfS doesn’t oversee.

    The university also points out what it says are legal errors in OfS’ analysis. OfS claimed the university might have breached Article 10 ECHR simply because it didn’t conduct a formal “proportionality assessment” – but case law says that’s not a requirement to prove a breach.

    The case referenced is a fascinating one – in Belfast City Council v Miss Behavin’ Ltd [2007] the council had denied a licence to an adult entertainment business, who argued their freedom of expression was infringed because the council hadn’t assessed whether the denial was proportionate.

    The House of Lords rejected the argument, deciding that what matters is whether the interference was in fact justified – not whether the council had formally weighed it up using proportionality language.

    And Sussex argues that OfS wrongly suggested the university’s curriculum content could amount to indirect discrimination under the Equality Act, even though curriculum content is explicitly excluded from that law under section 94(2).

    Process issues

    Some of the process issues are eye-opening. We learn, for example, that OfS suggested various potential penalties and breaches throughout the 1246 days of the investigation, “most of which were later dropped”.

    We already knew that OfS “never met with university representatives”, declined all requests for meetings or discussions about its findings or decisions, and would not confirm whether changes the university made to its policy addressed the concerns raised.

    Here Sussex says that when the provisional decision was reached and sent in March 2024, it was “259 pages long, repetitive and poorly written”. A year or so later, out of the blue, it says it got a call from OfS requesting a meeting within 3.5 hours – a courtesy call that the final decision was coming that day.

    It says that the majority of the findings and proposed penalties in the provisional decision had been abandoned, but the proposed penalties had actually increased – with no explanation.

    Sussex claims OfS acted unfairly during its investigation by meeting with Kathleen Stock multiple times while refusing nine requests to meet with university representatives – and argue OfS relied on a second statement from Stock, obtained after the university’s submissions, without disclosing it or allowing any response, using it to reject the university’s position on harm caused under condition E1.

    What happens next will hinge on whether OfS engages with the university’s legal challenge or digs in for a court fight – there’s a question over whether there’s any pre-action protocol for this kind of tribunal, and Sussex reserves the right to rely on other grounds.

    But more broadly, the case lays bare fundamental disagreements about how speech should be regulated in higher education, who gets to interpret the law, and where the boundaries lie between institutional autonomy and regulatory oversight.

    Whether you think Sussex is bravely standing up for a more balanced view of the campus culture see-saw, or is simply resisting accountability, the outcome may well reshape how free speech duties are understood and enforced across the sector.

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  • Dr. Joanne Liu on NYU Canceling Her Talk (Democracy Now!)

    Dr. Joanne Liu on NYU Canceling Her Talk (Democracy Now!)

     

    The former international head of Doctors Without Borders is speaking out after New York University canceled her presentation, saying some of her slides could be viewed as “anti-governmental” and “antisemitic” because they mentioned the Trump administration’s cuts to foreign aid and deaths of humanitarian workers in Israel’s war on Gaza. Dr. Joanne Liu, a Canadian pediatric emergency medicine physician, was scheduled to speak at NYU, her alma mater, on March 19 and had been invited almost a year ago to discuss the challenges of humanitarian crises. Censoring speech is “killing the essence of what the university is about,” says Liu. “I truly and strongly believe that universities are the temple of knowledge.”

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  • Effective regulation requires a degree of trust

    Effective regulation requires a degree of trust

    At one point in my career, I was the CEO of a students’ union who’d been charged with attempting to tackle a culture of initiation ceremonies in sports clubs.

    One day a legal letter appeared on my desk – the jist of which was “you can’t punish these people if they didn’t know the rules”.

    We trawled back through the training and policy statements – and found moments where we’d made clear that not only did we not permit initiation ceremonies, we’d defined them as follows:

    An initiation ceremony is any event at which members of a group are expected to perform an activity as a means of gaining credibility, status or entry into that group. This peer pressure is normally (though not explicitly) exerted on first-year students or new members and may involve the consumption of alcohol, eating various foodstuffs, nudity and other behaviour that may be deemed humiliating or degrading.

    The arguments being advanced were fourfold. The first was that where we had drawn the line between freedom to have fun and harmful behaviour, both in theory and in practice, was wrong.

    The second was that we’d not really enforced anything like this before, and appeared to be wanting to make an example out of a group of students over which a complaint had been raised.

    They said that we’d failed to both engender understanding of where the line was that we were setting for those running sports clubs, and failed to make clear expectations over enforcing that line.

    And given there been no intent to cause harm, it was put to us that the focus on investigations and publishments, rather than support to clubs to organise safe(er) social activity, was both disproportionate and counter-productive.

    And so to the South coast

    I’ve been thinking quite a bit about that affair in the context of the Office for Students (OfS) decision to fine the University of Sussex some £585k over both policy and governance failings identified during its three-year investigation into free speech at Sussex.

    One of the things that you can debate endlessly – and there’s been plenty of it on the site – is where you draw the line between freedom to speak and freedom from harm.

    That’s partly because even if you have an objective of securing an environment characterised by academic freedom and freedom of speech, if you don’t take steps to cause students to feel safe, there can be a silencing effect – which at least in theory there’s quite a bit of evidence on (including inside the Office for Students).

    You can also argue that the “make an example of them” thing is unfair – but ever since a copper stopped me on the M4 doing 85mph one afternoon, I’ve been reminded of the old “you can’t prove your innocence by proving others’ guilt” line.

    Four days after OfS says it “identified reports” about an “incident” at the University of Sussex, then Director of Compliance and Student Protection Susan Lapworth took to the stage at Independent HE’s conference to signal a pivot from registration to enforcement.

    She noted that the statutory framework gave OfS powers to investigate cases where it was concerned about compliance, and to enforce compliance with conditions where it found a breach.

    She signalled that that could include requiring a provider to do something, or not do something, to fix a breach; the imposition of a monetary penalty; the suspension of registration; and the deregistration of a provider if that proved necessary.

    “That all sounds quite fierce”, she said. “But we need to understand which of these enforcement tools work best in which circumstances.” And, perhaps more importantly “what we want to achieve in using them – what’s the purpose of being fierce?”

    The answer was that OfS wanted to create incentives for all providers to comply with their conditions of registration:

    For example, regulators assume that imposing a monetary penalty on one provider will result in all the others taking steps to comply without the regulator needing to get involved.

    That was an “efficient way” to secure compliance across a whole sector, particularly for a regulator like OfS that “deliberately doesn’t re-check compliance for every provider periodically”.

    Even if you agree with the principle, you can argue that it’s pretty much failed at that over the intervening years – which is arguably why the £585k fine has come as so much of a shock.

    But it’s the other two aspects of that initiation thing – the understanding one and the character of interventions one – that I’ve also been thinking about this week in the context of the Sussex fine.

    Multiple roles

    On The Wonkhe Show, Public First’s Jonathon Simons worries about OfS’ multiple roles:

    If the Office for Students is acting in essentially a quasi-judicial capacity, they can’t, under that role, help one of the parties in a case try to resolve things. You can’t employ a judge to try and help you. But if they are also trying to regulate in the student interest, then they absolutely can and should be working with universities to try and help them navigate this – rather than saying, no, we think we know what the answer is, but you just have to keep on revising your policy, and at some point we may or may not tell you got it right.

    It’s a fair point. Too much intervention, and OfS appears compromised when enforcing penalties. Too little, and universities struggle to meet shifting expectations – ultimately to the detriment of students.

    As such, you might argue that OfS ought to draw firmer lines between its advisory and enforcement functions – ensuring institutions receive the necessary support to comply while safeguarding the integrity of its regulatory oversight. At the very least, maybe it should choose who fronts out which bits – rather than its topic style “here’s our Director for X that will both advise and crack down. ”

    But it’s not as if OfS doesn’t routinely combine advice and crack down – its access and participation function does just that. There’s a whole research spin-off dedicated to what works, extensive advice on risks to access and participation and what ought to be in its APPs, and most seem to agree that the character of that team is appropriately balanced in its plan approval and monitoring processes – even if I sometimes worry that poor performance in those plans is routinely going unpunished.

    And that’s not exactly rare. The Regulator’s Code seeks to promote “proportionate, consistent and targeted regulatory activity” through the development of “transparent and effective dialogue and understanding” between regulators and those they regulate. Sussex says that throughout the long investigation, OfS refused to meet in person – confirmed by Arif Ahmed in the press briefing.

    The Code also says that regulators should carry out their activities in a way that “supports those they regulate to comply” – and there’s good reasons for that. The original Code actually came from something called the Hampton Report – in 2004’s Budget, Gordon Brown tasked businessman Philip Hampton with reviewing regulatory inspection and enforcement, and it makes the point about example-setting:

    The penalty regime should aim to have an effective deterrent effect on those contemplating illegal activity. Lower penalties result in weak deterrents, and can even leave businesses with a commercial benefit from illegal activity. Lower penalties also require regulators to carry out more inspection, because there are greater incentives for companies to break the law if they think they can escape the regulator’s attention. Higher penalties can, to some extent, improve compliance and reduce the number of inspections required.”

    But the review also noted that regulators were often slow, could be ineffective in targeting persistent offenders, and that the structure of some regulators, particularly local authorities, made effective action difficult. And some of that was about a failure to use risk-based regulation:

    The 1992 book Responsive Regulation, by Ian Ayres and John Braithwaite, was influential in defining an ‘enforcement pyramid’, up which regulators would progress depending on the seriousness of the regulatory risk, and the non-compliance of the regulated business. Ayres and Braithwaite believed that regulatory compliance was best secured by persuasion in the first instance, with inspection, enforcement notices and penalties being used for more risky businesses further up the pyramid.

    The pyramid game

    Responsive Regulation is a cracking book if you’re into that sort of thing. Its pyramid illustrates how regulators can escalate their responses from persuasion to punitive measures based on the behaviour of the regulated entities:

    In one version of the compliance pyramid, four broad categories of client (called archetypes) are defined by their underlying motivational postures:

    1. The disengaged clients who have decided not to comply,
    2. The resistant clients who don’t want to comply,
    3. The captured clients who try to comply, but don’t always succeed, and
    4. The accommodating clients who are willing to do the right thing.

    Sussex has been saying all week that it’s been either 3 or 4, but does seem to have been treated like it’s 1 or 2.

    As such, Responsive Regulation argues that regulators should aim to balance the encouragement of voluntary compliance with the necessity of enforcement – and of course that balance is one of the central themes emerging in the Sussex case, with VC Sacha Roseneil taking to PoliticsHome to argue that:

    …Our experience reflects closely the [Lords’ Industry and Regulators] committee’s observations that it “gives the impression that it is seeking to punish rather than support providers towards compliance, while taking little note of their views.” The OfS has indeed shown itself to be “arbitrary, overly controlling and unnecessarily combative”, to be failing to deliver value for money and is not focusing on the urgent problem of the financial sustainability of the sector.

    At roughly the same time as the Hampton Report, Richard Macrory – one of the leading environmental lawyers of his generation – was tasked by the Cabinet Office to lead a review on regulatory sanctions covering 60 national regulators, as well as local authorities.

    His key principle was that sanctions should aim to change offender behaviour by ensuring future compliance and potentially altering organisational culture. He also argued they should be responsive and appropriate to the offender and issue, ensure proportionality to the offence and harm caused, and act as a deterrent to discourage future non-compliance.

    To get there, he called for regulators to have a published policy for transparency and consistency, to justify their actions annually, and that the calculation of administrative penalties should be clear.

    These are also emerging as key issues in the Sussex case – Roseneil argues that the fine is “wholly disproportionate” and that OfS abandoned, without any explanation, most of its provisional findings originally communicated in 2014.

    The Macory and Hampton reviews went on to influence the UK Regulatory Enforcement and Sanctions Act 2008, codifying the Ayres and Braithwaite Compliance Pyramid into law via the Regulator’s Code. The current version also includes a duty to ensure clear information, guidance and advice is available to help those they regulate meet their responsibilities to comply – and that’s been on my mind too.

    Knowing the rules and expectations

    The Code says that regulators should provide clear, accessible, and concise guidance using appropriate media and plain language for their audience. It says they should consult those they regulate to ensure guidance meets their needs, and create an environment where regulated entities can seek advice without fear of enforcement.

    It also says that advice should be reliable and aimed at supporting compliance, with mechanisms in place for collaboration between regulators. And where multiple regulators are involved, they should consider each other’s advice and resolve disagreements through discussion.

    That’s partly because Hampton had argued that advice should be a central part of a regulators’ function:

    Advice reduces the risk of non-compliance, and the easier the advice is to access, and the more specific the advice is to the business, the more the risk of non-compliance is reduced.

    Hampton argued that regulatory complexity creates an unmet need for advice:

    Advice is needed because the regulatory environment is so complex, but the very complexity of the regulatory environment can cause business owners to give up on regulations and ‘just do their best’.

    He said that regulators should prioritise advice over inspections:

    The review has some concerns that regulators prioritise inspection over advice. Many of the regulators that spoke to the review saw advice as important, but not as a priority area for funding.”

    And he argued that advice builds trust and compliance without excessive enforcement:

    Staff tend to see their role as securing business compliance in the most effective way possible – an approach the review endorses – and in most cases, this means helping business rather than punishing non-compliance.

    If we cast our minds back to 2011, despite the obvious emerging complexities in freedom from speech, OfS had in fact done very little to offer anything resembling advice – either on the Public Interest Governance Principles at stake in the Sussex case, or on the interrelationship between them and issues of EDI and harassment.

    Back in 2018, a board paper had promised, in partnership with the government and other regulators, an interactive event to encourage better understanding of the regulatory landscape – that would bring leaders in the sector together to “showcase projects and initiatives that are tackling these challenges”, experience “knowledge sharing sessions”, and the opportunity for attendees to “raise and discuss pressing issues with peers from across the sector”.

    The event was eventually held – in not very interactive form – in December 2022.

    Reflecting on a previous Joint Committee on Human Rights report, the board paper said that it was “clear that the complexity created by various forms of guidance and regulation is not serving the student interest”, and that OfS could “facilitate better sharing of best practice whilst keeping itself apprised of emerging issues.”

    I’m not aware of any activity to that end by October 2021 – and even though OfS consulted on draft guidance surrounding the “protect” duty last year, it’s been blocking our FOI attempts to see the guidance it was set to issue when implementation was paused ever since, despite us arguing that it would have been helpful for providers to see how it was interpreting the balancing acts we know are often required when looking at all the legislation and case law.

    The board paper also included a response to the JCHR that said it would be helpful to report on free speech prompted by a change in the risk profile in how free speech is upheld. Nothing to that end appeared by 2021 and still hasn’t unless we count a couple of Arif Ahmed speeches.

    Finally, the paper said that it was “not planning to name and shame providers” where free speech had been suppressed, but would publish regulatory action and the reasons for it where there had been a breach of registration condition E2.

    Either there’s been plenty of less serious interventions without any promised signals to the sector, or for all of the sound and fury about the issue in the media, there really haven’t been any cases to write home about other than Sussex since.

    Willing, but ready and able?

    The point about all of that – at least in this piece – is that it’s actually perfectly OK for a regulator to both advise and judge.

    It isn’t so much to evaluate whether the fine or the process has been fair, and it’s not to suggest that the regulator shouldn’t be deploying the “send an example to promote compliance” tactic.

    But it is to say that it’s obvious that those should be used in a properly risk-based context – and where there’s recognised complexity, the very least it should do is offer clear advice. It’s very hard to see how that function has been fulfilled thus far.

    In the OECD paper Reducing the Risk to Policy Failure: Challenges for Regulatory Compliance, regulation is supposed to be about ensuring that those regulated are ready, willing and able to comply:

    • Ready means clients who know what compliance is – and if there’s a knowledge constraint, there’s a duty to educate and exemplify. It’s not been done.
    • Able means clients who are able to comply – and if there’s a capability constraint, there’s a duty to enable and empower. That’s not been done either.
    • Willing means clients who want to comply – and if there’s an attitudinal constraint, there’s a duty to “engage, encourage [and then] enforce”.

    It’s hard to see how “engage” or “encourage” have been done – either by October 2021 or to date.

    And so it does look like an assumption on the part of the regulator – that providers and SUs arguing complexity have been being disingenuous, and so aren’t willing to secure free speech – is what has led to the record fine in the Sussex case.

    If that’s true, evidence-free assumptions of that sort are what will destroy the sort of trust that underpins effective regulation in the student interest.

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  • Sussex fined almost £600k over free speech

    Sussex fined almost £600k over free speech

    The University of Sussex is to be fined a record £585,000 over a failure to uphold free speech and academic freedom.

    The Office for Students (OfS) has found “significant and serious breaches” of free speech and governance issues at the University of Sussex.

    The regulator’s investigation, which followed the departure of academic Kathleen Stock from the university, says that said policies intended to prevent abuse or harassment of certain groups on campus had created “a chilling effect” that might cause staff and students to “self-censor.”

    OfS found that Sussex’s policy statement on “trans and non-binary equality” failed to uphold the principles of freedom of speech and academic freedom governance – and had created a “chilling effect” on campus.

    It also said the university failed to have “effective and adequate management and governance arrangements in place” to uphold those principles.

    Officially, OfS’ inquiry focused on the university’s general compliance with the regulatory framework, rather than the departure of Kathleen Stock specifically – but also found “no evidence to suggest that Professor Stock’s speech during her employment at the university was unlawful.”

    Sussex has come out fighting. Vice chancellor Sasha Roseneil told the Financial Times that universities are now exposed to regulatory risk if they have policies that protect staff and students from racist, homophobic, antisemitic, anti-Muslim or other abuse, and said the regulator had decreed “free speech absolutism as the fundamental principle” for universities.

    She also claims the regulator had “refused to speak to us,” and that the fine imposed was “wholly disproportionate” – arguing the university had defended Stock’s right to pursue her academic work and express her “lawful beliefs.”

    The report – some 1,224 days since OfS says it opened the investigation – comes at a tricky time for the government. Its decision first to pause, and then announce an intention to partially repeal the Higher Education (Freedom of Speech) Act, has to some extent been centred on concerns that the Act as passed represented a “hate speech charter” preventing universities from taking steps to protect marginalised groups on campus.

    OfS’ decision – notwithstanding that it is one taken in the context of a previous and pre-existing legal framework – will therefore be widely seen as rebuttal of the idea that protection of that sort conflicts with free speech and academic freedom.

    But on the other side of that argument is Sussex itself – experiencing OfS’ fifth ever fine, and arguing that OfS’ decision will itself have a chilling effect on efforts to:

    …prevent abuse, harassment or bullying, to protect groups subject to harmful propaganda, or to determine that stereotyped assumptions should not be relied upon in the university curriculum.

    Kathleen Stock left her post as Professor of Philosophy at the University of Sussex in October 2021, shortly after which the Office for Students (OfS) announced that it had opened an investigation focused on whether or not the university had met its obligations for academic freedom and freedom of speech within the law for all students and staff, whatever their views.

    Although Stock and her departure from Sussex has become easily the most-referenced example used to illustrate the need for the Higher Education (Freedom of Speech) Act, it had at that stage only recently completed its run in the Commons – so the investigation opened by OfS was over whether the university had complied with general ongoing conditions E1 and E2 – which, in the original Jo Johnson design, were designed to give regulatory force to the “public interest governance principles” for academic freedom and freedom of speech.

    This report outlines how OfS determined breaches of conditions E1 and E2, how penalties were calculated, and raises concerns that the university may have breached broader legal duties on free speech and academic freedom. Here there’s a short background, a look in detail at the report itself, and what it might mean for the campus culture wars in coming years.

    Background

    In late 2021 at the University of Sussex – a campus with a long history of radical politics – a group of students describing themselves as queer, trans, and non-binary had mounted a campaign calling for Stock’s dismissal.

    Responding both to her teaching and books, they claimed she was espousing a “bastardised version of radical feminism that excludes and endangers trans people.” Posters and protests ensued, Stock reported receiving death threats and was advised by police to take safety precautions, and the university’s vice chancellor, Adam Tickell (now at Birmingham) defended Stock’s academic freedom and announced an investigation into the protests.

    More than 200 academic philosophers from across the UK went on to sign an open letter supporting Stock’s right to “engage in open and scholarly debate without fear of harassment,” but notably the Sussex branch of the University and College Union (UCU) criticized Tickell’s stance, expressing solidarity with the protesting students and calling for an investigation into “institutional transphobia” at the university.

    Stock resigned on 28 October, and in a subsequent radio interview on Woman’s Hour, she denied being transphobic, and explained that her resignation followed attacks from colleagues who opposed her views and who, according to Stock, encouraged an “extreme” response from their students. Stock also said that it was the UCU statement that had “effectively ended” her career at Sussex.

    What was novel about the affair is that while there had been quoted incidents of “mobbing,” “cancellation,” and “no platforming,” these had tended to be focused on figures outside of universities, visiting as speakers.

    Since the Education Act 1986 had started to require to universities to “take reasonably practicable steps to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers,” it had been the last of that list that had caused that legislation – and the last of that list that had largely generated skirmishes since.

    But when Arif Ahmed – now OfS’ Director for Academic Freedom and Freedom of Speech, then a fellow philosopher at the University of Cambridge – wrote for Index on Censorship in early 2022, he noted a new character to conflict on campus. Ahmed picked up other cases – the 500 students that had petitioned Oxford University to force two professors to include trans women in their research into women’s equality, and the academics that had had talks cancelled at Essex University after they were accused of transphobia.

    Not wanting to “anticipate what that inquiry finds,” the article also argued that in principle, there may be academic freedom issues on both sides, including “the right of students (or anyone else) to protest against her” – albeit that:

    …we must distinguish peaceful protest in favour of a principle like rights for trans people… harassment and victimisation of an individual aimed at blocking their speech.

    That often fraught line – between freedom to speak (and research), and freedom from harm – is both as old as John Stuart Mill’s On Liberty (1859), and one that has dogged the debate about campus culture generally and the Higher Education (Freedom of Speech) Act specifically ever since. Where a regulator might draw the line has been an open question – and the report now illustrates it clearly.

    An inspector calls

    On 7 October 2021, OfS contacted the university seeking information on what steps it had taken to protect free speech and academic freedom for Kathleen Stock and others with similar views, and how it had assessed whether the incident amounted to harassment based on her gender critical beliefs. After reviewing this and examining relevant policies, it formally launched an investigation on 22 October.

    The investigation focused on whether the university had taken reasonably practicable steps to uphold lawful free speech and academic freedom, whether its governance documents complied with OfS public interest principles and legal duties (including under the Equality Act 2010), and whether its policies – particularly those on academic freedom, HR, and EDI – had negatively impacted free expression.

    It imposed “cooperation requirements,” reviewed multiple rounds of documentation, and considered policy changes made during the process. Provisional findings were shared in March 2024, and final decisions were made on 14 February 2025 after considering the university’s response.

    The first breach – of Condition E1 – concerns the university’s governing documents, and the way in which OfS says they restricted lawful speech – including “gender critical” views, which are protected under the Equality Act 2010.

    OfS says this created a chilling effect – discouraging staff and students from expressing certain views. Though not officially about Stock’s case per se, it’s cited as a real-world example – OfS taking the opportunity to remind readers of its role in safeguarding lawful free speech through a viewpoint-neutral, “impartial” approach.

    The university first adopted a Trans and Non-Binary Equality Policy Statement in November 2018. On 12 November, a proposal was made to publish it on 20 November – Trans Day of Remembrance. The draft was reviewed by the University Executive Group (UEG) on 13 November, which supported its general direction, but called for further discussion after review by the Equality, Diversity and Inclusion Committee.

    Despite this, the UEG held an unscheduled meeting on 14 November 2018, during which it approved the statement for publication on 20 November. No separate minutes were recorded for this meeting. That 2018 version remained in effect when OfS began its investigation in October, and is the main source of the compliance problem.

    Some tricky timeline issues ensue which relate to later revisions, and OfS has not yet determined whether one of its identified breaches has extended beyond March of last year.

    But essentially, the judgement centres on four aspects of different versions of the university’s policy – which it’s counting here for E1 purposes as one of the university’s governing documents:

    • A requirement for “any materials within relevant courses and modules [to] positively represent trans people and trans lives.” OfS refers to this as the Positive Representation Statement throughout its report;
    • A statement that “the curriculum shall not rely on or reinforce stereotypical assumptions about trans people”. It refers to this as the Stereotyping Statement;
    • A statement that “transphobic propaganda … will not be tolerated.” It refers to this as the Transphobic Propaganda Statement;
    • A statement that “transphobic abuse, harassment or bullying (name-calling/derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences for staff and students and will be dealt with under the appropriate University procedures.” It refers to this as the Disciplinary Statement.

    OfS’ conclusion is that the university breached E1 because the four statements breached the academic freedom and freedom of speech principles.

    That’s partly because the statements were capable of restricting lawful speech – including in-course content – and signalled that some views weren’t welcome. This, says OfS, produced a chilling effect – Stock self-censored, and others likely did too. She removed lawful material from her curriculum, narrowing academic debate and reducing students’ exposure to diverse views. Other staff may have followed suit or felt pressured to.

    Its argument is that the policy lacked safeguards for legally protected beliefs like “gender critical” views and that its other governing documents didn’t fill that gap. The university’s wider “Statute VII” offered some protection for free speech and academic freedom, but in OfS’ view was insufficient.

    Partly because the investigation has been on for a long time – and partly because the university has been making changes to policies throughout – there’s also some complex evaluation of what’s happened since the initial investigation opened, all of which is of a similar nature.

    See-saw

    Much of the material on wider legal duty breaches is focussed on gender critical views as a protected belief – anyone searching for the ways in which OfS might have evaluated efforts to protect trans students just won’t find it.

    Hence OfS found no “credible evidence” that the university assessed whether its restrictions on expression under the Trans and Non-Binary Equality Policy Statement were proportionate – a key requirement under Article 10 of the European Convention on Human Rights – that it says raised the risk that the policy’s interferences with freedom of expression were disproportionate and therefore unlawful.

    Similarly, OfS was concerned the university may have breached equality law under section 19 of the Equality Act 2010 by indirectly discriminating against individuals with gender critical beliefs – a protected characteristic. The Trans and Non-Binary Equality Policy Statement included provisions (e.g. the Positive Representation, Stereotyping, Transphobic Propaganda, and Disciplinary Statements) that it says restricted lawful speech, including gender critical views. Again, OfS found no credible evidence that the university conducted an objective justification assessment for the restrictions when adopting the policy.

    OfS was also concerned that the university may have failed to comply with the Public Sector Equality Duty (PSED). It found no credible evidence that the university properly considered the equality implications of the policy, as required under the PSED, and while the university claimed to have conducted an Equality Impact Assessment for the 2023 version, this appeared limited to the removal of the Positive Representation Statement and did not assess the remaining content.

    Taken as a whole, this is a pretty extensive illustration of the principle both in the Higher Education (Freedom of Speech) Act 2023 and OfS’ draft guidance on it – both on “particular regard” to the importance of freedom of speech, and these two notable paras in the draft:

    Freedom of speech within the law is protected. Unlawful speech is not protected. However, there is no need to point to a specific legal basis for speech. Instead, the starting point is that speech is permitted unless restricted by law.

    Free speech includes lawful speech that may be offensive or hurtful to some. Speech that amounts to unlawful harassment or unlawful incitement to hatred or violence (for instance) does not constitute free speech within the law and is not protected.

    There are likely to be debates about the extent to which that was clear to providers in the old regime, and whether the new regime is merely an enforcement wrapper around pre-existing legal duties – but that’s the framing in use in this decision.

    A record (reduced) fine

    The fining decision is then explained in in line with Regulation 4 of the 2019 Monetary Penalties Regulations, where OfS considered several factors – the nature, seriousness, duration, and impact of the breach; any financial or other benefit the university may have gained or losses it avoided; and whether the breach had been repeated.

    OfS assessed that the breach was “serious, prolonged, and had a chilling effect on lawful speech and academic freedom” – and while no direct financial gain was identified, the regulatory failure was significant enough to warrant a monetary penalty to reflect the severity and ensure accountability.

    In setting the penalty, OfS also considered steps the university took to prevent future breaches and the likely impact of a monetary penalty on students. A “baseline penalty” was established as per Regulation 4, then adjusted based on aggravating and mitigating factors, including the university’s compliance history. The maximum penalty allowable was either 2 per cent of qualifying income or £500,000, whichever was higher.

    For 2023–24, Sussex’s qualifying income was £232,358,874, making the cap £4,647,177. OfS applied its published framework (Regulatory Advice 19) to determine the final penalty, ensuring it was “proportionate, targeted, and justified” in light of the breach’s seriousness and the steps taken by the university since.

    The university’s financial position was relevant – with (at the time) substantial income and reserves, OfS concluded that a penalty would not materially harm students. Instead, it would promote future compliance, both at Sussex and, notably, across the sector. The baseline penalty was set at 0.9 per cent of qualifying income: £2,091,230.

    Mitigating factors included steps taken by the university to reduce the restrictive effect of its policy like removing the “positive representation” requirement, adding an objective definition of “transphobic abuse,” and including a safeguard for academic freedom in the 2023 policy.

    Aggravating factors included the length of the breach (over four years) and the failure to self-report. After applying both sets of factors – each justifying a 0.2 per cent adjustment in opposite directions – the penalty remained unchanged at 0.9 per cent.

    The university’s compliance history did not warrant any further adjustment. It cooperated with the investigation and there was no evidence of dishonesty, recklessness, or concealment. Accordingly, after the first three steps of the process, the final penalty for the breach remained £2,091,230.

    Governance and delegation

    The second breach (Condition E2) was a process one – key policies were adopted by groups lacking the delegated authority to do so. The Prevent Steering Group approved the 2021 Freedom of Speech Code of Practice, the University Executive Group approved the 2023 External Speakers’ Procedure, and also approved the 2022 and 2023 versions of the Trans and Non-Binary Equality Policy Statement – each time acting outside its remit.

    These governance failures were deemed significant. Decisions were made by bodies not authorised to take them, raising the risk of insufficient scrutiny or expertise and potentially compromising compliance with legal and regulatory duties. Those failures, found OfS, could result in decisions not in the best interests of staff or students. The breach was not an isolated incident, but part of a pattern suggesting “systemic weaknesses rather than a one-off lapse.”

    The university didn’t report the breach to OfS (the old Kafka-esque rules around the reportable events regime), nor has it taken clear steps to address or rectify its governance failures. As such, OfS concluded that its intervention factors supported a breach of condition E2(i), and that regulatory action was necessary to address the university’s ongoing non-compliance with its own governance framework.

    This time the baseline penalty was 0.5 per cent of the university’s qualifying income (£1,161,794) for the E2 breach, reflecting its seriousness as a governance failure. While the decisions made without proper authority risked poor quality outcomes, the direct impact on students was assessed as less severe than the E1 breach, and the penalty was also viewed as a means to incentivise future compliance, both at Sussex and across the sector.

    Because of aggravating factors – like the longstanding nature of the breach, failure to report it, and lack of remedial steps – the penalty was increased by 0.2 percentage points, bringing it to 0.7 per cent (£1,626,512). No mitigating factors were identified.

    As with the E1 breach, the university’s compliance history didn’t affect the penalty, and it had cooperated with the investigation – but OfS ultimately concluded that penalties at the calculated levels would be disproportionately high. And so balancing all considerations – the seriousness of the breaches, financial capacity, cumulative penalty size, and the novelty of regulatory enforcement in this area – OfS reduced the final penalties and imposed £360,000 for the E1 breach and £225,000 for the E2 breach, totalling £585,000.

    This was deemed “sufficient” to deter future non-compliance while maintaining financial sustainability. Sussex says the fine is “wholly disproportionate.”

    Fallout and next steps

    There will doubtless be some fallout from the decision – not least because Sussex is (at least in principle) very publicly criticising the process, the fine, and the judgement made on the EDI/freedom of speech see saw.

    In some ways what’s surprising – although on reflection inevitable – is that this wasn’t really an investigation about the Stock affair at all. She and others calling for full implementation of the Higher Education (Freedom of Speech) Act may well argue that the investigation ought to have handled how she was treated, how she was protected (or otherwise) by the university, and drawn conclusions about the handling of events leading to her departure. OfS may well argue – campaigners almost certainly will – that that would only have been possible under the Higher Education (Freedom of Speech) Act.

    There are real questions over how long the process has taken, that are not substantially addressed or answered in the report – and the huge fine imposed. That OfS is able to follow the logic of its own documents is one thing, but when compared against some of the teaching and learning investigations it’s done so far, either those providers are in for huge fines, or inevitable comparisons are going to be drawn about relative impact.

    There will also be questions about Arif Ahmed himself. The report dots the Is and crosses the Ts as we would expect it to – and includes the “neutrality” defence we’ve come to recognise. But even though he’s unlikely to have been personally involved in this process, we should be reminded of the OIA’s advice that providers need to take steps to avoid “actual bias and the reasonable perception of bias” when handling complaints. Given in a previous role that Index on Censorship blog was entitled “We academics must fight the mob – now”, it’s not hard to see why some might at least perceive an agenda.

    The other questions surround the jurisprudence. It remains the case that in the cases we’ve seen, different levels of protection for freedom of speech apply in different contexts – there’s no doubt that in a lecture hall or seminar room, the way the Human Rights Act is applied is different to during someone’s personal life, free time, and so on. There’s nothing in here on the different contexts of conduct that a “university” encompasses – and it remains a hole in what OfS has published so far, and arguably in the way it has evaluated the policies for the breaches.

    The practical compatibility of the decision with impending heavy duties on harassment will also be a concern – with frantic rewrites of policies similar in nature and tone to that adopted by Sussex likely to face pushback from those who fear a wider retreat from equality-focussed work.

    It’s the government, though, that faces the trickiest set of decisions from here on in. Its decision to pause and intent to soften somewhat the Act has all been about a perception that it was to result in free speech absolutism at the expense of the protection of minorities.

    It may be a reflection of the law or a very particular (and contestable) interpretation of it – and legal challenges may ensue – but if nothing else, it’s hard to see how the version of “absolutism” deployed here is compatible with (for example) the IHRA definition of antisemitism – something successive governments have consistently supported, and which Ahmed himself only changed position on when taking up his role.

    Notwithstanding that Labour has disappointed trans campaigners since taking office, it will now have to decide whether Sussex is right that universities are now “exposed to regulatory risk if they have policies that protect staff and students from racist, homophobic, antisemitic, anti-Muslim or other abuse.” And if they are, whether the problem is the Higher Education (Freedom of Speech) Act, the Human Rights Act, or Arif Ahmed himself.

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  • The case against impartial university teaching

    The case against impartial university teaching

    “I don’t share my political or religious perspectives at work; I never have”, asserted my experienced professorial colleague over an informal coffee. “A bit of shame, but kind of admirable, right?”, I thought.

    I recalled a politics lecturer during my time as an undergraduate, who, like seemingly most of that generation of academics (1990s-00s), believed in impartiality and explicitly stated his liberal neutrality when presenting challenging topics: may the best arguments win. The problem was that through reading his online bio and finding his works in the library, one could very quickly discern his political and philosophical leanings!

    When I began teaching philosophy at the same university a few years later, I too attempted to feign neutrality; neither sharing my political nor religious leanings, nor ethnic or cultural heritage. It wasn’t the done thing. Autobiography and self-disclosure had no place in the philosophy seminar room.

    I’ve since thawed. I’m now leaning far more towards disclosure than when I started teaching. I long held neutral impartiality as the gold standard of instruction, whereby challenging – and perhaps controversial – topics were discussed, but the educator held the space for students to explore perspectives, without sharing their own. This, while often the received wisdom, and certainly well-intentioned, is, I now reflect, limited.

    For an academic to be teaching on a module, especially if they’ve created it, means they’re very likely to be published in that field of inquiry. Engaged students will find such materials, understand their lecturer’s perspectives, and recognise when they’re playing devil’s advocate in sessions. Furthermore, given that we teach face to face, and not in confession booths, the visibility of us as lecturers often speaks volumes; students will make an array of assumptions. For example, if in a session led by the university’s chaplain, it’s safe for students to assume that they’re a member of the Church of England.

    Kelly’s heuristic quartet

    There is a case to be argued for “committed impartiality” as per Social Scientist Thomas Kelly’s (1986) heuristic quartet:

    • Exclusive neutrality: The educator takes a neutral position and eschews any potentially controversial issues; i.e. appropriate in a school context, but too reductive for HE.
    • Exclusive partiality: The educator takes a biased position; i.e. traditionally a big no no. Think here of educators who use their classes to enact their activism.
    • Neutral impartiality: The educator is impartial and neutral, encouraging students to explore controversial issues; i.e. the gold standard of HE instruction based on received wisdom.
    • Committed impartiality: The educator takes a biased position while also being impartial; i.e. seen with scepticism by those who practise neutral impartiality. This is a potentially slippery slope into exclusive partiality.

    While referring principally to the teaching of “controversial” topics in school education, I think the quartet can be helpfully adapted to fit the context of contemporary HE teaching in the social sciences and humanities. Kelly claimed that owing to its contradictory position, “committed impartiality” is the most defensible course of action for educators to engage in teaching controversial issues. This is because it requires the educator to put their cards on the table and encourage debate without claiming an unbiased standpoint.

    Wading

    When discussing loaded issues such as race, sexuality and religious perspectives, perhaps this is where the received wisdom about steadfastly refusing to disclose shines through and avoids the – especially contemporary – quagmire of a shallow form of identity politics and virtue signalling that can sometimes turn into a form of oppression Olympics? The “disclosure dilemma” is, of course, ultimately a personal, context bound one.

    In the context of schools, the issue of disclosure is much more vexed, given that teachers are effectively agents of the state who have a moral duty to avoid prosletysing given the power dynamic of the classroom (I recall the example during COvid-19 of a teacher in Nottinghamshire getting national attention for encouraging students to write letters of frustration to the then PM).

    While school curricula are obviously created by groups of individuals with political agendas, in HE we too have areas of expertise, interest, and passion. In an increasingly regulatory framework, the dissemination of our darlings is bound by legislation such as the Equality Act (2010), and The Higher Education Freedom of Speech Act (2023). Furthermore, to adhere to these acts within a localised context, my employer has a university dignity policy, mission statements, and, within my department, enacts the Chatham House Rule. We also provide trigger warnings to create inclusive learning environments.

    Tightrope

    This discussion has implications for those in the social sciences, especially those who deal, like I do, with explicitly political content (I recognise that the personal is also the political). Of course, navigating the tightrope between committed impartiality and exclusive partiality is tricky. The received wisdom is valuable insofar as it helps the educator to avoid this balancing act. But when the educator has a specialism that speaks to a political issue of the day, it is arguably upon them to do so. For example, in March 2023 I was teaching a session for final year UG students on migration in the context of international education when the Gary Lineker “issue” kicked off. I had a well-informed perspective on that issue, and it linked neatly to the scheduled taught content that day. It’s fair to say that I teetered on that tightrope between committed impartiality and exclusive partiality!

    The challenge is not about self-censorship in the service of an apparently noble ideal of neutral impartiality, but enacting personal commitment and setting the groundwork for civic debate. Deciding to disclose may have the intended learning outcome of rapport building, modelling particular behaviours or perspectives, humanising oneself, normalising situations, or problematising a set of affairs; it’s about practising the messy craft of educating, and being open to self-transformation.

    Risk aversion

    I’m sure others could make equally compelling cases for different positions within, and outside of, Kelly’s heuristic quartet. I think a primary driver behind neutrality is, rather than a noble but impossible quest for untainted discourse, perhaps one of nervousness; nervousness of being seen as doctrinaire or unduly influencing students’ perspectives?

    Overall, the disclosing instructor must consider their visibility in terms of gender, age, physical presence, professional titles etc. that starkly reinforce a power imbalance between student and academic, aka judge, jury and executioner in terms of grades and longer-term prospects. Where the stakes are high boldness of speech, disclosing personal leanings in a learning environment are worth the risk.

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  • Lessons for leaders from the campus encampments

    Lessons for leaders from the campus encampments

    It’s neither a personal nor an especially novel observation to suggest that both in the UK and across North America and Western Europe, debates about campus climate, culture and freedom of speech were upended on 7 October 2023.

    It’s not the purpose of the report, but you can really feel some of the contradictions coming to a head in Josh Freeman’s terrific new HEPI report on the Encampments protesting for Palestine and the response to them, tentatively timed to offer early reflections now that a ceasefire has been secured.

    What until October 7 had been a rhetorically wide framing of freedom of speech and a pretty narrow one over protection from harm and harassment was always going to be challenged when speech took the form of pro-Palestine placards rather than the punch and judy of rarified Russell Group debating societies.

    And while plenty of people still pretend that there are no “fine lines” and contradictions between, say, expressions of pro-Palestinian solidarity and antisemitism, Freeman’s report lays out the realities and complexities of universities, their students’ unions and students themselves being expected to tread and police those lines.

    I was struck, reading the report, by the contradictions between the way in which student “debaters” (the subject of a previous report from Freeman) and student activists of the sort in the encampments are often framed in terms of what they represent – the former is often assumed to be a near-universal experience or at least an ideal, while the latter are painted as an angry mob that often aren’t even students anyway.

    Both, in truth, are pretty unrepresentative of the contemporary higher education experience, both can seem like indulgences that many students are unable to afford, but both do have an influence on students’ understanding of the world. The fact that both appear to be largely confined to the Russell Group could easily be a source of shame rather than relief.

    Motivations and disruptions

    There’s a good methodology to the report that some tend to turn their nose up at when used on other issues – it’s basically a qualitative, case study-based approach, drawing on lived experiences through semi-structured interviews with key players – student protestors, university staff, students’ union officers, and Jewish students – while triangulating these insights with documentary analysis of public statements and social media discourse.

    As a result, there are some fascinating insights from Freeman. Fairly early on, he notes that in the student interviews, many were motivated by factors which, at least at face value, went far beyond the situation in Gaza – referring to other factors like islamophobia, tuition fees, staff pay and pensions, mental health or even the freedom to protest:

    These issues were rarely mentioned in encampments’ official demands but they appear to have been significant motivators to join the protests.

    There’s also a clutch of material on the way in which the encampments themselves operated – laying bare both aspects and incidents of obvious antisemitism, but also anguish about the right (and for some, perceived duty) to object to and highlight the actions of Israel throughout the war, and the way in which those protestors knew that that might be misinterpreted.

    Material on “disruption” is interesting too. Freeman identifies both an oft-denied truism – that this kind of “speech” is designed to be disruptive – and a less-understood concern of some protestors that keeping students on side by not excessively disrupting their education was important.

    The section on the “institutional response” is particularly helpful, mainly because it draws comparisons in the approach on engagement. The running theme is that where – either by chance or by design – institutional managers and student protesters were caused to meet and discuss as people, some inching away from simplistic demonisation was possible and helpful. By contrast, it looks like a lack of engagement allowed a simplistic framing – of protester as terrorist, and university manager as oppressor – to unhelpfully persist.

    Freeman also reflects on the learning made possible by those encounters:

    The ultimate goals of discussions should be learning, on the one hand – these examples suggest institutions still have much to learn from their students – and explaining, on the other, why some demands are not feasible.

    Another aspect of the diversity in approaches relates to “demands”. The old “give them an inch and they’ll take a mile” approach to students can be seen in this quote:

    It would create two categories of students … it would give them a carte blanche for any kind of behaviour.

    …while others were perceptive enough to recognise that hard and fast rules can look quite silly quite quickly when it’s often context that counts:

    It’s a special situation, an emotional issue. It’s okay to call this a one-off. Though some have said we are setting a bad precedent by allowing this behaviour.

    That’s true too over a running theme in the narrative amongst protesters – that taking an early and unequivocal stance on Ukraine in the way that most of the sector did was, for them, incompatible with a sudden concern for neutrality over Israel/Palestine.

    Frustratingly, Freeman even reports that after accusations of being “hypocrites”, “several” senior staff said that, on reflection, their institutions would avoid political statements entirely in the future – as if carefully crafted regulations will always trump context. They won’t.

    I’d also tentatively add that while it was undoubtedly true that:

    …In comparison with the Marking and Assessment Boycott, there is tiny traffic from students. To the bulk of our students, it [the conflict] is not on their radar. We have had a few hundred emails on divestment, but they are the same people writing over and over, with the same template.

    …one might argue that a huge international conflict, with significant global implications, might cause one to wonder why more students weren’t engaged, particularly in universities where “activism” is more a rarity than a rhythm.

    Threats, reputation and officialdom

    There are, inevitably, some pointed observations both about government and the Office for Students – which to this day has said almost nothing about so many of the edge cases of freedom v harm involved in Israel/Palestine, despite being in the process of launching two new “sandbags on the see saw” in the form of free speech duties and anti-harassment duties.

    Universities – perhaps it was always thus – were neither to be trusted nor offered much in the way of help when being left to resolve the tensions themselves:

    They’ve left us to it. That may have been the best thing.

    In a week when student activists appear to have brought down a populist Prime Minister in Serbia, I was also especially interested in Freeman’s observations about the relationship between what we might call the “official” voice of students – students’ unions – and the activists in the encampments.

    Before I even got to page 35, for example, I knew that words to this effect would appear somewhere:

    We engage with the Students’ Union as they are the democratically elected representatives, not with some small group of people, most of whom have nothing to do with the University or its community.

    I would note in eyebrow-raising passing that I’ve often come across that view from those who tend, in other contexts, to challenge the representativeness of their students’ union when advancing recommendations or opinions.

    But more broadly, I tend to adopt a straightforward principle when an organised group of students decides that the “official” channel of communication isn’t cutting the mustard – they often have a point. That’s partly because, back on that “hard and fast rule” thing, some SUs (and their universities) can take their apoliticism and desire to be seen to be supporting all students too far – overcooking reputational or charity law fears, and undercooking their role as clearing houses for often opposed student opinion.

    When Freeman recommends that:

    Distinguishing between the collective position of the students’ union on the one hand and the stances of individual elected officers on the other, so elected officers can remain true to their own views and the mandate they were elected on, while allowing the students’ union to remain apolitical, follow charity law and be representative of the wider student body.

    …it also seems fairly clear that the “own views” aspect of that doesn’t mean silence in the way that has been imposed for many an SU officer with strong views on the issues.

    Mediation and advocacy

    What’s helpful in the report is the description of the positive role that many SU officers and staff played in the process as mediators (supporting both encampments and institutions to reach a resolution), as intermediaries (passing “intelligence” between encampments and institutions), and as advocates to make sure the voices of all students are heard roles that many of their staff (outside a handful) are neither routinely funded for nor recognised.

    And as Freeman puts it when discussing allegations of illegitimacy:

    But rather than undermining the positions of elected officers, it might be more productive to work with the SU to create an effective process for dialogue with all groups of students. When the main mechanism for students to contribute to institutional policy does not function properly, it may explain why many students choose to bypass their unions and channel their frustrations through protest.

    I discussed some of the differences between what we might call the “official” student movement and the activists leading the blockades in Serbia in my write up on that issue elsewhere on the site – and I’m struck by the character of the past 18 months’ pro-Palestinian activism when compared to previous intensifications of the Middle East conflict.

    For many years, the “voice” of such activism tended to be the Federation of Islamic Student Societies (FOSIS), often setting up an arguably unhelpful and simplistic link between Jewish students, the Union of Jewish Students and a “pro Israel” position on the one hand, and Muslim students, FOSIS and a “pro Palestinian” position on the other.

    For all sorts of obvious reasons, the simplicity of those links and resultant “sides” was always problematic – it has never been just Muslim students and Jewish students caught up in debates over the conflict, and there have always been significant differences of opinion on the conflict within those “sides”.

    But it’s also true to say that both UJS and FOSIS were able to act in an “official” student representative role in a similar way to that that Freeman frames students’ unions as inhabiting – able to speak to power, their own members, and through NUS, each other. In recent years, FOSIS has fallen away in prominence – the channel for much of the anger and activism now represented by the Palestinian Solidarity Campaign and related offshoots – while UJS has tended to focus its efforts on persuading power to exert authority over antisemitism.

    That is not to suggest that either is wrong, or illegitimate, or especially problematic – but it has meant that in this phase of the Middle East crisis, one “side” has looked very official, while the “other” has looked like the opposite. In a climate where words like “oppressor” get attached to one side and “terrorist” to the other, those types of perhaps accidental perceptions are likely to have clouded wider students’ engagement in and understanding of what has been happening.

    Partnership and power

    Bringing both Serbia and the HEPI paper together, in quieter moments this week I’ve been caused to re-read this terrific paper from Simon Varwell on citizen participation in an era of emergency decision-making.

    Varwell is a former staffer from Sparqs – the little known (outside of Scotland) student participation “agency” originally set up to give a boost to class rep training north of the border. It rarely gets the credit it deserves from Scottish ministers or Principals, but it’s much more than its roots as a train the trainer scheme for reps these days – producing acres of intelligent and helpful material that has helped to engender partnership between students and universities in Scotland more generally.

    His paper – written in the teeth of the Covid crisis – makes a compelling argument that what Sherry Arnstein described in the late 60s as a “ladder” of participation pretty much turned into a circle during the pandemic – where the very highest and lowest levels of student engagement overlapped in a zone of anger and conflict.

    I think that argument matters – not especially from a tactical point of view, but because it’s clear that in some universities, notions of “partnership” melt away quickly when something more “serious” or “risky” is on the table – whether that’s making cuts to provision, handling Covid, or dealing with ministerial and press interest in a protest or “woke” initiative on campus.

    Partnership can mean all sorts of things to all sorts of people. But fundamentally it’s about sharing power, both between groups of students and between students and their university.

    Few would argue that partnerships of the latter should be “equal”. But when what is sold as a safe environment doesn’t feel like it, and when what is promoted as way of having your voice heard or your interests met feels like being ignored or marginalised, “senior” partners should always be mindful that universities aren’t schools, authority tends to depend on consent, and whatever the weight of expectation on the “grown ups” to crack down and control, conflict almost always requires both mediation and mutual respect.

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  • Daring students to take risks and be wrong is key to solving the campus culture wars

    Daring students to take risks and be wrong is key to solving the campus culture wars

    Goodbye then, the Higher Education (Freedom of Speech) Act parts A3, A4, A7 and parts of A8 – we hardly knew you.

    The legal tort – a mechanism that seemed somehow to be designed to say “we’ve told the regulator to set up a rapid alternative mechanism to avoid having to lawyer up, but here’s a fast track way to bypass it anyway”, is to be deleted.

    The complaints scheme – a wheeze which allowed an installed Director for Freedom of Speech and Academic Freedom to rapidly rule on whatever it was that the Sunday papers were upset about that week – will now be “free” (expected) to not take up every dispute thrown its way.

    Students themselves with a complaint about a free speech issue will no longer have to flip a coin between a widely respected way of avoiding legal disputes and an untested but apparently faster one operated by the Director which was to be flagged in Freshers’ handbooks. The OIA it is.

    Foreign funding measures – bodged into the act by China hawks who could never work out whether the security services, the Foreign Office or the Department for Education were more to blame for encouraging universities to take on Chinese students – will now likely form part of the revised “Foreign Influence Registration Scheme” created by the National Security Act 2023.

    A measure banning universities from silencing victims of harassment via a non-disclosure agreement will stay, despite OfS saying it was going to ban NDAs anyway – although nobody seems able to explain why their use will still be fine for other victims with other complaints.

    And direct regulation of students’ unions – a measure that had somehow fallen for the fanciful idea that their activities are neither regulated nor controlled by powerless university managements and the Charity Commission – will also go. The “parent” institution will, as has always been the case, revert to reasonably practicable steps – like yanking its funding.

    As such, save for a new and vague duty to “promote” free speech and academic freedom, the new government’s intended partial repeal of legislation that somehow took the old one two parliaments to pass – a period of gestation that always seemed more designed to extend the issue’s prevalence in the press than to perfect its provisions – now leaves the sector largely back in the framework it’s been in for the best part of 40 years.

    That the Secretary of State says that all of the above is about proceeding in a way that “actually works” will raise an eyebrow from those who think a crisis in the academy has been growing – especially when the government’s position is that the problem to be fixed is as follows:

    In a university or a polytechnic, above all places, there should be room for discussion of all issues, for the willingness to hear and to dispute all views including those that are unpopular or eccentric or wrong.

    Actually, that was a quote from Education Secretary Keith Joseph in 1986, writing to the National Union of Students over free speech measures in the 1986 act. But Bridget Phillipson’s quote wasn’t much different:

    These fundamental freedoms are more important—much more important—than the wishes of some students not to be offended. University is a place for ideas to be exposed and debated, to be tried and tested. For young people, it is a space for horizons to be broadened, perspectives to be challenged and ideas to be examined. It is not a place for students to shut down any view with which they disagree.

    The message for vice chancellors who fail to take this seriously couldn’t have been clearer – “protect free speech on your campuses or face the consequences”. But if it’s true that for “too long, too many universities have been too relaxed about these issues”, and that “too few took them seriously enough” – what is it that that must now change?

    Back to the future

    There is no point rehearsing here the arguments that the “problem” has been overblown, centring on a handful of incidents in a part of the sector more likely to have been populated by the lawmakers and journalists whose thirst for crises to crack down on needs constant fuel. And anyway, for those on the wrong end of cancellation, the pain is real.

    There is little to be gained here from pointing out the endless inconsistencies in an agenda that seemed to have been designed to offer a simplistically minimalist definition of harassment and harm and a simplistically maximalist definition of free speech – until October 7th 2023 turned all that on its head.

    There isn’t a lot of benefit in pointing out how unhelpful the conflation between academic freedom and freedom of speech has been – one that made sense for gender-critical academics feeling the force of protest, but has been of no help for almost anyone involved in a discipline attempting to find truth in historic or systemic reasons for other equality disparities in contemporary society.

    Others write better than me, sometimes in ways I don’t recognise, sometimes in ways I do, about the way in which the need to competitively recruit students, or keep funders happy, or to not be the victim of a fresh round of course cuts inhibits challenge, drains the bravery to be unpopular, and is the real cause of a culture of “safetyism” on campus.

    And while of course it is the case that higher education isn’t what it was – which even in its “new universities” manifestations in the 1960s imagined small parts of the population engaging in small-group discussions between liberal-minded individuals able to indulge in activism before a life of elitism – I’ve grown tired of pointing out that the higher education that people sometimes call for isn’t what it is, either.

    What I’m most concerned about isn’t a nostalgic return to elite HE, or business-as-usual return to whatever it was or wasn’t done in the name of academic freedom or freedom of speech in a mass age – and nor is it whatever universities or their SUs might do to either demonstrate or promote a more complex reality. I’m most concerned about students’ confidence.

    The real crisis on campus

    Back in early 2023, we had seen surveys that told us about self-censorship, pamphlets that professed to show a culture of campus “silent” no platforming, and polling data that invited alarm at students’ apparent preference for safety rather than freedom.

    But one thing that I’d found consistently frustrating about the findings was the lack of intelligence on why students were responding the way they apparently were.

    For the endless agents drawing conclusions, it was too easy to project their own assumptions and prejudices, forged in generational memory loss and their own experiences of HE. Too easy to worry about the 14 per cent of undergrads who went on to say they didn’t feel free to express themselves in the NSS – and too easy to guess “why” that minority said so.

    As part of our work with our partners at Cibyl and a group of SUs, we polled a sample of 1,600 students and weighted for gender and age.

    We found that men were almost ten percentage points higher than women on “very free”, although there was gender consistency across the two “not free” options. Disabled students felt less free than non-disabled peers, privately educated students felt more free than those from the state system, and those eligible for means-tested bursaries were less confident than those who weren’t.

    In the stats, those who felt part of a community of students and staff were significantly more likely to feel free to express themselves than those who didn’t – and we know that it’s the socio-economic factors that are most likely to cause feelings of not “fitting in”.

    But it was the qualitative comments that stuck with me. Of those ticking one of the “not free” options, one said that because the students on their course were majority white students, they “often felt intimidated to speak about certain things”.

    Another said that northern state school students are minorities – and didn’t really have voices there:

    Tends to be posher middle class private school educated students who are heard.

    Mature students aren’t part of the majority and what I have said in the past tends to get ignored.

    Many talked about the sort of high-level technical courses that policymakers still imagine universities don’t deliver. “Engineering doesn’t leave much room for opinion like other courses”, said one. “Not a lot of room in my degree for expression” said another.

    And another gave real challenge to those in the culture wars that believe that all opinions are somehow valid:

    My course doesn’t necessarily allow me to express my freedom as everything is researched based with facts.

    Ask anyone that attempted to run a seminar on Zoom during Covid-19, and you get the same story – switched-off cameras, long silences, students seemingly afraid to say something for fear of being ostracised, or laughed at, or “getting it wrong”.

    As a former SU President put it on the site in 2023:

    This year there have been lecture halls on every campus stacked with students who don’t know how to start up a conversation with the person sat next to them. There were emails waiting to be sent, the cursor flashing at the start of a sentence, that the struggling student didn’t know how to word… This question is whether or not the next generation is actually being taught how to interact and be comfortable in their own skin… They have to if they’re claiming to.

    Freedom from fear?

    The biggest contradiction of all in both the freedom of speech and academic freedom debates that have engulfed the sector in recent years was not a lack of freedom – it was the idea that you can legislate to cause people to take advantage of it:

    In lectures and seminars there is often complete silence. The unanimity of asking a question or communicating becomes daunting when you’re the only one.

    Fear you’ll be laughed at or judged if you get it wrong

    In terms of lectures, the students in my class feel shy to share opinions which affects me when I want to share.

    Again this is a personal thing I don’t often like expressing my points of view in person to people I don’t know very well. Also they probably won’t be listened to so I don’t see the point.

    I feel very free amongst my other students in our WhatsApp groups (not governed by the university). However, freedom of expression in support sessions often ends up not occurring as everyone is anxious due to how the class has been set up.

    Once in class I simply got one word mixed up with another and the lecturer laughed and said. ‘yes…well…they do mean the same thing so that has already been stated.’ Making me and also my fellow students reluctant to ask any questions at all as we then feel some questions are ridiculous to ask. How are we to express our thoughts if we feel we will be ridiculed or made to feel ridiculous?

    For those not on programmes especially suited to endless moral and philosophical debates, a system where the time to take part in extracurriculars is squeezed by part-time work or public transport delays is not one that builds confidence to take part in them.

    The stratification of the sector – where both within universities and between them, students of a particular type and characteristic cluster in ways that few want to admit – drives a lack of diversity within the encounters that students do have in the classroom.

    And even for those whose seminars offer the opportunity for “debate”, why would you? Students have been in social media bubbles and form political opinions long before they enrol. And Leo Bursztyn and David Yang’s paper demonstrates that people think everyone in their group shares the same views, and that everyone in the outgroup believes the opposite.

    As Harvard political scientist David Deming argues here:

    Suppose a politically progressive person offers a commonly held progressive view on an issue like Israel-Palestine, affirmative action, or some other topic. Fearing social sanction, people in the out-group remain silent. But so do in-group members who disagree with their group’s stance on that particular issue. They stay silent because they assume that they are the only ones in the group who disagree, and they do not want to be isolated from their group. The only people who speak up are those who agree with the original speaker, and so the perception of in-group unanimity gets reinforced.

    Deming’s solution is that universities should tackle “pluralistic ignorance” – where most people hold an opinion privately but believe incorrectly that other people believe the opposite.

    He argues that fear of social isolation silences dissenting views within an in-group, and reinforces the belief that such views are not widely shared – and so suggests making use of classroom polling tech to elicit views anonymously, and for students to get to know each other privately first, giving people space to say things like “yes I’m progressive, but my views differ on topic X.”

    Promoting free speech?

    Within that new “promote” duty, it may be that pedagogical innovation of that sort within the curriculum will make a difference. It may also be that extracurricular innovation – from bringing seemingly opposed activist groups on campus together to listen to each other, through to carefully crafted induction talks on what free speech and academic means in practice – would help. Whether it’s possible to be positive about EDI in the face of the right to disagree with it remains to be seen.

    Upstream work on this agenda might help too – it’s odd that a “problem” that must be partly about what happens in schools and colleges is never mentioned in the APP outreach agenda, just as it’s frustrating that the surface diversity of a provider is celebrated while inside, the differences in characteristics between, say, medical students and those studying Business and Management are as vast as ever.

    Students unions – relieved of direct scrutiny on the basis that they are neither “equipped nor funded” to navigate such a complex regulatory environment – might argue that the solution is to equip them and fund them, not remove the regulation. They might also revisit work we coordinated back in 2021 – much of which was about strengthening political debate in their own structures as a way to demonstrate that democracy can work.

    Overall, though, someone somewhere is going to get something wrong again. They’ll fail to act to protect something lawful; or they’ll send a signal that something was OK, or wrong, when they should have decided the opposite.

    As such, I’ve long believed that the practice of being “wrong” needs to be role-modelled as strongly as that of being right. If universities really are spaces of debate and the lines between free speech and harassment are contested and context-specific, the sector needs to find a way to adjudicate conflict within universities rather than leaving that to the OIA, OfS, the courts or that other court of public opinion – because once it gets that far, the endless allegations of “bad faith” on both sides prevent nuance, resolution and trust.

    Perhaps internal resolution can be carried out in the way we found in use in Poland on our study tour, using trusted figures appointed from within – and perhaps it can be done by identifying types of democratic debate within both academic and corporate governance that give space to groups of staff and students with which one can agree or disagree.

    If nothing else, if Arif Ahmed is right – and “speech and expression were essential to Civil Rights protestors, just as censorship was their opponents’ most convenient weapon”, we will have to accept that “nonviolent direct action seeks to… dramatize an issue that it can no longer be ignored” – and it has as much a place on campus as the romantic ideals of a seminar room exploring nuance.

    Lightbulb moments need electricity

    But even if that helps, I’m still stuck with the horse/water/drink problem – that however much you promote the importance of something, you still need to create the conditions to take up what’s on offer. What is desired feels rich – when the contemporary student experience is often, in reality, thin. What if the real problem isn’t student protest going too far, but too few students willing to say anything out loud at all?

    Students (and their representatives) left Twitter/X/Bluesky half a decade ago, preferring the positivity of LinkedIn to being piled-onto for an opinion. Spend half an hour on Reddit’s r/UniUK and you can see it all – students terrified that one wrong move, one bad grade, one conversation taken the wrong way, one email to a tutor asking why their mark was the way it was – will lead to disaster. The stakes are too high, and the cushion for getting anything wrong too thin, to risk anything.

    Just as strong messages about the importance of extracurricular participation don’t work if you’re holding down a full-time job and live 90 minutes from campus, saying that exploring the nuances of moral and political debate is important will fall flat if you’re a first-in-family student hanging on by a thread.

    Much of this all, for me, comes back to time. Whatever else people think higher education is there to do, it only provides the opportunity to get things wrong once the pressure is off on always getting things right. Huge class sizes, that British obsession with sorting and grading rather than passing or failing, precarious employment (of staff and students) and models of student finance that render being full-time into part-time are not circumstances that lead anyone to exploring and challenging their ideas.

    Put another way, the government’s desire that higher education offers something which allows horizons to be broadened, perspectives to be challenged and ideas to be examined is laudable. But if it really wants it happen, it does have to have a much better understanding of – and a desire to improve – the hopeless precarity that students find themselves in now.

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  • Bridget Phillipson reaffirms commitment to free speech

    Bridget Phillipson reaffirms commitment to free speech

    Secretary of State Bridget Phillipson has delivered a statement to Parliament on her regulatory approach to higher education – specifically, the future of the Higher Education (Freedom of Speech) Act.

    Ahead of her day in court with the Free Speech Union – which is taking her to court over her implementation pause – she announced that key provisions will be brought into force, whilst “burdensome provisions” will be scrapped.

    And the good news is that pretty much for the first time from a minister on this issue, there’s an explicit recognition of the fine lines, complexities and contradictions often in play on the issue. A press notice covers largely the same material.

    You’ll recall that on taking office back in July, Phillipson paused further commencement of the Act in response to “concerns raised by a cross section of voices” – and controversially, at least for some, a “source” branded the Act as passed a “Tory hate charter”.

    In the intro, Phillipson said she was still committed to ensuring the protection of academic freedom and free speech – “vital pillars” of the university system:

    Universities are spaces for debate, exploration, and the exchange of ideas, not for shutting down dissenting views… extensive engagement with academics, universities, students, and minority groups revealed concerns about unworkable duties, legal system burdens, and potential impacts on safety, particularly amid rising antisemitism on campuses.

    Insights from her work to consult with interested stakeholders (both for and against the act), says Phillipson, have shaped a “balanced, effective, and proportionate approach” to safeguard free speech while addressing minority welfare.

    What stays

    First up, the government will commence the following requirements currently in the act (in sections 1,2 and 6):

    • The duties on higher education providers to take reasonably practicable steps to secure and promote freedom of speech within the law
    • The duty on higher education providers to put in place a code of conduct [practice] on freedom of speech

    Those are relatively uncontroversial – most providers were preparing in that spirit already, although the (very) detailed suggestions on compliance previously proposed by OfS may yet change.

    Underpinning that, Phillipson also intends to commence the duties on the Office for Students (OfS) (section 5) to promote freedom of speech and the power to give advice and share best practice. And unsurprisingly, the ban on non-disclosure agreements for staff and students making complaints about bullying, harassment and sexual misconduct will also remain.

    There was a curious passage on the Director for Free Speech and Academic Freedom role – the Secretary of State said that she had “complete confidence” in Arif Ahmed who will be staying on – but then criticised how he’d been appointed, drawing on interim Chair David Behan’s review of the regulator that had recommended a look at how all OfS executive and board appointments should be made.

    She said will decide on the process of appointing directors to the independent regulator “shortly”.

    What’s going

    A couple of other measures were “not proportionate or necessary”, so she’ll be seeking repeal.

    The duties on students’ unions are to go – because they’re neither “equipped nor funded” to navigate such a complex regulatory environment, and are already regulated by the Charity Commission:

    But I fully expect students unions to protect lawful free speech, whether they agree with the views expressed or not, and expect providers to work closely with them to make sure that happens, to act decisively to make sure their students union complies with their free speech code of conduct.

    That effectively returns us to the Education Act 1986 position – of providers taking reasonably practicable steps to get their SU to comply – and sensibly removes the prospect of a new student being told about two codes of practice to follow depending on who they’d booked a room with.

    Most controversially for some, she will also repeal the legal tort, on the basis that it would have resulted in:

    Costly litigation that risks diverting resources away from students at a time when University finances are already strained – remaining routes of redress have plenty of teeth.

    Those pro the tort worry that that only leaves OfS’ powers to find as the compliance lever – although others worried that the threat of it would have resulted in more threatening letters than sensible, nuanced decisions.

    What’s changing

    On the OfS free speech complaints scheme, it will remain in place for university staff and visiting speakers – but there will be two changes. OfS will first be freed up to prioritise the more serious complaints – and be officially empowered to ignore others.

    And the government will remove the “confusing duplication” of complaint schemes for students. Students will be diverted to using the Office of the Independent Adjudicator (OIA, and OfS will take complaints from staff, external speakers and university members.

    That doesn’t quite remove the potential duplication of the two bodies considering the same incident or issue from different angles/complaints – but it’s a sensible start.

    And the government will also amend the mandatory condition of registration on providers to give OfS flexibility in how they apply those conditions to different types of providers – we’d expect that to cover issues like the obvious oversight of 14-year olds in FE colleges caught by the Act suddenly gaining free speech rights.

    The government says it will also take more time to consider implementation of the overseas funding measures in the act as it “works at pace” on the wider implementation of the foreign influence registration scheme that was part of the National Security Act 2023. Those two bits of legislation never felt properly aligned – so that also feels pretty sensible.

    In the debate that ensued, there was some lingering suspicion from the opposition that that all amounted to the government going soft on China – and regardless of the foreign funding clauses, there were some concerns from providers about the workability of the draft OfS guidance on the main duties re oppressive regimes and TNE. That will be one to watch.

    Finally, we will also get a policy paper to set out the proposals in more detail, potentially alongside a decision on information provision for overseas funding.

    What’s next

    As we signalled back in March, the interaction with allegations and incidents of antisemitism appears to have been a big influence on the decisions – the press notice reminds readers that there were fears that the legislation would encourage providers to “overlook” the safety and wellbeing of minority groups, including Jewish students, and instead protect those who use hateful or degrading speech on campus:

    Groups representing Jewish students also expressed concerns that sanctions could lead to providers overlooking the safety and well-being of minority groups.

    Phillipson even referenced the faux pas from Michelle Donelan way back in May 2021 when, on the day the Bill was launched, she was unable to explain how the government’s proposals would prevent Holocaust deniers coming to campus.

    Phillipson said that she could see “no good reason” why any university would invite a Holocaust denier onto campus to deny the overwhelming evidence that the Holocaust is an “appalling form of antisemitism”. Even when the last government had clarified the position on holocaust denial, it never confirmed that holocaust deniers could be banned – and the point about many external speaker edge cases is that they rarely fill the form in with “I’m going to say something unlawful”.

    There’s still a way to go yet on these (and other) fine lines – in the ensuing debate, Phillipson said that she was worried that the regime that was due to launch would have “unduly prioritized” free speech which is hateful or degrading over the interests of those who feel harassed and intimidated – these issues, she said, can be “very finely balanced”. That may well see a push from the SOS that the two sets of guidance – on OfS’ new Harassment and Sexual Misconduct duties, and the drafts on this regime, are integrated more sensibly.

    The ongoing questions surrounding the IHRA definition of antisemitism may also yet pop up again too – not least because of Arif Ahmed’s own apparent u-turn on it and the ensuing cases challenging its usage in disciplinary procedures. Questions of pro-Palestinian activism on camps and where that might stray into antisemitism were notably absent from OfS’ guidance drafts.

    Overall, some in the debate will be furious at the government’s apparent watering down of the Act, others will be pleased that some of the arguably more unworkable aspects are being amended.

    But probably the most important signal from Phillipson was a recognition that the area is complex and decisions often finely balanced – putting a degree of trust in universities (and their SUs) that they will also take it seriously.

    Whatever else has happened over the past few years, there’s plenty of evidence that understanding has improved in the sector – it looks it has in Whitehall too. The question now is whether, next time an incident or issue comes along, it is handled by a university (or its SU) in a way that commands confidence.

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  • Resolving the tensions in campus culture requires leadership from within

    Resolving the tensions in campus culture requires leadership from within

    You’ve heard a version of this story before.

    The 16 days against gender-based violence campaign has been running around the world for over 30 years now, and manifestations on campus can include everything from assertiveness and self-defense workshops to panels on violence, discrimination and harassment in student life.

    Back in 2021, students at the oldest university in Poland had put together a programme of activity for the campaign that included a lecture on the criminological aspects of the murders of women from a lecturer in the Department of Criminology.

    But days before she was due to give the talk, the Forensic Psychology Section of the Scientific Association of Psychology Students at Jagiellonian University in Krakow (one of the co-organisers alongside the LGBTQ+ society and the SU) announced that the lecture had been cancelled:

    When inviting Dr. Magdalena Grzyb to give a lecture, we were not aware of the views she represents. We would also like to point out that we absolutely do not agree with the opinions she expresses, and we do not consent to any manifestations of transphobia in the university space.

    The previous year, Grzyb had penned a piece in Kultura Liberalna – a weekly Polish magazine focusing on liberal values, intellectual debate, and cultural analysis – critiquing the acceptance of non-binary and queer identities in liberal and progressive circles, suggesting that prioritising individual self-identification over systemic efforts to deconstruct stereotypes and achieve real gender equality was a problem:

    Does every man, even a serial rapist or a domestic torturer, if he says he feels like a woman, have the right to demand to be placed in a cell with women, often victims of such men? (…) A woman who repairs a dishwasher at home is also non-binary. Heck, a woman who earns more than her husband is also non-binary. A man who irons his clothes and washes the floor with a mop is also non-binary. (…) Do they deserve special treatment and a place in a cell with women because of this?

    A few days later Jerzy Pisuliński, Dean of the Faculty of Law and Administration at Jagiellonian, issued a statement making clear that the lecture would take place after all, on the basis that the university should be a place for “debate on important social problems” and that it “cannot avoid controversial topics”.

    Setting an example

    That was an announcement welcomed by HE minister Przemysław Czarnek, whose conservative and nationalist Law and Justice Party (Prawo i Sprawiedliwość, PiS) had only months previously, egged on by the Ordo Iuris Institute for Legal Culture, proposed an amendment to the Law on Higher Education that sought to tackle wokery and cancel culture:

    I welcome with satisfaction the decision of the Rector of the Jagiellonian University to restore the lecture of Ms. Dr. Magdalena Grzyb. The Jagiellonian University is setting an example.

    A year previous a sociology lecturer at the University of Silesia in Katowice resigned in protest after students accused her of promoting intolerant anti-choice and homophobic views in her classes. The university’s disciplinary official found evidence of intolerance – prompting Czarnek’s predecessor Jarosław Gowin to condemn what he termed “ideological censorship”:

    The Bill will be intended to help the university community and the rector to ensure that these freedoms are not violated, that the university is a temple of freedom of speech, freedom of exchange of views and discussion.

    When it eventually appeared a few months later, it proposed to guarantee academic teachers’ freedoms in teaching, speech, research, and publication; protect the expression of religious, philosophical, or worldview beliefs, ensuring they would not constitute disciplinary offenses; and oblige university rectors to uphold respect for these freedoms, all aimed at guaranteeing an environment of “ideological pluralism” within academic institutions.

    Campaign groups weren’t happy – arguing that student organisations should be able to invite or not invite lecturers to their events:

    …that is their sacred right, just as it is not a restriction of freedom of speech that I or any other person was not invited. Other people may not like it and may criticise this decision.

    Just as in the UK, some argued that the reforms could undermine the independence of academic institutions – allowing government influence over academic discourse and research priorities, and discouraging open discussion and critical analysis on topics that might conflict with the government’s conservative stance.

    Others puzzled over the practical differences between not refusing a speaker and forcing a voluntary student group to go ahead with one even if it didn’t want to – the sort of detail lost in the noise in cases like this.

    But back at Jagiellonian, there was the thorny issue of Ernest Figiel to resolve.

    Enemies of the people

    Figiel, a trans activist student at Jagiellonian had accused Grzyb of being a Trans-Exclusionary Radical Feminist, and in the process had called for TERFs to be “thrown into a sack and into a lake”, disposed of “in lime pits” and had praised Stalin’s methods of dealing with “enemies of the people” – which he thought should apply to Grzyb and her ilk.

    And as disciplinary proceedings against Figiel ensued and a counter campaign kicked off, it was down to Beata Kowalska, who in 2020 became the university’s first Advocate [Ombusperson] for Academic Rights and Values, to chart a way through:

    It does not matter who the hate speech comes from. Allegations of hate speech are carefully investigated in the case of any member of the university community. As is well known, hate speech can have disastrous consequences when used publicly, sometimes contrary to the original intentions of the sender… Figiel publicly used polemical statements of a dehumanizing nature against his opponents, using extermination and genocidal metaphors…

    Such statements are unacceptable in the academic community. Trivializing the extermination or using in an allegedly humorous way images of genocide, which Mr. Figiel publicly wished for his opponents, constitute a flagrant transgression of the boundaries of freedom of speech.

    The full statement is excellent – carefully integrating concerns that discrimination against non-heteronormative people had intensified with the need to uphold freedom of speech as a “pillar of democratic debate”. And while that was not a universally popular intervention, it pretty much doused the flames and helped the university community move on. The question is how and why.

    What goes on tour

    Jagiellonian in Krakow and Silesia in Katowice were two of the universities we visited on this year’s Wonkhe SUs January bus tour of students’ unions – which took in the Visegrad countries of Hungary, Slovakia, Czechia and Poland.

    Over the past few years, we’ve been assembling groups of SU officers (and the staff that support them) to meet with students’ unions, guilds, associations across countries in Europe – and we’ve seen any number of fascinating projects, initiatives, buildings, services and schemes that students deliver in the student interest.

    But on the long (and often winding) roads between university towns and cities across Europe, we’ve also been trying to work out what it is that underpins all of the impressive stuff that we’ve seen.

    Much like the other three countries’ systems, Polish higher education’s governance is effectively a communitarian power-sharing arrangement that “combines the preferences of policymakers towards the market model” with the legacy of the “institutionalized, deeply-entrenched, and change-resistant academic self-governance model” that was reintroduced in 1990 after communist rule.

    The Law on Higher Education has an extensive section on student rights – setting out a positive role for students’ unions to deliver training on those rights to students, as well as recognising their role in giving voice to student concerns, and organising activities aimed at the social integration and cultural development of students.

    Built almost entirely on pyramids of faculty-based student involvement that start with summer student integration camps and talks for new students on rights and obligations, we met any number of impressive, unpaid student leaders who were keen to support other students because they themselves had experienced being supported by others.

    The law also provides for state universities to be partially democratically run both at faculty and institutional level – with students given at least 20 per cent of seats and veto power over key decisions like who gets to be Dean or Rector, and what goes into study programmes.

    At Silesia, the SU President – who started his talk with a slide quoting from the law – concluded by turning to the Vice-Rector for Student Affairs to say that “we often argue, but we couldn’t wish for anyone better for the job”. That’s partly because to get elected, she had to command the confidence of those electing her. And it’s partly because him and his colleagues obviously thought they had real power in the process.

    He, like all the other SUs we had met in Poland, had mentioned the Ombudsperson at the university as a key figure that students had the right to access – and as we burned through SIM data between visits, we set about trying to understand why.

    Law 2.0

    In 2018, ruling party PiS had enacted a new Law on Higher Education and Science, commonly known as Law 2.0, to modernize higher education. University councils (as opposed to Senates) were given external stakeholders, funding mechanisms were modernised to promote research excellence, universities were given more flexibility in financial management, and toughened duties were placed on universities to uphold ethical standards, including those related to freedom of speech and debate.

    A handful of academic ombudspeople were already in place at the University of Warsaw, the Nicolaus Copernicus University in Toruń, the Catholic University in Lublin and the Medical University of Warsaw – but Law 2.0 gave a group of universities the opportunity to integrate democratic governance and student rights and obligations into an optional model charter for universities, Section V of which provided for the appointment of an ombudsman for academic rights and values.

    Jagiellonian’s students and staff were among those who’d spotted a need to be seen to be both integrating and providing leadership on EDI and freedom of speech – and the job spec for their first ombuds oozes a need to command confidence.

    They have to be an academic teacher who has been employed at the university for at least ten years and holds a professor or university professor position. They can’t hold any managerial or governing roles and should be widely respected within the university community, demonstrating strong social sensitivity.

    Candidates can be nominated by various groups, including the Senate, university employees, both the UG and doctoral SUs, and the trade unions. Their job is to monitor and address violations of academic rights and values, provide support to affected parties, mediate disputes, and collaborate with university entities to create a respectful academic environment.

    They investigate reported violations, recommend corrective measures to university bodies, and advocate for affected individuals during proceedings. They also have the authority to advise on initiating disciplinary or mediation processes and can request information or documentation from university bodies as needed. And every year, they submit a comprehensive report to the Senate detailing their activities and cases handled – which is subsequently made publicly available.

    No to parameterization

    This interview with the inaugural postholder Beata Kowalska – a feminist sociologist involved in the Scholars at Risk Network – is inspiring:

    A university is not a place where we collect points and are subjected to parameterization, but rather a community of people who work together. They do not work only individually to build their own careers, the mission of the university is much broader.

    Universities are spaces where academic freedom and equality should flourish. This means identifying solutions, sharing good practices, and creating tools that will support these goals. I plan to hold discussions on topics like climate change and academic integrity. Recently, we even used sociological “teams” during the pandemic lockdown to address social isolation among students.

    One challenge is bridging the gap between academic life and society. Universities must be critical spaces where ideas are debated freely and without fear of discrimination or exclusion. This applies not only to faculty and students but to the broader society they serve.

    In year one, Kowalska’s office handled 236 cases involving staff, students, and doctoral candidates, addressing issues like academic ethics, workplace conditions, and conflict resolution, as well as the promotion of academic values, mediation efforts, and educational programmes to support a culture of respect and dialogue within the university.

    And since then her office and team of mediators have gone on to tackle violations of students’ rights by academics, wider academic values, workplace conditions, unwanted behaviours and harassment, complaints about study organisation, anti-discrimination training and cultural events – as well as collaborating internationally.

    Somehow we know more about how the University of Jagiellonian has been handling disputes between students, staff and the university by using Google Translate on a couple of PDFs than pretty much any university in the UK with their bulletproof PR processes and bland press statements when a row ensues.

    And so successful have the institutional ombudspeople been at commanding confidence that PiS backed off on further reforms – and now, along with announcements on encouraging mergers (federalisation first), financial aid for doctoral students, a plan to build more places in dorms and scholarships for students engaged in running activities for others, last September the new government announced that it would strengthen the powers of student and doctoral student ombuds.

    In December HE minister Dariusz Wieczorek ended up embroiled in some kind of whistleblowing scandal, but you get a real sense that the Donald Tusk-led coalition has students’ concerns at heart:

    According to the Central Statistical Office, there are over a million students in Poland. I really want each of you to have the best possible conditions for learning and pursuing your passions, so that your studies are a chance for you to deepen your knowledge, acquire new skills, but also a time for making friends and comprehensive development. That is why at the Ministry of Science and Higher Education we consistently introduce solutions that will ensure high quality of education at Polish universities, we transfer funds for investments related to the teaching activities of universities, and we also co-finance the construction and modernization of dormitories.

    In addition, a student culture support program will be launched in the first quarter of 2025, aimed at clubs, teams and organizations operating in higher education institutions. I am convinced that it will allow for the activation and integration of the environment, and above all, it will contribute to the development of student culture in Poland.

    Commanding confidence

    As ever on our study tours, back on the bus we tended to conclude that there’s lots to be proud of in the UK – in particular, for all of the issues that present, we figure that our sector’s work on mental health and the progress being made on harassment and sexual misconduct and access and participation really is streets ahead of many other countries’ efforts.

    But when it comes to treating students as real stakeholders, it’s not the size of the SU’s block grant that matters – and when it comes to the tensions between academic freedom and EDI, the pausing of the implementation of the Higher Education (Freedom of Speech) Act is less a defeat or victory, and more a reflection of the “jury’s out” position that pretty much everyone has on the sector’s ability to reconcile the tensions in a way that will command real confidence.

    Democracy in universities – real democracy, not events where you can scrawl ideas that consultants ignore on sheets of flipchart paper – is in pretty short supply in a UK sector that has largely abolished it in universities and only really turns to it for a popularity contest for leaders in March in SUs. And universities back home are never wrong – at least not in public.

    If nothing else, what we saw in various forms across the Visegrad group this year was real democracy in action – imperfect, messy, bureaucratic and uncomfortably open, but powerfully symbolic of the sort of society that universities hope their graduates will want to build in the future.

    Back on the academic freedom and freedom of speech issue, the truth is that there have always been and always will be tensions and conflicts – between freedom from harm and freedom to speak, between supporters of Israel and Palestine, between protecting the university and protecting students, between the young keen to be on the right side of history and an older generation defensive of it, and between the role that universities play both critiquing society and being a part of it. Conflicts require resolution.

    Having the confidence to take the national widespread credibility of the OIA and establish local versions of it like that exemplified by Beata Kowalska at Jagiellonian – commanding the confidence of students, staff, management, politicians and the wider public by being somewhere independent where folk can raise and resolve disputes – wouldn’t be a defeat for the UK sector, and nor would it represent a risk.

    It would be a reflection of what higher education in the UK often says it is – an open, reflective, capable and self-critical community of students and staff – but all too often is too defensive and too proud to trust its own people to make it a reality.

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