Category: Harassment

  • OfS rebalances the free speech/harassment see-saw on antisemitism

    OfS rebalances the free speech/harassment see-saw on antisemitism

    The Union of Jewish Students (UJS) has published a fascinating new episode of “Yalla”, its podcast for Jewish students.

    Hosted by Louis Danka, who is the new President of UJS, the September 2025 episode features an extensive interview with Arif Ahmed, OfS’ Director for Freedom of Speech and Academic Freedom.

    The conversation comes weeks after the regulator’s new higher education free speech guidance came into force on August 1, 2025, alongside enhanced harassment protections.

    What makes the interview especially interesting is what it doesn’t mention – Ahmed’s reversal on the IHRA definition of antisemitism.

    In February 2021, Ahmed wrote in a HEPI blog that he was strongly against Gavin Williamson’s requirement that universities adopt the IHRA definition of anti-Semitism, arguing it obstructs perfectly legitimate defence of Palestinian rights and chills free speech:

    I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’re all allowed to change our minds on things. The issue is the extent to which the law, or the regulation he’s now in charge of, offers clarity on the volte-face.

    And while there’s plenty of helpful material in there on how OfS might approach casework and complaints, it does raise all sorts of questions about expectations – and OfS’ strategy for communicating what in some cases amounts to significant additions and clarifications to its guidance.

    What the podcast says

    The interview centres on what I’ve previously described as the twin sandbags on the regulatory see-saw – the Higher Education (Freedom of Speech) Act 2023 and the E6 condition on harassment and sexual misconduct.

    A central theme throughout is UJS’ contention of a deteriorating campus environment for Jewish students. Ahmed acknowledges there has been “a big rise in antisemitic incidents in recent years, on campus, in the country more generally” and describes this as a source of “grave concern” for OfS.

    The discussion then considers how this manifests practically on campuses. Ahmed describes, for example, scenarios where Jewish students may feel unable to attend lectures due to protest activity, or where “protests outside Jewish accommodation” create hostile environments.

    He first emphasises that while “political ideas expressed in the protests may be perfectly awful and expressible,” universities can still regulate their “time, place and manner” – such that core functions can keep going.

    Hence on protest regulation, Ahmed says:

    …if you have protests that take place in such a way that Jewish students don’t feel able to attend lectures … it may also be right for the university say, well, you can’t do it here, and you can’t do it in this place, and you can’t have it every day outside a lecture theatre.

    He also points to protests outside Jewish accommodation as another context where restrictions could be justified.

    Ahmed’s contemporary position on IHRA is explained as follows:

    …we ourselves have adopted the IHRA definition, and we do think it can be a very useful tool for understanding modern antisemitism.

    He adds that there is “no obstacle, in principle” for universities adopting a particular definition, and “certainly not” the IHRA working definition.

    He clarifies that it is “absolutely compatible” with the guidance, provided it’s being used properly as a way to understand antisemitism rather than to suppress lawful and legitimate debate. That latter caveat may represent the only vestige of his previous concerns about IHRA chilling Palestinian rights advocacy.

    The published guidance takes an uncompromising stance on Holocaust denial, where Ahmed explains this was made explicit after consultation feedback seeking clarity:

    …we will not under any circumstances protect Holocaust denial, so nothing that we do in our complaint scheme or otherwise will protect that speech.

    With the more obvious stuff out of the way, the subsequent nuanced discussion involves distinguishing between legitimate political discourse and antisemitic harassment, particularly around coded language.

    Ahmed addresses scenarios like “Zionists off our campus” signs, explaining that context is crucial. On coded antisemitism, Ahmed explains:

    …very often when people use the expression “Zionist”, for instance, it can actually be used as a kind of euphemistic expression meaning Jewish people, and in the circumstances where that’s so it seems very much more likely to be something that’s targeted at individuals because of their race, because of their religion.

    He then distinguishes between attacking ideas versus targeting individuals, noting that speech “directed at ideas” differs from speech that makes individuals feel excluded because of their protected characteristic.

    Ahmed is at pains to point out that freedom of speech encompasses religious expression, making Jewish students’ ability to practice their faith a free speech issue. He also describes scenarios where Jewish students might hide religious symbols like Stars of David due to campus hostility. He then explains the religious expression dimension:

    …if you have an atmosphere on campus which is allowed to grow, which grew, Jewish students are intimidated out of expressing their own religion, that’s that’s an affront to their freedom of speech.

    The interview also explores “chilling effects” – where students self-censor rather than face consequences. Ahmed describes situations where students with pro-Israel views or Jewish religious expression might “decide not to say it in the first place” due to fears about academic consequences or social ostracism.

    Nevertheless, he repeatedly stresses that harassment determinations require objective analysis, not just subjective feelings. He explains that the legal test involves whether:

    …a reasonable person would think that was… creating an intimidating atmosphere for people because of their race, because of their religion.

    And on that point:

    …it’s not enough, for speech to count as harassment, that the person at the receiving end feels offended; what’s important is that a reasonable person would think that was so.

    He concludes by stressing that freedom of speech “historically… most protects minorities and those… for whom their voice and their words are the only things that they have.”

    What the papers say

    The Jewish News coverage of Ahmed’s podcast exemplifies how the reassuring rhetoric translates into heightened community expectations.

    The headline itself – “Free speech tsar tells universities: stop intimidation of Jewish students” – frames Ahmed’s nuanced legal discussion as a clear directive for immediate action.

    The article’s language amplifies Ahmed’s confidence, presenting his tentative statements (“it may also be right for the university to say”) as firm commitments (“universities must take firm steps”) and his regulatory expectations (“we would expect universities to take action”) as binding obligations.

    The coverage also amps up specific protections – Jewish students’ ability to attend lectures, enter accommodation, and express their religion – without conveying the complex legal determinations universities might need to navigate to provide that protection.

    Ahmed’s discussion of “coded language” becomes a promise that universities can identify and restrict antisemitic euphemisms, while his IHRA compatibility statements are presented as resolving rather than acknowledging ongoing tensions between free speech and antisemitism prevention.

    Most tellingly, UJS President Louis Danker’s response reveals both the raised expectations and their fragility. While expressing satisfaction that “the Office for Students shares our concerns,” he acknowledges that “the ambiguity of the guidance will be challenged by crucial test cases in the coming months.”

    This tension, between reassurance about shared concerns and worry about guidance ambiguity, captures the potential problem that OfS has created – confident promises built on uncertain legal foundations that will inevitably face testing in precisely the complex scenarios that the framework struggles to address.

    What the podcast doesn’t say

    The central question is whether the reassuring statements to Jewish students align with what universities can actually deliver under existing legal frameworks.

    If we take holocaust denial, for example, Ahmed demonstrates clear understanding:

    Article 17 says that none of these rights can be used, essentially to destroy other people’s rights. So speech that aims to destroy others rights… the courts have found, for instance, that many instances of Holocaust denial they’ve looked at, fall under it.

    That explanation appears to be legally accurate. Article 17 is sometimes called the “abuse clause” of the European Convention – it strips protection from speech that aims to destroy the rights of others, such as Holocaust denial.

    But the guidance leaves the explanation out, simply declaring Holocaust denial unprotected without explaining why – or when. That omission matters, because Article 17 normally operates alongside Article 10(2) – another part of the Convention that allows restrictions on speech if they are necessary and proportionate to protect others.

    As a reminder, the OfS guidance’s three-step framework treats human rights considerations as sequential rather than integrated:

    Step 1 asks simply whether speech is “within the law” – defined as speech not prohibited by primary legislation, legal precedent, or secondary legislation. Crucially, university regulations and contracts don’t count as “law” here. If not, don’t allow it. If it is, move to Step 2.

    Step 2 considers whether there are “reasonably practicable steps” to enable the speech. Universities should consider factors like legal requirements (including any formal duties), maintaining essential functions, and physical safety – but explicitly cannot consider the viewpoint expressed, whether it’s controversial, or reputational impact. If steps can be taken, take them. If not, move to Step 3.

    Step 3 – which is only reached if no reasonably practicable steps exist – then asks whether any restrictions are “prescribed by law” and proportionate under the European Convention. This involves checking if there’s a specific legal rule authorising the restriction, and runs through a four-part proportionality test weighing the importance of the objective against the severity of limiting the right.

    That proportionality test looks something like this:

    • Is the objective important enough? – The reason for restricting speech must be sufficiently weighty to justify limiting a fundamental right.
    • Is the restriction rationally connected? – The measure must actually help achieve the objective, not just be vaguely related to it.
    • Is this the least restrictive option? – Could you achieve the same goal with less impact on free speech? If yes, you must use the less intrusive approach.
    • Does the benefit outweigh the harm? – Even if the first three tests are met, you must still balance the severity of restricting speech against how much the restriction actually helps achieve your objective. The restriction fails if the damage to free expression outweighs the benefit gained.

    As I’ve noted before on here, the published approach seems to conflict with Minasyan v Armenia (2019), where the European Court of Human Rights struck down Armenia’s handling of a protest case. The Armenian courts had first checked whether protesters broke domestic criminal law, and only afterwards asked whether their free speech rights were engaged.

    Strasbourg was clear – you can’t separate those steps. The balancing of rights under Article 10(2) has to be done at the outset. So when the guidance asks universities to check domestic criminal law first and only consider broader human rights implications as an afterthought, the sequential framework seems to repeat the flaw that Strasbourg condemned.

    Meanwhile, Ahmed seems to correctly state the objective harassment test:

    …it’s not enough. Speech to count as harassment, that the person at the receiving end feels offended… what’s important is that a reasonable person would think that was so.

    But his practical applications consistently reference subjective experiences without clear frameworks for objective assessment. He discusses Jewish students feeling “unable to attend lectures” or “intimidated out of expressing their own religion” – but then offers up little on how universities should distinguish between justified concerns and unfounded complaints.

    The “reasonable person” test sounds simple, but in practice it is one of the hardest questions courts face. Would an average observer see this as harassment, taking into account context, repetition, and effect?

    Judges often split over the answer, even with days of evidence. Expecting university or SU staff to make that call in real time, during a protest or at a room-booking stage, is asking staff to perform complex human rights analyses on the fly. Clarity on what he might expect is reasonable in those scenarios would help.

    Ahmed’s discussion of antisemitic language also illustrates the analytical burden placed on those enforcing or explaining rules day to day:

    …very often when people use the expression Zionist, for instance, they can actually, can actually be used as a kind of euphemistic expression meaning Jewish people.

    Determining when “Zionist” functions as coded antisemitism requires careful analysis of speaker intent, contextual factors, and impact on targeted individuals. These are determinations that typically require evidence about speaker’s background and previous statements, analysis of the specific context and setting, an assessment of audience understanding and reaction, and an evaluation of the targeting effects on specific individuals.

    Day to day, staff may well lack both the investigative capacity and legal expertise to perform those sorts of analyses reliably. Ahmed acknowledges the complexity – “it might depend on context” – but doesn’t offer anything like a practical methodology for making the determinations.

    The UK Supreme Court in Elan-Cane (2021) stressed that domestic bodies should not push human rights analysis beyond what the European Court of Human Rights has already recognised. Lord Reed warned against overstepping into areas Strasbourg had not yet endorsed.

    Ahmed’s framework arguably asks universities to do exactly that – making human rights calls (on protests, coded language, or harassment) that even the courts approach with extreme caution.

    If legally trained judges with full procedural protections must be cautious about extending human rights analysis, how can staff be expected to perform similar determinations through internal processes? Is OfS fit to do so when it gets a complaint in? And what are the penalties for getting it wrong?

    Rights collision

    Another silence in the interview is how to handle the collision of rights. He clearly anchors harassment to protected characteristics like race and religion, and he treats Zionism as an idea that can be lawfully discussed – while warning it is sometimes used as a euphemism for “Jew” in context. He doesn’t quite say “Zionism is a protected belief” in terms, though that would be the likely legal position under Equality Act case law. The same goes for anti-Zionism.

    Under UK equality law, political and philosophical beliefs qualify for protection if they meet what’s known as the Grainger criteria – that is, the belief must be genuinely held, relate to a weighty aspect of human life, attain a certain level of seriousness and cogency, and be worthy of respect in a democratic society.

    Courts have already recognised beliefs such as environmentalism, gender-critical feminism, and ethical veganism under this test. Anti-Zionism looks like it would qualify on the same basis, provided it is expressed as a coherent political or philosophical position rather than as a proxy for antisemitism.

    What he does not explain is what universities should do when the protections appear to come into direct conflict or quite how a university is supposed to differentiate between the political or philosophical position and the proxy.

    Let’s imagine a student holding a placard reading “Zionism is racism” and another responding that “anti-Zionism is antisemitism.” Both statements can amount to the expression of protected beliefs under the Equality Act. Both students might also claim they are being harassed by the other.

    Courts take weeks to sift through context, intent, and impact in such cases – weighing not just Article 10 free speech but also Article 9 (religion), Article 8 (private life) and Article 11 (assembly).

    On balance, “Zionists off campus” feels like it targets a group of people. Those banned from painting it on a banner may feel their speech is being chilled. “Zionism off campus” feels more like a protected piece of political expression. Some reading that may feel harassed. Complaints in either event are likely.

    Recent cases show how fraught these clashes can be. In Forstater v CGD Europe, the tribunal upheld that gender-critical beliefs were protected, even though many found them offensive – but also emphasised that protection for a belief does not mean protection for every manifestation of it.

    In Mackereth v DWP, the tribunal held that a doctor’s refusal to use trans patients’ pronouns could lawfully be limited, despite his Christian beliefs being protected. The principle is clear – both Zionism and anti-Zionism can be protected, but the way they are expressed may still lawfully be restricted if it harasses others.

    What’s missing from Ahmed’s account is the extent to which universities are expected to perform that fine distinction in real time, and at which stage of a process they’re expected to do so.

    What now?

    The danger in all of this is a form of regulatory false advertising – promising protection through frameworks that universities cannot properly execute without risking legal challenge or practical failure.

    The focus on context is welcome, but it doesn’t solve the core problem – the absence of a practical framework for when and how to balance competing rights. Without it, institutions risk inconsistency, overreach, or paralysis – either censoring lawful political expression or failing to protect students from harassment.

    The reassuring tone also suggests clearer legal boundaries than actually exist. When he says that universities “would expect to take action” about intimidatory speech, he presents complex, fact-specific determinations as straightforward administrative decisions.

    It’s a false certainty that may mislead universities into thinking they have clear authority to restrict speech, and could simultaneously raise student expectations about protection that may prove impossible to deliver.

    Then the style compounds the problem. In the podcast and coverage of it, Jewish students hear confident reassurances; in the consultation response annex, Article 17 is quietly acknowledged; in public guidance, proportionality is all but absent from the “within the law” test.

    The impression is of a regulator telling each audience what it wants to hear by pointing at one end of the see-saw, rather than grappling with the hard edges of the case law in ways that may temper expectations rather than raise them.

    And given both the free speech guidance and the E6 guidance drives home the need to get these messages into the heads of students themselves, there’s certainly nothing in there on how universities are supposed to explain all of this to students.

    It leaves universities (and by proxy their SUs) stuck in the impossible position that they have been for months.

    They remain caught between those heavy sandbags without mechanisms to resolve them, having expectations raised on both ends in ways that may not be as simple in practice, and offering little confidence that a good stab at making the calls, carried out in good faith, will result in anything other than Kafka’s regulator appearing with a fine either way.

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  • Restrictions on use of NDAs continue to tighten

    Restrictions on use of NDAs continue to tighten

    By luck or judgment two separate regulatory regimes applying in the HE sector came into effect on the same day last month.

    They are condition E6, the new condition of registration imposed by the Office for Students to better protect students from harassment and sexual misconduct, and a revised duty to secure freedom of speech within the law set out in the Freedom of Speech Act 2023.

    Both regimes impose restrictions on the use of non-disclosure agreements (NDAs) by HE institutions. However, their scope is slightly different.

    Condition E6 forbids provisions which have the object or effect of preventing students from “disclosing information about an allegation of harassment and/or sexual misconduct, which in any way involves or affects one or more students” to any other person. These restrictions on NDAs were introduced as free-standing requirements on 1 September 2024.

    The Freedom of Speech Act measures also relate to harassment and sexual misconduct, but the restrictions are not confined to misconduct affecting students. These restrictions extend to NDA provisions in agreements that prevent anyone connected with the institution, including visiting speakers, from disclosing information about a complaint they have made about misconduct to any other person.

    In an ideal world, these two separate regulations would be better aligned, but in practice, institutions will be able to square the circle by following the more onerous of the two provisions in any given situation.

    The regulatory guidance on condition E6 states:

    Although this provision does not apply to other persons, providers should consider the wider requirements of this condition in applying such restrictions to other persons such as staff, and not to inhibit discussion of these issues that might support those who have experienced harassment or sexual misconduct, or allow issues to be aired and properly addressed.”

    This suggests the guidance appears to anticipate the free speech measures. However, somewhat strangely, the issue of NDAs is not mentioned at all in the OfS’s regulatory advice on the free speech duty.

    And there’s more

    As if two overlapping NDA regimes were not troublesome enough, a third is now in sight. Amendments to the Employment Rights Bill in July 2025 (at report stage in the House of Lords) impose new restrictions on confidentiality clauses relating to harassment and discrimination (as defined in the Equality Act 2010).

    Again, the scope of the targeted misconduct (harassment or sexual misconduct) is similar, but these provisions focus on workplace harassment and are confined to restrictions in agreements between workers and employers. There is also the possibility of exceptions being created by regulations, though we don’t know what these would look like yet.

    So, the scope of the restrictions will be narrower than the current legislation universities operate under. However, the range of misconduct covered is wider as it extends to direct and indirect discrimination as well as harassment. Though this does not include breach of the reasonable adjustments duty or victimisation.

    Bringing it all together

    All three sets of restrictions build on existing limits to NDAs.

    First, there are currently provisions that protect whistleblowers from signing gagging clauses that prevent them from making a disclosure. The connection between sexual misconduct and protected disclosures will be made explicit by another proposed measure in the Employment Rights Bill, as it adds disclosure of information about sexual harassment to the list of disclosures qualifying for whistleblower protections.

    Many protected disclosures involve misconduct that is potentially criminal. It is already the case that an NDA will be unenforceable to the extent that it seeks to prevent reporting of a criminal offence to the relevant authorities or cooperating with their enquiries. These rules will be codified in a slightly broader form by provisions in the Victims and Prisoners Act 2024, coming into effect on 1 October 2025.

    Secondly, lawyers involved in the drawing up of confidentiality agreements will be aware of the warning notice from the Solicitors Regulatory Authority, first issued in 2018 and revised in August 2024. The warning notice means it will amount to professional misconduct to draft NDAs that are not legally enforceable, or to obscure limitations in the scope of the confidentiality requirements being lawfully imposed by using obfuscatory drafting.

    There are also broader reputation and compliance issues to consider. As a result, several policy initiatives exist to encourage HEIs to limit or eliminate the use of these agreements. One of the most significant recent developments was the launch in 2022 by Universities UK of a strategic guide to tackling staff-to-student sexual misconduct. The guide considers that the use of NDAs can inhibit the development of a culture which makes this kind of conduct less likely, and says that they should not be used to prevent “reporting parties from speaking out or to restrict what the university might disclose to others.”

    The development of placing limits on NDAs has been piecemeal and inconsistent, but the direction of travel is clear. It is increasingly difficult to use blanket NDAs. Thought needs to be given to the proposed reasons for and the effects of NDAs in relation to any aspect of an HEI’s operations. It will rarely be appropriate to seek NDAs in relation to issues of harassment or sexual misconduct, and other (common) processes and approaches for handling such situations effectively with staff, students, members, visitors, and other stakeholders will be required.

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  • Student voices should shape how universities tackle harassment

    Student voices should shape how universities tackle harassment

    In the midst of a global crisis in social relations, spiralling levels of harassment, scapegoating and online and interpersonal hostility have become routine, especially for members of minoritised and stigmatised communities.

    As microcosms of wider society, university spaces are not immune to these social, cultural and political tensions. Yet the ways prejudices play out in higher education often go under-explored. As a result, many students feel unsafe and unsupported at a time when multiple points of crisis have exposed student communities to a heightened risk of harassment.

    In response to these mounting pressures, the OfS has emphasised the urgent need for action. From August 2025, new requirements will compel institutions to actively address harassment and sexual misconduct. However, current discussions too often overlook the full spectrum of harassment. Non-sexual forms of hostility—such as racist, disablist, homophobic, and transphobic harassment—frequently remain at the periphery of institutional priorities.

    Our current research, due to be completed in July 2027, addresses this gap. It takes an inclusive, victim-centred approach to examining all forms of harassment. By investigating the barriers students face in accessing effective support and understanding their lived experiences of violence, microaggressions, and exclusion, the study will generate critical insights to help universities create truly safe and supportive environments.

    The importance of self-definition

    A crucial aspect of this research is that harassment cannot, and should not, be narrowly defined by institutional standards or legislation alone. This is why allowing students to define what constitutes as harassment to them is so important.

    Self-definition acknowledges that students are best placed to interpret the behaviours that harm them, informed by their unique identities, cultural contexts, and lived experiences.

    This approach moves beyond rigid, exclusionary notions of who experiences harassment and in what form. It acknowledges the subjective and often complex nature of harassment and fosters empathy and inclusivity. For instance, a seemingly minor microaggression may carry significant emotional weight for a student facing intersecting disadvantages. Equally, behaviours such as online victimisation, sustained name-calling, or subtle exclusion may not fit traditional definitions of harassment, yet they can deeply impact an individual.

    Our 2020 pilot study at the University of Leicester embraced this framework of self-definition. Students identified more than a dozen identity characteristics as a motivating factor in their victimisation. Amongst some of the more often discussed identity characteristics, students spoke about how their political views, subcultural status, accent, dress and appearance, and their status as a mature student were also reasons they felt they were targeted.

    The emotional, behavioural and educational impacts of targeted harassment were diverse, far-reaching and profoundly damaging to their student experience.

    Self-definition does not mean abandoning clear policies or legal obligations. Instead, it complements existing frameworks by placing student voices at the centre of institutional responses. By understanding often ‘hidden’ and under-acknowledged forms of harassment, universities can build more holistic, evidence-based systems to support victims. For instance, reporting systems should allow students to disclose harassment that targets multiple aspects of their identity – for example, a student who is both Black and gay, or a student who is Muslim and disabled. Staff training can then focus on recognising these nuanced impacts, ensuring that responses are handled with cultural sensitivity and empathy.

    Working across institutions

    Sector-wide progress has been hindered by fear of reputational damage, a culture of conservatism, and, in some cases, a continued denial of the problem entirely. Where reliable research on harassment within HE exists, it generally focuses on one particular institution or just a single form of harassment. Our approach is different.

    We are working across five participating higher education institutions (HEIs) in England, purposefully selected for their very different geographical locations, student demographics and institutional profile. By working cross-institutionally and through our continued collaborations with OfS and Universities UK, we can maximise the impact of our findings and shift the narrative surrounding harassment and sexual misconduct. Rather than being perceived as an issue confined to a handful of “bad apple” universities, this approach acknowledges that such problems exist across the sector and require a unified response.

    This technique should also help to reduce fears of reputational damage, as it frames the issue as a systemic challenge rather than a localised failure. It also fosters a culture of accountability and continuous improvement, showing that universities are committed to addressing misconduct comprehensively rather than reacting defensively after incidents occur.

    Working with a range of HEIs in this way allows us to produce a suite of student-informed resources that can be tailored to individual HEIs. The insights gained from our research will not merely reflect existing challenges; they offer a roadmap for compliance with OfS conditions and for creating transformative, lasting change. By prioritising inclusivity and evidence, institutions can fulfil their obligations while fostering safer, more equitable spaces for all students.

    To find out more, please reach out to the research team at [email protected]

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  • How to address harassment and sexual misconduct experienced by PGRs

    How to address harassment and sexual misconduct experienced by PGRs

    The experiences of postgraduate researchers (PGRs) have not received the same level of attention as undergraduate students in relation to tackling harassment and sexual misconduct.

    PGRs have very different conditions of study than undergraduate or taught postgraduate students, and they may be at a different stage in life with significant professional experience.

    It would be a mistake, however, to assume that PGRs’ maturity and longer tenure within higher education institutions means that they are less likely to experience these issues.

    PGRs face significant risks – particularly in relation to abuses of power from staff both within and outside their institution – that can have deleterious impacts on their lives, careers, and health, requiring a different approach to provisions for students at other levels.

    As a result, implementation of the Office for Students’ (OfS) regulatory requirements, coming into force on 1 August 2025, needs to ensure that it takes into account the specific situations and needs of PGRs.

    At The 1752 Group, to support HEIs to do this, in partnership with the UK Council for Graduate Education we have published a toolkit to guide work in this area. It draws on our own, as well as international research in this area, to give a snapshot of current good practice.

    It also addresses the obligations outlined in the Worker Protection Act – in force since October 2024 – which requires employers to take reasonable steps to prevent the sexual harassment of employees.

    While the OfS regulations apply to England only, the toolkit can also be used outside England to guide institutional work on addressing harassment and sexual misconduct experienced by PGRs.

    Prevalence

    Perhaps the most problematic misconception in the sector about harassment and sexual misconduct is that it is rare. A 2023 survey conducted on behalf of OfS (n=5090) found that 6 per cent of PGRs had experienced unwanted behaviours of a sexual nature in the previous year.

    The findings also show there is work to be done on confidence in reporting – 32 per cent of PGRs were not confident in knowing where to seek university support, while 35 per cent were not confident in knowing how to report sexual misconduct.

    However, the OfS survey only had a small number of PGR respondents. Larger-scale studies from Australia (n=31,000) and the US (n=181,752) indicate that as many as 15 per cent of postgraduate students experience sexual harassment in a university setting each year, with 58 per cent being targeted by another student and 10 per cent being targeted by a tutor or lecturer from their university (the data is not disaggregated for PGRs specifically).

    Of course, sexual harassment intersects with harassment on the basis of other protected characteristics – non-binary and trans people are subjected to higher rates of sexual harassment at university than women (45 per cent and 32 per cent respectively), and lesbian, bisexual, gay and queer students, as well as women, also experience significantly higher rates of sexual harassment than heterosexual, cis-gendered men.

    On top of sexual harassment, LBGTQ+ doctoral students may also be experiencing homophobic and/or transphobic behaviour or feel that they have to conceal their sexual orientation/expression and/or gender identity/expression. There is also a risk that, following the Supreme Court’s recent judgement on the legal definition of sex, trans and non-binary students and staff (as well as those perceived to be trans, non-binary or gender nonconforming) face an even higher risk of harassment.

    OfS regulatory requirements around E6 cover all forms of harassment on the basis of protected characteristics. Data on experiences among PGRs is often unavailable. However, in a 2020 survey of 828 students across all levels of study in the UK, 24 per cent of respondents from an ethnic minority background had experienced racial harassment since becoming a student.

    That figure rose to 45 per cent of Black respondents, with the most common form of harassment being racist name calling, insults or “jokes”. Research specifically focusing on the experiences of racially minoritised PGRs in the UK shows that they face “multiple challenges, which are often triggered and amplified by circumstances specific to their ethnicity and result in their disempowerment within HEIs”, with women and international racially minoritised PGRs being especially marginalised.

    Similarly, Muslim doctoral students, who may also be racially minoritised, face Islamophobia, overt and covert racism, and marginalisation.

    What, then, do higher education institutions need to do to address this issue? A first step is to make sure that appropriate institutional governance and oversight is in place. Beyond that, institutional provision can be divided into three stages (based in public health models of primary, secondary and tertiary prevention):

    • Preventing harassment before it occurs
    • Short-term responses that should be in place when gender-based violence or harassment occurs, including to prevent it from recurring
    • Longer-term actions to deal with the lasting consequences of gender-based violence

    Preventing harassment

    The first stage, preventing harassment before it occurs, should be where the most substantial amount of work occurs. One area is in preventing abuses of power. OfS requires institutions to take one or more steps which could (individually or in combination) make a significant and credible difference in protecting students from any actual or potential conflict of interest and/or abuse of power.

    This is a significant challenge in relation to PGRs, given deeply hierarchical nature of academia. Ways in which HEIs can prevent abuses of power include clarifying professional boundaries, introducing a staff-student relationships policy, minimising power imbalances in admissions processes and supervision arrangements, and safer staff recruitment.

    For example, discussions of professional boundaries with supervisors and PGRs within departments and schools can feed into an institution-wide policy in this area. Institutional requirements in terms of professional boundaries could then be added to existing staff training and PGR professional development programmes, as well as induction procedures.

    More generally, training is required not only for PGRs themselves, but most urgently for staff, not least because any staff member could potentially receive a disclosure of harassment or sexual misconduct. Staff involved in making decisions or providing ongoing support will need further training on the required knowledge and skills.

    The OfS guidance does not discuss addressing inequalities as part of prevention work. Nevertheless, this is an essential part of preventing harassment and sexual misconduct. For example, racialised inequalities can support a culture where harassment on the basis of race is normalised and accepted, or a predominance of male students or staff can enable a culture where sexualised humour or derogatory comments about women or gender minorities are seen as normal.

    These inequalities can shape the culture in different disciplines or departments; some disciplines – medicine, engineering, and law – have been found in the US to have higher rates of sexual harassment by staff and/or postgraduate students, which may relate to gender inequality in some of these disciplines.

    As such, it is important to link up work to gather data and address inequalities in higher education with initiatives to prevent harassment and sexual misconduct. These could include programmes on increasing diversity in recruitment and admissions to PGR programmes, “People, Culture and Environment” statements for the Research Excellence Framework, and where relevant to PGRs, Athena Swan, Race Equality Charter, and Access and Participation Plans.

    Data collected for these programmes of work can reveal areas of the institution where gender and other inequalities exist, and therefore where there is a heightened risk of harassment and sexual misconduct occurring.

    One area where many if not most institutions have a long way to go is in gathering and using data to assess risk, as required by the Worker Protection Act. Data to assess risk relating to harassment and sexual misconduct can be obtained from online reporting systems, formal reporting, informal disclosures, or institutional surveys. In the toolkit, we highlight a good practice example from the University of Bath. They use quantitative data from their online reporting system as well as qualitative data from independent advisers to understand PGRs’ experiences and to report to the university’s Governing Body. This data then feeds into the content of mandatory in-person training for doctoral supervisors.

    Short-term responses when harassment occurs

    Often PGRs do not wish to make a formal, named report about their experiences. Wherever possible, choice and control as to next steps should be left with the person who has been targeted. As well as supporting the person/people targeted, an HEI should consider informal/precautionary actions and a risk assessment, and/or a proactive investigation instigated by the institution.

    For formal reports, E6 requires HEIs to have an effective reporting mechanism and an investigatory approach that is fair, credible, and in line with natural justice, and to include in their central information hub details on how students, staff and others can report harassment and/or sexual misconduct and how the information received in connection to harassment and/or sexual misconduct will be “handled sensitively and used fairly.”

    This is of course a complex area that we have previously written about for Wonkhe, and in the toolkit we highlight some areas of good practice, for example, completing an investigation even where the responding staff member leaves the institution in the middle of it.

    Longer-term response after harassment has occurred

    Finally, while not addressed in the OfS guidance, to minimise the impacts harassment and sexual misconduct have on gender and other inequalities, longer-term responses are required.

    These could include remedies at the end of a reporting process, addressing wider cultural issues that may have been revealed by reports or investigations, or taking steps to enhance transparency and openness in institutional responses to harassment and sexual misconduct.

    For example, UCL’s relevant policy states that the reporting party will be informed if someone is dismissed or expelled from the institution as a result of their complaint. This might seem like a very minor step, but many HEIs do not even share this much information with complainants, even though the Equality and Human Rights Commission guidance clearly states that it is possible to do so.

    HEIs should also consider how PGRs with relevant lived experience (whether they disclose this or not) can be consulted on policy and practice in accessible, trauma-informed and non-exploitative ways.

    Working across the sector

    Addressing harassment and sexual misconduct require a cross-sector approach and cannot be addressed solely on the level of individual institutions. This is especially applicable to PGRs, who on top of their doctoral studies may also be employed in (often precarious) roles within other institutions or may have supervision arrangements or affiliations outside their primary institution.

    The risk of harassment from third parties outside the institution extends to conferences, online, on field trips, or in relationships with external mentors. These issues draw our attention to the importance of sector-wide work in this area – for example through initiatives such as the Misconduct Disclosure Scheme, which supports safer staff recruitment practices – as well as the role of disciplinary communities in addressing harassment and sexual misconduct.

    PGRs may be equally or more aligned to their disciplinary community than their institution, and as such, HEIs need to work in partnership with professional societies on addressing harassment and sexual misconduct. Another example of cross-institutional work comes from research funding organisations (RFOs).

    In recognition of their role in setting out and upholding expectations in relation to unacceptable behaviours in research, many RFOs require notification of upheld findings (and sometimes open investigations) relating to any personnel working on research they have funded. RFOs often require funded organisations to have relevant policies and reporting mechanisms.

    Moving forward

    Throughout the toolkit we have featured PGRs’ own voices about their experiences of harassment and sexual misconduct in higher education. One PGR, Polly, described how:

    “The harassment I received is one of the reasons why I don’t want to go into academia. And I did. I passionately did. And I was a good student. I had an exemplary record, I still have an exemplary academic record. And I just thought, I can’t bear the secrecy and the hypocrisy.

    Polly’s words remind us what is at stake if this work is not done, and why we continue to press for change. The amount of work that is required may seem daunting, but the toolkit offers an opportunity for institutional leaders to co-create with colleagues and PGRs a bespoke package of work which addresses the local context. As the examples highlighted in the toolkit demonstrate, some HEIs are already making good progress, and continue to review and develop their prevention efforts.

    Overall, our hope is that in five years’ time this toolkit will be outdated as good practice will have moved on significantly. As such, work in this area can be seen as part of an ongoing – and, we hope, rapidly changing – movement for preventing and responding to harassment and sexual misconduct in higher education.

    Download the toolkit

    We would like to thank the Enhancing Research Culture fund from Research England via the University of York for supporting the development of this toolkit and the UK Council for Graduate Education (UKCGE) for partnering with us to consult on the development of the toolkit and to disseminate it.

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  • Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Just 44 days before duties on it go live, but some 389 days since it closed a consultation on it, the Office for Students (OfS) has finally published Regulatory advice 24 – its guidance to universities and colleges in England on freedom of speech that flows from the Higher Education (Freedom of Speech) Act (HEFoSA).

    The timings matter partly because it’s mid-June, there won’t be many (if any) big committee meetings left (let alone processes designed to engage with people on policy development ahead of approval), and it was OfS itself that fined the University of Sussex partly over the proper approval of some of its policies.

    And it’s not as if there are only minor drafting changes. An 11,773 word draft has become a 23,526 word final, and the list of 30 illustrative examples has grown to 52 – despite the fact that this new version omits all the duties on students unions (which the government announced last year it intends to repeal), and is now also silent on the free speech complaints scheme.

    All the detailed and prescriptive expectations in the original draft over how that should be promoted have gone – largely because we’re all waiting for Parliament to debate (sensible) changes that will cause students to have to use the Office of the Independent Adjudicator (OIA), rather than OfS, to resolve any complaints in this area.

    Alongside, there’s surely a record-breaking 788 paragraph analysis of responses and decisions off the back of the eleven question consultation, some alarming-sounding polling that will likely be making the news, and some short guides for students and staff.

    A lot of the new version of the guidance adds more detail into the examples – many are now more realistic, plenty are better at signalling the differences between “good ideas” and minimum expectations, and a whole host of them are now more accurately qualified with reference to key legal principles or tests, many of which have been emerging in case law since OfS started its consultation.

    That said, some are still so preposterous as to be useless. If there really is a college somewhere that requires students to seek written permission a month in advance to hand out leaflets or post flyers, where those flyers must be posted on a single designated noticeboard which is both small and on a campus where flyers may not be posted anywhere else, I’ll eat my hat – or maybe my pudding at the formal dinner at whichever Oxbridge college authors were reminiscing about when Example 38 was drafted.

    As there are 52 of them, this initial article doesn’t dive into all of the vignettes comprehensively – although doubtless a number of them (not least because of the judicious use of qualifiers like “depending on the facts of the case”) will continue to cause readers to cry “yeah but what about…” – which is presumably why OfS initially attempted to let lessons unfurl from the casework rather than publish guidance. And we may well end up looking at some of them in more detail in the coming days and weeks.

    What I have tried to do here is look at the major ways in which the guidance has developed, how it’s handling some of the bigger questions that both universities and their SUs were raising in responses during the process, and what this all tells us about OfS’ intended approach to regulation in this area as of August.

    As a reminder, we’re talking here about the duty to “secure” freedom of speech on campus (A1 in HEFoSA), and the expectations that OfS has around the requirements for a souped up Code of Practice (A2) for each provider. There’s no guidance (yet) over the “promote” duty (A3), and to the extent to which the previous version strayed into those areas, they’ve largely been removed.

    The sandbags are coming

    If we were to identify one theme that has dominated discussion and debate over the Free Speech Bill ever since then universities minister Michelle Donelan stumbled, live on Radio 4, into an apparent contradiction, it would be where free speech (to be protected and promoted) crosses the line into harassment – which of course, under a separate heavy new duty as of August 1st, is something to be actively prevented and prosecuted by universities. Middle grounds are no longer available.

    The good news is that the section on reconciling free speech duties with equality law, anti-harassment provisions, and other legal requirements is better than anything else OfS has published to date on the interactions and fine lines. So detailed, for example, are many of the sections that deal with harassment on campus that at times, it’s a lot more helpful than the material in the actual guidance on registration condition E5 (Harassment and Sexual Misconduct).

    People often, for example, find others’ conduct to be unpleasant or disagreeable – Para 47 reminds us that the concept of harassment in the Protection from Harassment Act 1997 is linked to a course of conduct which amounts to it, that a course of conduct has comprise two or more occasions, that the conduct must be “oppressive and unacceptable” rather than just “unattractive or unreasonable”, and must be of sufficient seriousness to also amount to a criminal offence.

    Similarly, the judgement of harassment isn’t purely subjective – it applies an objective test based on what a reasonable person would think, which helps provide a consistent standard rather than relying solely on individual perceptions.

    Hence in Example 1, a student publishes repeated comments on social media attacking another student based on lawful views, including “tagging” them in posts and encouraging others to “pile on”. The student’s speech is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment – and so carrying out an investigation into the student based on a policy that bans harassment would not breach the “secure” duty.

    Much of that flows from a newly reworked version of what counts as free speech within the law that translates some of the case law and principles set by the ECHR and the UK High Court in cases like Higgs v Farmor’s School. As such, while there’s still lines in there like “The Act protects free speech within the law – it does not protect unlawful speech”, there’s now much more helpful material on the different ways in which free speech might be curtailed or interfered with given other duties.

    To get there it outlines a three step test (with some wild flowchart graphics):

    • Step 1: Is the speech “within the law”? If yes, go to step 2. If no, the duty to “secure” speech does not apply.
    • Step 2: Are there any “reasonably practicable steps” to secure the speech? If yes, take those steps. Do not restrict the speech. If no, go to step 3.
    • Step 3: Are any restrictions “prescribed by law” and proportionate under the European Convention on Human Rights?

    There’s no doubt that it’s a more nuanced and balanced reflection of the legal position than we saw in the draft – albeit that it switches between “what to do in practice” and “what to say to students and staff in theory” in ways that are sometimes unhelpful.

    The problem is that the closer it gets to necessary complexity, the further away it gets from something that’s easy to understand by the very staff and students whose day to day conduct and confidence (what we might call the “culture” on campus) is supposed to be being influenced by the new duties.

    More importantly, as the examples unfurl, it’s both possible to spot numerous ways in which “it’s a balance” turns into Kafka’s cake and eat it, and to see how the “reasonably practicable steps” duty turns into something genuinely hard to understand in practice.

    Someone should do something

    One thing that’s not gone is a tendency in the examples to signal to the outside world that the new rules will tackle the things they’ve read about in the Times and the Telegraph – until you realise that they won’t.

    That Example 1 discussed above (highlighted in the accompanying press release) is a classic of the genre. On the surface it looks like OfS is tackling “mobbing”. But in reality, the whole point about pile-ons is that they’re almost never about one big evil ringleader engaging in conduct that is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment.

    It’s more often than not a hundred micro-oppressions having the cumulative effect of making the target feel terrible. Even if you argue that aspects of social media culture are within the influence (if not control) of a provider, in other parts of the guidance OfS seems to be saying that because each micro-act isn’t harassment, you shouldn’t be trying to meddle in the culture of the campus.

    That problem becomes amplified in the section on microaggressions. In 2019, the Equality and Human Rights Commission (EHRC) found microaggressive acts to be a key component of a culture of racism on campus – and both argued that they could have an impact on equality of opportunity and good relations between different groups, and that universities must not ignore microaggressions that do not meet the definition of harassment in the Equality Act 2010 because of the cumulative impacts of repetition.

    But as soon as universities started to tackle microaggressions by, for example, encouraging their reporting, various anti-EDI culture warriors started to raise concerns. Discussing a scheme launched by Sheffield SU to have their halls reps understand the concept, Spiked’s Joanna Williams argued:

    They will need an odd combination of extreme sensitivity to offence – alongside a high degree of insensitivity to interrupting conversations – to point out exactly where the speakers went wrong. Presumably, candidates will also have to sit some kind of test to prove their own thought purity on all matters concerned with race and ethnicity.

    The Command Paper that led to HEFoSA was also worried:

    Schemes have been established in which students are paid to report others for perceived offences.

    And as Report+Support tools started to open up avenues for students to raise issues such that universities could spot patterns, academics – among them a fairly obscure Cambridge philosopher called Arif Ahmed – started to complain:

    The encouragement to report ‘inappropriate’ or ‘offensive’ behaviour amounts to a snitches’s charter. Any risk-averse white person will simply not engage with anyone from an ethnic minority, in case an innocent or well-meaning remark is overheard, misunderstood and reported. Whatever Downing College may think, being offensive is not an offence.

    Several years on, Arif Ahmed is OfS’ Director for Freedom of Speech and Academic Freedom, asserting that his appointment and approach isn’t “political”, and launching actual regulation (Example 39) that says this:

    University A promotes an anonymous reporting process. Students are encouraged to use a portal to submit anonymous reports to senior staff of “microaggressions”, which is not further defined. The portal includes free text boxes in which reporters may name or otherwise identify the individuals being accused. University A says that it may take action against named (or identifiable) individuals on the basis of any anonymous report that it receives.

    …Depending on the circumstances, the existence of the reporting mechanism and portal may discourage open and lawful discussion of controversial topics, including political topics and matters of public interest.

    …Reasonably practicable steps that A could now take may include remove the free text boxes from the anonymous reporting portal to be replaced with radio buttons that do not permit submission of any identifying data.

    There is a legitimate, if contested, political view that structural racism is fictional, harmful or both – and that what flows from it is division via concepts like microaggressions. There’s another view that to tackle racism you need to interrogate and tackle not just skinheads hurling abuse and painting graffiti, but the insidious yet often unintended impact of stuff like this (EHRC again):

    A recurring theme in our evidence was students and staff being dismissed as “oversensitive” and their experiences of microaggressions viewed as isolated incidents rather than a cumulative and alienating pattern of repeated slights and insults.

    Many staff and students reported that racial harassment doesn’t only happen overtly. All too often, offensive comments were justified by perpetrators as “jokes” or “banter”. The damaging effect of repeated microaggressions is often made worse by a lack of empathy and understanding when individuals decide to speak up about their treatment.

    In that “debate”, OfS has picked the side that we might have expected Arif Ahmed to pick. Whether he’s legally justified in doing so is one question – but let’s not pretend that the agenda is somehow apolitical.

    And for my next trick

    All of this is possible because of a central conceit in the guidance that relates back to a long-running theme in the rhetoric surrounding culture on campus – what we might call a “maximalist” approach to describing free speech, and a “minimalist “ (specific, legal thresholds) approach to harm and harassment.

    Anything goes unless it specifically breaks this specific law, and if you pretend otherwise you might end up “chilling” free speech.

    You might. But while insisting on an objective test to determine whether harassment has happened is a central feature, no such test of objectivity is then applied to whether a chilling effect has occurred – it becomes, in effect, about “potential” and feelings. Hence in its Sussex investigation, OfS said:

    …a chilling effect arose as a result of the Trans and Non-Binary Equality Policy Statement and the resulting breach of condition E1. By “chilling effect”, the OfS means the potential for staff and students to self-censor and not speak about or express certain lawful views. Staff and students may have self-censored as a result of the policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.

    So having established that “harassment” has to amount to something objectively criminal, while “chilling” is in the eye of the Director, OfS is able to get away with railing against another newspaper favourite – by all but outlawing requiring academic staff to issue trigger warnings. Example 50:

    Depending on the facts, issuing a “content note” (informing attendees about sensitive material) in advance of this event may not be a reasonably practicable step for A to take. A standing requirement to use content notes may encourage more intrusive investigation of the content of seminars, readings or speaker events. An expectation of content notes may also discourage academics from exposing students to new controversial material (so as not to risk wrongly including no, or the wrong type of, content note).

    You could of course just as easily argue that failing to issue “content notes” could have a chilling effect on some students’ active participation. Alternatively, you could double down and chuck in a minimalist little qualifier for cover:

    However, there may be occasions when the use of specific content notes may be helpful to enable students to access material, if there is evidence that they are in fact helpful.

    The point isn’t to debate whether they work or not – the point is that OfS suddenly gets to pick and choose what it thinks could chill, while demanding that rules reflect specificity and extremity over individual conduct for harassment. It’s culture war politics shoehorned into regulation, with the law lingering around in the background.

    Is the process the punishment?

    You might remember a major news story in 2021 when a student at Abertay was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

    Following an investigation, it was determined that Lisa Keogh had a case to answer in relation to “making inappropriate comments” which “could be construed as discriminatory” – but after a panel reviewed recordings made available from the seminar, it found no evidence of discrimination:

    As a result, the board found there was insufficient evidence to support the allegations made against you on your behaviour in class and, therefore, decided to not uphold the charge of misconduct.

    Keogh’s argument was that she should never have been subject to formal processes in the first place – and so sued.

    Her case was basically that the university acted in breach of the Equality Act 2010 by pursuing her for “expressing her gender critical beliefs” and caused “stress at the most crucial part of my university career” – but Dundee Sheriff Court dismissed her case, with Sheriff Gregor Murray saying that university was entitled to take steps to investigate complaints:

    The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the university in exactly the type of “tricky territory” that entitled it to investigate immediately.

    The defender was entitled to take steps to investigate complaints. It could not be guilty of discrimination simply because it did so. Following investigation in this case, the complaint against the pursuer was not upheld.

    Cases like that then get mangled into examples like Example 40 in the guidance. In the vignette, a professor expresses views that upset some students – they bring a complaint, there is a lengthy investigation process, and at the end of the process the university finds that there is no case to answer.

    This should have been clear to investigators at the outset, but the university was concerned that closing the investigation quickly would further offend the students who complained. The prospect of a lengthy investigation with an uncertain outcome may deter students and staff from putting forward unpopular views on controversial topics.

    Again, you can just as easily argue that rapidly dismissing students’ genuinely held concerns would have a chilling effect on their confidence to complain, and that students making formal complaints of this sort is so rare that a university would be wise to carefully investigate whether there’s an underlying fire accompanying the smoke.

    But as above, OfS seems to be saying “if students weren’t describing specific behaviours that would meet the harassment test, don’t even investigate” – applying a specific and objective test to harassment while being speculative and partial over its chilling test.

    A useful tool, but not that useful

    The original draft was fairly silent on antisemitism – an obvious issue given the high-profile nature of the coverage and political commentary on it, not least in the context of protests surrounding the war in Gaza.

    Notwithstanding the specific stuff on “time, place and manner” (see below and here) and what OfS might be counting as an “essential function” of a university (again, see below), what I would say is that if there’s a debate about whether action A, protest B or leaflet C amounts to antisemitism, it’s pretty obvious that those advocating the adoption of the IHRA definition are seeking to have it used when making a judgement.

    Some will argue (like Arif Ahmed once did) that universities should not adopt the definition:

    This “definition” is nothing of the kind; adopting it obstructs perfectly legitimate defence of Palestinian rights. As such it chills free speech on a matter of the first importance. I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’ve covered his mysterious conversion before – and wondered how that might manifest in any final guidance. It doesn’t, at all – but what we do get in the consultation commentary is this astonishing paragraph:

    We do not comment in this guidance on the IHRA definition of antisemitism or on any other proposed non-legally binding definition that a provider or constituent institution may wish to adopt. Nonetheless, we have adopted the IHRA definition because we believe that it is a useful tool for understanding how antisemitism manifests itself in the 21st century. The IHRA definition does not affect the legal definition of racial discrimination, so does not change our approach to implementing our regulatory duties, including our regulatory expectations of registered providers. A provider that adopts any definition (of anything) must do so in a way that has particular regard to, and places significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment.

    Some will argue that adoption – either by OfS or providers – has precisely the kind of chilling effects that are railed against at length throughout the guidance. Others will argue that adoption as a kind of interesting window dressing without using it to make judgements about things is pointless, raises expectations that can’t later be met, and allows antisemitism to go unchecked.

    I’d argue that this is another classic case of Kafka’s cake and eat it – which dumps a deep set of contradictions on universities and requires attention and leadership from regulators and politicians. We are still not there.

    Practicably reasonable

    As well as that central thread, there are various other issues in the guidance worthy of initial note.

    A major concern from mission groups was the way in which the new duty might play out over transnational branch campuses – especially those with rather more oppressive legal regimes over expression than here.

    We might have expected OfS to use some sort of “what’s practicable relates to the law in the country you’re delivering in” qualifier, but it has somehow managed to square the circle by simply stating, with no further qualification (P13) that:

    HERA does not require providers or constituent institutions to take steps to secure freedom of speech in respect of their activities outside England.

    It’s an… interesting reading, which is maybe related to the usual territorial extent qualifiers in legislation – the consultation commentary is similarly (and uncharacteristically) silent – but what it does appear to do is contradict the usual prescription that it’s about where the main base of the provider is, not where it’s provision is, that sets the duties.

    Even if some legal workaround has been found, it does start to call into question how or why OfS can regulate the quality of your provision in Dubai while not worrying about freedom of speech.

    Another section with a mysteriously short sentence is one on the original Donelan conundrum:

    The OfS will not protect Holocaust denial (by visiting speakers or anyone else).

    That’s a carefully worded sentence which seems to be more about OfS making choices about its time than an explanatory legal position. Unlike in many other countries, holocaust denial is not in and of itself illegal in the UK – although in the weigh up, Article 17 of the ECHR removes protection from speech that is contrary to fundamental convention values, and cases in the UK have tended to be prosecuted under other legislation such as section 127 of the Communications Act 2003 when the content is deemed “grossly offensive”.

    Quite why OfS has not chosen to explain that is unclear – unless it’s worried about revealing that all sorts of other types of grossly offensive stuff might fall under the balancing provision. And more to the point, as I’ve often said on the site, most holocaust deniers don’t announce that the title of their talk in Room 4b On Tuesday evening will be “the holocaust is a fiction” – which opens up the question of whether or not it’s OK to outlaw holocaust deniers who may or may not engage in actual holocaust denial when they turn up.

    The sole example in the guidance on the weigh-ups over external speakers and extremism is one where the proposed speaker is a self-professed member of a proscribed group. It’s easy to say “well it’s fine to ban them” – what we don’t have here is anything meaningfully helpful on the real cases being handled every year.

    And some of the media’s hardy perennials – universities doing things like signing up to charters with contested “values” or engaging in contested work like decolonisation – are also either carefully contorted or preposterous.

    Hence Example 51 describes a university that [overtly] requires that all teaching materials on British history will represent Britain in a positive light – one of the many not as clever as the authors think they are inversions of the allegations often thrown at woke, UK history hating academics.

    Meanwhile Example 52 nudges and winks at the Stonewall Charter by describing a department of a university that applies for accreditation to a charter body with links to the fossil fuel industry, where the accreditation process requires it to sign up to a set of principles that include:

    Fossil fuel exploration is the best way to meet our future energy needs.

    The text underneath is fascinating. Once you’ve got the “depending on the circumstances” qualifier out of the way, we learn that “institutional endorsement of this principle may discourage expression of legally expressible views”. That’s your “chilling” allegation again.

    But rather than warning against signing it, we merely get:

    …not implementing the provisions of any accreditation that risks undermining free speech and academic freedom is likely to be a reasonably practicable step that university B should now take.

    Replace that with the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, and you can see why the fudge above will satisfy no-one.

    I’ve read the para in the guidance several times now, and each time I read it I resolve different things. Either the university can take a position on contested ideas as long as these aren’t imposed on staff, or it can’t because taking the position on contested ideas would chill staff. Flip a coin.

    It’s that sort of thing that makes the otherwise helpful section that clarifies that you can have a code of conduct for staff and students so silly. Codes of conduct are fine as long as any restrictions on speech reference a legal rule or regime which authorises the interference, that the student, member, member of staff or visiting speaker who is affected by the interference has adequate access to the rule, and if the rule is:

    …formulated with sufficient precision to enable the student, member of staff or

    visiting speaker to foresee the circumstances in which the law would or might be applied, and the likely consequences that might follow.

    I’d tentatively suggest that while that makes sense, OfS’ own guidance represents a set of rules where forseeing how it might respond to a scenario, and the likely consequences that might follow, are clear as mud.

    To clear up protest and disruption rights, OfS stresses viewpoint neutrality, uses its “time, place and manner” confection we first saw last year, and also has a new oft-repeated “essential functions” of higher education qualifier of:

    …learning, teaching, research and the administrative functions and the provider’s or constituent institution’s resources necessary for the above.

    I can’t really call whether OfS thinks the sports hall counts, or whether it thinks the encampment is OK there, but not in a seminar room. Either way, it’s another of those vague definitions that feels open to abuse and interpretation by all sides of a dispute and by OfS itself.

    Another allegation thrown at universities is often about EDI training – Example 53 sets up the idea that an online EDI induction asks if white people are complicit in the structural racism pervading British society, where the only answer marked correct is “True” – a candidate who ticks “False” is required to re-take the test until they have explicitly assented to “True”.

    Maybe I’m being naive, but if that’s grounded in a real example I’d be more worried about that provider’s wider approaches to teaching and assessment than its approach to free speech.

    This university is a vile hell-hole

    A few other fun bits. Fans of reputation management will be disappointed to learn at Example 22 that a social media policy requiring staff to not to post material that is “unnecessarily critical”, coupled with a strong but lawful pop at the provider’s employment practices in a public post on social media, would represent a “protect” policy breach and a “protect” practice breach if the staff member ends up with a warning.

    Meanwhile, notwithstanding the silence over whether full-time SU officers are members or students of a provider, Example 23 has a student representative posting unfavourable commentary on university management on the SU’s website, along with some student testimonials describing students’ experiences of accommodation:

    University Z requires the student to remove this post on the grounds that if the post is reported more widely in the media, this would threaten University Z’s recruitment plans.

    That that would be a breach may feel like a problem for the small number of universities whose senior managers directly threatened SU officers over TEF student submission drafts.

    But more broadly, like so many other examples in the guidance, neither the staff nor the student example get at broader culture issues.

    You might argue that “reasonably practicable steps” in both cases might involve specific commitments to enable dissent, or more explicit encouragement of public discussion over controversial issues.

    You could certainly argue that much of the committee discussion marked “confidential” should be nothing of the sort, and that non-disclosure agreements imposed on settled-with complainants outside of the specific ban on those in sexual misconduct cases should be outlawed.

    You could also argue that in both cases, fears over future funding – your salary for the staff member, your block grant for the SU officer – are classic chillers that need specific steps to be taken. Alas, none of that sort of “why” stuff appears.

    There’s also still a whole bunch of headscratchers. What happens when three different providers have three different sets of policies and codes and all franchise their provision to a fourth provider? Should providers be inspecting the reputation rules in the employment contracts of their degree apprentices or other credit-based work based learning? Now the requirement to tell all new students about all this has been softened, isn’t there still a need to include a lot of FoS material in the still compulsory training to be offered as per E5? And so on.

    In the complaints scheme consultation, there was some controversy over the definition of visiting speakers – including when an invitation manifested as an actual invitation and who was capable of extending one. On this, OfS has actually decided to expand its definition – but neatly sidesteps the Amber Rudd dilemma, namely that while it’s easy to expect people in power to not cancel things because some object, it’s a lot harder to make a volunteer student society run an event that it changes its mind about, regardless of the reason.

    And when the guidance says that OfS would “generally” expect providers to reject public campaigns to punish a student or member of staff for lawful expression of an idea or viewpoint that does not violate any lawful internal regulations, we are still stuck in a situation where some basic principles of democracy for anyone elected on campus – staff, but more often than not, students – come into direct conflict with that expectation even if they are “organised petitions or open letters, an accumulation of spontaneous or organised social media posts, or long-running, focused media campaigns”.

    Changing the culture

    There may well be plenty more to spot in here – legal eagles will certainly be pouring over the document, expectations on all sides may need to be reset, and all in a context of very tight timescales – not least because much of the material implies a need for a much wider review of related policies than just “write a compliant Code”.

    Everyone should also think carefully about the YouGov polling. There are some important caveats to be attached the results and some of the splits based on wording, assumptions and whether it’s even reasonable to expect someone teaching something highly technical to be wading into the sex and gender debate. And whether you’re teaching, researching or otherwise supporting, it must be the case that not all subject areas include as much scope for controversy and “debate” than others.

    But even if you quibble over the N equalling 184, when 24 per cent of those who do not feel free in their teaching cite fear of physical attack, there is a problem that needs urgent interrogation and resolution.

    [Full screen]

    (Thanks as ever to DK for the visualisation of the YouGov polling – sample size 1234 adults and weighted for teaching staff in England, by age, gender, region, and contract type)

    We also still have the debate over the partial repeal of the Act to come too, some additional complexity over complaints to resolve, and as I note above, huge questions like “so can we adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism or not” remain unanswered – as well as a set of inevitable conflicts to come over the practical application of the Supreme Court ruling on the meaning of “woman” in EA2010.

    I should also say that I’ve not had time to properly interrogate the research aspects in the guidance – but we’ll get to that with my colleague James Coe in the coming days.

    What I’m mainly struck by – other than the ways in which a particular set of (contested) views on campus culture have been represented as apolitical – is the way in which, ultimately, much of the material comes down to the regulatory realities of expecting authority to behave.

    In some senses, that’s not unreasonable – governors and leaders hold considerable influence and power over students and staff, and what they ban, or punish, or encourage or celebrate can have important impacts that can be positive for some, and negative for others.

    But to the extent to which there really is a problem with free speech (and academic freedom) on campus, much of it feels much wider and organic than the hermetically sealed campus community assumptions at play in documents of this sort.

    I won’t repeat so many of the things I’ve said on the site over the past few years about confidence being key to a lot of this – suffice to say that the freedom ideal at play in here feels like something that is easier to experience when steps have been taken to improve people’s security, given them time and space to interact meaningfully with each other, and act specifically to boost their bravery.

    Not only should some of the solutions be about resolving conflicts and integrating the concerns into a more stable definition of what it is to be a member of staff or a student, of all the agendas in higher education, it strikes me that this area remains one where solutions and sticks and games of blame abound, but causal analysis feels hopelessly weak.

    In the absence of alternative guidance on the “promote” duty, if I was high up in a university, I’d be resolving to interrogate more carefully and listen more closely before I pretended that my shiny new Code of Practice will do anything other than tick the boxes while making matters worse.

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  • Sexual misconduct data is coming – here’s what universities should do to prepare

    Sexual misconduct data is coming – here’s what universities should do to prepare

    In 2024, the Office for Students (OfS) launched a pilot survey asking UK students about sexual misconduct during their time in higher education.

    For the first time, there is now a national attempt to capture data on how widespread such incidents are, and how effectively students are supported when they come forward.

    The release of the survey’s results will be a moment that reflects a growing reckoning within the sector: one in which the old tools and quiet handling of disclosures are no longer fit for purpose, and the need for culture change is undeniable.

    This new initiative – known as the Sexual Misconduct Survey (SMS) – ran as a supplement to the National Student Survey (NSS), which since 2005 has become a familiar, if evolving, feature of the higher education calendar.

    While the NSS focuses on broad measures of the student experience, the SMS attempts to delve into one of its most difficult and often under-reported aspects – sexual harassment, violence, and misconduct.

    Its arrival comes against the backdrop of high-profile criticisms of university handling of disclosures, including the misuse of non-disclosure agreements (NDAs), and a new OfS regulatory condition (E6) requiring institutions to take meaningful steps to tackle harassment.

    Understanding the SMS

    The Sexual Misconduct Survey collects both qualitative and quantitative data on students’ experiences. It examines the prevalence of misconduct, the extent to which students are aware of reporting mechanisms, and whether they feel able to use them. Its core aim is clear – to ensure students’ experiences are not just heard, but systematically understood.

    Previous, disparate studies — many led by the National Union of Students and grassroots campaigners — have long indicated that sexual misconduct in higher education is significantly under-reported. This is especially true for marginalised groups, including LGBTQ+ students, Black and disabled students, and students engaged in sex work. The SMS marks an attempt to reach further, with standardised questions asked at scale, across providers.

    Despite its intention, the SMS is not without issues. A key concern raised by student support professionals is the opt-out design. Students were automatically enrolled in the survey unless they actively declined – a move which risks retraumatising victim-survivors who may not have realised the nature of the questions until too late.

    Timing has also drawn criticism. Coming immediately after the exhaustive NSS — with its 26 questions and optional free-text fields — the SMS may suffer from survey fatigue, especially during an already intense period in the academic calendar. Low response rates could undermine the richness or representativeness of the data gathered.

    There are also complex ethical questions about the language used in the survey. In striving for clarity and precision, the SMS employs explicitly descriptive terminology. This can potentially open up difficult experiences unrelated to higher education itself, including childhood abuse or incidents beyond university campuses. Anonymous surveys, by nature, can surface trauma but cannot respond to it — and without parallel safeguarding or signposting mechanisms, the risk of harm increases.

    Lastly, the handling of disclosures matters. While survey responses are anonymous, students need to trust that institutions — and regulators — will treat the findings with sensitivity and respect. Transparency about how data will be used, how institutions will be supported to act on it, and how students will see change as a result is essential to building that trust.

    What to do next?

    The data from the pilot survey will be shared with institutions where response rates and anonymity thresholds allow. But even before the results arrive, universities have an opportunity — and arguably a duty — to prepare.

    Universities should start by preparing leadership and staff to anticipate that the results may reveal patterns or prevalence of sexual misconduct that are difficult to read or acknowledge. Institutional leaders must ensure they are ready to respond with compassion and commitment, not defensiveness or denial.

    Universities should be prepared to review support systems and communication now. Are reporting tools easy to find, accessible, and trauma-informed? Is the student community confident that disclosures will be taken seriously? These questions are important and there is potential for the survey to act as a prompt to review what is already in place as well as what might need urgent attention.

    Universities should also engage students meaningfully. Institutions must commit to involving students — especially survivor advocates and representative bodies — in analysing findings and shaping the response. The worst outcome would be seeing the SMS as a tick-box exercise. The best would be for it to spark co-produced action plans.

    When data is released, institutions avoid the urge to benchmark or downplay. Instead, they should be ready to own the story the data tells and act on the issues it raises. A lower prevalence rate does not necessarily mean a safer campus; it may reflect barriers to disclosure or fear of speaking out. Each result will be different, and a patchwork of responses is no bad thing.

    Finally, it is important to look beyond the numbers and see the person. Qualitative insights from the SMS will be just as important as the statistics. Stories of why students did not report, or how they were treated when they did, offer vital direction for reform and should be something which university leaders and policy makers take time to think about.

    This is only the first year of the SMS, and it is not yet clear whether it will become a permanent feature alongside the NSS. That said, whether the pilot continues or evolves into something new, the challenge it presents is real and overdue.

    The sector cannot afford to wait passively for data. If the SMS is to be more than a compliance exercise, it must be the beginning of a broader culture shift – one that faces up to what students have long known, listens without defensiveness, and builds environments where safety, dignity, and justice are non-negotiable.

    Lasting change will not come from surveys alone. Asking the right questions — and acting with purpose on the answers — is a critical start.

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