Category: Higher Education (Freedom of Speech) Bill 2021

  • 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.

    Source link

  • 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.

    Source link

  • 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.

    Source link

  • 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.

    Source link

  • 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.

    Source link

  • 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.

    Source link