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.
