Tag: Wrong

Trump’s border czar is wrong about AOC

One of the most Orwellian stories in American history — where telling people about their rights and urging them to speak out became a thoughtcrime — was that of the socialist Eugene Debs.

Debs was sentenced to 10 years in prison for criticizing U.S. involvement in World War I and for telling Americans about their constitutional right to protest the draft. The Supreme Court infamously ruled his speech posed a “clear and present danger.” Today, that ruling is widely regarded as a grave violation of free speech and a stain on the history of American justice.

Last week, Congresswoman Alexandria Ocasio-Cortez wrote a letter asking Attorney General Pam Bondi if she is now under investigation for telling people their constitutional rights when interacting with Immigration and Customs Enforcement (ICE) officers.

She asked because President Trump’s border czar Tom Homan said he recently asked the Department of Justice whether Ocasio-Cortez is “impeding our law enforcement efforts” by putting out a webinar and a flyer in which she reminded anyone interacting with ICE that they need not open the door, speak, or sign anything, among other basic rights.

Informing people about their constitutional rights is plainly lawful and any effort to punish Ocasio-Cortez for doing so would unquestionably violate the First Amendment.

This isn’t a hard case or a close call. As my colleague Aaron Terr has pointed out, “This intimidation tactic is likely to discourage others from simply educating people about their fundamental rights.”

But what is the line between protected speech and obstruction? The answer is that the Constitution protects a significant amount of expression, including abstract advocacy of unlawful acts, providing information about the presence of law enforcement officers, and promoting civil disobedience.

Free speech protects discussing illegal behavior

The Supreme Court has repeatedly explained that “the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” It has long distinguished between “the mere abstract teaching … of the moral propriety or even moral necessity” of violating the law and the actual incitement of lawless action. Only the latter is unprotected by the First Amendment. This is a high bar that requires speech to be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

This is true even for speech advocating unquestionably unlawful behavior. For instance, in United States v. Williams, the Court held that “abstract advocacy” related to child pornography, such as the phrase “I encourage you to obtain child pornography,” was protected speech. And in Hess v. Indiana, the Court found that an anti-war protester urging his comrades to “take the fucking street again” was not sufficiently imminent to fall into the incitement exception.

But the most directly relevant example is the 2023 case United States v. Hansen, when the Court decided a law that criminalized encouraging illegal immigration was not unconstitutionally overbroad. FIRE and the Rutherford Institute wrote an amicus brief warning that the law, if interpreted broadly, could penalize speech urging civil disobedience.

In upholding the law, the Court interpreted its scope extremely narrowly to apply only to “the intentional solicitation or facilitation of … unlawful acts” — not to “abstract advocacy or general encouragement” — and it left the door open for further First Amendment challenges if the law was applied to constitutionally protected advocacy.

In other words, the Supreme Court recognized that advocacy like Ocasio-Cortez’s is clearly protected. Indeed, even more pointed advice on how to avoid arrest by ICE would also be protected. Only speech that intentionally directs an individual to engage in a specific illegal act crosses the line.

Warning people about the presence of law enforcement is also protected

The First Amendment also generally protects telling people that ICE is in a certain area, even if that allows people to evade ICE or other law enforcement. For example, in Friend v. Gasparino, the U.S. Court of Appeals for the Second Circuit held that the First Amendment protected a man standing on a sidewalk with a “Cops Ahead” sign. As the Supreme Court has said, someone “might constitutionally be punished under a tailored statute that prohibited individuals from physically obstructing an officer’s investigation,” but “he or she may not be punished under a broad statute aimed at speech.”

This isn’t to say speech can never constitute obstruction of law enforcement. In limited circumstances, such as when speech is integral to the underlying crime like a robber demanding “your money or your life,” or someone in a criminal conspiracy warning his co-conspirators how to evade arrest, speech can lose First Amendment protection. Also, if someone is physically obstructing officers or refuses to leave when lawfully instructed to do so, that person’s actions won’t become protected even if those actions include otherwise protected speech.

But in general, warning people about law enforcement is constitutionally protected.

Advocating civil disobedience is a historically important form of free speech

Homan’s remarks and actions are particularly disturbing because they could chill speech encouraging civil disobedience, which has played a vital and noble role in American history — from the Boston Tea Party and the abolition of slavery to women’s suffrage and the civil rights movement and beyond.

It could even be said that there is nothing so quintessentially American as advocating for civil disobedience — and nothing more un-American than efforts to censor it.

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March 7, 2025
Why the NIH cuts are so wrong (opinion)
Indirect cost recovery (ICR) seems like a boring, technical budget subject. In reality, it is a major source of the long-running budget crises at public research universities. Misinformation about ICR has also confused everyone about the university’s public benefits.

These paired problems—concealed budget shortfalls and misinformation—didn’t cause the ICR cuts being implemented by the NIH acting director, one Matthew J. Memoli, M.D. But they are the basis of Memoli’s rationale.

Trump’s people will sustain these cuts unless academics can create an honest counternarrative that inspires wider opposition. I’ll sketch a counternarrative below.

The sudden policy change is that the NIH is to cap indirect cost recovery at 15 percent of the direct costs of a grant, regardless of the existing negotiated rate. Multiple lawsuits have been filed challenging the legality of the change, and courts have temporarily blocked it from going into effect.

Memoli’s notice of the cap, issued Friday, has a narrative that is wrong but internally coherent and plausible.

It starts with three claims about the $9 billion of the overall $35 billion research funding budget that goes to indirect costs:
- Indirect cost allocations are in zero-sum competition with direct costs, therefore reducing the total amount of research.
- Indirect costs are “difficult for NIH to oversee” because they aren’t entirely entailed by a specific grant.
- “Private foundations” cap overhead charges at 10 to 15 percent of direct costs and all but a handful of universities accept those grants.
Memoli offers a solution: Define a “market rate” for indirect costs as that allowed by private foundations (Gates, Chan Zuckerberg, some others). The implication is the foundations’ rate captures real indirect costs rather than inflated or wishful costs that universities skim to pad out bloated administrations. On this analytical basis, currently wasted indirect costs will be reallocated to useful direct costs, thus increasing rather than decreasing scientific research.

There’s a false logic here that needs to be confronted.

The strategy so far to resist these cuts seems to focus on outcomes rather than on the actual claims or the underlying budgetary reality of STEM research in the United States. Scientific groups have called the ICR rate cap an attack on U.S. scientific leadership and on public benefits to U.S. taxpayers (childhood cancer treatments that will save lives, etc.). This is all important to talk about. And yet these claims don’t refute the NIH logic. Nor do they get at the hidden budget reality of academic science.

On the logic: Indirect costs aren’t in competition with direct costs because direct and indirect costs pay for different categories of research ingredients.

Direct costs apply to the individual grant: costs for chemicals, graduate student labor, equipment, etc., that are only consumed by that particular grant.

Indirect costs, also called facilities and administrative (F&A) costs, support infrastructure used by everybody in a department, discipline, division, school or university. Infrastructure is the library that spends tens of thousands of dollars a year to subscribe to just one important journal that is consulted by hundreds or thousands of members of that campus community annually. Infrastructure is the accounting staff that writes budgets for dozens and dozens of grant applications across departments or schools. Infrastructure is the building, new or old, that houses multiple laboratories: If it’s new, the campus is still paying it off; if it’s old, the campus is spending lots of money keeping it running. These things are the tip of the iceberg of the indirect costs of contemporary STEM research.

In response to the NIH’s social media announcement of its indirect costs rate cut, Bertha Madras had a good starter list of what indirects involve.

Screenshot via Christopher Newfield

And there are also people who track all these materials, reorder them, run the daily accounting, etc.—honestly, people who aren’t directly involved in STEM research have a very hard time grasping its size and complexity, and therefore its cost.

As part of refuting the claim that NIH can just not pay for all this and therefore pay for more research, the black box of research needs to be opened up, Bertha Madras–style, and properly narrated as a collaborative (and exciting) activity.

This matter of human activity gets us to the second NIH-Memoli claim, which involves toting up the processes, structures, systems and people that make up research infrastructure and adding up their costs. The alleged problem is that it is “difficult to oversee.”

Very true, but difficult things can and often must be done, and that is what happens with indirect costs. Every university compiles indirect costs as a condition of receiving research grants. Specialized staff (more indirect costs!) use a large amount of accounting data to sum up these costs, and they use expensive information technology to do this to the correct standard. University staff then negotiate with federal agencies for a rate that addresses their particular university’s actual indirect costs. These rates are set for a time, then renegotiated at regular intervals to reflect changing costs or infrastructural needs.

The fact that this process is “difficult” doesn’t mean that there’s anything wrong with it. This claim shouldn’t stand—unless and until NIH convincingly identifies specific flaws.

As stated, the NIH-Memoli claim that decreasing funding for overhead cuts will increase science is easily falsifiable. (And we can say this while still advocating for reducing overhead costs, including ever-rising compliance costs imposed by federal research agencies. But we would do this by reducing the mandated costs, not the cap.)

The third statement—that private foundations allow only 10 to 15 percent rates of indirect cost recovery—doesn’t mean anything in itself. Perhaps Gates et al. have the definitive analysis of true indirect costs that they have yet to share with humanity. Perhaps Gates et al. believe that the federal taxpayer should fund the university infrastructure that they are entitled to use at a massive discount. Perhaps Gates et al. use their wealth and prestige to leverage a better deal for themselves at the expense of the university just because they can. Which of these interpretations is correct? NIH-Memoli assume the first but don’t actually show that the private foundation rate is the true rate. (In reality, the second explanation is the best.)

This kind of critique is worth doing, and it can be expanded. The NIH view reflects right-wing public-choice economics that treat teachers, scientists et al. as simple gain maximizers producing private, not public goods. This means that their negotiations with federal agencies will reflect their self-interest, while in contrast the “market rate” is objectively valid. We do need to address these false premises and bad conclusions again and again, whenever they arise.

However, this critique is only half the story. The other half is the budget reality of large losses on sponsored research, all incurred as a public service to knowledge and society.

Take that NIH image above. It makes no logical sense to put the endowments of three very untypical universities next to their ICR rates: They aren’t connected. It makes political narrative sense, however: The narrative is that fat-cat universities are making a profit on research at regular taxpayers’ expense, and getting even fatter.

The only way to deal with this very effective, very entrenched Republican story is to come clean on the losses that universities incur. The reality is that existing rates of indirect cost recovery do not cover actual indirect costs, but require subsidy from the university that performs the research. ICR is not icing on the budget cake that universities can do without. ICR buys only a portion of the indirect costs cake, and the rest is purchased by each university’s own institutional funds.

For example, here are the top 16 university recipients of federal research funds. One of the largest in terms of NIH funding (through the Department of Health and Human Services) is the University of California, San Francisco, winning $795.6 million in grants in fiscal year 2023. (The National Science Foundation’s Higher Education Research and Development (HERD) Survey tables for fiscal year 2023 are here.)

UCSF’s negotiated indirect cost recovery rate is 64 percent. This means that it has shown HHS and other agencies detailed evidence that it has real indirect costs in something like this amount (more on “something like” in a minute). It means that HHS et al. have accepted UCSF’s evidence of their real indirect costs as valid.

If the total of UCSF’s HHS $795.6 million is received with a 64 percent ICR rate, this means that every $1.64 of grant funds has $0.64 in indirect funds and one dollar in direct. The math estimates that UCSF receives about $310 million of its HHS funds in the form of ICR.

Now, the new NIH directive cuts UCSF from 64 percent to 15 percent. That’s a reduction of about 77 percent. Reduce $310 million by that proportion and you have UCSF losing about $238 million in one fell swoop. There’s no mechanism in the directive for shifting that into the direct costs of UCSF grants, so let’s assume a full loss of $238 million.

In Memoli’s narrative, this $238 million is the Reaganite’s “waste, fraud and abuse.” The remaining approximately $71 million is legitimate overhead as measured (wrongly) by what Gates et al. have managed to force universities to accept in exchange for the funding of their researchers’ direct costs.

But the actual situation is even worse than this. It’s not that UCSF now will lose $238 million on their NIH research. In reality, even at (allegedly fat-cat) 64 percent ICR rates, they were already losing tons of money. Here’s another table from the HERD survey.

There’s UCSF in the No. 2 national position, a major research powerhouse. It spends more than $2 billion a year on research. However, moving across the columns from left to right, you see federal government, state and local government, and then this category, “Institution Funds.” As with most of these big research universities, this is a huge number. UCSF reports to the NSF that it spends more than $500 million a year of its own internal funds on research.

The reason? Extramurally sponsored research, almost all in science and engineering, loses massive amounts of money even at current recovery rates, day after day, year in, year out. This is not because anyone is doing anything wrong. It is because the infrastructure of contemporary science is very expensive.

Here’s where we need to build a full counternarrative to the existing one. The existing one, shared by university administrators and Trumpers alike, posits the fiction that universities break even on research. UCSF states, “The University requires full F&A cost recovery.” This is actually a regulative ideal that has never been achieved.

The reality is this:

UCSF spends half a billion dollars of its own funding to support its $2 billion total in research. That money comes from the state, from tuition, from clinical revenues and some—less than you’d think—from private donors and corporate sponsors. If NIH’s cuts go through, UCSF’s internal losses on research—the money it has to make up—suddenly jump from an already-high $505 million to $743 million in the current year. This is a complete disaster for the UCSF budget. It will massively hit research, students, the campuses’ state employees, everything.

The current strategy of chronicling the damage from cuts is good. But it isn’t enough. I’m pleased to see the Association of American Universities, a group of high-end research universities, stating plainly that “colleges and universities pay for 25 percent of total academic R&D expenditures from their own funds. This university contribution amounted to $27.7 billion in FY23, including $6.8 billion in unreimbursed F&A costs.” All university administrations need to shift to this kind of candor.

Unless the new NIH cuts are put in the context of continuous and severe losses on university research, the public, politicians, journalists, et al. cannot possibly understand the severity of the new crisis. And it will get lost in the blizzard of a thousand Trump-created crises, one of which is affecting pretty much every single person in the country.

Finally, our full counternarrative needs a third element: showing that systemic fiscal losses on research are in fact good, marvelous, a true public service. A loss on a public good is not a bad and embarrassing fact. Research is supposed to lose money: The university loses money on science so that society gets long-term gains from it. Science has a negative return on investment for the university that conducts it so that there is a massively positive ROI for society, of both the monetary and nonmonetary kind. Add up the education, the discoveries, the health, social, political and cultural benefits: The university courts its own endless fiscal precarity so that society benefits.

We should also remind everyone that the only people who make money on science are in business. And even there, ROI can take years or decades. Commercial R&D, with a focus on product development and sales, also runs losses. Think of “AI”: Microsoft alone is spending $80 billion on it in 2025, on top of $50 billion in 2024, with no obviously strong revenues yet in sight. This is a huge amount of risky investment—it compares to $60 billion for federal 2023 R&D expenditures on all topics in all disciplines. I’m an AI skeptic but appreciate Microsoft’s reminder that new knowledge means taking losses and plenty of them.

These up-front losses generate much greater future value of nonmonetary as well as monetary kinds. Look at the University of Pennsylvania, the University of Wisconsin at Madison, Harvard University, et al. in Table 22 above. The sector spent nearly $28 billion of its own money generously subsidizing sponsors’ research, including by subsidizing the federal government itself.

There’s much more to say about the long-term social compact behind this—how the actual “private sector” gets 100 percent ICR or significantly more, how state cuts factor into this, how student tuition now subsidizes more of STEM research than is fair, how research losses have been a denied driver of tuition increases. There’s more to say about the long-term decline of public universities as research centers that, when properly funded, allow knowledge creation to be distributed widely in the society.

But my point here is that opening the books on large everyday research losses, especially biomedical research losses of the kind NIH creates, is the only way that journalists, politicians and the wider public will see through the Trumpian lie about these ICR “efficiencies.” It’s also the only way to move toward the full cost recovery that universities deserve and that research needs.
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February 13, 2025
Have we been looking at free speech all wrong?
This blog was written by Rose Stephenson, Director of Policy and Advocacy at HEPI.

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

Many expected that to be the case and were perhaps surprised to hear that the Government will implement the ‘Free Speech Act’ after all – with only two measures being considered for repeal – the duties placed on Student Unions and the statutory tort (the proposed legal route for individuals who suffer a loss due to a breach of their free speech). Bridget Philipson announced in the House of Commons that she proposes ‘keeping a complaints scheme in place with the OfS’. This scheme will consider complaints from staff, external speakers and university members, but not students (who can seek external review of a complaint with the Office of the Independent Adjudicator for Higher Education – the OIA). There are a couple of nerdy regulatory points to note here:
1. There is still the possibility of the following scenario: A student raises a complaint of harassment from a member of staff. The institution concludes that the staff member did harass the student, and the staff member receives a written warning. The student believes that the outcome of the case was inappropriate and (following an unsuccessful appeal) takes the complaint to the OIA, who upholds the complaint and instructs the institution to compensate the student financially. The staff member feels that their free speech has been impinged by this process and raises a complaint with the OfS, who considers the complaint justified and instructs the institution to compensate the staff member financially. Therefore, we end up with a perverse scenario where two external bodies reach contradictory conclusions about the same event.
- The OfS will not have a duty to assess every complaint it receives; rather, it will have the power to consider complaints. Bridget Philipson’s speech specifically mentioned the OfS not having to assess poorly put-together or nonsensical complaints. However, a robust, published decision-making framework will need to outline which cases the OfS will consider and which it will not, lest it be perceived that this loophole could be influenced by political persuasion.
Policy wonks and those who must implement this legislation in institutions wait with bated breath….

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

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

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

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

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

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

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

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

In the age of disinformation, where critical thinking is increasingly important, how can we expect students to critically analyse information shared by others if they cannot first critically analyse their own thoughts?
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January 24, 2025
Daring students to take risks and be wrong is key to solving the campus culture wars

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

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

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

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

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

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

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

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

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

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

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

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

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

Back to the future

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

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

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

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

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

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

The real crisis on campus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Freedom from fear?

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

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

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

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

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

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

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

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

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

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

As Harvard political scientist David Deming argues here:

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

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

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

Promoting free speech?

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

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

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

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

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

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

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

Lightbulb moments need electricity

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

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

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

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

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

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January 20, 2025
Something is Wrong at UF LAW

The latest Bar exam results show that about 1 of 5 UF law grads fail the bar exam. Maybe that is not so bad but something is amiss.

First, remember that these students are hand picked because of their high LSAT scores and GPAs in order to raise the school’s ranking. And it has worked. When last reported the School was ranking 21st.

But there is more. The school, in order to raise its ranking by also increasing bar passage, has an army of people working to make sure students prepare for the bar by pre testing and attending help sessions. But there is more. Students who are in jeopardy of failing are activity encouraged not to take the exam. Yes, if they fail he passing percentage will decline and the ranking might suffer so they are, in effect, urged to put their own goals aside because perusing them might reflect badly on the School, the elitist, rankings-obsessed dean, the University, and even Desantis yes man, Fuchs.

At this point in this little exercise I suppose I am supposed to say what I think is the problem. Frankly, I do not know. The smartest admitted class in the State, educated at a School ranked leaps and bounds above any other in the State, with extreme hand-holding when it comes to bar prep, and with a relentlessly elitist hiring policy still does so poorly. Actually, maybe I did just say what is wrong. You’ve got to wonder what is going on in the classroom.

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September 22, 2021