You can’t say that. Or can you?

Providers, constituent institutions and relevant students’ unions are told that they:

…should record all decisions that could directly or indirectly (and positively or negatively) affect free speech within the law.

And that these records:

…should demonstrate how the organisation has had particular regard for the importance of free speech within the law.

That is in the context of a strategy that says OfS will maintain its dialogue with providers about the impact of its regulation, testing that the benefits to students and taxpayers continue to outweigh the “burden” to providers:

We will also challenge providers to take purposeful steps to dismantle internal bureaucracy that has accreted over time and is not needed to comply with our regulatory requirements.

All decisions. Directly or indirectly. Positively or negatively.

The see-saw

Perhaps more concerning are the implications of the still missing harassment and sexual misconduct guidance.

If a provider and/or SU follows the draft guidance and includes free speech (and complaints about it) in inductions, I’d be wanting to include a balancing “yes but that doesn’t mean that you can harass other students”, and students are going to want practical examples of where they might cross a line.

Similarly, for the providers and/or SUs already delivering harassment training to students, the implication from OfS is that that should be done in a way that deliberately seeks to avoid students thinking that they can’t say X, Y or Z – inserting messaging on free speech and the complaints scheme into the process.

Again, students are going to want practical examples of where they might cross a line.

But this isn’t just about what counts as unlawful harassment. It’s about where employers or communities of members/students sensibly seek to restrict (or at least discourage) conduct or speech that is otherwise lawful.

The intersections between conduct codes that seek to prevent undesirable but nonetheless otherwise lawful conduct and OfS’ exhortations come into sharp focus. And they’re confusing – and more complex than is implied in the OfS consultation – because of the case law.

Please read this

If you take the much discussed case of Higgs v Farmor’s School, a headteacher received a complaint from a parent regarding a Facebook post that Higgs had made entitled “Please read this! They are brainwashing our children”, encouraging people to sign a petition.

She had posted about the government’s consultation on making relationships and sex education mandatory in schools, which she said would mean that children would be:

…taught that all relationships are equally valid and ‘normal’, so that same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology, so that it’s up to them what sex they are’.

Higgs was a pastoral assistant and work experience manager at the school, where there were students with lesbian, gay, bisexual and/or transgender characteristics (or were questioning). Higgs is a Christian who holds various gender critical beliefs, including the lack of belief in gender fluidity.

Higgs was summarily dismissed for gross misconduct – and while the Employment Tribunal found that her beliefs were protected under the Equality Act, it dismissed her claims of direct discrimination and harassment because “readers may reasonably conclude that she was homophobic and transphobic” and Higgs would be perceived as “holding unacceptable views in relation to gay and trans people” – a problem with the conduct and the perception of her views.

But that wasn’t the end of it. The Employment Appeal Tribunal upheld the appeal, finding that ET had bypassed considering whether the restriction of her rights was “prescribed by law” and “necessary in pursuit of the protection of her rights”. The case is now off to the Court of Appeal.

The point is that conduct – even if otherwise lawful – can and often should be restricted, as long as (in this case employers) think about whether that restriction is important enough to justify the limitation of the right, and whether the limitation is actually connected to that objective – as well as whether a less intrusive limitation could be imposed.

And that means thinking about content of the “manifestation”, tone, whether the worker has made clear that the views expressed are personal (and whether that might present a reputational risk), and the nature of the employer’s business (especially where there is a potential impact on vulnerable service users or clients).

If, once we get some clarity from the Court of Appeal, employers are able to balance in this way, any duty (both re harassment and re free speech) to make sure students and staff know the rules will need to reflect this in a way that makes sense for them. I just can’t see how that’s going to be practically possible come September.

And it does mean that OfS’ thinly disguised Example 8 (where a member of catering staff at a university writes to the local newspaper expressing pro-life views (within the law)) might at least need to be carefully qualified.

OfS’ lack of emphasis on these sorts of puzzles is palpable – and in practical terms, hugely problematic.

Micromanagement

More broadly, in a sense what’s so remarkable about the consultation is the micromanagement.

I do understand why some think that universities and their SUs need to be TOLD what to do on freedom of speech and academic freedom – it looks like they need to be told if you read the press, and if you’ve been involved in a case you’ll feel that too.

But ultimately if there is a problem – and there clearly is, albeit one that looks closer to me to be about confidence/anxiety than “political bias” – then, like on APP work, universities and SUs need to own it strategically rather than just have little levers pulled by the regulator.

As such I think missing from the guidance on how to comply is an expectation of ongoing strategic analysis and a long term plan, a la APP work.

Who doesn’t feel confident to speak? Why? What are the emergent risks to FoS and AF for a given provider? And are unis and SUs behaving proactively to tackle them?

I think – notwithstanding the enmity amongst those who regard this sort of culture wars stuff as a distraction (I’m certainly guilty of that) – if universities and SUs were charged with assessing, analysing and shifting the culture on campus, taking in both FoS and harassment/harms etc, then some really good work could emerge, some excellent research that’s already out there could be reflected on, and some innovation could emerge beyond some of the oddly prescriptive bits and bobs in the guidance that has come out this week.

In particular – and I have said this before – students themselves do “feel” cancel culture pressure – albeit not in ways that blunt regulation can fix. I expect the same is true for staff. Enabling them to be braver and giving them the support to innovate on this sort of stuff is surely the right sort of direction to move in.

Maybe we need a year of OfS investigating complaints and finding realities that are different to the simplistic perceptions that surround this stuff, and maybe we need different (dare I say it, more grown up) political leadership beyond backbench MPs and columnists quoting Voltaire and Orwell ad nauseum.

If nothing else, if I was OfS, I’d be convening a kind of case amnesty of tricky balancing acts that providers and their SUs have been handling over the past two years. When we did something similar back in 2021 amongst SUs, we learned a lot about how difficult this all can be and the kind of guidance and support that they need.

Ultimately, I think there is a future on this agenda that’s less accusatory, more honest and ultimately more… educational.