From Zellick to here: guiding the way on student misconduct

Back in 1994, the Council of Vice Chancellors and Principals (CVCP), now Universities UK (UUK), published the Final Report of the Task Force on Student Disciplinary Procedures, which has come to be known as the Zellick Report.

These guidelines represented advice for universities on dealing with serious misconduct by a student which might also be a criminal offence. This guidance has been used as the basis of their student disciplinary procedures by many universities since then.

However, much has changed in the last twenty years or so since the guidelines were published, and there have been many developments and changes in the sector and in the law, such as the coming into force of the Human Rights Act 1998 and the Equality Act 2010. Although in an entirely different legal context, the large number of reported sexual assaults on US campuses and the way in which they have been addressed (or not) under the Title IX legislation has undoubtedly resulted in a greater focus on this issue in the UK too. There have been widespread concerns that the Zellick guidelines did not adequately reflect the various duties and obligations that universities now have in relation to their students, or assist universities in handling the most complex and sensitive incidents, particularly those involving sexual violence and harassment.

Something needed to be done. Earlier this year a Taskforce which was established by UUK to examine violence against women, harassment and hate crime received evidence from the National Union of Students, universities, and other organisations highlighting concerns about the Zellick guidelines. That Taskforce has now reported and you can read a commentary on it here on Wonkhe by Jim Dickinson. Following the second meeting of the Taskforce in March, UUK issued a press release announcing the decision to review the Zellick guidance. A steering group for the review was established consisting of a sub-group of the Taskforce plus additional representatives from the Association of Heads of University Administration (AHUA) and NUS. I was invited to join this steering group to review the Zellick Report.

Addressing the concerns

Some of the concerns which had been raised about the Zellick guidelines which fed into this steering group included:

• they do not reflect important legislative changes such as the Equality Act 2010 and Human Rights Act 1998 and the development of legislation, guidance and case law which views students as ‘consumers’
• the guidelines do not adequately reflect that institutions have a duty of care to students
• they do not reflect the important changes in the technological and social context within which universities and their students operate. These developments can also play a role in the incidents that contemporary universities must deal with such as online abuse and harassment and misuse of social media.
• they do not advise on how to support students during the reporting process
• the guidelines focus too much on protecting institutions rather than supporting students
• the guidelines advise a blanket prohibition on investigating and invoking internal disciplinary procedures if an incident is not reported to the police which could be direct/indirect discrimination (under the Equality Act 2010) – given the majority of victims of sexual violence are female and the vast majority do not report incidents to the police.

You can find a full list of these in Chapter 6 of the Taskforce report, but it was clear to all that new guidance was required for the sector which addressed the above and other, related challenges.

The new guidance 

So what has the steering group come up with?

The first thing to stress is that the vast majority of the work on this report has been undertaken by Nicola Bradfield of Pinsent Masons who has, in my view, done an outstanding job of addressing the many concerns raised whilst delivering sensible, measured and coherent new guidance to replace Zellick. Her text has been commented on and modified with advice from the steering group, but she has done most of the hard work here.

The document doesn’t have the snappiest title:

Guidance For Higher Education Institutions: How To Handle Alleged Student Misconduct Which May Also Constitute A Criminal Offence

Still, for me this new guidance is a real step forward on how to handle student disciplinary issues where the alleged misconduct may also constitute a criminal offence. The guidance relates to all types of student misconduct which may constitute a criminal offence and provides some clear and specific recommendations in relation to sexual misconduct.

Some of the issues covered in the guidance include:

• The basis for Disciplinary Action
• Alleged Misconduct which may Constitute a Criminal Offence
• Record Keeping
• Provision of Information and Support
• Referral to the Police
• Precautionary Action
• Criminal Investigation/Prosecution
• Internal Disciplinary Procedure
• Outcome of a Criminal Process

There is also an extremely helpful appendix which offers a structure to help institutions shape their Code of Conduct.

I do think the new guidance represents real progress in reflecting the new legal environment and societal changes as well as focusing strongly on the needs of students rather than institutional reputation.

There will be those who say these guidelines do not go far enough, and there are others for whom any guidance at all is anathema and represents an attempt to coddle or infantilise students. Both are wrong in my view. The new guidance represents a significant step forward in helping universities respond to what can be extraordinarily challenging situations in a way which offers the best prospect for supporting students through what might be the most traumatic of circumstances. These are among the most difficult and complex matters with which university student services and other professionals have to deal. Clear and measured guidance and procedures are therefore critical to help them navigate their way through challenging terrain. Few things could be less helpful than commentators insisting that none of this is necessary and students should be able to work it all out among themselves.

Fundamentally though, it is for universities to act on this guidance, operate their codes and procedures fairly and properly and to ensure that they take the right steps in their support for and dealings with their students.