Let’s imagine you’re working in the office when someone comes in with a poster they’ve seen for a society event, objecting to the fact that it includes the slogan “Intifada until victory”.
Plenty of people would consider that to be inherently antisemitic. Others would argue that it’s a legitimate slogan with a political meaning. Some might say either way, it’s not very inclusive – and in the current climate, might heighten distress to fellow students.
Maybe discussing the merits in a meeting is one thing, but advocating for it is another when your SU is committed to inclusivity for all.
Follow the flowchart
If we take the process step by step, we can easily make an argument that regardless of whether it should be banned or not, the SU and/or the university has a duty to facilitate a process by which students are caused to understand why it might be offensive or upsetting to other students.
If the society presses ahead, the next question is often “do we ban the poster” – but arguably, the better next question should be “if we did and the student still put it up, would that be a disciplinary offence?”.
There’s first a question over whether harassment allegations are handled by the SU or the university or both. And it would also generate a question over whether it would reach the legal bar for harassment.
To avoid double jeopardy, achieve consistency and ensure harassment if proved can result in something more serious than the range of punishments available to an SU, it’s easy to make an argument that it has to be the university’s process.
If that’s the case, then you’re in a situation where the SU is intervening on community relations – but the university handles misconduct allegations.
And if that’s the case, the university has a duty to advise on guidelines and borderline cases of this sort via its legal advice.
If the student was to make a complaint, in considering free speech complaints once its scheme is set up, OfS must, by statute, give a view on whether the student was justified in claiming their lawful free speech was infringed.
Necessarily, it will have to consider whether or not they breached the Equality Act. And so before you get there, there could do with being a consistent view agreed between the SU and the university.
Obtaining the advice
Where that gets us to is a need for the university to both advise on borderline cases and offer guidance that allows students to understand the line between free speech and harassment that SUs can interpret, pass on and operationalise.
Of course if students don’t agree with the advice, they can risk it. And if they don’t agree with the SU’s poster handling, they can make a complaint about the SU using the procedure established under the Education Act 1994. They can also campaign themselves, or through you, for different judgements or examples, or change in the law.
Of course SUs only have a role in regulating student life insofar as it is involved with the union, and nobody has the right to plaster the place with posters.
But if SUs removes posters of that type because it doesn’t like the content, or because it’s not in line with an SU’s values even if legal, it’s hard to see how that decision in principle would be compatible with an English SU’s free speech duties under the new act.
The crucial bottom line on freedom of expression and speech is that SUs don’t really have the right in the future to set a behavioural standard above the minimum to not engage in legally defined harassment.
Redefining roles
So SUs can manage a building, engage in community building and conflict resolution, and pass on advice from the university – but apart from that it’s hard to see how SUs can maintain disciplinary procedures or processes involving students that make a judgement about Equality Act harassment.
That may not fly well with university managers. A student complaining to them about a society poster might be passed straight onto an SU, and a university might well make clear that it’s the SU’s call.
But unless the SU knows whether the university would regard the behaviour as harassment, it’s an impossible and unfair call to make on both the poster putter upper and/or the complainant.
Whether the government’s forthcoming antisemitism charter, evidently aimed at both universities and SU, will be compatible with these realities remains to be seen. But it certainly points to a need for either a joint free speech code, or at least a very closely aligned one.
