OfS consults on guidance over free speech. Confused? You will be

In the Office for Students (OfS) new consultation on guidance on what universities and SUs should do to secure free speech, the regulator has advice on the conduct that might be able to be required of external speakers.

Amongst other things, it says that a dedicated section of a university or SU’s code of practice should be should be consistent with the principle that:

If a speaker breaks the law, it is the speaker who is culpable.

That line is actually a lift from the time when the Joint Parliamentary Committee on Human Rights – way back in 2018 – issued their own guidance on free speech on campus.

Only that time, the JCHR added another line that OfS has mysteriously chosen to omit from its rather more expansive guidance:

However, if those organising an event invite speakers who they might reasonably have suspected would use their platform to break the law (ie because they have done so previously) they may fall foul of the law themselves.

That matters for a couple of reasons. On the day that the Higher Education (Freedom of Speech) Bill was launched into Parliament (just under three years ago), the then universities minister Michelle Donelan got into a pickle on PM over whether holocaust deniers (as opposed to someone promising to speak in support of holocaust denial) could be banned from campus.

Amazingly, we still don’t really know the answer to that question.

What OfS has published is a formal consultation on proposed regulatory advice (if you have the commemorative ring-binder, it’s Regulatory advice 24: Guidance related to freedom of speech), and an associated consultation on amendments to its regulatory framework to reflect its new general duties and general functions – as well as a perfunctory consultation on the recovery of costs that OfS might incur over deploying its new complaints scheme and the imposition of monetary penalties.

It’s an astonishing turn of events. I’m old enough to remember (ie I was alive last December) when OfS’ director for freedom of speech and academic freedom Arif Ahmed insisted that he would not be drawn into hypotheticals, and that universities and SUs wanting guidance on how to comply would simply have to wait until he’d had some complaints in to adjudicate over.

Three months, six chaotic consultation webinars and endless “what if” questions later, and the pendulum has now swung so far in the other direction that in many ways, the resultant situation is just as confusing for universities and SUs as it was without the “guidance”. Be careful what you wish for, and all that.

Woke mob something something something trigger something

Across 30 (yes, 30) different “example” scenarios, OfS effectively takes the first three paragraphs from pretty much every campus culture wars story to have hit the Mail, the Telegraph and the Times; takes what they think (or report as) happened at face value; and then offers advice on how to do better.

So if you think that a university has ever been stupid enough to sack a member of catering staff simply because students objected to that staff member sending a pro-life letter to the local paper, there’s handy advice on not being so stupid in the future.

Similarly, if your university’s “demonstration policy” (your what now) requires a “25-page form completed six months in advance”, or if your SU’s rules on flyer and leaflet distribution “include a month’s prior written permission” (I’m not exaggerating, even if OfS is), you’re in luck with handy advice on shortening the forms and reducing the review windows.

Maybe you have a policy that says “college employees must uphold the college’s
commitment to political theory X”. Or maybe be you’ve fired someone because the conclusions of their research conflict with your value of respect for all religions.

If, however, you’re in the real world – one where most of the judgements in these areas are fraught with complexity and difficulty – I’m afraid you’ll be left in the dark even if you do manage to plough through all 37 pages of overreach and suspicion that pepper the material here.

And it’s notable that not once does the document mention the words Israel, Palestine, Gaza or IHRA.

I’ve not gone through every “example” here (although if your SU subscribes to Wonkhe SUs they have a longer treat in their inbox) – instead I’ve tried to identify the patterns and exemplars that explain where OfS’ thinking is at on the whole sorry thing.

Sticker tape parade

In OfS world it appears that the perception of universities is that wokery, EDI partisanship and chilling effects are being subtlety fired at students and staff like rain (on your wedding day). Almost like microgressions (although I’ll come to that).

Hence one particular seam of advice – framed repeatedly and tediously here as “steps that it may be reasonably practicable for providers and students’ unions to take” – involves never missing an opportunity to remind folk that “FREE SPEECH IS IMPORTANT” and that they can complain to OfS.

Hence OfS says you need to be careful about telling students and staff not to misgender people just in case they get the impression that they can’t be gender critical in their academic work. You need to insert references to FREE SPEECH in any number of committee’s terms of reference in case folk discussing curricula or room bookings forget. IT policies that refer to “offensive material” will now have to have a line in that says “BUT FREE SPEECH IS OK AND YOU CAN COMPLAIN HERE”.

And while there’s still nothing from another end of OfS on induction that prevents harassment, your compulsory inductions for everyone have to stress free speech, and the ability if it’s compromised to use the new complaints scheme. That’s not even a step that OfS requires over complaining about actual provision. It’s like Arif thinks universities are his own profile-boosting bot farm.

The safest thing to do, it seems, is get a roll of stickers made up with Arif Ahmed’s face on and a QR code that links to its complaints scheme – and then employ an army of student ambassadors to stick them onto anything that might ever be considered woke. Or, indeed, specifically not woke.

What OfS pretty much never does here is outline what a university or SU can do to encourage people to be nice to each other, or not unnecessarily upset each other, or otherwise strive for a campus of good relations – because the underpinning assumption isn’t that these are real concerns – it’s that they’re made up sector excuses for the unlawful imposition of wokery on people.

Don’t report, don’t support

The section on microgressions (that officially never mentions the word) is a case in point. In Example 17, a university’s introduction of an online portal for anonymous reporting of “problematic speech” could, says OfS, potentially discourage the free and open discussion of controversial subjects, stifling debate on political issues and matters of public interest.

It’s almost as if the example is based on Arif Ahmed’s brave battle against the censorious wording of Cambridge’s boilerplate Report and Support tool, described here in Spiked!:

For instance, back in May, Cambridge published a list of “microaggressions” that could land academics in trouble with the university authorities, along with a website to allow students to report them anonymously. These offences included “stereotyping” religions and raising your eyebrows in the wrong direction. To his credit, Professor Toope rapidly disowned this policy following staff protests.

OfS says that if a mythical university was to introduce such an online portal, removing the portal or implementing an alternative reporting mechanism that does not deter lawful speech “may be necessary steps” (although while OfS expects that in a wide range of circumstances it will be reasonably practicable to take many of these steps, it may also be reasonably practicable for providers and others to take other steps, in any particular case).

If you (as the EHRC does) think that microaggressive behaviour is an important bit of the agenda that surrounds tackling race and racism on campus, you may be left thinking “well what is it that we can do to discourage that sort of behaviour”. This guidance offers few clues – and all that OfS would say on its missing response to its consultation on harassment and sexual misconduct on the press call was that it will come “later in the Spring”.

Speed and dismissal

There’s also a section that appears to lift the summary details from this Abertay case that hit the press, when a student was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

In OfS’ example, a professor’s participation in a protest against a country’s police represents a lawful expression of political views – but some students from the university that are offended by the views expressed, file a complaint against the Professor, triggering a “prolonged” investigation by the university which ultimately concludes with no action taken.

Here OfS says that from the beginning, it should have been apparent to the university’s investigators that the case would go nowhere – and that the drawn-out process, “motivated by concerns over further upsetting the complainants” highlights a potential deterrent effect on the expression of controversial or unpopular opinions by students and staff alike.

OfS says that a “rapid triage system” for handling complaints related to speech, aimed at quickly dismissing unfounded accusations, emerges as a sensible and necessary measure for the university to adopt, ensuring protection for lawful expressions of speech while minimising unwarranted investigations. What could possibly go wrong?

In the Keogh case, the Sheriff specifically disagreed with the idea that the process is the punishment:

First, those developments could not have subjected the pursuer to detriment. In the context explained above, the Code obliged the defender to investigate the complaint. The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the University in exactly the type of “tricky territory” that entitled it to investigate – properly.

Our firm view… is that you are woke

There are some “firm views” that could be helpful, if you’re into that sort of thing. OfS is at pains in the first few sections to stress that higher education providers and students unions cannot change what speech is unlawful or illegal and therefore what is, or is not, within English law – oblique references to attempts by organisations and/or people to set their own standards for things like harassment and behaviour, especially where students or SUs might regard something as unacceptable but where the law wouldn’t.

What it’s almost completely silent on is the borderline or edge cases plaguing providers and students unions which involve conduct or speech that some regard as legally protected free speech that’s within the law, and others regard as harassment with reference to a policy or bit of case law that may or may not apply.

Hence in one example, where a university advertising for a lecturer in mathematics where the advertisement requires all applicants to demonstrate their commitment to a particular political theory, OfS says that may penalise candidates for opinions or speech that have no bearing on “disciplinary competence” and so withdrawing the advertisement, and re-advertising without this requirement, is likely to be a “reasonably practicable step”.

It of course doesn’t define “disciplinary competence”, and nor does it say whether a university might be allowed to require a university staff member to abide by, say, the IHRA definition of antisemitism – despite spending a year collecting university adoption data on behalf of the Department for Education.

In other words:

• It doesn’t help with the question of making judgements about whether particular acts, speech or behaviour would amount to something unlawful;
• If otherwise lawful, it doesn’t help with the question of making judgements about whether particular acts, speech or behaviour would amount to something that should nevertheless be restricted in pursuit of other legal duties;
• And nor does it help (much) with the question of whether and how a provider or its SU can or should differentiate between matters of “speech” and conduct.

There’s also a remarkable section that fuses the Jo Phoenix and Kathleen Stock (OfS investigation still ongoing) controversies – that says that universities and SUs should “promptly reject” public campaigns to discipline, expel or fire a student or member of staff for lawful expression of an idea or viewpoint. This, it says, may take the form of organised petitions or open letters, an accumulation of spontaneous or organised social media posts, or long-running focused media campaigns.

It also says that depending on the circumstances, rather than publicly distancing itself, it may be more helpful for a provider, constituent institution or relevant students’ union to reiterate the importance of free speech for all staff and students, including the person affected. It says it may also be especially important for the response to be timely.

It doesn’t even attempt to evaluate the potential removal of free speech rights or chilling effect on those signing the petitions or posting on social media – and while it says that students’ unions should not terminate employment for, or deny reappointment to, any member of staff because they have exercised free speech within the law to express a particular viewpoint, it doesn’t say whether students are therefore to be banned from expressing “no confidence” in elected student leaders over their beliefs – a key principle in explicitly democratic environments.

The lack of concern over what I would regard as the “other end” of the see-saw is palpable. Actress multiple examples OfS highlights the “importance of timely and unambiguous support” in upholding free speech values within educational institutions, and “prompt, clear, and neutral stances” in defence of academic freedom to “alleviate pressure on [an academic] and indicate the college’s commitment to protecting the free speech rights of its community members”.

That’s fine – but without setting out what a university can (and should do) to support those who might feel genuinely hurt, aggrieved or threatened, the “guidance” just amounts to a heavy (handed) sandbag on one end of campus culture see-saw.

Read (little) about it

Depending on the newspaper story you’re reading on a given day, there are oversimplified examples that will (not) help. So universities are told that research freedom…

…should not be restricted or compromised in any way because of a perceived or actual tension between any conclusions that the research may reach or has reached or the viewpoint it supports, and the organisation’s policies or values.”

In another thinly veiled reference to Stonewall’s equality charter work, a department of a university applies for accreditation to a charter body with links to the fossil fuel industry – and the accreditation process requires it to sign up to a set of principles. These include the principle that “Fossil fuel exploration is one of the best ways to meet our future energy needs.” OfS says that “institutional endorsement” of this principle may discourage expression of “legally expressible” views.

OfS, you will note, stops short of suggesting that the institution should not have endorsed the principle at all – only that it should not implement the provisions of any accreditation. This offers pretty much no clarity on what a university or students’ union could or couldn’t do when signing up those sorts of principles when trying to discourage certain behaviours or encourage others.

And a students’ union or university would be forgiven for thinking that it can no longer sign up to anything that might promote a particular view on anything for fear that doing so would discourage expression of legally expressible views that are opposed to that view – see, for example, “adopting” the IHRA definition of antisemitism. This section almost certainly needs proper clarification.

Notably, in Example 30 a department at a university mandates race awareness training for new students, including a test with a question asserting that all white people are complicit in structural racism in British society, marking “True” as the correct answer. This unlikely scenario could “force the endorsement of a controversial viewpoint” and potentially penalise those who disagree with the blanket statement, and so to uphold academic freedom and prevent the imposition of a singular perspective, OfS says it would be “advisable” for the university to consider removing or revising this question.

What OfS fails to cover off is training of the above sort which strongly suggests the endorsement of a view that is not generally controversial, or where a view is not generally controversial but is viewed as such by the British Press. It also fails to clarify whether university induction materials (or indeed SU ones) can do something softer than the “right or wrong” answer above – for example guiding students to realise that many other students would regard a view as offensive, or not grounded in fact. And so on.

What universities must do is offer induction training on the importance of free speech, and when doing so should not require training or induction that imposes a requirement to endorse any controversial viewpoint or value judgement. Unless, presumably, the training or induction imposes a requirement to endorse the otherwise controversial viewpoint that the Higher Education (Freedom of Speech) Act 2023 is brilliant or the value judgement that free speech within the law, even if deliberately and egregiously offensive, is a jolly good idea. That would be OK. I think.

We’re not players in the culture wars

There’s plenty more in here for detail fiends. One section on the codes to be issued introduces the new (and undefined) concept of procedures to be followed by staff and students when organising any activities that relate to “academic life”, whether those activities take place on or off campus – presumably not to be applied to “non academic life”. Me neither.

And naturally, there’s nowt in here in wider complexities – what on earth SU officers in FE colleges are supposed to make of all of this, what happens with TNE, franchising and fitness to practise cases all all absent – although one example relating to research funders does suggest a university cuts off the relationship if the funder can’t poke up with some free speech, which does rather suggest that everyone should sever ties with work-based learning component providers that might want to restrict free speech within the law when students are engaged in that bit of their “academic” life.

One bit tacked on the end is this thing that many are worried about – that OfS reserves the right to recover costs from investigations and those associated with imposing fines when it finds against an SU or university. That sounds like a dangerous conflict of interest to many. It might even have a chilling effect on OfS admitting that it got the wrong end of the Telegraph’s stick.

There are amusing moments where OfS demands that the published code explains the “single” point of contact for room bookings, who may or may not be the right contact because it still seems to be insisting on SU and university codes being issued separately. It also suggests that SUs subject students to compulsory student induction on what’s in their code – which may be a stretch (sorry, “not reasonably practicable”) to include in the 5 minute induction talk that only half a university’s schools invite the SU officers to.

Is there anything on responding to NSS survey data, researching the confidence of students to speak, the way in which securing free speech for one group might chill another, the deep complexities of overlaps and gaps between SU and university disciplinary procedures, or what colleges teaching 11 year olds are supposed to say or do (you’re getting a detention, but you can appeal to Arif Ahmed on the following number…) Of course not. There’s even a galling 2-page section on how the Equality Act applies to universities that can’t even be bothered to point out how said act applies specifically differently to SUs.

Add it all up, and despite protestations to the contrary, it’s all pretty partisan – not because it takes sides on the issues in the culture wars (many of the examples simplistically reverse the sorts of stories in the press for effect), but because it lazily assumes that universities and SUs are out to impose their wokery on everyone, and any use of an EDI policy, “good campus relations” effort or administrative process is almost certainly being deployed in bad faith.

Whether OfS is playing to the press gallery or really believes all of this stuff isn’t really the point. If implemented at face value, the constant reminders to anyone whose behaviour is awful that “FREE SPEECH IS OK” will make campus culture demonstrably worse.

I had thought that universities’ and students’ unions calls for better guidance would be met with a listening ear on their efforts to balance their confusing and competing duties in a way that takes students and staff with them and deepens their understanding. I’d also hoped that we might end up with something approaching guidance on how on earth the sector is supposed to ensure that students understand all of this before they‘re hauled in and hauled over for any or all of this.

What we have instead is the worst kind of regulation – baffling, threatening, unworkable and patronising in one foul, foul swoop. The contrast with OfS’ approach to regulation on access and participation is visceral.