In the campus culture wars, is the process the punishment?

The idea is that being subjected to a process that risk assesses an event, or one that investigates someone for harassment, is in and of itself a punishment.

Baroness Fox summed the argument up quite neatly here at Committee stage of the Higher Education (Freedom of Speech) Bill:

Often, the complaint an academic has is precisely because they have been put on some procedure by the university authorities – they may have been suspended or put forward for disciplinary action – which they feel is unjustified. They then get cleared, but all the testimonies from people who have been in this situation make the point that the process is the punishment these days. As I said earlier, the period in which an academic has been labelled as a user of hate speech, suspended from their job or whatever it is can be really discrediting and damaging to their reputation.

I have some sympathy with Fox’s argument, particularly when it comes to students. Complaints or allegations that concern the conduct of other students can be highly stressful and drag on for months, significantly impacting those making allegations and/or victims, and those being accused or investigated for a breach.

Of course Fox and her ilk tended to use that argument to defend the idea of a legal tort that could have bypassed university and ombuds complaints processes. I take a different view which is more about doing everything possible to expedite those processes.

A good example of the “process is punishment” argument concerned a case you may recall being plastered all over the media from the summer of 2021. Lisa Keogh, a student at Abertay, was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

Following an investigation, it was determined that Keogh had a case to answer in relation to “making inappropriate comments” which “could be construed as discriminatory” – but after a panel reviewed recordings made available from the seminar, it found “no evidence of discrimination”:

As a result, the board found there was insufficient evidence to support the allegations made against you on your behaviour in class and, therefore, decided to not uphold the charge of misconduct.”

In some ways you might be reading that and be thinking – well that’s the process working properly. Students make a serious complaint – it is investigated – someone resolves there is a case to answer and refers it to a panel – and the panel considers the evidence and quashes it. So what’s the problem?

Well, as I said – the argument is that the process is the punishment – especially if you’re not around for long, or if your case hits the national news. Keogh’s argument was that she should never have been subject to formal processes in the first place – and so sued.

Her case was basically that the university acted in breach of the Equality Act 2010 by pursuing her for “expressing her gender critical beliefs” and caused “stress at the most crucial part of my university career” – but last week Dundee Sheriff Court dismissed her case, with Sheriff Gregor Murray saying that university “was entitled to take steps to investigate complaints”.

The judgement itself is fascinating and there’s plenty of detail on the arguments if you’re into that sort of thing – but crucially on that Fox argument, 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 immediately.”

He also noted that the referral of the case by a Student Disciplinary Panel to the Student Disciplinary Board actually provided the student with an opportunity to put forward her case in person.

The defender was entitled to take steps to investigate complaints. It could not be guilty of discrimination simply because it did so. Following investigation in this case, the complaint against the pursuer was not upheld.

Plenty will regard that decision as the right one – and this is a Scottish case where the Higher Education (Freedom of Speech) Bill only covers England – but it does raise an interesting question for the forthcoming powers that OfS will have.

In a similar case in England or Wales, the Office of the Independent Adjudicator (OIAHE) is capable of considering a case from a student or group of students making this kind of complaint that end up unhappy with the outcome.

So imagine in the Keogh case the students making the complaint reaching the OIA, and then imagine Keogh reaching the OfS Free Speech Director through that route on the basis that “the process is the punishment”.

We still don’t know if both processes will run parallel and overlap, if not who decides which process trumps the other. And while the OIA won’t feel any particular pressure to agree with the Baroness Fox interpretation beyond making recommendations about support and not taking so long, the OfS Director almost certainly will.

Keogh, by the way, has indicated that she is considering an appeal. A spokesperson for Abertay University said “We note the court’s decision in this matter.”