There’s a chilling effect on campus that few dare talk of

The draft guidance almost exclusively focuses on examples of where a university or SU has unnecessarily or heavily restricted free speech – with the thrust being “ease off” or “don’t” each time.

What it doesn’t really do is help with the occasions or moments when a university or SU might need or want to restrict freedom of speech.

In one camp are those that point to Article 10(2) of the Human Rights Act – and other bits of the HRA – which qualify the Article 10(1) right to hold opinions and to receive and impart information and ideas without interference by public authority.

They point to the government representative at the House of Lords, Baroness Barran’s comments on 7th December 2022, when she said that the bill “does not change how Article 10(2) applies”. In other words, it was not Parliament’s intent when legislating to remove the ability of universities and SUs to interfere with freedom of speech where Article 10(2) applies and where case law would support doing so – in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence.

In another camp are those that argue that Section 2 of the proposed regulatory advice is correct in its analysis of what “free speech within the law” means when it stresses that:

All speech is lawful, i.e. ‘within the law’, unless restricted by law. Any restriction of what is ‘within the law’ must be set out in law made by, or authorised by, the state, or made by the courts. This includes (for instance) provisions of the Equality Act 2010 prohibiting discrimination. It also includes common law on confidentiality and privacy.

They argue that the first interpretation would allow universities to prescribe their own laws restricting free speech, without taking reasonable steps to secure it, and so undermining the purpose of the Act. They argue that Parliament enacted the new law because freedom of speech was not being adequately protected – and that the act will fail to address the issue if it allowed universities or SUs to independently determine what is lawful.

It’s a fascinating argument that may well result in OfS’ legal guidance being tested through judicial review – but I want to talk briefly here about a related area and issue that has been underexplored in public debate over the implementation of the act so far.

Assertive agitators

I spend some time each work working with students, students unions and student leaders. I’ve been working with them in different ways for decades. But what I’ve noticed – especially over the past ten years – is an increasing and insidious silencing of their efforts to raise controversial issues – especially in public.

I don’t mean the “controversial issues” surrounding gender, or race, or global politics – although there is a bit of that. I’m talking about anything that might paint a university in an even slightly poor light.

I’ve seen memoranda of understanding between universities and SUs that liberally rule out “bringing the university into disrepute” – and in some cases specifically rule out any public criticism of the university at all.

I’ve heard of universities placing pressure on students’ unions to delete passages from their TEF student submission, or remove comments from student leaders on websites that suggest that because students are facing situation A, the university should change to enable situation B.

I’ve been told of threats to grant funding for the SU if it is critical of the university’s senior team; hints that the refurbishment of the SU’s facilities will be put on ice if it pursues a campaign; and telephone conversations that mistake an SU CEO for the parent of student leaders advising they cause their officers to “wind their neck in”.

In some situations programme reps were advised to avoid critiquing the quality of teaching. In others the results of surveys on the experience of students were demanded to be deleted on the threat of defunding, or even legal action. In others student officers were reminded that they are trustees of their SU – and that public criticism of the university causing a reduction in funding might mean SU staff having to lose their jobs.

There are multiple examples of student leaders who are also members of their governing body being hauled over the coals for comments criticizing a policy or stance, or an uncomfortable truth about the university’s actions or provision – because they happen to have “wider responsibilities”.

There have been reports compiled by advice and support professionals in SUs that have been demanded to be deleted in case “it impacts recruitment”. I’ve heard tales involving course reps – often told that they need to represent “all students” rather than just themselves – being told to delete reports because their 30 student survey didn’t get “ethical approval”.

And there are endless examples of student leaders being pressured into not raising issues, or only raising issues outside of minuted encounters, or being warned that if an issue is raised as a “B Conditions” issue, there will be “repercussions”.

Partnership

Clearly, in some cases a university may want to ensure that negativity is tempered – especially where something is said that is unfair, or inaccurate. Every SU officer training event I’ve ever been involved with stresses assertion, rather than aggression. Savvy SU officers learn when to use insider tactics, and outside tactics, to achieve results. And of course there have to be rules about raising issues of conduct, or maintaining confidentiality.

In many cases, I suspect that there’s enough plausible deniability or lack of awareness back to the VC or Chair of Governors/Council such that well meaning middle or senior managers – under intense pressure on recruitment – might go too far.

But the principle is important. The whole point of having students independently – and usually democratically – intervening in decision making is that:

occasionally […the rep]has to raise issues at a time and a pace that the institution wouldn’t have chosen, and [..they have] to say things that, given a choice the institution, wouldn’t have said out loud – and as such it is hard to envisage those things happening unless there were representatives that were in some way either democratically or culturally charged with raising things out of sync, raising the uncomfortable, and issuing challenge.

Too often in my line of work, an SU backs out of writing a blog, instagramming an issue or speaking on a panel for fear of those vague “repercussions”. And these are increasingly people without the traditional white, middle class and male social capital that allows a bit of confidence in the risk taking.

They’re more likely to be people that don’t want to be deported, don’t want to make their own staff redundant, or don’t want to be dressed down for saying the wrong thing.

This story – about students sleeping rough in a university Library – was shocking to many. What’s more shocking to me is that it’s been happening in at least fifteen universities this year – and in many of them, the SU daren’t say so even to its own governing body.

There’s a particular irony in a sector that is generally pleased that Universities UK has started to find an “outsider” voice to get results only to then impose requirements to maintain exclusively “insider voices” inside their own institutions.

Student representation is an essential contributor to university decision making. Its participants learn from it, better decisions are made as a result of it, and it provides challenge of the sort that could and will never come from ministers or regulators.

It’s why, in my view, it’s absolutely essential that universities considering which policies to amend in light of the Higher Education (Freedom of Speech) Act 2023 add student engagement, student representation and students’ union agreements to the list.

It’s why I think it would be smart for university governance reviews to include interviews with ex-student officers about their experiences.

It’s why I think it’s vital that both for academics, and students, the wooly concept of “disrepute” is qualified and clarified if it’s to survive into contractual arrangements with individuals or organisations.

And it’s why it’s absolutely essential that at least a couple of the examples in OfS’ guidance on the free speech act should match some of the scenarios above – lest this particular form of “chilling effect” prevents us learning from those paying to learn.