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Gavin in Wonderland – the Department for Education Guidance on free speech

  • 21 October 2019
  • By Dean Machin

This blog was kindly contributed by Dr Dean Machin, Strategic Policy Adviser at the University of Portsmouth.

Last month’s Department for Education guidance to the Office for Students commands the attention of anyone in the Higher Education sector but, for those of us drawn to the absurd, Gavin Williamson’s injunction on free speech is particularly interesting

“I want every student to be confident their institution stands up for free speech and that they will not experience unacceptable behaviour during their time at university, such as harassment, racial abuse, antisemitism and other forms of intolerance and prejudice.”

Universities must stand “up for free speech” and ensure students will not “experience … intolerance and prejudice”. So, should we prevent Germaine Greer (and others) from saying that transgender women are not real women? For many, this is intolerant and prejudiced. But stopping comments like this would, to my untutored mind at least, limit free speech.

Must the Office for Students protect Germaine Greer’s right to free speech while protecting students from hearing it? This is logically possible but also a little counter-intuitive.

Squaring the free speech-prejudice circle

One possibility is that where there are clashes between unacceptable behaviour and free speech, the lesser of two evils is to limit free speech. But this is very definitely not what the Department for Education guidance says and, I speculate, very much not what a Conservative minister intends.

Perhaps the inference is the opposite: where there are clashes, free speech trumps the problem of ‘intolerance and prejudice’. But, again, this is not what the guidance says and not what many students would prefer. Indeed, there is evidence that many students don’t think that free speech should be prioritised in all cases. It’s worth noting that students are no different from the general population in their views about limits to free speech.

This matters, first, because universities are supposed to respond to students’ preferences and, second, because the free speech part of the Department for Education’s guidance appears in the section on students’ “consumer rights”.

It would be very odd for the Department of Education to insist that enforcing students’ consumer rights requires the Office for Students to prioritise free speech over behaviour deemed intolerant and prejudiced without any evidence about what rules on free speech students as “consumers” actually want.

A solution from my upbringing

There is a third option, voiced by my mother many times as she refereed the arguments between my teenage self and my elder sister. “If you have nothing nice to say”, she would intone (invariably to me) “don’t say anything at all.” In other words, there are no free speech rights to say things that are unpleasant, unacceptable, or insulting so, in other words, stopping people from saying unacceptable things in no way limits their free speech.

There are many problems with this view, not least the fact that it requires rules that are very hard to grasp. What you, the speaker, finds acceptable is not a reliable guide to what anyone else will find acceptable. You could try to work it out but it will not be easy – the unacceptable is irreducibly subjective.

In the era of social media it is also very hard to know who exactly is in your audience. Social media posts hang around.What’s more someone can happen upon them long after you have forgotten all about it. Establishing what your audience might find unacceptable is no mean feat.

If someone says ‘come on, we all know what is unacceptable’ we must insist that we really don’t. Racism and anti-semitism are clearly on the wrong side of the line but is Germaine Greer’s comment on transgender women? Is insisting on using gendered pronouns unacceptable? For some it is, for others not.

There is deep political and societal disagreement about these issues – possibly more so now than ever. We are a diverse society and, for those who have not noticed, one that happens to be very divided right now – divided in many cases by different views on what is acceptable language and what is not.

What this means for the Office for Students

Gavin Williamson’s instruction puts the Office for Students at the centre of a politically and socially contentious debate with insufficient guidance about how to settle difficult cases, and with little clarity about how individuals in the sector might modify their behaviour to ensure they adhere to the guidance. We should expect arbitrary interventions based on the strength of the prevailing political winds or the latest media storm.

The Office for Students can only hope that if problems do arise, they arise – as most have in the past – around students unions’ and student societies’ activities. As the Office for Students has no regulatory power over student bodies, it won’t be able to act on the Department for Education’s muddled instructions anyway.

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