- This blog was authored by Rose Stephenson, Director of Policy and Advocacy at HEPI.
- This is the first part of a blog series discussing the topic of free speech in higher education: the second and third parts will be run tomorrow and the day after.
The Higher Education (Freedom of Speech) Act became law on 11 May 2023. The new statutory duties on free speech for universities and colleges, and for relevant students’ unions, will come into force on 1 August 2024 and the new conditions of registration (rules that universities have to follow) on free speech and academic freedom come into force on the 1 September 2025.
In the meantime, we have some information to consider. The Office for Students published an Insight Brief: Freedom to Question, Challenge and Debate in December 2022. Universities UK have released some further, helpful, guidance. This includes a summary of the complex and interacting legal duties around freedom of speech.
As someone who spent an inordinate amount of time translating national policy, regulation and guidance into organisational procedure, there are several conundrums set out within this complex and interacting legal framework. I’m going to consider three of these issues in a short HEPI blog series.
Issue number one – objective harassment.
The issue of whether someone’s behaviour constitutes harassment, or not, has been the discussion of many articles and debates. This blog will consider the practical implications of ensuring the objectivity test on harassment is met in universities.
The OfS insight brief sets out the following:
Harassment (as defined by section 26 of the Equality Act 2010) means unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that person because of, or connected to, one or more of the person’s relevant protected characteristics. In deciding whether conduct has the effect referred to, it is necessary to consider:
- the perception of the person who is at the receiving end of the conduct;
- the other circumstances of the case; and
- whether it is reasonable for the conduct to have that effect.
The last point is important because it introduces an element of objectivity into the test. The perception of the person who is at the receiving end of the conduct is not the only relevant consideration in determining whether the conduct amounts to unlawful harassment.
The protected characteristics included under the harassment section of the Equalities Act are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
The Insight Brief also outlines:
Speech that is offensive and hurtful, but lawful, is protected.
If a person raises an allegation of harassment, the university must decide 1) that it was reasonable that this person felt harassed by this conduct; or,
2) that it was not reasonable that this person felt harassed by this conduct.
Specifically, they will need to consider if the conduct was:
unwanted conduct that had the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that person.
Who are the objective people who can make this decision?
The decision will likely land in the lap of a student (or staff) misconduct panel, who are to decide whether behaviour about or towards a person, based on their personal characteristic, constitutes harassment. This is where it gets tricky.
Can an all-white misconduct panel have an objective understanding of how ‘offensive and hurtful’ comments about race feel for a student of colour? Can an entirely heterosexual panel have an objective understanding of how ‘offensive and hurtful’ comments about sexuality feel for a gay student? Could a gender-critical panel member objectively review an allegation of harassment made due to gender reassignment? Could a trans person objectively review an allegation of harassment made by a gender-critical feminist?
Should we expect panel members to declare their belief systems at the start of a panel, the way we ask them to declare conflicts of interest?
Should student complainants and respondents be allowed to object to the presence of panel members based on their protected characteristics (or lack of), the way they can when there is a perceived conflict of interest? Would excluding panel members based on their protected characteristics in itself contravene the Equality Act?
Should a panel be 50/50 between those who believe microaggressions constitute harassment and those who think people are offended too easily?
I’m making these points facetiously, but the point is that we may believe that we as individuals are considering harassment objectively, but we would all be bringing our own lived experiences and beliefs to this decision-making process. This happens in the criminal justice system also, with jury members selected – very purposefully – at random. With each juror bringing their own knowledge, biases and lived experiences to the decision-making process.
If I’m deeply honest, 10 years ago, I may have dismissed some allegations of racial harassment that I now would not. I would argue that my increased understanding of how racial harassment manifests would make me more objective. Others could argue that my increased understanding of racism was woke ideology brain-washing – making me less objective.
Finding staff with the time, inclination, and specialist skills needed to analyse and weigh evidence appropriately to fill misconduct panels is a difficult task. Ensuring that the panel is also diverse, more so. Particularly when there is a risk of adding unpaid workload and mental burden to those with protected characteristics.
There is no national training scheme for misconduct panel members. (And given the expectations on these panels to adjudicate over cases of serious sexual misconduct, there really should be). Institutions are often doing their best to provide training, but having to develop a deep understanding of racism, homophobia, biphobia, religious- or belief-based harassment, ageism, ableism, sexism, and transphobia, starts to make these feel like they should be professionalised roles, rather than added on to someone’s already full workload.
An alternative option is to provide experts who advise the panels on why something may constitute harassment based on a particular characteristic. But these experts may be hard to find in small institutions – and difficult to pull in from overstretched charities working in these fields.
It is, of course, possible, that someone could make an objective assessment about harassment based on a characteristic one does not have. But to expect this to be objective when the whole panel doesn’t have this characteristic, they are provided with no expert voice on this, and have no training on this topic, seems a stretch – morally, if not legally.
Universities are being asked to preside over these incredibly complex cases of harassment and free speech, as well as undertaking quasi-judicial expectations when it comes to sexual misconduct cases. The associated workload, expectations, and risk (to students, staff, and institutions) will only increase as the two new conditions of registrations are implemented. One on harassment and sexual misconduct (expected in the coming months) and one on freedom of speech, expected in 2025. Expecting each institution to grapple with these issues individually will lead to a frustrating waste of resources and a postcode lottery of outcomes.
To undertake these duties, and to do them well, a national framework of training for misconduct panel members should be developed. This should cover:
- The role of the panel
- Understanding and weighing evidence
- A trauma-informed approach to testing evidence
- An understanding of different forms of harassment
- Harassment and freedom of speech
- Awareness raising of unconscious bias
Unfortunately, training on student misconduct decision making doesn’t fit neatly into remit of any of the sector organisations. The OIA has the expertise on best practise, the OfS is taking an increasing role on regulation in this area and Advance HE offer training to the sector on other areas – but not this one. Given their expertise, I would be thrilled to see the OIA take up this mantle – but perhaps the discussion about where this vital provision should sit needs to be the first port of call.
Institutions should consider working regionally to develop staffing resources capable of undertaking the training needed to fulfil these roles. A wider pool of investigators and misconduct panel members may additionally increase diversity in this pool of staff.
Where is misconduct panel is not well-versed in a particular form of harassment, an expert voice should be sought to provide additional context.