Student calls for freedom from harm are finally being heeded

Harassment and sexual misconduct on campus didn’t begin in 2009, and neither did activism around it – although the publication of NUS’ “Hidden Marks” report did feel like a “moment”.

But even if you then forget the more than a decade’s worth of student campaigning that ensued up to the publication of an informal set of expectations on harassment and sexual misconduct in 2020, you might wonder why it’s taken the Office for Students (OfS) more than three years to grow the teeth it needs to start regulating in this area.

Officially the position was that the regulator wanted to give the sector a chance to get its house in order before acting – although a re-read of the 2020 documentation suggests that OfS hadn’t really thought through how it might regulate (as opposed to encourage) on this area if it tried.

Nonetheless, over three years on, a proposal is now on the table, out for formal consultation – and you know how those tend to go. OfS is proposing to impose a substantial new condition of registration on providers in relation to harassment and sexual misconduct that would do six key things:

1. Provide clear definitions of harassment and sexual misconduct to support consistency across the sector.
2. Require each provider to create and publish a single “document” (you and I may well say “policy”) explaining:
   1. the steps it will take to protect [does it mean “prevent”] students from harassment and sexual misconduct
   2. its arrangements for handling incidents [does it mean “allegations”] of harassment or sexual misconduct
   3. the support it will provide to those involved in incidents [both accused and accusers]
   4. the training that it will provide to all students and all staff about what constitutes harassment and sexual misconduct and, in the case of staff, how to handle disclosures, formal reports, and investigations.
3. Require each registered university and college to have the capacity and resources to deliver everything required by the proposed condition.
4. Ensure freedom of speech and academic freedom are protected by requiring universities and colleges to continue to meet their legal and regulatory obligations in relation to both freedom of speech and harassment.
5. Prohibit non-disclosure agreements that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced.
6. Place regulatory requirements on universities and colleges in relation to personal relationships between students and relevant staff (for example, those involved in teaching students or marking their work).

Elsewhere on the site OfS CEO Susan Lapworth sets out a robust defence for the delay and sets the proposals in context.

For reasons that are not immediately clear, OfS has decided to go big on the staff/student relationships thing in the media release – although of two options (declaring relationships and maintaining a register of them, or banning relationships between “relevant” staff and students altogether), it is expressing a preference for the softer option. My colleague Sunday Blake looks in detail at that recommendation elsewhere on the site.

I stand in front of you

On the face of things, this ought to be relatively straightforward. OfS has taken its seven item statement of expectations and codified it into a dedicated condition of registration. Interestingly, in doing so if anything the wording becomes both tougher but less helpful.

So in the SoE providers were, for example, expected to clearly communicate and embed across the whole organisation, their approach to preventing and responding to all forms of harassment and sexual misconduct affecting students – setting out clearly the expectations that they have of students, staff and visitors. They were also to implement adequate and effective staff and student training with the purpose of raising awareness of, and preventing, harassment and sexual misconduct.

That’s all still there in different language – students are to be “taught” the content of the policy when they register at the start of each year of study, and induction sessions for all new students will have to contain training to ensure they understand behaviour that may constitute harassment and/or sexual misconduct. “Partners” they are not.

(Relevant) staff are to have an up-to-date understanding of the content of the policy, an up-to-date understanding of behaviour that may constitute harassment and/or sexual misconduct, the required knowledge and skills to support students who wish to make allegations or complaints about harassment and/or sexual misconduct or who are victims or perpetrators, and the required knowledge and skills to undertake investigations or make decisions in relation to incidents of harassment and/or sexual misconduct.

But gone is helpful language like “visible and ongoing commitment from senior leaders and the governing body”, “clear governance accountability lines”, or “collaboration with students’ unions” – that sort of stuff is in the guidance annexes in the back, if at all.

Nevertheless, universities that previously responded to former OfS CEO Nicola Dandridge’s call to check themselves against the SoE back in April 2021 will likely be assuming that a reformatting job on the tick-box table that went to the relevant committee will be what’s required here.

So it’s important to identify where things have been strengthened, and what remains unresolved.

But you don’t wanna get involved

On the assumption that even if every single consultation respondent argues against imposing a condition of registration there’s going to be one, item 1 of interest concerns definitions.

The proposal here is to explicitly define harassment and sexual misconduct – and the chosen anchor is section 26 of the Equality Act 2010 for both terms.

That did leave open the prospect of some sorts of bullying and harassment where the victim didn’t share a protected characteristic not being covered – but the good news is that OfS has augmented its definitions with section 1 of the Protection from Harassment Act 1997:

a course of conduct conducted on at least two occasions that harasses one other person, or a course of conduct that harasses two or more persons at least once each. References to harassing a person include alarming the person or causing the person distress.”

That means that all students can expect to be protected from harassment and supported if they experience it, whether or not the conduct is in relation to a protected characteristic. Initiation ceremonies are covered, folks.

“Sexual misconduct” gets augmented with assault as defined by the Sexual Offences Act 2003, and rape as defined by the Sexual Offences Act 2003 – and the use of “not limited to” covers other types of conduct too, as long as it’s unwanted or attempted unwanted conduct of a sexual nature. That also allows a catch-all to include online conduct.

On the other hand, OfS has resolved not to include in that catch-all specific requirements on domestic abuse – providers would need to develop their approaches to preventing and addressing domestic abuse at pace, and so for now it will “keep the situation under review” and “may revisit this issue in due course”.

Who says that’s not the way it should be?

That consistency of definition is fascinating partly because it brings into sharp focus some of the jurisdiction issues that linger in the consultation. When you are imposing conduct codes on people you need to be clear about what the standards of conduct (and definitions of misconduct) are, who they apply to and crucially in what contexts. And things do get a bit tricky here.

OfS’ line on provider application is that the condition will apply to any higher education course provided “by, or on behalf of, a provider”. That sounds great in principle – it will include all of the students who are registered with a provider, taught by a provider and even those studying for an award of a registered provider. And it will include non-UK-based students.

Crucially, circumstances where a provider is responsible only for granting awards for students registered with another provider are included. That means the the mothership has to make sure that the provisions of the condition kick in whether or not the provider has any other role in the design or delivery of that course – and “for the avoidance of doubt” this means for example, that:

…a provider delivering, or allowing another provider to deliver, courses leading to a qualification awarded by Pearson is responsible for compliance with this condition in relation to those courses.

Hold on. Wouldn’t that see a dangerous overlap in process?

In practice, these provisions may result in more than one registered provider being responsible for compliance with this condition in relation to the same students”,

…says the document, but think about that for more than five seconds and you have a problem.

Is due diligence done on year abroad providers’ policies and prevention efficacy? If an allegation comes up whose procedure do you follow – or do you use both? To what extent is deferral to a workplace’s policies allowed or sensible if you have a degree apprentice – especially if the employer doesn’t take kindly to your staff interviewing theirs? And how will the relationship between Oxford and Cambridge and its constituent colleges work when the latter demand autonomy but OfS demands a “single document” from the central universities?

There’s also the question of when a student is a student and so subject to codes of conduct – a thorny issue that’s a feature of many a case I’ve come across over the years.

These are issues that have needed flushing out for some time. OfS hasn’t quite got there yet – but you’d hope this bit will cause the questions to get resolved in coming months rather than left hanging.

You tell her she can manage

On prevention, the requirement will be to:

describe multiple steps which could (individually or in combination) make a significant and credible difference in protecting students from behaviour that may amount to harassment or sexual misconduct, including steps that may reduce the likelihood of harassment or sexual misconduct taking place.”

That’s a clever bit of wording – because to get there, an individual provider will have to assess its own student body, the different types of provision on offer, and the nature and severity of the issues faced by its students to work out what actions would then lead to “significant and credible difference”. It’s effectively a long way round of saying “do a proper risk assessment on your students”:

For example, we expect that there will be different levels of prevalence of harassment and sexual misconduct in different providers. Our proposal for minimum content requirements means that each provider would need to understand its student population and the extent to which its students may be likely to experience harassment or sexual misconduct in order to properly address these important issues.

Its national survey – touted as capable of delivering the kind of granularity on prevalence that would inform this risk assessment – is only at pilot, with OfS apparently struggling to get willing pioneer participants. The implication is that providers shouldn’t wait to do one of their own – and should think through the “pockets” issues in cases like the Bartlett and settings like academic fieldwork.

She don’t believe anyone can help her

On reporting, investigations and disciplinary procedures, there are several steps forward. There’s detail on the sort of support that students should expect whether they’re accused, a victim or a witness, providers will have to “ensure” students understand the policy, and again “for the avoidance of doubt” all individuals involved in an incident of potential harassment or sexual misconduct should be made aware of the outcome of any investigation and decision-making process – an issue that has been the subject of painstaking campaigning for years.

And in another win for campaigners, OfS is proposing that all providers deliver mandatory training on the policy for all students, and that this should include training for potential witnesses to raise awareness of and prevent sexual misconduct – so-called “bystander training”:

We have particularly emphasised that this training should be underpinned by credible evidence and evaluation which demonstrates measurable changes in attitudes and behaviours as a result of the training. Given the complexity of these issues, we would expect there to be an appropriate amount of time dedicated to mandatory training as well as an opportunity for attendees to ask questions.

And none of that “buy in an online module” stuff either:

For example, a short online session at the beginning of a student’s higher education career that does not allow for questions and discussion, is unlikely to be sufficient to meet our proposed requirements.”

One odd thing in the training section is that the issue of the make up of and support for disciplinary panels is fairly fudged – principles of natural justice and appropriate and effective training for staff in any role in the policy (including investigations) is in there, but the prospect for example of students sitting on those panels is never mentioned, and the increasing issue of students getting “lawyered up” is ignored too.

Gone too since the SoE are explicit mentions of panels needing to be free from any reasonable perception of bias, needing to be diverse and including student representatives where appropriate. That whole area of panels, appeals and so on feels like it needs much more work, ideally in conjunction with the OIA.

I know you wanna live yourself

One remarkable aspect of the consultation is a version of the old “doctrine of expectations” thing. If you’re sat thinking that all of the above is likely to need new resource, at least OfS is making clear that the duty includes a duty to find that resource:

It may be appropriate for a provider to allocate additional resources to meet the proposed requirements in relation to the number of students registered with the provider, the demographic characteristics of a provider’s student population, including students with particular protected characteristics, students with different modes of study or at different levels of study, or the prevalence and types of incidents being reported and how these affect students differently.

And again for the avoidance of doubt:

The proposed condition does not restrict the ability of a provider to recruit any type of student, provided it then puts in place the resources and support consistent with the needs of those particular students.”

It will be tough for a provider to argue, in public, against that formulation – although many will be itching to do so to avoid setting a precedent.

And there’s a bind here for small providers. Although the draft guidance nods towards sharing services with other organisations or providers if necessary, the line is clear – the condition may introduce new capacity and resource requirements. The subtext is clear too – if you can’t afford those capacity and resource requirements, tough. Either find the money, or shut yourself down.

One related aspect of this for small providers remains the problem of students not wanting to make a complaint if the setting in which it is considered is small. You can finger wag about resource all you want, but from a student POV would you risk your acting career by raising a complaint in your OfS registered provider of 100 students? I’m not so sure.

I’ll take the force of the blow

As we might expect these days, there’s a fulsome section on the interaction between freedom of speech and this condition that fleshes out the meaning of “freedom of speech” in its public interest governance principles – phrased in a way that will please culture warriors:

The need for the provider to apply a rebuttable presumption to the effect that students being exposed to any of the following is unlikely to amount to harassment – the content of higher education course materials, including but not limited to books, videos, sound recordings, and pictures, and statements made and views expressed by a person as part of teaching, research or discussions about any subject matter which is connected with the content of a higher education course.

That last section is going to need some picking over by the sector’s legal eyes in coming weeks – suffice to say that the condition both sounds like it would cover guest speakers invited by the autonomous students’ union, and also wouldn’t, but maybe would if the speaker was speaking on something connected to a course. Maybe.

In any event, this does remind us that both the harassment duty and the free speech duties might apply to the autonomous SU because they do things on university premises, or involve university students – but then again, might not, as SUs don’t (generally) run courses, aren’t regulated by OfS for harassment and sexual misconduct, and (will) have a distinct legal duty over free speech.

I wrote for SUs last week that I think we are drifting towards SUs and universities needing to issue joint codes of practice on freedom of speech and academic freedom – and I’m increasingly of the view that it is simply untable for an SU to be operating its own procedures or codes covering harassment or sexual misconduct. It would be helpful if OfS could offer a little more clarity over the variations of the Venn and its expectations thereof that could apply.

And I don’t have no fear

There’s a particularly interesting new section on restricting the disclosure of information. The proposal is to take the ban on NDAs introduced in the free speech Bill and take it a few steps further – prohibiting universities from proposing any contractual provisions that prevent or restrict someone from disclosing information about an allegation of harassment or sexual misconduct which affects one or more students at any stage, and even banning the enforcement of any restrictions agreed prior to the date the condition takes effect.

Providers will also have to take reasonable steps to stop third parties like those running work placements from imposing NDAs too, which will generate similar headaches for providers to the ones mentioned above on jurisdiction.

This is all welcome stuff – but the wording does appear to open up the prospect of being unable to impose confidentiality clauses on those taking part in disciplinary investigations and panels prior to a decision being made, as well as once one is reached.

This is the “acting in” (confidentiality, natural justice, due process) v “acting out” (social media, metoo, news coverage) thing that providers are increasingly worried about, but students (and some staff) argue is helping tip the balance towards victims. It almost certainly needs more thought, or at least better wording.

Sometimes you look so small

So where does all of this get us to?

There are still some issues hanging. As well as some of the jurisdiction gaps and overlaps I’ve rehearsed above, it’s also odd to see few references to processes having to proceed in a timely fashion, given that that is what so many students complain about. It’s bizarre to not see a single reference to the Office of the Independent Adjudicator (OIAHE) in here, and the potential issues with interactions with its own forthcoming role as a free speech regulator need more of an airing.

There’s also no mention of the complexities that could emerge from the Worker Protection (Amendment of Equality Act 2010) Bill, and the stuff on staff-student misconduct is still relatively thin – the traditional focus on “provider” being the unhelpful box here when we worry about perpetrators moving from one university to another.

And it’s disappointing to not see a duty on what OfS would doubtless frame as “appropriate” staff to report in harassment even if a student doesn’t want to make a complaint. That kind of “wait until you find someone that’s brave” approach is how abusers hide for years.

We should remember that the condition explicitly covers racial harassment – despite the fact that OfS seems to be hoping that we don’t notice when its pilot prevalence study will only be covering sexual misconduct. OfS says that’s about focus, expertise and readiness – but I suspect it may also be because it doesn’t want to get into things like microaggressions in the current political climate. The danger is that OfS looks like it’s busy reinforcing a hierarchy of harassment that it ought to be capable of eschewing as an independent regulator.

I might also add that while it’s great to see stuff on bystander training in the document, I recall the government getting so upset at student led bystander training in relation to racial harassment once that it committed to legislation banning it. That’s an issue that’s sidestepped here.

I’m also still worried about harassment or assault that involves two students at a university, but where the actual university context is weak (they may not have known each other were at the university, or may have known each other previously – or are workmates at a separate employer). Cases involving students who are both employees and students remain a headache, and it remains the case that student-student misconduct where the students involved attend two different universities is not handled well – for all the “single reporting portals”, it is still really hard to raise an issue about a student in another university.

But could you forgive yourself

That all segues us back to the issue I raised in April 2021. Many of the aspects of the duty – things like what amounts to a complex risk assessment by setting, subject and student characteristic, or how to handle some of the complexities of the jurisdiction Venn – need expertise that almost certainly isn’t there right now. Susan Lapwoth is right that old HEFCE catalyst funding generated some expertise and learning – but not enough on this sort of stuff.

Some universities might have it, internally, after being bruised by a couple of difficult cases – but it just isn’t the sort of thing that universities are pitching up to conferences and running a workshop on.

It’s not generally OfS’ style to get into hand holding on working on what works, and usually just says it’s for the sector to get together and sort that kind of thing out. Except when it comes to issues of access and participation, that’s actually not OfS’ position – there’s more guidance, and it funds TASO on the basis that the markets and competition won’t necessarily drive improvement or insight.

A similar approach – axed around a national serious cases review, needs to be convened by OfS, and if not Universities UK – so that we don’t waste yet another year working out if a set of standards designed in a petri dish will work out for students in the real world. And as I’ve said before, ministers need to fund some more of the “what works” approach that we see in APP work, only on duty of care and harassment/misconduct prevention and support work – because the answers simply aren’t all available on the shelf.

Nevertheless, this is big and dramatic stuff – a huge step forward from the regulator, and probably the most significant and potentially impactful use of OfS powers to date. The regulation is detailed, sophisticated, has responded to countless questions raised in multiple previous consultations, and for a change appears to be putting England ahead of the rest of the UK for a change.

There’s an actual consultation to go yet – although calls to water down here will have to be muted. And if I had one gripe it would be that the press release can’t, as usual, resist positioning OfS as the white knight riding to the rescue of the damsel in distress on campus being exposed to sexual misconduct by lazy university managers not taking things seriously enough.

Some will lament that student leaders these days demand safety rather than freedom – but they misread students when they do so. Students are still calling for freedom – just freedom from abuse that lets them succeed on their course.

Having authored, along with my colleague Sunday Blake, a book chapter on the long struggle that student leaders have faced in securing this kind of change, we should give this moment to them – thanking them for their tenacity, commitment, bravery and leadership, and reflecting on why on earth it has taken so long to listen, learn and respond to their calls for protection. Doing so locally rather than reformatting that tick box table is the least providers can do now.