Academics need an academic freedom ombuds

The Higher Education (Freedom of Speech) Act seems to be stuck.

Since the Westminster government announced that it intended to pause implementation of (and ultimately repeal) the Act, the Freedom of Speech Union (FSU) has threatened judicial review, 500 academics have signed a letter, and parliamentarians in both houses seem to keep asking questions of ministers to which the answer is usually “we’re taking our time to get this right”.

Attempting to fill the void and move things along, at the end of October Ian Pace, a Professor of Music, Culture and Society from City St George’s, convened a lively panel discussion at the university on what the government should do now.

David Abulafia (professor of Mediterranean history at the University of Cambridge) rehearsed his argument that the act is not a “hate speech charter”. Ewan McGaughey (Professor of Law at King’s College London) argued that fixing the lack of democratic self-governance would help cause the culture change required.

Akua Reindorf KC (Commissioner at Equality and Human Rights Commission) argued the act would have simplified legal duties, reduced legal burdens and benefited marginalised voices. David Ruebain (PVC Culture, Equality and Inclusion at the University of Sussex) said that OfS’ proposed guidance was “fatuous and asinine” and its approach insufficiently enabling over handling the practical conflicts and challenges on campus.

Michelle Shipworth (the Associate Professor at UCL at the centre of this case) shared her experience of being “cancelled” due to her teaching, centring the act as the “only potential remedy”. And someone called Jim (Eurovision fan and Associate Editor at some kind of HE website) thought that while there is a problem, it’s one that’s misunderstood and wouldn’t have been fixed by the act.

There’s a lot of fun to be had in opening your contribution to a panel like that by making clear that you’re not one of those people that doesn’t believe there’s a problem—partly because the caricature means that others will have lined up arguments to suggest that you are, and partly because audience members line up afterwards to harangue you for a position you don’t hold.

As such, to the extent to which there were “sides”, Abulafia, Reindorf and Shipworth largely made the case in principle without answering the charge about practice—and McGaughey, Ruebain and Dickinson, vice versa. It was all jolly good fun.

In the chit-chat afterwards, someone described how at a conservatoire, they had heard quite views of academic freedom—words to the effect of:

We are here to teach people to play/sing, not indulge in academic debates.

I have a degree of sympathy with that position from a vocational curriculum design or student intent perspective, even in HE. But if it’s used to somehow silence or punish students or academic staff—not so much.

So on the way home, following a stern finger wagging from someone from the FSU over some society stall issue at Durham, it did get me thinking about the actual unfulfilled purpose of the event. What exactly should the government now do instead, with particular reference to protecting academic freedom and academic freedom of expression?

Getting it right

In terms of the general Department for Education approach, a “good campus relations” agenda of the sort adopted by the last Labour government would be a good start. That was aimed at causing inclusivity and respect on university campuses by promoting dialogue among students from diverse backgrounds and addressing discrimination, harassment, and extremism. Key aspects included guidance on managing controversial events, initiatives for interfaith and cultural exchange, diversity training for staff and leaders, and policies to handle discrimination complaints.

To the extent to which that kind of approach might recognise the complexities of both a free speech duty and a set of balancing duties on harassment, EDI and extremism, that would start to represent some grown-up government—rather than the finger wagging and assumptions of bad faith on both ends of the see-saw we saw from the last lot. It might also reflect on why it is that students with particular protected characteristics are less likely to tick the “confident to speak” box in the NSS.

On the general duties in the Act to both promote and secure free speech, we shouldn’t forget that there are existing duties in this space—the Education Act 1986 and the Public Interest Governance Principles set up via the Higher Education and Research Act 2017.

If the government repealed HEFOSA and ever got around to issuing OfS with a strategic guidance letter, asking OfS to actually regulate against those duties with a more “enabling” (and risk-based) framing—in partnership with the EHRC—would be pretty straightforward. It would also eliminate nonsense like FE colleges delivering HE having to tell enrolled 14-year-olds about their free speech rights and a complaints scheme, or telling 5 17-year-olds running an FE SU that they have to draw up a code of practice.

On that, when it comes to students’ unions, they’re already covered in the 1986 Act and section 22(4)c of the Education Act 1994. That legislation regulates SUs through universities—reverting to that approach would avoid OfS suddenly having to gather the names of SU officers (including those in FE colleges caught by the act) and threaten them with fines directly, and would avoid all the confusions caused with overlapping responsibilities, duties, and policies.

There’s bits in the act on foreign funding of universities and SUs that have never been properly aligned with the National Security Act 2023 and its proposed Foreign Influence Registration Scheme. To the extent to which the issues are to be tackled—which usually centre on allegations aimed at China—it makes no sense for them to be regulated in England-only via education legislation. DfE should hand that hot potato back to the Home Office.

The legislation banned NDAs over harassment and sexual misconduct complaints—by the time it was passed, OfS had done it anyway. Labour should use its upcoming legislative programme to ban them in all employment contexts—and for HE, should just ask OfS to consider banning them in all complaint types in its upcoming review of its E Conditions.

Tort a lesson

That then pretty much leaves the complaints scheme and the tort. The argument here is fairly simple. On the one hand, some like me argue that putting what amounts to a competing Alternative Dispute Resolution scheme to the existing Office of the Independent Adjudicator inside the HE regulator was never going to work, generate vexatious complaints and process confusion, and generate endless legal disputes.

The opposing case—particularly over academic freedom issues—is that universities and their managers can’t be trusted, are too keen to respond to consumer students or financial interests, have craven managers and so on.

And despite the fact that judgements over academic freedom sound like they need academic judgement, academics are too monocultured in a university to make the right decisions—hence Arif Ahmed emerging as the hero de jour. I guess “be careful what you wish for” sounds empty when what you’re wishing for is an external pair of eyes on your case—but for me, the reach for bureaucratic authoritarianism is fascinatingly short-sighted.

That does take us back to the issue of trust. The extent to which the free speech duty and its OfS guidance started to get into matters of free speech student conduct was an obvious source of problems as the regulator started to get properly into implementation—the interaction with harassment, the discomfort at admitting that IHRA raises questions, and the regulator’s failure to keep up with tribunal casework and how reads-across might apply to a student society or an SU’s website was starting to look embarrassing.

But on academic freedom, I think the case is much clearer and stronger. And debates about it across Europe offer potential solutions to the need for externality to resolve disputes about it.

Cry academic freedom

The “category error” of conflating freedom of speech and academic freedom was rife during the passage of the Bill, and rife throughout OfS’ proposed guidance. It’s a problem because, as John Heathershaw (part of the Academic Freedom and Internationalisation Working Group) points out here, freedom of speech is a general right—while academic freedom is a professional right:

Academic freedom is freedom to teach and research—not merely a freedom from interference. Such positive academic freedom—as elaborated in the 1997 UNESCO recommendations—requires security of employment, the time to research and stable funding for research and the ability to participate in governance.

That’s not to say that a Bill setting some standards for participation in governance or funding universities properly would fix things—although it might help.

It’s to say that it matters because to the extent to which the employment tribunal has considered academic freedom, cases have tended towards the protection of expression rooted in research—while references in European Court of Human Rights cases also give protections for academics as democratic watchdogs both in society and inside universities.

In this paper, Naomi Waltham-Smith and James Murray raise concerns over balancing academic freedom’s broad protection against institutional and individual interests—arguing that the Act’s definition, focused on expression rather than broader UNESCO standards covering research and teaching rights, could lead to inconsistent protections:

Ultimately, HEFOSA’s definitional issues, practical enforcement challenges, and reliance on employment status rather than speech’s epistemic value suggest that the Act may inadequately address the concerns it aims to resolve.

And as Heathershaw points out:

Sometimes academic freedom and freedom of speech are in conflict. On the one hand, academic freedom includes the right to determine essential readings on a topic for one’s students (say, on the Uyghurs). On the other hand, as a matter of freedom of speech, a student may insist that they disregard this literature and engage entirely different sources (say, exclusively pro-Beijing sources). They may do so, but they will be marked down on academic grounds.

Threats to academic freedom here have been seen almost exclusively through a “cancellation” lens—inevitable given the character of the high-profile cases, but dangerous insofar as the solution sought tends to look either for the ringleader responsible (woke activists, hostile states and so on) or the spineless administrator refusing to tackle said mob—all in an era where instant, decentralised judgement of others is a social media cat that the Act can’t put back in the bag.

A global issue

But both in global and European terms, academic freedom is often discussed in terms of cancel culture – both also in terms of state interference. The League of European Research Universities (LERU) published a paper in April 2023 highlighting academic freedom as a fundamental right which should be enforced and protected, including the following three aspects:

• An individual right to expressive freedoms for members of the academic community (both staff and students) as individuals, including freedom to study, teach, freedom of research and information, of expression and publication (including the ‘right to err’) and to undertake professional activities outside of academic employment.
• Collective or institutional autonomy for the academy in general and/or subsections. This implies that departments, research units, faculties and universities have the right (and obligation) to preserve and promote the principles of academic freedom in the conduct of their internal and external affairs while they are also protected against undue interference.
• A corresponding obligation for public authorities to respect academic freedom, to protect it and take measures in order to ensure an effective enjoyment of this right.

Defining it like this in conjunction with our friends in the EU, extending some academic freedom (and academic freedom of expression) principles to students in the process, would help.

Heathershaw points out four ways in which academic freedom can be put at risk by internationalisation:

• International partnerships, both in transnational education and research. For example, academics who work at UK overseas campuses in UAE, China and other authoritarian states frequently report censorship and education which is technocratic rather than promoting critical thinking.
• In fieldwork abroad, both in terms of overt interference and self-censorship.
• For expatriate staff and students in the UK – the surveillance of students where research is constrained due to the threat of retaliation.
• Donations and other overseas funding—where in contrast to the US, there is a lack of transparency in the UK.

Heathershaw argues that his working group’s model code of conduct would help—a common set of standards developed by an expert group of academics working on different regions of the world, and recommends training for staff and students in academic freedom and support for at-risk persons in the UK and overseas through organisations like the Council for At-Risk Academics. And his other proposal is very interesting:

For extreme cases, the code requires systems of reporting and investigating to a designated person and beyond the university to a genuinely independent ombudsperson, not to a free speech champion.

If OfS is the wrong body for it, one option would be the Equality and Human Rights Commission—it at least has the job of reconciling what can often feel like competing rights over the see-saw of freedom and safety. But both capacity, and its lack of grounding in and focus on academic freedom would be seen as a problem.

Importantly, arguments for a genuinely independent ombudsperson are being advanced at a European level. The Guild, a group of 21 research-intensive universities located in 16 European countries (Warwick, Glasgow and King’s are UK members) argues that as a core principle of the European Union, academic freedom must be protected vigorously and decisively by the European Commission and all EU institutions—and has called for the creation of a European Ombudsperson to defend and support academic freedom:

The European Court of Justice has a critical role in this, but we need to go further. Therefore, the Guild calls for the creation of a European Ombudsperson for the defence and support of academic freedom.

It argues that the ombudsperson would ensure that infringements on academic freedom are responded to quickly, impartially and effectively, based on the Bonn Declaration on Freedom of Scientific Research—and as well as being a pan-European alternative dispute resolution service to “match” the European Court of Human Rights and the HRA, looks and sounds like it would command more trust than what many have seen as a politicised and over-stretched Office for Students.

Closer integration with the EU looks both sensible and more politically possible with this government—the UK taking steps to accelerate the creation of a European Ombudsperson (involving both DSIT and DfE) would do nobody any harm.

On the inside

That then just leaves the issue of culture change and dispute resolution within institutions. I’ve argued on here endlessly that from a student point of view, the lack of institutional-level ombudspeople generates an inevitable defensiveness of “the university” towards “the student” in both individual disputes and collective learning. It’s a version of that that I hear from academics who argue that in an academic freedom case, the university defends itself, not them.

Labour’s upcoming Hillsborough Bill and its “duty of candour” might change bits of that—but more broadly, the need for someone to play arbiter and watchdog at a closer level than the OIA is currently able to do remains strong.

In some countries, campus ombuds aren’t just for students. Polish universities, for example, routinely tend to have university ombudspeople for academic rights and values, who monitor compliance of academic rights and values with legal regulations, and any institutional or national codes of Good Practice.

Interrogating campus-level ombuds—which DfE last asked the OIA to do a decade ago—would be a fine start, especially if such positions were focussed on academic rights for both students and staff.

Add all of that up, and I think there is a very sensible way forward. However hard Arif Ahmed protests his neutrality, the Higher Education (Freedom of Speech) Act was a terrible bit of legislation—it looked politically motivated, conflated academic freedom and free speech, gave odd powers to the regulator, ignored what was already there, and mistakenly imagined that heavy sandbags on the campus-culture see-saw can change cancel culture or fix Israel/Palestine.

A more sophisticated approach—one that combines good risk-based regulation with some internal and external independence over disputes, and that recognises the European interest in addressing threats to academic freedom—is there for the taking.