The freedom of speech guidance wasn’t written for student-on-student complaints

New submissions have arrived via your English university’s reporting platform.

Student A has reported that Student B is frequently posting – and reposting – offensive reels publicly on Instagram. The reels appear controversial, with content on faith and sexuality. Student B is connected on Instagram with many course mates, all first-year medical students, and several of them feel deeply affected by this content and are anxious about attending lectures and seminars knowing Student B’s views.

Student C reported Student D, and vice versa. Both are attending the same final-year unit this semester and share a classroom for lectures and seminars. The unit, Twentieth-Century Politics in the Middle East, has generated passionate debate within seminars. Both students acknowledge it’s a divisive topic but feel that directed comments have now started to stray into harassment, as defined in your university’s Dignity and Respect Policy.

What the law says

Duties relating to freedom of speech in higher education were already described in Section 43 of the Education (No. 2) Act 1986. A duty on governing bodies to take reasonably practicable steps to ensure freedom of speech within the law was in place, as well as a duty to maintain a code of practice covering meetings and activities on premises, including conduct required of those involved. It was almost entirely oriented towards meetings and events and not enforced via a specialist regulator.

The Higher Education (Freedom of Speech) Act 2023 has duties that now extend into teaching, research, employment, codes of conduct, and complaints processes – on and off campus, online and offline. There are also new positive duties: providers and constituent institutions must promote the importance of freedom of speech and academic freedom (the “promote” duty) and secure freedom of speech within the law (the “secure” duty).

Perhaps the most significant operational change is the eventual enforcement as a condition of registration, and therefore a substantial shift in regulatory weight. When the condition of registration comes into force in April 2027, failure to comply will effectively become a threat to registration for providers – and, arguably, a consequence out of proportion to the previous duties and the current clarity of the guidance.

The triage problem

Both students have asked for a formal investigation. You therefore consider whether the Higher Education (Freedom of Speech) Act 2023 and the associated guidance produced by OfS are relevant to these submissions. The guidance tells you that its principles for assessing compliance with the secure duty “apply to any measure or decision that might affect speech or types of speech.” You decide these two reports are both subject to the provisions of the Act and look to the three-step framework for guidance. What does a freedom of speech-compliant triage look like? What should be documented, and why? If you decide not to proceed, what do you tell the reporting parties? Perhaps Student A is exercising their right to lawful freedom of speech – but is that a concern for a medical student, and should you talk to the student about professionalism, or tell their programme team?

You hope that the OfS guidance document, at more than 20,000 words, will provide ample direction on process, enabling you to respond swiftly and fairly and document compliant decisions. But after a thorough review, you have a few concerns about how helpful it will be in practice.

You notice that section three – which gives “concrete examples of steps to secure freedom of speech that are likely to be reasonably practicable in a wide range of circumstances” – does include information on complaints and investigation processes; however, it offers fewer than 800 words of guidance across five paragraphs and two “concrete” examples. Only one of those examples feels relevant: the first concerns the format and presentation of the university’s reporting platform, and the second describes a staff member’s comments at a protest. There’s no example of one student reporting the speech of another, so you look to the five paragraphs of guidance and find that paragraphs 164–166 are relevant to your current task.

The guidance doesn’t explain what a “preliminary assessment/triage to assess whether to commence an investigation” entails. It offers no practical advice on considering whether a complaint is vexatious, nor whether an investigation will turn out to be “trivial” or “intrusive” in practice.

There are several examples elsewhere relating to institutional policies, staff members’ academic or political expression, speaker events, demonstrations on campus, admissions and recruitment, the curriculum, and others. The section on reasonably practicable steps to secure speech is substantial but is fundamentally oriented towards policy review and institutional practice, rather than the operational work you’re doing.

The one example referencing a student using a reporting platform gives a likely outcome, but not a methodology. It doesn’t explain how the report in the example was triaged or what was considered. You begin your triage with the clearest statement found in the relevant section: “The starting point of any such process should be that lawful speech will not be punished because of a viewpoint that it expresses.” At this point it’s clear that the first hurdle is one you likely can’t clear without input from your legal team – particularly given the potential consequences of getting the decision wrong.

What working groups missed

Most universities in England will have convened a working group and drafted a triage form for casework teams in advance of 1 August 2025. My experience across various networks and groups is that these working groups focused predominantly on issues of academic freedom and institutional policy and practice relating to academic freedom – which was, and is, a reflection of the weight given to these themes in the guidance document itself.

Even if the triage process was an item on your working group’s agenda, the guidance document was unlikely to give you anything more than broader principles, and certainly not a process or toolkit for making decisions in response to formal reports alleging harassment or hate. There’s no flow chart or outline of steps to follow when responding promptly to reports from students.

The freedom of speech guidance does reference E6. Although it refers to a consideration of the “time, place and manner of speech,” this is positioned throughout as a precautionary consideration rather than something to consider as part of a clearly defined triage process after the fact. The guidance notes that E6.8 takes precedence over other E6 guidance. The addition of E6.9 clarifies that when providers develop or apply harassment or sexual misconduct policy frameworks, they must do so in a way that’s consistent with freedom of speech. If any part of those frameworks oversteps the Equality Act or other relevant law, and that overstep could chill lawful speech, then you must show you have actively weighed freedom of speech in deciding to keep it in place. But what does this mean for you and the reports on your desk?

A gap in the guidance

OfS treats this scenario – a student-on-student report of harassment – as a category of institutional policy rather than a real and live operational task facing English providers daily. The principle of the guidance is that a compliant provider triages appropriately and promptly and acts quickly to close off the process. This principle works well when a report is obviously vexatious against a staff member exercising academic freedom.

The guidance is designed around the risk that the Act seeks to address: academic staff being silenced, speakers being deplatformed, and institutional policy frameworks having a chilling effect. Most student conduct casework involves none of those features, and the guidance doesn’t really acknowledge that these two populations of cases exist in any meaningful way. The recent confirmation of the separation of OfS and OIA complaint schemes underlines this point, as does Malcolm Press’s acknowledgement that “Protecting free speech while preventing harassment, hate speech and radicalisation are complex tasks involving finely balanced decisions.”

Three things we need

This piece calls for three things from OfS: an acknowledgement that student-on-student interpersonal reports are a distinct scenario; a mapping of expectations across E6 and the freedom of speech guidance; and concrete worked examples of triage decisions.

With the stakes as high as they’ve ever been for decision-makers, this matters more than ever. Perhaps OfS could begin with the two examples outlined at the top of this piece?