This year students’ unions – and more importantly, students – have been embroiled in a newly invigorated campus culture war.
Universities minister Michelle Donelan argues that students’ unions shouldn’t be making decisions about the regulation of student events on campus that feature external speakers. Other actors in the debate – like Jim Butcher writing for Spiked! – argue that we can’t rely on students’ unions to defend free speech more generally.
It goes like it goes
Codes of conduct protect particular sections of the student body against intimidating, hostile or offensive behaviour that would prevent students’ participation. They remove from students the need to deal with problematic behaviour on campus themselves and instead mean deferring to higher authority – first to SUs, then to university staff and ultimately to the state itself.
The argument goes that though these authorities may consider themselves reasonable people, they cannot be regarded as reliable defenders of the rights of particular sections of students. They argue that the introduction of anti-harassment codes and other forms of censorship and restraint should itself be considered offensive to students. They say that such measures are inherently patronising, implying that students need to be protected against threatening behaviour and dangerous ideas. They say that these codes treat students as helpless children rather than as responsible adults.
They said it in Living Marxism magazine in 1995, and articles saying the same thing over and over again (while pretending that the issues are “new” or “recent”) have appeared every few weeks ever since – both in LM and its successor publication, Spiked!
Exercising responsibility
For some time students’ unions have been pointing out that when they assess risks associated with events held under their auspices, they are merely discharging their legal duties, not least those associated with the fact that SUs are registered charities. The Charity Commission says that freedom of expression is an important element in furthering educational charitable purposes and that “many of these charities are leaders in promoting democracy, human rights and civil liberties”.
But it also says that this must be balanced with ensuring that activities aimed at promoting these rights “do not interfere with or deprive other people of their rights”. For example, it says that speech or literature that aims to make the lives of a particular group intolerable would not be protected under the right to freedom of expression. So it expects that the charities like SUs will have in place procedures that consider the risk posed by events, that checks are made on people that are planned to speak at events, and steps taken to mitigate those risks.
A relatively new iteration of the argument that Spiked! et al present is that when implementing responsibilities like this, students’ unions go too far. The suggestion is that SUs use duties like this as a convenient excuse to close down views, opinions and speakers they don’t like or disagree with politically. Despite the fact that SUs have a legal duty to deal with political groups even-handedly, it doesn’t matter to opponents that there has never been any formal action taken by the Charity Commission about supposed partisan actions taken by SUs. For them the mere fact that an SU might “risk assess” an event is mollycoddling and serves as a “chilling effect” over debate on campus.
And so a new argument is around – that students’ unions should retain “sports, service provision, university committees and entertainments” and their charitable status, but that universities should somehow become directly responsible for “political” activity. Is that wise? Would it work? And would it create the kind of freedom that its proponents crave?
We regulate each other
It is true that most SUs have codes of conduct and behaviour that they apply to their activities and those of their student groups. It’s also true that these go further than the law – just as there are in workplaces, or community centres, or your local pub, there are things you can’t do that are still legal.
The difference is that unlike in workplaces, community centres, or your local pub, it’s students – the community itself – that sets those standards and implements them, democratically. That’s not about opinions – it’s about the way in which we as society or community we regulate each other’s behaviour.
The problem with a “free for all” is that it ends up anything but – with already marginalised students shut out. So no – student communities aren’t going to wait until it becomes illegal or unlawful for students to shout abuse at each other in their own meetings or activities, and nor should they. And the very fact that SUs involve students in the development of community behaviour standards sets those involved up to have those debates as citizens in later life.
Being charitable
It’s also true that when SUs implement policies like this, they’re discharging their duties under both equality and charity law. But we don’t do it just because we have to. We do it because charity law makes sense.
In the fantasy world of ultra-libertarians, the law only ever has to consist of extreme things that you can’t do. But lots of laws place sometimes conflicting duties upon those that run organisations to consider the risks posed by and the impacts of what goes on in their name.
The law requires me as a charity trustee to think carefully about free speech and free expression. It also requires me to think about protecting the rights of those with protected characteristics. It suggests that I should work with others that influence decision making in my democratic membership charity to determine the appropriate balance of these things. I do so carefully and enthusiastically, and if none of those laws existed, I’d still be arguing for them – because we all ought to believe in both of those things.
A new settlement?
If you advance the arguments of the sort I’ve referred to, eventually you end up in a strange place. Apparently, “mixing charitable status and politics is always problematic”, and it would therefore be more productive to look at separating out the role that students’ unions play in sports, service provision, university committees and entertainments on the one hand, and “independent student politics” on the other.
It’s quite amusing to imagine that student political action and student political societies would somehow be more ”free” to go about their business when regulated directly by universities, with their famous focus on frictionless, light-touch bureaucracy. It’s less amusing to think of the kind of “chilling effect” being regulated directly a university would have on students advancing political arguments within or about the university, the community or the state.
Student political groups calling for fee refunds or organising around the “no confidence” of their vice chancellor will be surprised to learn that being directly regulated by their university would somehow make them more able to go about their legitimate business. And cutting student politics groups “free” would also mean they get cut “off” – from the dedicated and expert support that SU activities and opportunities staff provide to make those groups successful. In a year when we’re already concerned about the viability of societies, robbing them of support because of an imagined problem with free speech would be a massive disaster.
But more important than all that, the idea that “non political” activity should be regarded as charitable and “political” activity should not be is both patronising and dated. It’s a hark back to the days when it was considered OK for charities serving disabled people to have people in wheelchairs rattle tins in shopping centres but were told to be silent to politicians on the issues facing their beneficiaries. Are we really saying that the Football Club won’t be able to take a view on tuition fee refunds or sports hall funding? Or worse, that the Amnesty International society or Conservative Student Club should be robbed of support?
All of this is so tiring- and what really concerns me about this supposed war that SUs are in is how little it actually has to do with freedom of speech. Given the government has proposed laws that would eradicate both a long history and bright future of noisy and inconvenient student protest, hopefully Spiked! and their ilk can stop obsessing over students’ unions for a while and help us fight the bigger threat to free speech that’s looming over us all.
Hello Becky,
Although you raise some relevant points here, I think you misrepresent others.
You state that: ‘They argue that the introduction of anti-harassment codes and other forms of censorship and restraint should itself be considered offensive to students.’ I do not argue that in the article or elsewhere, and it is not characteristic of the arguments made by others.
You assert that my argument is ‘that universities should somehow become directly responsible for political activity’. That forms no part of my argument. Free speech advocates generally seek guarantees of non-intervention in legal speech and political organisation from authorities – both SUs and universities. Those guarantees are in my view best given by universities themselves, not government.
You assert that these views are ‘ultra-libertarian’. Questioning the authority of SUs to police legal speech is hardly ‘ultra-libertarian’. Do you think universities were ‘ultra-libertarian’ a few decades ago prior to these codes? It is true that I am arguing for greater liberty within the law, in the same sense that you are arguing for restrictions on liberty over and above the law.
You justify your position in part with reference to the scenario of a ‘free for all’ which carries the threat of abuse – people need speech codes to reign them in. This is not a picture of university life that I recognise. For the vast majority of the time campuses are friendly and open. But there are plenty of examples that suggest it is SU’s policies themselves that have become a focus for incivility and intolerance. They sometimes fuel attempts to cancel and control rather than confront speech that some claim to find offensive. They promote culture war over intellectual and political debate. This is the case even for widely held ideas around gender / sex for example.
We disagree fundamentally on free speech and the role of SU’s – that’s clear. It should also be clear by now that the ‘they’ in your article includes many people from a range of backgrounds and political views. We agree on the threat to liberty in the new policing and crime bill, and on the positive contribution of SU’s in a range of areas such a facilitating sport, arts and entertainments. We should discuss all these issues further.