SUs are being placed in an impossible position over free speech

Jim is an Associate Editor at Wonkhe

For a long time now, I’ve been concerned at the idea that SUs in some universities have been expected to operate disciplinary procedures over extracurriculars where there’s an allegation that amounts to harassment or sexual misconduct.

That’s partly been a concern about capacity and expertise, and partly about a concern over the available penalties available to an SU.

Nevertheless – partly over conceptions of the SU being autonomous, and partly over SUs often just being better at that stuff than universities, it continues to happen.

Of course in many cases it is now routinely expected that an SU case where a student complains of another student’s harassment or sexual misconduct will be referred – often in an uncodified way – to a university.

That is sensible. It avoids any double jeopardy and the university is more likely to meet the relevant required standards for a fair investigation and panel (as per, for example, forthcoming standards for such processes to be introduced by the Office for Students).

Types of decision

In reality if we’re thinking about the investigation of or a determination on an allegation of harassment or sexual misconduct, three types of process have existed across universities.

There’s a legalistic process, an amateur process and a “popular” process.

These aren’t always as separate as I suggest, but what I mean is that you can legally weigh up definitions and their application and rely mainly on legal advice, have amateurs (both academic and/or student) make a judgement, or subject a decision to some kind of vote – ie accountability procedures or “no confidence” motions.

I think it’s clear the “vote” thing is pretty much untenable for all sorts of obvious reasons when it comes to allegations of this sort.

The “amateur” thing is also increasingly untenable for obvious reasons – although continues to be framed as “students sorting things out amongst themselves” by several university registrars.

That leaves us with the legal focus – and I think few would argue when I assert that SUs are significantly less likely to have access to the resources to make those sorts of calls effectively.

Freedom from and freedom to

Now to free speech. During the inception of and the passage of the Higher Education (Freedom of Speech) Bill in England, I was a fairly lone voice in the sector arguing that regulating SUs directly on it – rather than doing it through HEIs – would end in problems.

But each time the pretty childish assumption from all sorts of actors was that a) I was trying to get SUs off the hook and have them escape scrutiny, and b) they should as a result have the “balancing” and “primary” duty of free speech (as opposed to EDI/harassment) placed directly on them to stop them having an excuse to ban things.

So when I repeatedly warned that one day this set of assumptions would end in problems, I was frequently dismissed as acting in bad faith.

So where are we now? SUs up and down the country are being left on their own to judge whether a society, student activist or club’s messaging or activity is legally OK, or amounts to either antisemitic harassment or the facilitation of violent extremism

SUs have been applying rules-based, professional judgements to those sorts of issues for years. But they remain organisations that don’t have legal firepower or penalty power to do this properly on their own.

Hung out to dry

Right now there are people working in SUs who are being asked to judge whether a society poster is antisemitic or facilitates/promote violent extremism.

It’s worth remembering that the legal duties to prevent harassment and prevent the facilitation of violent extremism are stronger and more directly placed upon universities than SUs.

As I said a year or so ago:

Let’s imagine that there is an incident along the lines of that Israel/Palestine example that is on campus but in a student society. The university might say “it’s the SU, up to them”, but it happened on campus, involves their students and the university has duties. It could say “you have to let us handle it”.

But not only will the SU have its own legal duties re free speech, the “balancing” legal duties on the SU are different. Does the university use the balancers on itself or those on the SU when making a judgement?

Crucially, if an SU permits something, and then a university later resolves to discipline the students involved on the basis of its duties and interpretations, that’s an invidious position for everyone.

Similarly if an SU bans something, and then a university later determines that the activity or message or poster was permissible, again that’s an invidious position for everyone.

The thing about the “twin sandbags” being placed on free speech on one end of a see-saw and EDI/harassment/Prevent on the other is that neither universities nor SUs are now in a position to hedge bets.

If you can’t ban it, the heavy legal pressure will be to allow and facilitate it. If you can ban it, the heavy legal pressure is to do so. There is much less room for informal resolution or just offering advice.

Indeed, if an SU doesn’t ban it, it runs the legal risk of being accused of condoning harassment or violent extremism. And if it does, it runs the legal risk of failing to secure freedom of speech.

At this point as well as the SUs we work with, I think of Anytown College of FE students union – with no staff and no budget, caught by the act and expected in law to make these judgements.

I also think about those getting outraged that societies were being forced to operate under an SU or university umbrella – where now the expectation is that influence and control over activities will be exerted by an SU or university.

Complexity and nuance

The point is that I neither think it viable nor reasonable to expect an SU to have to make these sorts of nuanced judgements – and yet even where it is determined that the autonomous SU must, we are repeatedly coming across SUs without even back up or advice from their university.

There are implications to think through. But I suspect that the days of SUs being asked or expected to make these sorts of decisions are numbered.

This need not mean the end of SU political autonomy. But it does, I think, require an urgent re-examination of the role we think an SU should play over the regulation of student activity and student conduct when expected to reach judgements.

And for me it almost certainly means that SUs in England – despite soon being under a discrete legal duty to issue a freedom of speech Code of Practice – should seek to agree a joint one with their university.

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