If sunlight is the best disinfectant, how do we let more in?

The University of Warwick has announced an action plan to improve its handling of student disciplinary and appeals processes, including those relating to sexual misconduct.

The plan follows recommendations from an independent review, led by Dr Sharon Persaud, commissioned in 2019 in the wake of serious events surrounding a “group chat incident”. The background to and details of that incident are a blog in and of itself – but the news coverage probably summarises some of the bigger issues. And elsewhere on the site, there’s a blog from Warwick itself.

We don’t usually cover individual issues at individual universities at Wonkhe. That’s partly because we’re interested in issues at a system level – but what makes this case so interesting is that it surrounds the handling of complex and difficult student conduct issues that many other universities are struggling with – and we know that on the ground, many in the sector have been waiting for the report to be published as they attempt to bring their processes up to date. Many institutional policies were borne out of a different era: less reporting, more shame, and less scrutiny. Times have changed.

Much of the public work on sexual misconduct casework has either been theoretical (see UUK or OIA) or about prevention and reporting (see HEFCE/OfS Catalyst funded projects), but this is real learning from a real high profile case – something we rarely see.

It’s also worth noting that even in this report, there’s little detail that can be made public – as Sharon Persaud notes in her intro, the university has a duty of care to the individuals who were both complainants and respondents, and disciplinary proceedings are not public. There’s an overlap, but the review is neither a fact-finding exercise or a second appeal on the case itself – tricky given that according to the Guardian, the law firm representing two of the female students have brought a legal challenge and say that “currently the university is denying all liability”. We’ll return to the issues this presents later.

The report itself is concise, yet extensive and comprehensive – and those with any interest in or responsibility for this area of work should make the time to read it in full rather than depending on our summary here. But it’s worth setting out some of the key issues that Persaud identifies with the solutions she poses. Not every recommendation is a neat solution – some need more work, and some need wider thinking. The university has also set out a statement, some principles and an action plan that both apologises and details a timeline for change to address what’s in the report.

Findings in the report

Perhaps the most startling finding comes early on in the report:

There was no common understanding of what the disciplinary process was for, what its philosophy was, how offending conduct was or should be weighed against mitigating features; where this case should have fallen on a scale of seriousness, in comparison to other breaches, and what factors were relevant to setting a sanction.

It’s pretty common to find university policies that people follow and that get gently, incrementally updated that people have long since forgotten the overarching purpose of. How much time is spent in university committees deliberating over wording rather than doing the work on disseminating, implementing, monitoring and reminding people why we need a policy on X or Y in the first place?

Investigating the case

The first proper set of issues concerns aspects of the investigation that the university carried out, and the support available during it; the “unwillingness or inability of the university to recognise or respond to a student’s individual circumstances”; and the sense that, throughout, “the university had been more concerned with its own reputational interests than in a fair or just assessment of the case”.

Responding to concerns about who carried out the investigation, unsurprisingly she recommends that sexual violence and misconduct and other serious cases must be investigated only by investigators with specialist skills – something also highlighted in that Advance HE evaluation of OfS-funded Catalyst projects in this space. She also recommends proper training and the development of in-house expertise to ensure a diverse pool of investigators that would allow (for example) the option of gender matching for complainants.

The days of “who’s around in the middle management team to take this on” really should be numbered.

Secrets

A critical issue in the case was confidentiality – information leaks led to differences in views, perceptions and practice from several of the actors in the process. As she notes:

It was also obvious that there was a great deal of misinformation, caused by a double-bind of confidentiality on the one hand, and sometimes inaccurate reports spread across social media on the other. Because I had access to the papers I knew what, in fact, had happened at various stages – but almost without exception, the people I interviewed were under some factual misapprehension. This inevitably fuelled further unhelpful speculation, based on factual error.

She makes interesting suggestions here on achieving confidentiality – but we know in an age of social media, and evidence that public allegations encourage others to come forward, that it might not be as simple as requiring everyone to stay tight-lipped.

Prevention and definition

One surprising aspect of the report is that it’s relatively light on preventing problematic behaviour, and defining it correctly. Persaud does say that consideration should be given to the incorporation of a “clear, simple code of conduct” into the student contract so that breaches of its and their consequences are obvious, and to be fair this isn’t the main focus of the terms of reference she was given. But anyone that understands wicked problems will know that a complex mix of approaches – involving education and norming work, individual incentives and the hierarchy of disciplinary procedures – is required for these sorts of issues.

As Persaud notes:

Some contributors talked about the general role of toxic ‘group chats’ in legitimising sexual violence and misconduct. Another interviewee talked about the phenomenon of being a ‘edge lord’ or ‘winning’ conversations within a closed group, and reflected on an increasing division between ‘online’ personae and ‘real world’ views. There was also discussion of the different sensibilities created by simultaneous use of many platforms and whether there was an ‘ethical gap in understanding’, which needed to be addressed more openly and clearly when students start at Warwick. Although outside my remit, I would strongly endorse that view.

Disciplinary panels

Aside from sensible suggestions on making clear to students how processes will work, the other big set of recommendations is on the panels that handle cases when an investigation finds an issue that needs acting on.

First, she recommends the establishment of a permanent secretariat to assist committees and panels, including arranging the provision of legal advice to a panel in advance if required. The secretariat “could also consider evolving needs” like training or guidance on proportionate sanctions, or the assessment of evidence in more complex cases. It’s a set of recommendations that seem so obvious in the aftermath of a case, but an anathema to the dated traditions of amateur student discipline that many policies are lodged in.

In that groove, she also recommends that panel members should receive training that covers the scope, rules and procedures of the investigation and hearing, and the underlying legal and policy principles, and that panel members who deal with cases of sexual misconduct should receive additional training, including in relation to understanding consent, trauma-informed investigatory practices, and in assessing credibility. It might well be a surprise to many that this is not the norm across the sector, but again in some ways remarkable to think that these things aren’t absolutely standard in every provider.

I’m reminded of that old adage about contract law. The suppliers of services have a contractual duty to perform a promised service with reasonable skill and care. Disciplinary investigations and panels are services. Yet across the sector, the majority involve untrained investigators and untrained panels.

That said, we should caution against an automatic rush to professionalise in the extreme. Most of the student demonstrations of the seventies in the UK concerned student agitation to be on the panels meeting out disciplinary punishments, with the aim of achieving leniency. Student clamour for professional authority is understandable, and I’ve heard tales of universities seeking to write students out of panels because of that tendency to leniency, or lack of resilience, or legal exposure, or lack of experience, or lack of coverage by professional indemnity insurance. Surely if they can be on the governing body and we train them, it’s right that students still carry out this role. Phil Pilkington set out some of the conflicts for us in this agenda here.

Other issues

There are a whole range of other recommendations in the report, from interesting reflections on the way in which the “standard of proof” works in practice now that universities are investigating cases like this, to consideration of how to convey and balance complex messages which may be in tension with each other, especially when facts cannot be put in the public domain.

And the wider comms matters too: the need for “earlier affirmation” of the university’s values, and reassurances about the processes in train; clearer support for the importance of fair, impartial and independent investigations and disciplinary processes; and more authentic, victim-centred communications that recognise harms done, both to particular victims and more widely.

Lessons to learn

As well as everything above, there are three wider strategic issues that I think the sector needs to have a long, hard think about over the summer.

First is the sense throughout that if we are to prevent these sorts of cases in the future, we have to do much more as a sector on what belonging to a university means. In the old folklore, students who “made it” to university were “ready”, mostly “all the same”, and if they did something bad could receive a grown up version of a “clip around the ear”. There are those that cling to these good old days, when students didn’t need all of this other stuff and could be dropped into lectures a few hours after their parents hit the motorway on move in weekend.

But this approach won’t work anymore, if it ever did. Campuses are vast, and slowly becoming genuinely diverse. Navigating them needs more than a map. Our expectations about how students should relate to each other and others are changing. To tackle student cheating, a few months back Damian Hinds suggested that US-style “honour codes” might be an answer – but we think he confused the certificate with the education.

It’s not the bit of paper that makes the difference in the US system, it’s the weeks of induction, discussion, guest speakers and orientation on everything from sexual consent to academic integrity and understanding diversity that makes the difference. As long as the dated, quintessentially British approach of thinking students will be “ready” to perform in an academic community a few hours in – with the odd optional online awareness module tacked into August to fix the problem – we’ll have these problems again and again.

It’s time

The second is about regulation. In an ideal world every provider in the country will read that Advance HE report from the Catalyst projects and read the Persuad report and resolve to review their practices. But some won’t. Many of the micro-providers probably can’t. The absence of explicit regulation around the handling of harassment and the safeguarding of students is looking like a bigger gaping hole in OfS regulation by the day.

If the theory is that OfS will regulate basics – how isn’t dealing with harassment and creating a safe environment something that any students should have? And if the theory is that most activity can be dealt with by monitoring outcomes and topping up on things the market won’t deliver alone, my guess is that there aren’t sensible outcomes to monitor here and this isn’t a set of issues that will be dealt with by market competition alone. Until prospectuses and campus vinyl banners start trumpeting harassment policies or survivor support, this agenda needs top up regulatory invention, just as access and participation does.

Learning

But the final issue is about organisational and institutional learning. In cases like this, some of the old cliches like sunlight being the best disinfectant or democracy dies in darkness, all become true. The level of soul-searching here is extensive – but it probably had to be given the media attention and student campaigning surrounding the case, and the report is unusual because so much has been laid bare and so many failings have been identified. That makes it, in context, refreshing and credible – but how often does that happen?

Universities are large corporate bodies, that have to actively manage risk. They will defend themselves – as Warwick is still doing now – against liability and attack. OfS won’t come to the rescue as HEFCE did. The need to avoid blame, both at institutional level and within the layers of institutions, is compelling and real. It means that secrecy and confidentiality dog all but the most high-profile of cases, preventing lessons from being learned systematically and openly. Insurers are in the ear, advising against even suggesting fault or errors or blame. Some say the need to maintain reputation – both institutional and personal – is rife in our “marketised” system. But those hoping that the return of central planning and student number controls would somehow remove some of these pressures are kidding themselves. See Chernobyl.

There won’t be a registrar in the country that sleeps easy wrestling with the conflicts of protecting the interests of their university, when they are in direct conflict with the interests of a student that they know in their heart of hearts has been poorly treated. And ironically, the more serious the implications of behaviour become for individuals, the bigger the threat back, and the need to hide, obfuscate, protect and silence – when what’s needed is openness, reflection, and learning to get to the truth and fix things for the future.

So when things do go wrong, we somehow need solutions. OfS is supposed to be a student interest regulator, so the solution might be about OfS being more open than it apparently has been in the De Montfort case about its own investigations. It might be about it setting out much clearer expectations around openness when confidentiality is a provider’s default position. It could be about getting around to looking at student contracts, which board papers suggest it’s been putting off for the best part of eighteen months.

It certainly should involve the sector’s brightest minds working towards solutions that don’t depend on student newspapers, BBC documentaries, student demonstrations and an unacceptable amount of emotional labour from victims to generate the pressure that caused Warwick, in this case, to learn lessons out in the open.

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