The latest US import into the UK’s campus culture wars is the idea that activist groups use the threat of protest to discourage the booking of – or if all fails, to drown out – external speakers whose views they disagree with.
In a country that is both more litigious than the UK and where first amendment rows run deep, University of Chicago law prof Harry Kalven’s concept of the “hecklers’ veto” has long been suspected to be an issue in universities.
Last week thanks to UCL Sociology Professor Alice Sullivan, Taylor Vintners’ James Murray, and sponsors Lord Hunt and Baroness Morris, an amendment to combat its use was floated in the committee stage debate of the Higher Education (Freedom of Speech) Bill.
The idea was that while universities will have a duty to promote free speech, they would be prevented from securing it where it has the purpose, “and might reasonably be expected to have the effect”, of restricting another’s right to freedom of speech within the law or academic freedom. Universities would also have to take positive steps to mitigate the effects of any act or omission which has that purpose and effect.
That might sound like a great idea – but there are plenty of shock jock grifters and overzealous university officials that would love an excuse like that to ban protests at speaker events.
And anyway, I’m not convinced that it’s even possible to advance a construction of free speech that allows you to ban opposition if it could restrict someone else’s speech. If you say something I find to be evil, and I say so, given the way the internet works, that may be very shaming for you. So I can’t say so? You’ve been oppressing me for decades, but I can’t shout at an event where you’ll be the star?
Overton and overton again
This idea – that real debate is about sparring in black tie at the Oxford Union by people that aren’t really impacted by the issues under discussion – continues to dog discussion of the legislation. Sometimes people believe things, feel them, and want to express as such. They’re not wrong or weird or weak to do so.
What I do think is that social media’s rapidity, mass reproduction features, lack of quality filters and recorded surveillance aspects mean that popularity and unpopularity are more extreme than in the past. And for its heaviest users (the young), I think that means that the process of something becoming “unacceptable” or beyond the pale etc. is just much quicker and more dramatic than it used to be.
Crucially, it has never been the case that we humans decide to be for or against something based only on facts or a polite debate. They use other things – social signals, acceptability, leadership figures they look up to, and, yes the risk of shame.
The question then is whether, if you really believe something, it’s morally OK to stop you from specifically attempting to make your opponent’s view less popular, less prevalent or less legitimate. Some argue that the best antidote to tyranny is free and spirited debate, not suppression of speech.
But maybe that argument depends on whose speech you think is being suppressed, and whose views need to be heard.
Listen and I’ll try to do the same
A lot of people – including me – were frustrated when the Office for Students (OfS) consultation on the future of the National Student Survey (NSS) turned out to be more of an exercise in telling than listening (a Question 24 and 25 failure, if you will).
But on the freedom of speech question that is coming, I think the regulator may have accidentally played a blinder. As a reminder, in January students at providers based in England will be asked the following:
During your studies, how free did you feel to express your ideas, opinions, and beliefs?
We can (and probably should) quibble about the confusing “during your studies” framing. And we might reasonably bemoan a question that seems to be more interested in the “telling” and “espousing” part without evaluating the “hearing” or “understanding” part of a culture of free exchange – although on reflection, that emphasis does fit the character of the regulator when it comes to consultations.
But what this does mean is that next July, the sector will have the national results to that question – and we should think through what that will then mean in the context of what, by them, will be an active duty on providers and SUs to promote free speech in accordance with the Higher Education (Freedom of Speech) Act.
First we need to guess how the results will come out. Probably the closest national proxy to the question that we’ve seen so far is the data that underpinned the Higher Education Policy Institute’s Policy Note 35 You can’t say that! – What students really think of free speech on campus.
Back in June, the coverage of the polling tended towards the headline that “students are significantly less supportive of free expression than they were.” But getting beyond the headline always matters – and trying to work out who the students were that were reporting this sort of restriction, and why they might feel like that, becomes important if you want to do something about it.
I got through it and you can too
The closest question in the polling to the one we’ll get in the NSS was:
At your university, do you currently feel you are free to express your opinions and political views openly and without any restriction?
Net “yes” ran at 86 per cent, which would therefore mean that it’s likely to end up being the best rated question on the NSS by a long chalk – ahead of 80 per cent for teaching, 74 per cent for academic support and 69 per cent for assessment and feedback. Appointing a specific director on the OfS board for the least of the sector’s worries will end up looking quite odd.
But let’s say a provider ends up below the average or below their benchmark, and they want to improve that score even further. We have to be careful with cross breaks on a sample size of 1,000 – but under the HEPI headline of net “no” on free to speak running at 12 per cent, there was a revealing and important difference.
For students in another question that had said they did not have “satisfactory protection from discrimination or emotional harm”, the “not free to express” – the silenced score – was 36 per cent. For those that felt they did have “satisfactory protection from discrimination or emotional harm”, that silenced score was just 8 per cent.
In other words, if next summer your subject area or programme gets a high silenced score, the data suggests that the very best way to improve the situation is to increase your protections from discrimination or emotional harm, rather than viewing them as silencing mechanisms.
Or put another way – if you reduce your protections from discrimination or emotional harm because the culture warriors are telling you that they chill free speech on campus, you will likely see a significant reduction in your “free to speak” score – because in these results, when students feel protected, 9 in 10 of them feel free to speak. When they don’t, that falls by 27 percentage points to 63 per cent!
It turns out that “freedom to speak” is barely in tension with “freedom from harm” at all – in fact, the two concepts appear to be intrinsically related. So rather than ramping up your controversial speaker bookings, you’d be ramping up your EDI work – and rather than banning protesters, you’d be staging placard-making workshops and protest chant development camps.
Listen, there is a voice deep inside you
If you wanted to go further, you might then try to work out who feels less protected than others, or what you might do about it. Or in emerging OfS access and participation language, you might want to assess the biggest risks to freedom of speech, and then apply the right range of mitigations.
The oft-imagined victims of the free speech problem on campus are those with gender-critical views, or those who intend to vote Conservative at the next election. And the oft-imagined solutions are to show students how to debate things, or get them to somehow sign up to being “challenged”.
Thanks to HEPI’s Student Relationships, Sex and Sexual Health polling, we know that 9 per cent of state schooled women say that rigid gender norms are harmless, while 52 per cent of privately schooled men say the same. When it comes to students finding “transgender women are not real women” offensive (or wanting to ban a speaker with that view), this YouGov polling suggests that there are significant differences between institution type, gender and age. And thanks to HEPI polling on student voting intention, we know that those intending to vote Conservative at the next election tend to be more likely to be in the Russell Group. The imagined problem, in other words, is not evenly distributed – and looks likely to be much less of a problem for some providers than others.
Then recall that in the HEPI free speech polling, under the 13 per cent that disagree that the protections they have are “sufficient”, the score rises to 14 per cent of women (with men on 11 per cent), almost 17 per cent of BAME students, and 1 in 5 international students. That might lead you to look again at your access and participation plan to boost up protections and confidence for those groups, stepping up your efforts on curriculum decolonisation or harassment and sexual misconduct policies – precisely the opposite things to those that the Telegraph wants you to do.
And in the HEPI/Advance HE Student Academic Experience Survey this year, in the “comfortable expressing my viewpoint” question, the lower the contact hours, the more likely it was that students said they felt uncomfortable – and ditto on “hearing a wide variety of opinions including those different from my own.” That might lead you to ensuring that as well as individuals being able to access teaching, that they are spending scheduled time interacting with each other as part of the educational process, rather than just looking at each other’s avatars, profiles and feeds on social media.
I got through it and you can too
Once we’re through the legislation phase, all of this poses huge and significant concerns for the regulator. The OfS Director for Freedom of Speech and Academic Freedom will be appointed in the government’s image – likely someone who has already made up their mind about what happened at Sussex over Kathleen Stock, despite the regulator still refusing to publish conclusions from its investigation over a year after it opened.
Once they get going, for a risk-based regulator, it will only make sense if the postholder allows universities to assess, prioritise and then address the risks to free speech that make the most sense at that provider. And with the data that will be available, that’s likely to mean much closer alignment with the national equality of opportunity risk register and a provider’s access and participation plan than the sorts of solutions proposed thus far.
And that almost certainly means that trouble is coming for OfS in this space. If you see access and participation and freedom of speech as the same, integrated issue, you can likely make actual progress on it in the student interest. But if you see the two in opposition, as somehow “balancing” (or more likely, fighting) each other as concerns for universities, then you assume that you can solve it appointing some sort of rival to John Blake as the new free speech Tzar – giving them an adjudication torch to shine a disproportionate spotlight on every example of someone trying to make the world more equal in the process.
That will not end well – and the Lords would be wise to realise that before they make the campus culture wars not better, but much, much worse.