A new “expert adviser” on antisemitism in higher education who “commands respect in both universities and the Jewish community” is to be introduced by the Westminster government.

Universities minister Robert Halfon also says that a new “quality seal” for universities will require universities to demonstrate training on antisemitism, effective communication with Jewish students and robust and effective complaints processes.

He will ask the Office for Students (OfS) to log cases of antisemitism and harassment and monitor how they were dealt with, and will fund a multi-million pound project to get the charter implemented.

It’s not clear whether that quality mark will go further than, or even be related to, OfS’ proposed standards on provider prevention and handling of harassment. And a central case logging approach is interesting – because OfS has consistently resisted calls to do that in the past.

Halfon also says that following the recent employment tribunal judgement that anti-Zionist views are a “protected characteristic” under the Equality Act, there are “very serious” discussions taking place at the highest levels of government.

Meanwhile, OfS looks set to consider harassment complaints. If a student who thinks the culture on campus represents an intimidating, hostile, degrading, humiliating or offensive environment for them – thus suppressing their free speech – OfS has confirmed at one of its consultation events that that may well count as a free speech complaint.

It’s a confusing picture, but if the government or students have their hopes up that something will happen or that clarity will emerge, they may need to temper their expectations.

Something must be done

When the Office for Students (OfS) was created, part of the idea was to re-orientate the regulation of higher education towards the interests of students.

But it has consistently faced criticism over the extent to which it addresses the actual concerns of the students in its title. And one of the key things that students have been saying for a long time is that they face both harassment and sexual misconduct on campus.

Fifteen years ago, NUS launched a report called “Hidden Marks”, in which women students reported experiences ranging from “everyday” verbal and non-verbal harassment, to serious episodes of stalking, physical and sexual assault.

It took the government a full five years to get around to even properly acknowledging the issue, with then Business Secretary Sajid Javid calling on Universities UK to take action in September 2015.

Taskforces, reports, funded projects and guidance ensue – but in 2018 a progress report found a fifth of the providers had made “very limited” progress in meeting the recommendations.

By 2019, OfS CEO Nicola Dandridge responded to a shaming BBC File on 4 investigation by saying that OfS would “intervene in serious examples of universities failing to address these issues seriously”, but nobody knew which powers OfS were intending to use, and so no-one trusted the promise to intervene.

A January 2020 OfS publication found that progress in adopting UUK recommended approaches was slow and inconsistent across the sector, and a consultation on a new “statement of expectations” ensued, calling for standards on disclosure, support and investigations. Plenty of people fed in. The consultation was never formally responded to.

In 2022 an evaluation of the optional “statement of expectations” reported that progress had been slow and uneven – and policies and procedures for preventing and responding to harassment and sexual misconduct were not consistently effective. OfS CEO Susan Lapworth said students “face a lottery” in terms of exposure to harassment and sexual misconduct and how incidents are dealt with.

It launched a formal consultation in 2023 on new regulation on the issue, and again, plenty of people fed in – initially promising a response that summer, then autumn, then by the end of the year, then in January. None has emerged.

All we know – from OfS student panel minutes – is that OfS ran a small scale poll late last year which showed that an “alarming” number of students have experienced some form of unwanted sexual behaviour since joining higher education.

Not everything must be done

There have been similar taskforces, initiatives, research reports and calls for action over racial harassment.

A 2019 EHRC report found that racial harassment is a common experience for students – a quarter from an ethnic minority background said they had experienced racial harassment since starting their course.

It found that universities have an incomplete picture of the scale because of underreporting, were “overconfident” in their complaints handling, and were “not following guidance” over prevention and complaints.

Universities UK guidance stressed a focus not just on crime, but micro-aggressions based on a student’s characteristics. Some regarded that concept as “divisive and inflammatory” – and the man that is now OfS’ director for freedom of speech and academic freedom, Arif Ahmed, said that using that definition of everyday harassment could mean “a risk-averse white person will simply not engage with anyone from an ethnic minority, in case an innocent or well-meaning remark is overheard, misunderstood, and reported.”

That pushback on tackling types of race issues on campus – which has included ministers asking universities to pull out of the Race Equality Charter – might explain why OfS’ statement of expectation, proposals and pilot prevalence study were framed around sexual harassment, despite the proposed duties also covering racial harassment.

But whatever the explanation, students are still waiting for the regulation that is supposed to protect them.

What needs to be done?

In some ways, the October 7th attacks and the ensuing political turmoil and its manifestation on campus bring to a head the range of political inconsistencies that have surrounded the balance between free speech and harassment ever since Michelle Donelan got herself into hot water on the day the Bill was launched.

Ministers have tended to downplay racial harassment in general, adopting a minimalist and legalistic definition of it, and a maximalist definition of free speech in rhetoric and legal weight.

But now they find themselves having to argue the opposite over antisemitism – and outside of egregious cases, the danger is that a maximalist definition of antisemitism and a minimalist definition of free speech over Israel is not compatible with the legislation they have passed.

A huge number of universities and their SUs have been wrestling with treading the fine lines, and the Bristol Miller case’s processes found problems with the interpretation and application of the IHRA definition of antisemitism and its compatibility with free speech and academic freedom.

That is not to downplay or denigrate suggestions that there has been a real rise in antisemitism on campus. And while we should be sensitive to the way in which Israel is so often singled out, we should also not downplay the way in which some feel that their views on the Palestinian side of the middle east conflict are being silenced.

The problem for a regulator – even with Arif Ahmed on its board and strenuous denials of any “political agenda” – is that while politicians are free to contradict themselves, regulation does need a degree of consistency to be credible.

The uncomfortable truth that nobody seems to want to face is that despite protestations to the contrary, on many of the key “culture wars” issues, fostering an environment of safety and freedom all at once on campus is not straightforward. That has been obvious all along, had anyone bothered to listen – but ministers and regulators have always insisted the contrary.

Belief is nine tenths of the law

Over on Wonkhe SUs, I explain the supposedly straightforward Green Party v Dr Shahrar Ali case, which the Telegraph said was about the party discriminating against its former deputy leader over his gender-critical beliefs.

But aside from a procedural irregularity involving the fullness of minutes, the case was a failure. And while OU v Phoenix might mean that while the signing of open letters is to be banned amongst academics, in this case the judge appeared to endorse it as a feature of a democratic society. Confused? They will be.

Because even if expensive lawyers can find a way through, for students, academics and professional services staff, a one-sided “push” on free speech will cause a slipstream into which all sorts of conflict and problematic behaviour is exacerbated on campus, and a one-sided “push” on the prevention of harassment will silence some people in that slipstream too.

If nothing else, OfS is maintaining that universities and SUs will face formal complaints on one end of the see-saw in less than six months time – yet can’t confirm if, when or how its expectations on the other end for universities will ever be published, all while its sponsoring minister is putting pressure on over standards, expectations and definitions around one aspect of it.

Ministers, the mission groups, NUS, the trade unions and the regulator should call a truce now – and commit to working together over the next month, in an assumption of good faith, to both make sense of what’s being landed on the sector and commit to the development of the kind of enabling regulation and support that universities and SUs say is needed.

Ultimately, if those in charge don’t know where the lines are, I’m pretty sure students won’t come September. But given harassment hasn’t gone away, the task of ensuring they do has never been more urgent.

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