Jim is an Associate Editor at Wonkhe

In the covering blog to the university’s review of two controversial episodes involving external speakers, University of Essex vice chancellor Anthony Forster sets out again for us the “freedom from, freedom to” tension at the heart of ongoing debates on the issue of free speech and academic freedom on campus:

As a University our responsibilities include upholding academic freedom and freedom of speech within the law, legal duties in relation to equality, diversity and inclusion and a commitment to our University values. The relationship between these responsibilities comes to the fore in moments of contestation. Universities have a vital role to play in convening difficult and sometimes uncomfortable conversations, and in curating the spaces in which ideas that some may find challenging or unpopular can be expressed and debated.”

Much of the commentary around the government’s Higher Education (Freedom of Speech) Bill has noted either our figures on cancelled events within SUs, or the OfS figures on cancelled events across universities. Both are vanishingly low in context – causing ministers to frequently claim they are iceberg tips, representative of a deeper “chilling effect” on campus.

Nevertheless, the high-profile cases do pick up attention and coverage, and what has been published this week at Essex is a barrister-led review into a couple of major cases there – the cancellation of a seminar, a decision not to re-invite the external speaker who was due to speak at that cancelled seminar, and the failure to invite another chosen external speaker to another event, although that decision was subsequently reversed.

The review is interesting because it’s likely that other universities will take a lead from it over the way it evaluates the issues in contention – which is of relevance both to the current Education Act 1986 duties, the potentially beefed up duties in the Bill, and more generally the desire of universities to both protect free speech and protect marginalised members of their communities from harm.

Students’ unions – not currently directly covered by the free speech duty but set to be – will also want to take note.

What happened?

The first event in December 2019 involved the university’s Centre for Criminology, which cancelled a seminar at which Jo Phoenix of the Open University had been due to speak on the subject of “Trans rights, imprisonment and the criminal justice system”.

On the day of the seminar, the report tells us that complaints were made that Phoenix was a “transphobe” who was likely to engage in ”hate speech”, along with reports that people felt unsafe and threatened by the prospect of her appearing on campus. Barrister Akua Reindorf found that there was a “credible threat” that students planned to barricade the room, and a flyer was circulating which bore a violent image and the words “SHUT THE **** UP, ****”.

The seminar was originally cancelled due to security concerns, on the basis that it would be rearranged. But at a later meeting of the Department of Sociology, it was decided by vote to rescind the invitation and to not invite Phoenix to a future seminar. An apology was made for the hurt caused to the trans community.

Separately back in January 2020, a roundtable discussion took place on the subject of “The State of Antisemitism Today” as part of Holocaust Memorial Week. Rosa Freedman from Reading University was due to be on the panel, and was given an assurance in December 2019 that she would be formally invited to appear – but complaints were made to the effect that she had published “**** viewpoints” which were “hate speech” and concerns about her views on sex and gender were then raised and discussed internally.

A decision was then made not to send her a formal invitation – she wrote to her MP and the universities minister complaining of having been “blacklisted”, gave an interview to The Sunday Times, and a member of the university posted a tweet which compared her views on gender identity to Holocaust denial. Eventually, she was allowed to attend – but with conditions imposed.

There’s lots of detail in the report if you want to dive in, and a fascinating, lengthy evaluation of the various legal and regulatory duties in play – for this piece, we’re looking at some of the more interesting conclusions reached by the barrister.

Identified issues

The first major problem that Reindorf identifies is with the university’s external speaker policy – mainly because it wasn’t followed in the Criminology case. The policy was regarded in the department as only being relevant to events that might engage the Prevent Duty, and so some of its provisions that would have triggered risk assessment and risk mitigation didn’t formally kick in.

This is a risk right across the sector – I’ve come across plenty of cases over the years of what’s regarded as bureaucracy being ignored or misunderstood by clubs and societies in SUs, but more commonly by academics in universities.

The failure to follow the policy resulted in some failings to properly assess the risks of controversy. Reindorf finds that organisers failed to heed Phoenix’s warnings that the topic was likely to be controversial, that there was “naivety” about the fraught nature of public discourse on the subject of gender identity, and that the organisers hadn’t realised that Phoenix was a person who was regarded by some as having a particular position on the issue.

There’s also a real risk that plenty of events featuring controversial speakers have gone ahead this year without these processes kicking in because they’re frequently attached to room booking procedures – an issue picked up by Simon Perfect in the context of religious student societies on the site earlier this year.

Big decisions

In terms of the decisions themselves, Reindorf expresses surprise that the protest threat and the “wholly unacceptable flyer” weren’t investigated. This is an issue the SUs we worked with raised in their report in January:

On the one hand, most agree that students should have the right to object to a speaker and their views, and a right to protest. On the other hand many argue that that behaviour may in and of itself amount to threatening or harassment behaviour. Universities UK should lead work in conjunction with NUS and SUs and other higher education representative bodies that specifically addresses the issue of protest and harassment (including in online spaces), reemphasising in doing so the right to peaceful protest within Codes of Practice on freedom of speech established under the Education Act 1986.”

Reindorf argues that:

The University has a statutory duty to use disciplinary procedures where appropriate to enforce the provisions of its freedom of speech policy. Whilst did not know about the flyer in any detail when made the decision to cancel the seminar, it forms an important part of the factual matrix and it exemplifies the volatility of the situation. Its existence was known to at least one other member of senior leadership, who had fed into the reports given to about the threat level.

On the decision to cancel the seminar, Reindorf argues that it was not necessary to cancel the seminar in the interests of public safety, for the prevention of disorder or for the protection of health – and nor was it proportionate to do so.

That’s partly because if the procedure had been followed in a timely manner, Reindorf reckons that it would have been possible to take a number of steps which almost certainly would have resulted in the seminar going ahead safely and effectively – like implementing a more sophisticated communications strategy, having discussions at an early stage about whether the event would be better set up as a debate, giving consideration to whether the seminar was likely to be distressing for trans and non-binary members of the university and involving the estates team so that security measures could be put into place, if necessary. That “try to make it go ahead as a default and apply risk mitigation measures” approach is embodied in the NUS guidance on external speakers that SUs led on in 2010.

In addition, the need to approach an assessment of a speaker or event from a technical risk assessment perspective rather than a “popular vote” is also what that NUS guidance was getting at – here Akua also argues that decisions on events must be made both on a case by case basis within the existing procedure, and also that they must not be made by way of any kind of vote. Ironically a similar problem cropped up at Essex over a problematic vote in its own SU that we looked at in February 2019.

The “not necessary to cancel” decision is also partly because Reindorf takes the view that despite concerns that Phoenix’s presence would violate the dignity of trans and non-binary people or subject them to an intimidating (etc) environment, it was not “objectively reasonable” for people to believe that she or her seminar would have that effect on them, “notwithstanding that their fears of this were indisputably genuinely experienced”. In doing so Reindorf both establishes a bunch of legal tests that that kind of conclusion would have to be based on, and criticises the university’s trans and non-binary policy – reviewed annually by Stonewall:

[The policy’s] incorrect summary of the law does not appear to have been picked up by [Stonewall]. In my view the policy states the law as Stonewall would prefer it to be, rather than the law as it is. To that extent the policy is misleading.

Freedom from, freedom to

What becomes interesting about these conclusions is the way in which the “two sides” of the moral balance should work in play – here Reindorf argues that even if the university’s policies go further than the law on discrimination or harassment, the extent to which the university should take that into account given the free speech duty is in measures like risk assessment and event format rather than a “ban”.

That will put pressure on SUs and universities who all will want to demonstrate that they do more than the bare minimum, and throws back into question the government’s assertion that as long as there’s an IHRA definition of antisemitism floating around, a university could ban David Irving from campus – particularly in the event that Irving was due to speak on something else.

Similarly, in the Freedman incident:

The mere presence on campus of a person with whom others disagree about gender identity does not indicate a failure on the part of the university to pay due regard to the needs to eliminate discrimination and foster good relations. Moreover no risk of disruption had been threatened or meaningfully investigated.

For both staff and students wanting to take action on issues of harassment and discrimination, if Reindorf’s report was somehow regarded as case law, it would certainly signal a need to approach demands to cancel events or withdraw invitations in a different way. The argument is that the threshold for a rescindment or ban is higher than was made in this case – and has to be about what people think will actually happen at an event, not the “platforming” of a person and their historically reported views generally.

That will naturally prove controversial, will pose some specific issues for SUs where students democratically debate a speaker’s historical actions and views, and will also pile the pressure on the Prevent side of things. The whole case for free speech restrictions there – nudged on by Prevent coordinators – is usually about a speaker’s historical attitudes or views.

Oh – and in the Freedman case, Reindorf even finds that the vetting was unacceptable:

It is notable in connection with this that Prof Phoenix had been asked to provide a copy of her talk to inform the discussion at the meeting. Many of the witnesses I spoke to agreed that this sort of vetting was unacceptable. The Joint Committee on Human Rights has said that requests of this sort are not a “reasonable condition” to impose upon external speakers. At most the speaker should be asked to give an assurance that the speech is lawful.

Is an act the answer?

What I would say is that it’s hard to identify the way in which the proposed Higher Education (Freedom of Speech) Bill would have either prevented the cases here or have caused them to pan out in any other (or better) way.

What I can see is the prospect of considerable confusion about procedures and who was complaining to who, a fear of any decision by the new OfS Free Speech Champion lacking credibility and confidence from students and staff because of the inevitably political appointment, and procedural chaos if students were complaining via the OIA, some staff via harassment procedures and the externals via OfS.

It’s also easy to see a situation where both SUs and universities would require risk assessment processes to kick in before anyone even puts out feelers to see if someone might speak somewhere. That would allow them to avoid the costs and controversy if risks were identified, without a “no-platforming” or uninviting to subsequently occur. That’s surely not what the government wants?

And we do have to revisit some of the implications for impacted staff and students. Their position – that some aspects of their lives should not be subject to a “debate” and that their work should not be a place that legitimises those “debates” are sincerely held and are often important ideals in many universities and SUs’ HR policies.

Overall, just as Anthony Forster sets out the difficulties in balancing duties, he also sets out the need to consult with the university community to devise and ensure the implementation of a strategy for repairing relationships among university members.

It’s hard to believe that that would be any easier if OfS’ Free Speech Champion was already in post – and very easy to believe that it would be almost impossible if they were.

UPDATE 20th May

After this blog was published, Stonewall (mentioned above) sent me a quote. Liz Ward (She/Her), Director of Programmes at Stonewall said:

We are incredibly proud of our longstanding relationship with the University of Essex through the Stonewall Diversity Champions programme. It’s so important that universities create an environment where LGBTQ+ staff and students feel safe, are treated fairly and can thrive. We provide expert advice to more than 850 organisations who are members of the Diversity Champions programme. Our advice on the Equality Act is based on guidance provided by the Equality and Human Rights Commission, which was recently reaffirmed in the High Court.”

It’s an interesting response – but doesn’t it just underline how difficult it is becoming for universities and their SUs to navigate what appear to be conflicting, competing and sometimes contradictory demands?

2 responses to “What can the HE sector learn from Essex’s free speech cases?

  1. Telling a marginalised community that it is not “objectively reasonable” to be traumatised by a traumatic situation is yet another example of the symbolic violence levelled at trans and non-binary students and staff in this country.

    1. Since when did “trauma” amount to a sufficient reason to ban a speaker from a university?
      What on earth is “symbolic violence”?

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