In the Office for Students’ Strategy for 2022-25, one of the 11 goals is ensuring “providers secure free speech within the law free speech for students, staff and visiting speakers”.
This is an unsurprising (re)statement of government legislative intent. Year 1 of this free speech objective is set out in the OfS Business plan 2022-23, which commits to investigating and sanctioning providers falling short of upholding free speech (and publication of the outcomes of such), all of which are within its existing regulatory powers ahead of the Higher Education (Freedom of Speech) Bill being passed.
The wording of the free speech goal is familiar – it draws on Section A1 of the Bill, which in turn echoes the formulation in the 36-year old duty to “secure” free speech on campus, already placed on universities in the Education (No. 2) Act 1986 – rather than the proactive duty that will require governing bodies to “promote” the importance of free speech (Section A3 of the Bill).
To some extent, OfS is operating in a vacuum – and therefore hedges its bets on the specific form that its “free speech functions” will take, pending the passage of the Bill through parliament.
What is apparent though is that there isn’t a single thread from the existing 1980s free speech and academic freedom legal duties, to the carried-over Bill, into what OfS’ free speech functions might look like. Add into the mix the existing governance-related OfS registration conditions – that providers enshrine their legal duty to uphold free speech and academic freedom in their governing documents under “public interest governance principles”, and any thread soon becomes knotted.
Such statutory and regulatory replication and overlap around free speech is driven by the government’s perception of a free speech “crisis”, and the emergency need to counter what is seen as a widespread “cancel culture” or “Lackademia” (Noah Carl, 2017) brought about by left-leaning and liberal biases on our campuses. This is a state of affairs which many of us working on university campuses and in/with SUs do not recognise.
A “category mistake”
An interesting aspect is that the OfS free speech goal is positioned in the focus area of “quality and standards”. Discussing what this means and how it is framed is more than optics. Whether deliberately or not, it signals what the OfS regulatory approach might look like once the legislation is enacted.
It aligns the goal to a more familiar OfS intention to ensure students benefit from a “high quality academic experience that improves their knowledge and skills”. One argument could be that lawful, critical debate as the foundation of free speech is regarded as a precondition for the most beneficial and fruitful learning.
However, that rationale might be more convincing if the goal referenced the existing and forthcoming “strengthened” duties to secure academic freedom (absent in the strategy or business plan) for academic staff on the front line delivering teaching and facilitating learning – where opposing views which affront, offend, hurt and shock are much more likely to be encountered by a majority of students.
As a recent Wonkhe Show podcast discussed, many students are too preoccupied with full-time study, part-time employment and wider student life to focus on the free speech implications of external speakers and events.
The problem is that the location of free speech under the quality and standards banner amounts to a “category mistake” – see the late Prof. David Watson’s application of Gilbert Ryle’s term to core policy themes in HE in this HEPI article, and Wonkhe here on the 2016 HE White Paper.
My concern is that OfS’ placement of the goal here presages a compliance-based approach to its free speech functions, requiring deeper and more extensive documentary trails beyond a “code of practice”, data returns and indicators to judge whether a providers’ arrangements enable free speech to flourish, fail or sit somewhere in between – if that can be possible.
For example, OfS may choose to build on the data it captures in the Prevent Duty Accountability and Data Return (ADR), on the number of events which take place on campus each year which require mitigations and conditions in place to proceed. Like the Prevent return’s reference to welfare cases, OfS might ask institutions to identify any primary ideology characterising a controversial speaker or event, but this would be a crude measure, given the “mixed or unstable ideologies” inevitably characterising the complex positions of many speakers.
Any measurement of free speech density, or data evaluating the volume of opposing voices that are balanced or countered within and between events (could this be coined “free expression equilibrium”?) would be flawed in university settings where free speech forms part of the institutional fabric and ethos.
OfS misses a trick by not positioning free speech with the “equality of opportunity” focus area in its strategy. Judgments made around free speech on campus constitute equality of opportunity in action – free speech cases invariably have significant EDI implications, seeking to balance the perspectives of polarised (and sometimes equally but differently marginalised) voices, such as the intersection of race/ethnicity/political minorities or “gender critical” feminist positions and their reconciliation with trans+ and non-binary communities’ recognition and rights.
Perhaps OfS misses this trick on purpose as it is simply too difficult to perform, and the regulatory repertoire will simply not be in place to monitor free speech, and investigate and sanction failings in the same meaningful, nuanced and sensitive way that universities and students’ unions for the most part make judgments around free speech now – including a “zero sum gain” for one or more group of individuals when a controversial speaker attends campus.
One hope is that OfS meets its commitments in its business plan for 2022-23 to involve students and students’ unions (so often demonised and misrepresented in the allegations of “cancel culture”) in shaping its regulatory approach, and that this is done creatively and goes beyond the confines of dense consultation documents or a discussion with its student panel.
Where the free speech goal sits in the OfS strategy (and where it is silent on academic freedom) is not just semantics – and as those charged with making judgments on free speech cases will know, the contested nature of debate is as much about how and where something is expressed than the content itself.
Can we settle the bill please?
Despite recent amendments and clarifications, key questions remain in the HE Bill as it reaches its second reading in the House of Lords.
For example, what does it mean for OfS, and thereby universities, to “promote” free speech and academic freedom? Is it to use seminars and lectures to arbitrarily compartmentalise university level study and flag that segments of teaching and learning involves more “critical enquiry” than others, and thereby actively encourage lawful debate which might cause offense, upset or hurt? Does it mean institutions voluntarily adopt a free speech charter along the lines of The Chicago Principles? Or could it be achieved by convening national or local conferences – meta debates if you like, where experts address the topic of free speech challenges?
Another key part of the Bill where questions abound is the ministerial installation of an inaugural Director of Free Speech and Academic Freedom. Through “intelligent regulation and imagination”, and if we collectively avoid casting the role as a “tsar” or bureaucratic bogeyman, the role could be a positive force. If the appointee genuinely performed an ombudsperson role around the most complex free speech and academic freedom cases, it could serve a value for the most intractable cases.
The Director as both “monitor” and champion of good practice could work, and needn’t be mutually exclusive. The Director of Fair Access and Participation both monitors and also champions social mobility, and OIAHE shares a good practice framework as well as being the arbiter for complaints. But the role as set out in the Bill does not inspire hope, whether excessively partisan or whether alternatively it translates into perfunctory performance monitoring.