When does free speech about harassment become harassment itself?

There’s a line early on in the judgement over the case of Raquel Rosario Sanchez v the University of Bristol that is grimly amusing for culture wars watchers like me.

Reflecting on the freedom of expression duties placed on public authorities like universities in the Human Rights Act, judge Alexander Ralton says that while it’s easy to say that “provocative, offensive and shocking speech” is likely to be legally permissible and “speech threatening physical violence” is not, outside of the cartoon caricature case studies that ministers string together to justify interventions in the culture wars, real world judgements are hard:

The point at which speech becomes so deplorable as to be impermissible may not be easy to identify.”

Well, quite.

If you’re unfamiliar with the case – it’s been hard to avoid if you’ve been near the Times, Telegraph or Mail over the past couple of years – here’s as potted as I can make the history.

The story so far

Raquel Rosario Sanchez was an international, feminist PhD student who enrolled at the University of Bristol in 2017, researching men who pay for sex. Having involved herself in “gender critical” feminism and the campaign group Woman’s Place UK, activists threatened to protest a talk she gave and labelled her a “terf” – a trans-exclusionary radical feminist – claiming she was “spreading hate about trans people”.

While some university staff and students were involved in organising, attending or objecting to the event, the event wasn’t organised by the university itself and nor was it on its premises – opening up the first set of complications about jurisdiction in these kinds of cases.

Various controversial social media posts surround the affair – some were anonymous, some were attributable to a student that had organised an open letter on Sanchez and the proposed event. In one social media post, the student wrote:

I’m gonna eat pizza in bed. And with every bite my solid mass of queerness will grow denser… all the better to punch them terfs with.”

Then in February 2018 the students’ union’s AGM received and discussed a motion (later nullified by its board) entitled “Prevent Future Trans-Exclusionary Radical Feminist (TERF) Groups from Holding Events at the University”.

By this point Sanchez had made a formal complaint to the university about the open letter, concerned about the inaccuracies within it, the threat of disruption to the event and concern about being labelled a “TERF” and being accused of engaging in “hate speech”, “transphobia” and “transmisogyny” – as well as referring to the threats of violence posted on social media:

I would appreciate it if the University of Bristol took this matter seriously and opened an investigation following the appropriate protocols and policies that are in place to deal with issues such as this. I am available and willing to cooperate in any way that the university may deem necessary during the process of the investigation”

There’s then a long tale that concerns the university’s handling of the case. First was an attempt to diffuse the situation by publishing a statement in support of free speech, which the judge notes meant that university:

…did not set out properly to the Claimant its strategy of resolving the complaint and somewhat left the Claimant ‘in the lurch’ at this stage.

Next, the university decided to pursue disciplinary proceedings against the student who “seems to have been the ringleader”. These proceedings were “prosecuted and vigorously defended”, the student “sought to whip up support for their cause”, there were “unfortunate delays” in the process and ultimately “the proceedings came to nothing and [the student identified as the “ringleader”] was left gloating”.

After all of that there was an appeal which came to nothing – with the judge left with the “clear impression” that Sanchez doesn’t accept the decision and that the student accused had “got away with it”.

Sanchez argued that both her mental health and her academic performance suffered as a result of the events that ensued in February 2018. And the disciplinary proceedings relating to the “ringleader” were dropped in Spring 2019 due to their worsening mental health. There are no real winners here, it seems.

It’s not clear if Sanchez went to the Office of the Independent Adjudicator (and if not, why the judge was happy to have the alternative dispute resolution service bypassed), but eventually Sanchez fundraised to make a claim against the university for damages in contract, negligence and equality laws over the way it handled her complaints about being targeted.

Courting controversy

To the judgement, then. It’s interesting for all sorts of reasons – but mainly because it gives us a sense of how the courts might handle a case of this sort if it popped up in the context of the new Free Speech Bill, which you’d have to assume ministers are expecting will somehow have caused this kind of case to turn out differently.

On the SU motion, the judge notes that the union is autonomous and separate from the university – and in any case the union’s trustees nullified it. We’ve seen this sort of issue come up before in other SUs and NUS – folks get upset by statements and positions proposed by members – but on the assumption that the motion itself wasn’t abusive, it would only ever be reasonable to assess whether the SU had actually gone through with implementing it rather than expecting it to censor everything a student submits.

When it comes to the issues surrounding the university itself, things get a bit tricky. Just as we would end up with in a “free speech bill” case, the argument advanced by Sanchez had to be about the university’s failings or about someone for whom the university was responsible.

So under the Equality Act 2010, Sanchez attempted to argue that the “mishandling” of her complaints represented victimisation and/or harassment – in broadly the same way that it’s suggested people will be able to use the new free speech complaints system or the new legal tort if a university fails in its free speech duties.

But where Sanchez complained there was “no conclusion” to the case, the judge argued there was a conclusion “but not it seems the conclusion the Claimant wanted”. Where Sanchez complained that “no steps taken against individuals”, the judge noted that steps were taken – they just didn’t result in disciplinary action.

Where Sanchez argued harm from “cross examination by [the ringleader’s] barrister”, the judge reasoned that was a [necessary and reasonable] part of the process and was not caused by the university. Sanchez complained about a lack of confidentiality – but the judge reasoned that it was the ringleader that was entitled to confidentiality is the accused person rather than her. And Sanchez argued harm from cancelled hearings – but while the judge said the cancellation of the hearings flowed from a “lack of care as to dates and practical problems”, he labelled that as “unfortunate” rather than anything more serious.

There are various bits buried in there about a suspension of studies that the university argued was necessary, but Sanchez saw as punitive – the judge said that was “not capable of criticism”. And when Sanchez argued that other students were left able to bully, harass and intimidate her:

…save for some derogatory references to the claimant on social media she did not provide evidence of bullying, harassment and intimidation other than from [the ringleader].”

As such, the claims under the Equality Act 2010 were dismissed.

Caring duties

Other than victimisation/harassment under the Equality Act, Sanchez argued that the university owed her a duty of care – and Ralton identifies two issues in his judgement:

Generally, if there were an actionable duty of care owed to [Sanchez], I would struggle to identify how the [university] breached it but, of course, the first step is to identify what, if any, duty of care was owed by the [university] to [Sanchez] in the first place.

Generally Sanchez’s case was that the university owed her a duty to protect her from other students and that it failed to do so. Thus, he points out, this is a “failure to protect from others” case rather than a “direct infliction of harm” case. And those are difficult.

The existence of such a duty of care owed by a university to a student is a novel proposition; no authority has been cited to me that is on the point. Both Ms de Coverley and Ms Johnson have therefore cited copious authority which they say should persuade me to conclude that there was or was not a duty of care. I have referred to those cases which assist me. I found many cases to be of no assistance such as those where the claim concerned the quality of the education being provided.

In some ways, if you’re suddenly not thinking about the Sanchez case specifically for a minute, that’s a pretty terrifying conclusion from the point of view of student safety. Where does a statement like that, for example, leave the OfS “statement of expectations” on harassment and sexual misconduct, or universities’ efforts in that space in general?

And imagine that we’re in the brave new world of the Higher Education (Freedom of Speech) Act, where the duty will be on universities to take the steps that, having particular regard to the importance of freedom of speech, are “reasonably practicable” for it to take in order to chieve securing freedom of speech within the law for students of the provider.

Ralton’s basic argument is that in processing the complaint – albeit in ways that could have been improved with hindsight – the university acted reasonably. It might have been slow and not explained everything properly – but there was, he says, no evidence of any malice on the part of any member of staff of the university towards Sanchez, and no evidence to support any inference of a strategy to close Sanchez down rather than student ringleader.

Similarly, as Ralton notes over the conduct on social media, it is “difficult to see how the [university] could have taken general steps to protect [Sanchez] from being targeted on social media given the university has no control over the content of social media published by third parties”, and it was also “apparent in evidence that [Sanchez] perceived behaviour as unacceptable to her which may nonetheless be permissible in the form of free speech (albeit offensive and rude) such as the use of the acronym TERF.”

Would a heavily politically influenced Director for Academic Freedom and Freedom of Speech have reached those sorts of nuanced conclusions? If not, you can’t imagine them lasting long in the court of the right-wing press. And if so, and we’re only a couple of cases away from their legal credibility being overturned by judges in courts, the idea of the free speech complaints service as a credible alternative (and alternative to the OIA) dispute resolution service will lie in tatters – as will OfS’ reputation as a real regulator rather than a mere political patsy in a culture wars game.

Grating expectations

And maybe that’s the biggest problem of all here – the raising and then dashing of expectations.

Ralton says that it’s clear from Sanchez’s case that she expected the university to take more action against more people – and that she read the university’s rules and regulations as justifying her expectations. But her evidence under cross examination caused him to conclude that she was unrealistic in those expectations, and wrong in her interpretations of the university’s actions:

Unfortunately [Sanchez’s] evidence caused me to conclude that she was so convinced that the [university] was determined to and did discriminate against her in favour of [the ringleader] that she sought to rationalise all things done or not done by the [university] as evidence of… discrimination.”

What’s clear to me is that if I take ministers’ pronouncements about the disciplinary procedures that will be required under the Free Speech Bill, and I fuse them with the scorn poured on universities in speeches like this, we have a similar problem:

We need to effect a culture change that will reverberate through the sector, from the SU bar right up to the Vice Chancellor’s office. And let me be clear, this is not an issue for Vice Chancellors to shy away from. Frankly, this is not an issue that they will be allowed to shy away from… Do not be on the wrong side of history. Do not allow the history books to record your name as part of the small cabal of the intolerant.”

In reality, ministers also expect universities to take more action against more people – and they tend to read universities’ rules and regulations (and their own legislation) as justifying their expectations. But once you sit down and weigh the evidence and consider what it’s reasonable to expect universities to do, and you think about the free speech of those on the other side of these kinds of cases, ministers are almost certainly unrealistic in those expectations, and wrong in their interpretations of universities’ actions.

That isn’t fixable ahead of the messy test cases to come – the carry-over motion for the Free Speech Bill means they’re much too far down the track to be sensible and rethink properly now. But what there is still time to give some thought to is that duty of care stuff.

Donelan is rightly pleased with her work on NDAs, and only last month wrote to OfS asking it to turn its statement of expectations on harassment and sexual misconduct into real regulation. But if it turns out that universities don’t really have the kind of duty of care that should cause them to prevent students (and staff) from harming each other, it will all have been in vain – and students will remain in danger.

Students that have been sexually assaulted, or stalked, or bullied, or victimised, or made to play “Gay Chicken” on a sports club bus, or felt up by their dissertation supervisor, or subjected to serious incidents of racial harassment that have seen the statements and read the “Zero Tolerance” policies also expect universities to take more action against more people.

But when the reality is that commitments on complaints and conduct policies don’t match what happens in practice, and what is then argued in the courts is that those “Zero Tolerance” policies were never really enforceable anyway, we let everyone down.

The sector, and likely the university, will have been quietly pleased with the verdict in this case – exasperated by the sense that they are able to control and influence student conduct when they often can’t. But the mismatch between that relief and the public statements that suggest that universities both can and will protect students from each other is now  becoming a major problem.

We desperately need ministers to cause some actual progress on defining, strengthening and clarifying the responsibilities of universities over duty of care and student safety, so that everyone knows where they stand. That it’s a high-profile gender-critical culture wars feminist losing a harassment case that might cause it, rather than the thousands of other students who’ve been seriously harmed by others before her, is not something that the government or OfS should be proud of – but it’ll do.