Will we really punish students over Covid-19?

We are starting to hear more talk of students being disciplined or fined for non-compliance with social distancing requirements.

Yet this an area in which straightforward-sounding solutions (Rules! Fines! Action!) are likely to disguise some thorny and longstanding legal, moral and practical difficulties.

I am sure we can all agree that universities should communicate social distancing restrictions clearly to students (and staff and visitors), but how confident can universities be about being able to communicate social distancing rules – which at any one time may be a mixture of prevailing national, local and institutional rules – with any clarity?

A recent UCL study revealed that “under half (45%) of people in England report having a ‘broad understanding’ of the current lockdown rules”. Given the public at large does not understand social distancing restrictions, even as they relate to everyday contexts such as a shop or a garden barbecue, expecting universities to translate and communicate social distancing expectations is expecting an awful lot.

On campus, our very different physical environments – teaching spaces, study spaces, social spaces, laboratories, clinical facilities, retail, sports facilities, nurseries, bars and clubs – sit alongside each other, often in the same building. These spaces are subject to different government regulations and guidelines when it comes to social distancing, yet students will be moving seamlessly between these spaces.

And there remain some pretty significant gaps when it comes to understanding social distancing restrictions. In a hall of residence, do we have a clear sense of what constitutes a student’s “household”? Is this definition shared between providers of halls (and providers of higher education) in a city? Do we really understand whether students who have moved away from their families to study at university should be permitted to return home to their families at the weekend? What about at Christmas?

In the end, if we are finding it tricky even to articulate a clear set of rules for social distancing, we should certainly be wary about hanging enforcement action on the back of them.

‪Consent

When it comes to students, this is about more than just communication. Before students can be disciplined and penalised – for example, by means of a fine – for contravening social distancing restrictions, they don’t just have to be told what the rules are. They often need to have provided their explicit, individual consent to be covered by these rules.

Without a clear contract in place, a university trying to fine a student for non-compliance might find itself in a similar position to the one I’d be in if I walked up to a fellow customer in Asda and asked him to hand over £50 because I noticed he wasn’t wearing his mask correctly. And it is not clear that universities’ existing rules around disrepute or harm to others can really be stretched to cover Covid-19.

Universities have opportunities to gain this consent from students – for example, at the offer acceptance or enrolment stage of the recruitment process. But guidance tells us that terms that students might find surprising should be specifically drawn to their attention. And some of these consent ships have already sailed for 20/21, and time is running out for making any final additions to the enrolment process.

Enforcement

Let’s assume it is easy to translate the rules of social distancing for a university context, easy to communicate these rules to all students, and easy to secure any required consent from students to be covered by these enforcement procedures. What next? In theory we set out “appropriate penalties” and “effective and proportionate” disciplinary procedures.

If my experience of managing these issues in higher education is anything to go by, the whole issue of universities taking enforcement action against students becomes complex very quickly – from a practical, moral and legal point of view.

‪One of the contexts in which disciplining students is perhaps a little more straightforward is in university-owned or university-managed accommodation. Here we often have greater scope for setting out rules – whether about noise, overnight visitors, setting off fire extinguishers, or covering over smoke detectors. Following these rules becomes a condition of the tenancy or contract, and universities follow a well-trodden path in response to any breach.

There remain many practical difficulties here when it comes to social distancing; in a world where Asda, Tesco and Sainsbury’s refuse to enforce the simple rule of mask-wearing, can we really expect our accommodation teams to enforce social distancing measures?

More broadly, there is the question of how consistent we should be when it comes to students who live in private accommodation. Even pre-Covid, we’ve already seen different universities taking very different approaches when it comes to disciplining and fining students in private accommodation – for example, for alleged noise infractions or other types of anti-social behaviour.

And whose rules are they anyway? If a student was to avoid revealing that they had symptoms and ended up infecting a flat, HMO or halls floor, is this a rule being set and enforced by landlords, or universities, or both?

Private citizens

‪Some universities feel comfortable with disciplining and fining students for what they get up to in private accommodation. Often relying upon the argument that student behaviour impacts on a university’s reputation, these universities see a quick fine, imposed in response to a neighbour’s complaint of noise, as a way of nipping the issue in the bud and showing the local community how seriously they take town and gown relations.

These institutions have tended to establish and resource internal processes to manage the enforcement process – communicating the fine to the student, chasing payment, escalating non-payment, and liaising with the neighbour who submitted the initial complaint.

‪Other universities have said that they have very limited scope, both legally and morally, for disciplining and fining private residents for matters that do not relate to university activities. These universities often regard the “bringing the university into disrepute” line as flimsy justification at best for issuing a fine to someone who is essentially acting as a private citizen in their own home.

And while universities may disagree about the strength of the legal justification for fining students for things they do privately, I suspect we can all agree that the practical difficulties involved are hefty. Even for alleged noise or anti-social behaviour complaints, universities must contend with (or disregard) a wide range of complexities. For example, when residents of a shared student flat are accused of an infringement, universities must decide whether to penalise everyone living in the flat (a simple solution, but potentially very unfair to those not involved, or not even at home at the time) or whether to mount an investigation to work out which individuals were to blame (complex, time consuming, and not guaranteed to go anywhere).

Clear choices

So what can universities do to manage this issue of social distancing enforcement?

My starting point would be to suggest that university campuses should not be reopened to the vast majority of students until the virus is more controlled, and social distancing measures are considerably more relaxed than they are now. But both the government and universities themselves have been showing very few outward signs that such an approach is even being considered.

So with students already starting to land in university towns and cities across the UK for the new term, I would suggest a few steps for any university that does not feel it has already cracked the issue of social distancing enforcement.

First, universities should carry out an urgent piece of work – with input from a range of teams including legal, student appeals and complaints, external comms, student services, and the students’ union – to assess what scope (if any) it already has in terms of disciplining students for social distancing infringements. This should take into account how clearly the rules have been communicated before now, to applicants and students, and pin down the extent, if any, to which students have already consented (e.g. at offer acceptance) to being subjected to disciplinary procedures for breaching social distancing rules.

Next, the university might agree the practical circumstances in which it would and would not take enforcement action against students for non-compliance with social distancing. If a clear and properly-resourced process is not already in place, or cannot be put in place quickly, then they should probably default to deciding they will not be taking action in those circumstances.

If universities need to implement a new regime of compliance, they should establish how this will work in practice. Which team will manage this process? What will the potential caseload and workload look like? How will this work be resourced? And a stream of the institutions’ Covid-19 communications work should pick up this issue of compliance, to ensure universities are making clear to students the potential disciplinary issues and penalties that can arise.

With welcome week almost upon us, we must move beyond general talk about enforcement and disciplinary action and really get to grips with what we are legally competent and practically capable of doing in this regard.

Clear choices are needed here. Deciding on a list, even a long list, of situations in which a university will not take enforcement action in relation to social distancing, is preferable to leaving stakeholders making up their own minds about what will and won’t happen.