More “where do you draw the line” questions over campus free speech

I’ve talked at length before on the site about the ongoing difficulty in “drawing the line” between freedom of speech and codes of conduct.

You might recall that difficulty that Nottigham was having over its Catholic chaplain, for example. Or you could look at the controversy over protests surrounding Kathleen Stock at Sussex.

There are some that would look at what students have been doing and argue that the behaviour of the protesters is evidence of a free speech problem at the university. There are others that would argue that the behaviour of the protestors represents evidence that free speech is alive and well at Sussex. Would the free speech bill protect, or require the university to clamp down on, those students?

The David Miller case at the University of Bristol also raises questions for ministers. A long running controversy surrounding allegations of antisemitism came to something of a head a couple of weeks ago when it emerged that the university had sacked a sociology professor accused of antisemitic comments following an investigation, during which Jewish students said they felt “unsafe and unprotected” on campus. The university launched an investigation into Miller’s conduct in March – and the case saw some on campus accuse Miller of spouting antisemitic tropes in lectures and online, and others argue who worried that sanctions would stifle sensitive research.

In its statement, the university said the decision to terminate his employment with immediate effect was prompted by its duty of care to students and the wider university community. The Union of Jewish Students said that it was “delighted to see that a decision has finally been made by Bristol University regarding Professor David Miller”. Spiked! regular Frank Furedi said his sacking “undermines the founding principle of university life”.

Interestingly, the university said that although a QC found that the comments Miller is alleged to have made “did not constitute unlawful speech”, a disciplinary hearing concluded that he “did not meet the standards of behaviour we expect from our staff”. That puts pressure on the government as the free speech bill enters the next stage in the Lords, given it has maintained that the bill is designed to protect controversial speech “within the law”. A large number of back benchers involved themselves in the Miller case. Would they (and the government) condemn the university over free speech, or back it on the basis that the university should have rules that go further than the law (in which case, what exactly would be the point of the free speech bill at all?)

Some of those tensions were on show at Conservative Party Conference. Former communities secretary Robert Jenrick commented on both the Miller case and the bill, arguing that while it is a “well intentioned” piece of legislation “it is not clear to me how well designed it actually is. I certainly don’t want to see a Holocaust denier on a university campus citing a piece of legislation produced by this government” he said, adding “I’m sure it will be subjected to a lot more scrutiny as it passes through its final stages of parliament . I think it needs to so, so we don’t’ make a mistake we regret.”

There’s a couple of other angles to this I’ve been thinking about. The first surrounds the relationship between SU and university disciplinary procedures when it comes to incidents of harassment. On the one hand, even where an incident takes place in the context of an SU club or society or event, I can make a decent case that SUs are not resourced to investigate or adjudicate cases involving allegations of harassment – and in any event if the worst that can happen to the accused student is being suspended from a sports club, that sounds inadequate.

The trouble is that I can make a decent argument the other way round. If I was on an SU trustee board I might ask, given the SU has its own duty of care, if we trusted the university to investigate and adjudicate effectively in cases like this. And the free speech bill would place a direct duty on the SU to “enforce” a code of practice on free speech “including where appropriate the initiation of disciplinary measures”. Does the government really want to force SUs to process allegations of harassment directly rather than through their university?

There’s a related issue when it comes to “fitness to practise” cases. You might remember that story (aslo at Nottingham) involving a student that was blocked from entering her program’s hospital placement phase after the university learned of her leadership of a pro-life student group. She faced a four-month-long fitness-to-practise investigation in 2019.

The thing is that the Office of the Independent Adjudicator’s Good Practice Framework  reminds us that professional standards set by Professional, Statutory and Regulatory Bodies (PSRBs) can include antisocial, abusive or threatening behaviour, harassment, “unprofessional” behaviour, and behaviour away from the student’s studies, including “disruptive behaviour” in the community and “inappropriate use of social media”.

Does the Free Speech bill end up requiring providers to set aside, or at least renegotiate, professional standards where those standards might impact someone’s ability to express a view that is within the law but might nevertheless offend or intimidate? Or do those standards take precedence?

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