There must be more to life than stereotypes
David Kernohan is Deputy Editor of Wonkhe
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There’s a “take” on University of Sussex vs OfS doing the rounds, which suggests that even though OfS may not be good at understanding its own rules (or the law), or investigating potential breaches, there is still cause to worry because now management are able to tell academics what they can and cannot teach with impunity.
That is not an interpretation borne out by the judgement itself.
There are many astute and thoughtful observations about free speech and academic freedom throughout the text of the judgement, but in this case I turn to paragraph 227, which deals with the “stereotyping statement” found within the Sussex Trans and Non-Binary Equality Policy. That statement (in the 2022 and 2023 versions of the policy) reads as follows:
The curriculum shall not rely on or [seek to] reinforce stereotypical assumptions about trans people
This is the only part of the current (2024) policy that deals with the curriculum. This most recent version of the statement even adds a supplementary point reminding the reader that this should not be taken to justify sanctioning academic staff for questioning or testing received wisdom or putting forward new ideas.
This is what Justice Lieven says about this “stereotyping statement”:
[T]he Stereotyping Statement only applies to the curriculum, the setting of which is an essential function of the university. Therefore, this is an area where the university has to make discretionary judgements, but will necessarily do so subject to the full suite of other policies. What is prohibited are “stereotypical assumptions”, which means in effect over-simplified ideas about trans people. Such assumptions would not uphold high academic standards. The university is not seeking to restrict discussion of stereotypes, but rather the reliance on them, or attempts to reinforce such simplified ideas about trans people in the curriculum. A policy restricting teaching based on the intentional promotion of stereotypes is a proportionate means of advancing the university’s core function of promoting excellence in teaching and learning
As the court saw it, universities absolutely have an interest in promoting excellence in teaching and learning, and a curriculum relying on stereotypical (over-simplified) ideas about trans people is unlikely to uphold high academic standards. It replaces a question of academic freedom with a question of academic standards.
Higher education, if it had such a thing as a motto, could likely adopt the old Ben Goldacre line that “actually, I think that you’ll find that it is a bit more complicated than that.” Simplistic stereotypes feel absolutely like the kind of thing, within the context of debate and civil discussion, that academics and students should feel free to question, test, and put forward alternatives to. And nothing in the policy, the governance of the University of Sussex, or the high court judgement changes that.
To take the other side of the argument for the moment, the only thing that is restricted here is (specifically) the reliance on simplistic stereotypes about trans people in the curriculum as the curriculum. Not the discussion of those stereotypes, not the use in the seminar room of literature or media that does rely on those stereotypes as illustrative examples to inform that discussion, not the testing and debate of new ideas that rely on those stereotypes.
To argue otherwise you would have to suggest that a statement like “trans people are [insert simplistic stereotype here]. End of.” represents in itself a suitable curriculum for higher level (or frankly, any level) of academic study.
Paragraph 250 states the following: ” One example might be a situation where a lawful speech which might fall within the Disciplinary Statement (perhaps a gender critical feminist lecture which somebody objects to) is allowed to go ahead on the condition that it is read in advance by the University.”
A “lecture” (the word used by the judge) is typically used for something which is part of the curriculum. The judgement seems to say that the university can force a lecturer to have the content of their lectures approved by the university ahead of time. If that isn’t the end of academic freedom, then what would be?
Furthermore, I will repeat one of my comments on the other thread about this. The judgement quotes HERA as stating:
“the freedom within the law of academic staff at English higher education providers to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at the providers.”
The judgement however does not go into what those privileges are and focuses solely on job loss. It is precisely in the “and privileges” part that academic freedom sits in HERA (and yes, HERA is badly drafted legislation). The judge has effectively deleted this part of HERA..
I don’t think the judgement says that a University can force academic staff to have their lecture content approved before delivery. I think that would be a significant over-interpetation of the relevant paragraph, which is – as are the paragraphs which precede it – focussed on the nature of proportionate action. A University policy which forced academic staff to have their lecture content approved in advance seems very, very unlikely to be proportionate.
I think the judgement is saying that in a specific scenario where students are protesting speech, having a process which involves an independent check of that speech would likely be a proportionate means of balancing the need to protect free speech with the need to prevent harm (it’s possible to still take issue with this, but I don’t think it’s the challenge as presented above).
I think any University that used paragraph 250 to introduce a policy which requires them to approve lecture content prior to delivery would lose any legal case on the same point the OfS lost this aspect of the judgment on – it’s not a proportionate means of balancing competing obligations.
This has been a commonly misinterpreted part of the judgement. The example is offered by Justice Lieven not as a realistic example but rather as a case in which the “reasonable practical steps” test in the OFS regulatory framework and “less intrusive means” test (the Bank Mellat test of proportionality) are basically asking the same thing. As Justice Lieven explicitly says, she is not claiming that the specific example is a realistic example of a proportionate restriction of lawful speech, just that in this case the proportionality and ‘reasonable practical steps’ tests turn on the same factual information. She needed an example to make the point, and came up with this one, but is not stating that this would necessarily meet a proportionality test.
Her example is not a throwaway comment on a blog post. She is a high court judge, what she writes in her judgement becomes law. She should exercise extreme caution in what she writes.
If you think that a hypothetical example like this, used to illustrate a minor technical point, will “become law” then you need to learn a little a bit about how law is made.
This is precisely how law is made. Maybe you need learn a little bit about how English law works.
I am one of those with worries in this direction. But my worry is not that law permits management to tell academics what they can and can’t say. Rather, it is about whether there is a practical route to ENFORCE the law now that the OfS has had its fingers burnt and is likely to be wary of trying a similar case again, or if the act can in practice be flouted with impunity. My own primary interest here is not in the culture wars space, so much as in academic freedom to criticise those with influence on university funding streams, whether that’s the UK government, foreign governments (cf. the Sheffield Hallam / Laura Murphy case) or the fossil fuel industry as a funder of research. My fear is that, in managers’ minds, a real or perceived threat to income streams is always going to outweigh a remote hypothetical risk of action being taken to enforce FoS.