Universities should shop themselves to OfS now over free speech. Maybe

Here there is a test – one of the ways that OfS gets intel on what is happening on the ground is by having a rule that providers must tell OfS of any potential problem in terms of compliance.

That said, if a provider over-reports non-material issues, that may lead OfS to question whether the provider’s governing body is properly managing its reporting obligations.

Regulatory advice 16: Reportable events sets out what OfS calls a “materiality test” to determine whether an event or matter is significant enough to be reported as a “reportable event.”

It requires providers to assess whether an event negatively affects or could negatively affect their eligibility for registration, compliance with conditions of registration, degree awarding powers, or university title.

The test considers if a “reasonable provider” acting in compliance with all conditions and in the interests of students and taxpayers would judge the event to be material.

Some events, like changes in ownership, are always reportable, while others require providers to exercise judgment based on factors like financial impact, governance changes, or reputational risks.

The failure to report the breach to OfS was considered an “aggravating factor” – the university allowed the breaches to persist for a prolonged period (from August 2019 to at least March 2024), “worsening” their impact on staff and students.

This “lack of transparency” indicated “poor governance” and “hindered” early intervention – so OfS increased the university’s penalty to reflect the seriousness of its failure to self-report.

On the face of things, given the Sussex policy appears to have been largely based on a template, presumably the notifications@officeforstudents.org.uk inbox has been swelling in recent days.

Or has it? OfS doesn’t actually discuss the impact of the failure, and Sussex may well be arguing that it didn’t reasonably believe it represented a breach and didn’t want to over-report.

And if you’re a university that agrees with that position, you won’t be emailing notifications@officeforstudents.org.uk either.

Meanwhile as providers prep up to comply with Condition E6: Harassment and sexual misconduct, they’ll be under pressure to take “significant and credible” steps to protect students from harassment both on the grounds of a protected characteristic and for other students too.

The condition contains a definition of harassment that mirrors the definitions in section 1 of the Protection from Harassment Act 1997 and section 26 of the Equality Act 2010, and extends this to capture harassment by any student of any other student:

The requirements placed on providers will have the effect of improving prevention, protection and support for students who have a relevant protected characteristic and those who do not.

In other words E6 also expects significant and credible steps to prevent some conduct that is otherwise legal but harmful.

That says that students must be appropriately informed about what constitutes harassment and sexual misconduct, and includes mandatory training, induction sessions, and ensuring students understand their rights, responsibilities, and reporting mechanisms.

In the Sussex policy OfS was concerned about a line that said abuse, harassment or bullying (name-calling/derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences:

During the process, Sussex set a new definition for “transphobic abuse, harassment or bullying” – narrowing the restrictive effect by introducing a requirement to objectively assess what amounts to “transphobic abuse, harassment or bullying’ and/or ‘ abusive, bullying or harassing material”, and explaining that this “mean[s] unwanted behaviours and communications that could reasonably be expected to cause distress or fear among trans people”.

OfS said that the terms “transphobic abuse, harassment or bullying” and “abusive, bullying or harassing material” are still capable of restricting lawful speech because the definition was not limited to existing prohibitions in law and was therefore sufficiently broad to restrict lawful speech.

It now says:

Transphobic abuse, harassment or bullying (e.g. name-calling/ derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences for staff and students and will be dealt with under the appropriate University procedures. After consideration of its form and contents, material (e.g. written materials, graffiti or recordings) that is found objectively to be abusive, bullying, or harassing will be removed from university premises.

…We use the term “transphobic abuse, harassment or bullying” to mean unwanted behaviours and communications that could reasonably be expected to cause distress or fear among trans people. This definition is objective and replicates the definition in the Protection from Harassment Act 1997, as set out in the Cod for Crown Prosecutors.

But for reasons not explained, OfS has “reserved judgement” on whether that wording even now complies – almost a year after Sussex made further changes.

How are universities supposed to know how they might comply with the appropriately informing what constitutes harassment and sexual misconduct duty if they don’t know whether they’ll breach the free speech and academic freedom duties when they do?

I suppose providers could email notifications@officeforstudents.org.uk with “we haven’t got a clue where you’re drawing the line” but I expect that won’t go down well.

Meanwhile in E6, OfS says that providers should provide support to students who report harassment and sexual misconduct regardless of whether the provider considers that the incident meets the objective tests.

But OfS’ draft guidance on free speech last year said that providers should not encourage students or staff to report others over speech that could include the lawful expression of a particular viewpoint.

That may be based on Arif Ahmed’s battle against the censorious wording of Cambridge’s boilerplate Report and Support tool, described here in Spiked!:

For instance, back in May, Cambridge published a list of “microaggressions” that could land academics in trouble with the university authorities, along with a website to allow students to report them anonymously. These offences included “stereotyping” religions and raising your eyebrows in the wrong direction. To his credit, Professor Toope rapidly disowned this policy following staff protests.

OfS says that if a university was to introduce such an online portal, removing the portal or implementing an alternative reporting mechanism that does not deter lawful speech “may be necessary steps”.

Although while OfS expects that in a wide range of circumstances it will be reasonably practicable to take many of these steps, it may also be reasonably practicable for providers and others to take other steps, in any particular case.

Whatever training or guidance is given to students, some will regard what’s happened to them as harassment when it isn’t. And even if a single incident isn’t, a pattern might emerge that then amounts to harassment.

That’s why E6 says that providers should provide support to students who report harassment and sexual misconduct regardless of whether the provider considers that the incident meets the objective tests.

But now OfS also seems to be saying that providers shouldn’t even allow students to report in when they experience harassment that doesn’t meet the objective tests.

Read together, OfS seems to be saying support students who say they’ve experienced stuff that’s legal but harmful, but don’t whatever you do encourage them to tell you about it. How you would therefore know who to support is unclear.

Probably the best thing to do is don’t bend, don’t water it down, don’t try to make it logical, don’t edit your own soul according to the fashion. Rather, follow your most intense obsessions mercilessly.