Universities UK has new guidance for dealing with cases of student misconduct

It’s easy to chalk up institutional mishandling of student misconduct cases to a lack of interest, care, or willingness to address it properly – or some sort of reputational concern.

But we should remember that it’s complex, and hesitancy is understandable. Plus – institutions were previously advised in the 1990s Zellick report not to touch any case of misconduct that constituted a crime, as these were matters for the criminal justice system.

Changing the Culture recognised what many who work in this area had been saying (tweeting, shouting, sighing) for a long time and what seems pretty simple – there is nothing to stop institutions from setting their own codes of conduct – which include acts that constitute criminal behaviour, so long as they are framed as “breaches of contract” and not a criminal offence.

And that doing so is an important component of creating a safe environment in which students can learn, and a way to work towards equality of opportunity.

The question that comes up for many is how this might work in practice – especially given the breadth and diversity of the sector and the range of cases that institutions, all with different contexts and student demographics, may need to deal with.

The publication includes 21 real (anonymised) case studies from across the sector demonstrating the diversity and complexity of many cases, and how to deal with both the legalities of cases as well as how best to support students through them.

The overarching advocacy of the guidance is grounded in trauma-informed practice and clear communication. This means students are given information verbally and in writing (acknowledging that trauma can impact information recall), and that reporting students should be informed of their options:

• report to the police;
• report to the university;
• no formal report

Wonkhe readers will recall that one of the failings in the Feder and McCamish v The Royal Welsh College of Music and Drama (RWCMD) case was that the complainants were not informed of their options.

And reporting students should be clearly informed that choosing one option may later impact the availability of choosing another option (for example, a university investigation could potentially prejudice any subsequent criminal investigation).

UUK’s specification that students be given the option to report to the police is important. While the guidance advocates not simply palming students off to the police Zellick-style, in an era of ever-increasing diversification of the student body – particularly in terms of internationalism – students may be arriving at the institution with different legal understandings of what constitutes criminal behaviour.

(It’s also why students need proper onboarding to prevent such behaviour in the first place, but this is a whole other piece). In fact, this is presented in one of the case studies – where a student “Casey” does not seem to recognise the severity of her sexual assault.

Throughout the case studies, we see a doubling down on the need to support students (another failing of the Feder and McCamish v The Royal Welsh College of Music and Drama (RWCMD) case). This includes assigning both parties a key contact independent of the investigation to provide support for students who have disclosed misconduct but do not want to make a formal report, continuing support for reporting students, and putting in risk assessments even when the report is not upheld.

It also provides advice on how to conduct hearings in a way that reduces the impact on all involved, including whether in-person attendance is even necessary.

And progressively, reporting students should receive timescales (to prevent complainants from needing to email for updates repeatedly) and information about whether the allegations have been upheld. This is something campaigners have been asking for for years – so that reporting students aren’t left in the dark over whether their alleged attacker is even still at their institution or not.

It also answers the age-old question of what to do with anonymous complaints (yes – institutions can take action), or how to proceed when reporting students disengage with the process (no – the whole thing doesn’t have to be written off).

Encouragingly, we get decisive direction on how to take action against students who have committed offences against third parties – not technically breaking their own institution’s codes of conduct but indicating that they are a serious threat to others. This would have been particularly relevant to the 2019 case of a Glasgow University student who raped another student and was suspended but was allowed to enrol at Edinburgh University while awaiting trial.

And there’s advice on how to navigate the incredibly complex instances where there are multiple codes of conduct – such as on joint courses run by two providers or for students on work placements – and whether a disciplinary or a Fitness to Practice investigation should be launched.

The more granular legal details attempt to navigate when data sharing with third parties such as police, private accommodation providers, and internal staff such as personal tutors, lecturers and parents of students is reasonable and appropriate, as well as the legalities surrounding this. And it addresses the increasing trend of reported parties requesting they are permitted to have legal representation at the hearing

But what is striking is that there is only one mention of a students’ union – featured in a case study where an investigation has already concluded. Given many students disclose first to their students’ union, given that many students conflate the processes of their university and students’ union, and given the independence of each organisation (a student can be found to have breached a behaviour code of conduct at one and not the other for the same incident) this is an odd oversight and an area that remains one that needs some clarity.