Freedom of Speech, Academic Freedom, EDI in higher education: Squaring the circle

Many will be familiar with the flowering of ideas during the age of enlightenment and subsequently that energised concepts of free speech. John Stuart Mill advocated extensively for it on grounds of human fallibility and the search for truth and in his essay On Liberty published in 1859 he articulated several propositions underpinning its importance including his harm principle: “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”. Of course, what constitutes harm is itself disputed and seems to be at the heart of many current areas of contestation. In any event, these ideas also underpinned the rapid expansion of democratic life, including protection for minorities and those who face oppression. Arguably, at least in the abstract, most support these principles.

Many have written about the importance of free speech in higher education (HE) (including Sussex’s vice chancellor) and in his erudite speech at King’s College London on 9 October, Professor Arif Ahmed, the Office for Student’s (OfS) new Director for Freedom of Speech and Academic Freedom, noted that “Freedom of speech and academic freedom are fundamental to higher education. The core mission of universities and colleges is the pursuit of knowledge, and the principles of free speech and academic freedom are fundamental to this purpose.” He also articulated the value of freedom of speech for marginalized people. I entirely agree. However, the reality is more complicated.

There are a number of well publicised cases engaging issues of free speech, including in my own university two years ago concerning opposition to the gender critical views of one of our professors, Kathleen Stock. Very recently I read of Alka Sehgal Cuthbert, Director of Don’t Divide Us, who was uninvited from the Rethinking Education conference. Indeed, the awful events in Israel and Gaza have themselves given rise to voluminous commentary and debate about free speech, including in respect of the boundary with unlawful harassment and hate speech. More generally, concerns have been raised regarding purported indoctrination or expectations in relation to definitions of racism and of equality initiatives, which allegedly restrict free speech, either directly or by creating a “chilling” effect. 

There is of course a detailed legislative framework governing free speech in HE, underpinned by Article 10 of the European Convention on Human Rights (ECHR), incorporated into UK law through the Human Rights Act. Incidentally, it’s worth noting that this includes a right “to receive and impart ideas” which, when considered alongside Article 14 – the prohibition of discrimination in relation to other rights and freedoms under the ECHR – arguably invites consideration of how universities can ensure that different groups, including in particular minoritized groups, can impart their ideas and have them received. Meanwhile, Article 10(2) sets out those circumstances when this freedom may be restricted. Accordingly, there are permitted restrictions regarding harassment, threats of violence and criminality, defamation and breaches of intellectual property, employment obligations, privacy rights, the Prevent duties and anti-terrorism acts, regulation of communications and obligations of charities (including universities) under charity law. Also, Article 17, sometimes called the “abuse clause”, prohibits engagement in any activity or the performance of any act aimed at the destruction of any of the other rights and freedoms under the ECHR.

I want to explore the boundary of free speech (and its cousin, academic freedom) in two areas. First regarding unlawful hate speech and harassment and second in the intersection with matters of equality, diversity, and inclusion (EDI), particularly the Equality Act’s (EA) Public Sector Equality Duty (PSED).

There is no consistent legal definition of hate speech. Section 5 of the Public Order Act 1986 (POA) provides that a person is guilty of an offence if he “uses threatening or abusive words or behaviour, or disorderly behaviour, or displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”. Similar offences are created by the POA in relation to acts intended or likely to stir up hatred on the grounds of race and also on grounds of religion or sexual orientation (though here there are defences designed to protect freedom of expression). Meanwhile, the Protection from Harassment Act 1997 prohibits a course of conduct that is likely to alarm or cause distress. Harassment is not further defined but the courts have made it clear that an example of harassment would be racial abuse. Separately, the EA defines and prohibits three types of harassment: (i) harassment related to one of the nine protected characteristics; (ii) sexual harassment; and (iii) less favourable treatment as a result of harassment (either harassment related to the protected characteristics of sex or gender reassignment, or sexual harassment). Importantly, context is especially relevant so that universities have to make what may be contested decisions based not only on the available facts but also the context of individual cases.

Let’s consider a couple of real-world examples.

The Bell Curve: Intelligence and Class Structure in American Life by Richard J. Herrnstein and Charles Murray is a book published in 1994 which purported to establish a genetic connection between race and intelligence. Whilst they would argue that the purpose of their book was to advance knowledge and was not driven by bigotry, their analysis, intentionally or not, does appear to perpetuate racist tropes. In any event, it has been widely disputed by mainstream science. Nevertheless, depending on context and the way in which these views are manifested, propagating these views is unlikely to constitute harassment or hate speech and as such may not be lawfully restricted.

Meanwhile, in July of this year, the US State of Florida approved new standards for teaching African-American history in schools requiring teachers to tell students that there were upsides to being enslaved and requiring instruction on “how slaves developed skills which, in some instances, could be applied for their personal benefit.” Ron DeSantis, the Governor of Florida was stated as “spearheading” these changes to combat “woke ideology”. He was asked to explain the curriculum amendment relating to “personal benefits’’ and stated: “They’re probably going to show that some of the folks that eventually parlayed, you know, being a blacksmith into doing things later in life”. Would this be unlawful in Britain? Again, context and manifestation are important but “slavery minimisation” isn't specifically illegal and on the face of it, it would also likely not constitute hate speech or harassment.

Many will say that this is as it should be and there are certainly strong arguments, both legally and otherwise, which support this view. However, quite apart from the upset and indeed outrage that such statements cause, universities have other obligations which may conflict with this approach. For example, in England they are charged with taking steps to address student underrepresentation and disadvantage through Access and Participation Plans regulated by the OfS, many of which focus on the reduction and elimination of awarding gaps including those relating to students of particular ethnic heritages. There is strong evidence that an inclusive culture and sense of belonging has a material benefit on awarding gaps. Speech purporting to argue for inherent inequality between people of different ethnicities or even of the so-called “benefits” of slavery will almost certainly conflict with this. It also bears noting that academics typically have pastoral roles with important responsibilities for the wellbeing of their students. Promoting a positive relationship between staff and students is essential and this could easily be undermined if, for example, the academic is open and robust about their political viewpoint on any number of issues, where such a viewpoint is contentious, or as I would argue in the case of the above examples, tendentious and potentially offensive. Or to explore this issue in another way, applying his harm principle, what might Mill say? One answer is suggested by the American philosopher Melina Constantine Bell who in 2020 argued that in the modern age, bigoted speech should be recognised as harmful as “members of historically marginalized social groups suffer tangible, concrete harms both directly from exposure to bigoted speech, and indirectly because of the hostile social environment, discrimination, and oppression that result”. Of course, some bigoted speech may constitute harassment or hate speech but not all will.

I stress that none of this is to say that lawful free speech or academic freedom should be curtailed, rather that there are complexities here which do not easily lend themselves to rigid legal or regulatory solutions.

Turning now to the PSED, in an insight brief, Freedom to question, challenge and debate published in December 2022, the OfS references the PSED - a proactive obligation on public bodies to have “due regard” to the need to eliminate unlawful discrimination, harassment and victimisation, advance equality of opportunity and foster good relations. The Brief emphasises: “it is not a duty to achieve those aims” and hence should not be a limiting factor to free speech obligations. It is possible to interpret this in several ways but that emphasis gives at least the impression that so long as one thinks about elimination of unlawful activity, advancing equality and fostering good relations, one needn’t actually do anything even if one had thought of something to do.

In my experience, the PSED has been instrumental in making effective progress towards EDI, including in driving progress to bring together communities in areas of conflict. Certainly, it does not override freedom of speech obligations, but taken at face value, the OfS’s apparent approach could render it meaningless. Specifically, it elides the point that public bodies can legally and reasonably choose to take action under the PSED (and may be required to do so) notwithstanding the qualifying phrase of “have due regard”, providing they don’t breach other obligations. Compliance is a legal obligation which can be enforced via action by the Equality and Human Rights Commission (EHRC) or legal proceedings. Specific duties in England require public bodies to “prepare and publish one or more equality objectives that should achieve one or more of the aims set out” under the PSED (and there are similar requirements in Wales and Scotland) and a public body would be hard pressed to demonstrate compliance if it did not actually do anything to advance those objectives beyond thinking about them. As the EHRC guidance on the PSED states: “It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review”. This analysis is also reflected in The Judge Over Your Shoulder, guidance for civil servants, which references the case of R (Bracking) v Secretary of State for Work and Pensions [2013]. In particular: “The duty to have due regard obliges a public authority to consider relevant matters that may affect a decision, then decide what weight to accord to the equality considerations. The level of due regard considered sufficient in any particular context depends on the facts.” 

In fact, in most instances the PSED and free speech within the law are entirely complementary. As stated, I do not suggest that the PSED trumps free speech but I do think that there is a more complex interplay, which can be illustrated in the question of universities adopting EDI positions.

Prof Ahmed has written extensively on academic freedom and freedom of speech. In one article published by Politeia - Academic Corporatism A More Pervasive form of Tyranny in 2022 (of course prior to his recent appointment to the OfS), he criticised “institutional non-neutrality”. The article states: “Freedom of speech includes the freedom to adopt, and defend, any position you like on the controversial moral and political questions of the day. Within universities, this is what you would expect from individual students and academics. It should not be for the institutions themselves to take a stance. But it is what they have been doing.” He gives as an example of such non-neutrality compulsory training for students and/or staff, such as unconscious bias and race awareness training. Additionally, Prof Ahmed criticises what he views as “highly selective use of official ‘statements’” which he views as “actively campaigning for a political end”, including statements relating to race equality. Relatedly, in June 2022, the then Further and Higher Education minister Michelle Donelan queried whether participation in the HE sector’s Race Equality Charter and Athena Swan is compatible with free speech and academic freedom principles.

Certainly, as Prof Ahmed underscores, it is right to ensure that EDI and any initiatives do not conflict with other obligations. I have certainly come across trite and poor training. However, I disagree that such initiatives described are a priori wrong, nor do I think that they necessarily breach the legal framework. Indeed, “position-taking” may actually be required to give effect to and comply with the PSED.

There is a strong rationale for institutional programmes such as Athena SWAN, the Race Equality Charter, or the government’s Disability Confident Scheme. In addition to the points set out regarding the PSED, they can have a role in preventing discrimination and harassment. Indeed, I note that the OfS itself in its statement of expectations for preventing and addressing harassment and sexual misconduct affecting students in higher education, states that “[Universities] should implement adequate and effective staff and student training with the purpose of raising awareness of, and preventing, harassment and sexual misconduct”, including “bystander initiatives”. And powers in the EA to permit what are known as positive action initiatives effectively mandate the taking of a “position” - that being to address structural under-representation (which of course is not the same as addressing unlawful inequality). Of course, Prof Ahmed may argue that he was not referring to all EDI initiatives in his criticisms but at least some of those that he cites are ones which in my view may be lawful and have a meritorious benefit for universities.

I do agree that universities should not take positions on external matters which are outwith the organisation of a university and its purposes, and particularly not those involving significant controversy and contestation (although the concept of “neutrality” is itself complex). Aside from arguments pertaining to free speech, I am mindful of the obligation of universities as charities to act in ways that further their charitable purposes and that of course may limit their scope. But otherwise, the fact of a university adopting a position on, say, the importance of diversity in its leadership, does not of itself require any of its staff or students to restrict their speech, including if they disagree. Universities are, and should, be sites of contestation and difference of opinion. Academics and staff often disagree with their university!

So where does this get us?

It is important to restate that, notwithstanding the complexities and problems outlined, free speech is essential. There are also key difficulties and occasional failings of public bodies in ensuring it.

However, there are also complex fact and context specific areas of contestation relating to aims and obligations which do not easily lend themselves to resolutions through the application of legal or regulatory frameworks. These touch on sociological, philosophical, political and generational issues engaging power, feeling and identity. Megaphone-delivered and/or legalistic approaches are not well-suited to addressing complex and nuanced issues.

And even if it is always possible to navigate through to a correct legal answer on what is and what is not lawful in very context-specific circumstances (without engaging armies of lawyers), the world and life are messier. Moreover, the law is not always clear and does not always resolve real concerns. It can be reductive. Dramatically changing regulatory environments affect relationships between staff and students and their institutions, and evolving demands and expectations of regulators, funders, and other stakeholders add further complexity. More generally, political agendas are not always transparent and “hot button” topics are ideal vehicles to convey other motives. So, whilst laws are necessary, they are not sufficient, and we must find other complementary approaches.

As a start, universities must cultivate within their communities the skill of listening. At Sussex, amongst a range of initiatives, we have initiated an Open Listening Programme, with the aim of creating and establishing listening spaces that offer new possibilities for dialogue, authentic relationships, and resilience in the face of conflict and contestation, seeking to build individual and collective capacity of staff and students to engage with difficult conversations in alternative and constructive ways, and developing and maintaining supportive relationships across different life experiences and identities. I believe that initiatives such as this are required, alongside information, understanding, community-building and a range of other tools. Engagement on campus will be just as important as the sector’s dialogue with OfS.

Meanwhile, I was very interested to read King’s College London’s recent Policy Institute Report - Freedom of Speech in UK Higher Education, part of which merits quoting:

“First, we need to recognise the highly charged and polarised environment in which the new legislation will be operating. We cannot see the debate and actions in universities as disconnected from wider “culture war” narratives, where perceptions among university students are shaped by external coverage as well as direct experience, and a number of actors are incentivised to exaggerate or downplay the extent of the challenge. This should, for example, make us particularly cautious in how and when legal measures are employed, as fractious, high-profile court cases may themselves shape perceptions and encourage division rather than improve outcomes on free speech. It also points to the central importance of the role of Free Speech Director as this role will to a large degree determine whether this is an important positive intervention in supporting free speech or another front in a culture war.”

Ultimately, as we are seeking to articulate at Sussex, the aim is to welcome and embrace diversity not only in the EDI sense of background, identity and belief but also of thought, method and discipline. That is not easy or straightforward but it is necessary and requires thoughtful understanding of complex relations. And in this regard, we all have obligations.