English universities barred from enforcing blanket bans on student protests
The detailed regulations set out for the first time how universities should deal with inflammatory disputes, such as those between the University of Cambridge and students over the war in Gaza, and rows over academics who hold controversial but legal opinions, such as the gender-critical professor Kathleen Stock.
The guidance issued by the Office for Students (OfS) will make it harder for universities to penalise students and staff for anything other than unlawful speech or harassment.
But experts said the guidance failed to address the complexity of balancing free speech with activities that have 'chilling effects' on students or staff.
Universities are advised not to apply prolonged bans on protest encampments involving the Israel-Gaza conflict – as used by the University of Cambridge earlier this year – but will also be required to block 'frequent, vociferous and intrusive' protests if they intimidate Jewish students.
The guidance also says:
Academics should not be pressed to support particular views.
Protests should not be restricted for supporting legal viewpoints.
Students or staff should not be 'encouraged to report others' for lawful speech.
Universities must 'secure freedom of speech' for visiting speakers.
The OfS said its guidelines would help universities 'navigate' their duties under the Higher Education (Freedom of Speech) Act, which is due to come into force in August.
Julian Sladdin, a partner at the law firm Pinsent Masons and a specialist in higher education regulation, said the guidance gave some 'much-needed clarity' for providers but left others unclear.
'The difficulty which remains in practical terms is the fact that institutions are still subject to dealing day-to-day with extremely complex and often polarising issues on campus and where the bounds of what may be lawful free speech are constantly being tested,' Sladdin said.
'These matters do not appear to be sufficiently addressed by the guidance at present.
'This still leaves institutions with the need to put in place their own procedures to assess these questions, and [assess] how any risks can be addressed by reasonable and practicable steps given the multifaceted and fact-sensitive nature of free speech issues and the considerable time pressure often involved in managing the same – particularly in a period where we have increasingly seen protest and occupations across UK higher education.'
Universities will also expect staff and students to legally use social media in a personal capacity, without regard to any impact on institutional reputation, while reprimanding staff members whose speech or activities interferes with their teaching.
Earlier this year the OfS imposed a £585,000 fine on the University of Sussex, saying it 'failed to uphold freedom of speech and academic freedom' affecting Kathleen Stock, a philosophy professor targeted by protests for her views on gender identification and transgender rights.
The OfS published a survey of academics in which 21% said they did not feel free to discuss 'challenging' ideas in their teaching, including 19% who identified as leftwing and 32% as rightwing.
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Prof Bobby Duffy, the director of the Policy Institute at King's College London, said: 'The reality is it's really tough to have completely clear regulations and laws in this space, which means that the testing of thresholds will be key in particular cases.
'We need to recognise that this is not a neutral space but is linked to more general 'culture war' divisions in society as a whole – which means that people will be motivated to use regulatory and legal routes to make a point – the process itself can be used to divide.
'There's no way around that but we do need to be aware of it.'
Arif Ahmed, the OfS's director for freedom of speech, said: 'It's important to remember that universities can regulate speech where appropriate.
'No university needs to allow shouting during an exam, or for a maths lecturer to devote their lectures to their own political opinions rather than the subject at hand.
'Equally, they can and should take steps to address harassing speech on campus. Antisemitic harassment, for example, should not be tolerated on any campus and we fully expect universities to take robust steps to tackle it.'
The OfS guidance also suggests that universities refuse places to international students whose funding requires them to follow the policies of foreign governments, potentially threatening state-sponsored students from a number of Asian and Middle Eastern countries.
A spokesperson for Universities UK said: 'We strongly agree that universities must be places where free speech is protected and promoted.
'These guidelines cover complex issues, and we are pleased to see that the OfS has taken onboard some of the feedback from the previous version.
'We will continue to work constructively with the OfS and with government as these changes are introduced, and will make sure universities are appropriately supported to comply with them.'
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