Managing conflicting rights on campus: a leadership challenge – Smita Jamdar

By Smita Jamdar, Partner and Head of Education at Shakespeare Martineau

Colleges may thus far have largely escaped the culture wars that have plagued universities over recent years, but they cannot escape the consequences of legal changes driven by them.

New provisions in the Higher Education and Research Act 2017 (HERA) will directly affect colleges registered with the Office for Students (OfS) when they come into force later in 2024 and 2025 and may indirectly affect those who are not registered.

Evolving case law in relation to philosophical beliefs under the Equality Act 2010 presents real management challenges when there are deeply held competing perspectives on significant but contested social issues. In general, there is an increasing tension between law which aims to promote freedom of expression and speech (the definitions in future will be largely interchangeable) and law to protect individuals from harm caused by harassment and other discrimination. Navigating this tension will require skilful handling if all learners are to thrive whilst engaging with the widest possible range of ideas.

Freedom of expression

Once relevant changes to HERA are in force, expected to be from August 2024, colleges registered with the OfS will be subject to a different legal framework relating to freedom of expression compared to those who are not, with the latter remaining subject to the duty set out in the Education (No2) Act 1986.

The differences to the basic duty itself are not ostensibly significant. For both types of colleges, the duty remains to take reasonably practicable steps to secure freedom of speech within the law for staff, students and visiting speakers, but registered colleges must have regard to the “particular importance” of free speech in deciding what steps to take. The OfS has published draft guidance which sets out an extremely wide range of steps that it considers may be reasonably practicable, depending on the context, and the regulatory expectations appear quite high. In addition, registered colleges will have a duty to promote freedom of speech whilst others will not.

A significant difference is that “academic staff” within registered colleges will have statutory protection for academic freedom as part of the free speech duties. They are entitled to test received wisdom and put forward controversial and unpopular ideas without fear of losing their existing privileges at the college, and without having their prospects of promotion or progression adversely affected. At colleges which are not registered the protection will remain a constitutional one, and extend only to existing benefits and privileges.

The regulation and enforcement of the duty will be very different: staff, learners and speakers at registered colleges will be able to take complaints to the OfS and sue in the courts for damages if they feel their rights have been infringed, whilst those at other colleges will have to enforce the duty by way of judicial review, or in the case of academic freedom through employment remedies.

In addition, registered colleges will in due course be subject to new registration conditions which mean they face the risk of substantial fines and other regulatory action if they do not comply. It is likely therefore that the free speech duty will create greater regulatory risk and therefore attract greater focus in registered colleges than in others.

Quite what the legislative logic is in creating two tiers of learner and staff protections in further education, based purely on the fairly arbitrary test of registration with the OfS, is something of a mystery. One rationale might have been to ensure parity in the higher education experience of all learners irrespective of where they are studying, but this is undermined by the fact that the OfS intends the duties to extend to all registered students irrespective of level of learning.

In any event, colleges which are not registered will not be completely immune from the effects of these changes. If they have sub contracts with registered providers then it is likely that they will indirectly be expected to abide by the same standards that apply to those providers. Further, as regulatory action and court cases involving registered providers unfold, this will undoubtedly shape expectations of what it is reasonably practicable tor colleges who have chosen not to register, and who may only deliver very small amounts of higher education, to do.

Freedom from harm

Alongside the changes above, there have been developments in relation to philosophical beliefs which are highly pertinent to the question of freedom of speech. Beliefs have always been protected under the Equality Act provided they meet certain criteria, but they have recently become an increasingly common feature of discrimination cases involving higher and further education. Where a belief is a protected philosophical one, it is protected from discrimination by the Act in the same way as any other protected characteristic such as race, disability or sexual orientation.

Unlike religious beliefs, which can be reasonably easily identified by reference to shared creeds and texts, philosophical beliefs can extend to a very wide range of subjects and are largely defined by the individual themselves. Any belief will be protected if it meets the following criteria:

• it must be genuinely held,
• it must be a belief and not an opinion or viewpoint based on the present state of information available,
• it must be a belief as to a weighty and substantial aspect of human life and behaviour,
• it must attain a certain level of cogency, seriousness, cohesion and importance, and
• it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflicting with the fundamental rights of others.

The final point is intended to create only a very modest threshold requirement which the courts will not set at a level which would deprive minority beliefs of the protection they are intended to have in a pluralistic democracy.

As can readily be envisaged, the application of such broad tests means a very wide range of beliefs can end up being protected. Gender critical views, opposition to critical race theory, anti-Zionism and a belief that mediums can communicate with the dead have all been held to be protected beliefs, while Marxism and Trotskyism have not. However, each of these findings were based on the very specific facts of the case, and where, for example, the same belief is not considered to have attained the required level of cogency, seriousness, cohesion and importance to the individual in question, it may not be protected. To add to the complexity, a lack of belief in a philosophical belief is also protected. Finally, while holding a belief is an absolute right, manifesting it is qualified one which may be restricted to the extent needed to achieve a set number of legally desirable goals, including protecting the rights of others.

This leaves colleges facing a number of dilemmas. There is no exhaustive list of protected beliefs and no foreseeability or predictability that a particular belief (or lack of it) will be protected in all circumstances. Directly opposing beliefs may well be protected. Individuals holding protected beliefs must not be subjected to less favourable treatment or a hostile environment for holding their beliefs. However, expressing those beliefs could create a hostile environment for those who hold other protected beliefs or have other protected characteristics. Colleges could therefore be liable for failing to prevent discrimination or harassment of those with protected beliefs as well as by those with protected beliefs. Combined with the duties to secure and promote freedom of expression, the challenge of knowing where to intervene and where to encourage free speech is not a straightforward one.

The leadership implications

It would be easy to see these issues as simply matters of compliance, capable of being addressed through adopting policies and procedures and ticking a few regulatory boxes. But concepts such as freedom of speech, academic freedom, equality and inclusion go to the heart of what it means to be a place of learning. Ultimately this may be much more about culture and proactively seeking to encourage a more tolerant environment for the free exchange of ideas and opinions, however offensive they may seem to some, whilst simultaneous making sure all feel that they belong and can thrive.

It is also about risk appetite: the OfS’s approach in particular prioritises freedom of speech over EDI activities, whilst the cases on protected beliefs reaffirm that, in some circumstances, otherwise lawful speech can be restricted to protect the interests of minoritised groups, and satisfying both sets of requirements may not be easy or possible. There is no fixed line between these two approaches, and it will always turn on the particular facts.

Leaders in colleges need to be supported to make these tricky judgment calls as reasonably as they can, recognising they may not always turn out to be the right ones. A mix of competence, confidence and bravery on the part of leaders and governors will be required.

The views expressed in Think Further publications do not necessarily reflect those of AoC or NCFE.