Today the OIA published a casework note on free speech and student complaints, together with seven case summaries. Three of the seven begin with one student reporting another. In my last piece I said the OfS free speech guidance still does not treat student-on-student reports as a distinct scenario. I also said that triage had become the decisive stage of a compliant process without being described anywhere. The OIA updates do not describe a triage either; they do show what these decisions looked like when they were found to be reasonable, and what they looked like when they were not.
What the OIA published
The casework note restates the OIA’s remit rather than announcing a change. Students have always been able to bring complaints involving academic freedom and freedom of speech, and they still can. The new OfS complaints scheme covers staff and visiting speakers. Student complaints continue to come to the OIA.
The approach is the same as for any other complaint. The OIA asks:
- whether the provider followed its procedures
- whether those procedures were reasonable
- whether the provider took account of the legal and regulatory responsibilities relevant to the case
- whether the final decision was reasonable in all the circumstances
It says it does not decide for itself whether particular speech was acceptable, and does not replace the provider’s decision with its own.
One line in the note is useful for anyone triaging reports: students do not always describe their complaint as being about freedom of speech, and the OIA says that does not make the issue irrelevant. Providers still need to identify the legal and regulatory responsibilities that apply to the circumstances. So it is for the provider to notice the free speech dimension, not the reporting student. A report that arrives labelled as harassment or bullying may still need that analysis.
Three cases that begin with a student reporting another student
- In CS082603 a student proposed to their students’ union that a men’s officer role be created. The proposal was debated and was not passed. The student then complained about comments made during the debate which they said were racist, sexist, and inaccurate. They also said they had been accused of being racist, homophobic, and transphobic. The union did not uphold the complaint. The provider dismissed it on review. The OIA found the complaint Not Justified.
- In CS082604 a student complained about comments made by other students in the chat during an online session on historical arguments about the roles of women. The student said the comments were transphobic and discriminatory, and that the lecturer had not taken proper steps to address them. The provider did not uphold the complaint and the OIA found it Not Justified.
- In CS082605 the reports came from other residents in halls, about comments described as queerphobic, transphobic, and antisemitic. The provider ran a disciplinary process and found two breaches of its behaviour expectations. One related to the student singing part of the old German national anthem and the other related to comments questioning whether asexuality could be considered a sexuality. The provider treated both as anti-social behaviour and as hate speech under its own definitions, and required the student to read educational materials and write a reflective essay. The student appealed and was unsuccessful, then complained to the OIA. The OIA sent the complaint to the provider, which looked at the case again and decided it had not followed the correct procedures, and that this had produced an incorrect and unfair outcome. It offered £5,000, an apology, a meeting with the Vice-Chancellor, and removal of the findings from the student’s record. The case closed as Settled.
What the accepted reasoning contained
In the two cases the OIA did not uphold, the reasoning it accepted has consistent elements; this may be the nearest thing to an account of triage currently available, although the OIA does not present it that way.
- In CS082603 the union had set expectations before the debate, reminding students to direct comments at the content of the policy rather than at individuals. The online discussion was moderated. The complainant had the opportunity to respond and defend their views within the debate. The provider concluded that the comments were directed at the policy rather than at the student, and were not generalised or stereotypical comments about white men. The OIA reviewed the records of the discussions itself and recognised that the issues being discussed were sensitive. It was sympathetic to the student’s distress. It still found the provider’s decision reasonable.
- In CS082604 the provider considered the context in which the comments were made and the manner of their expression. It recognised that gender reassignment is a protected characteristic under the Equality Act 2010, and that the Act also protects holding gender critical views as a philosophical belief. It addressed both. It decided the views had not been expressed in a way that was overtly disrespectful, and that they had arisen from the subject of the class. It also decided that students are allowed to express differing opinions in an academic space, even where others find them offensive. It took account of what the lecturer did at the time, which was to return the conversation to the session subject. The OIA thought it relevant that learning about philosophical arguments often produces digression.
This may give us some useful considerations in cases that are or could be related to freedom of speech:
- expectations set before a discussion
- moderation during a discussion
- whether comments are directed at an idea or at a person
- the setting comments are made in
- the manner of expression
- what staff did (or did not do) at the time
The two cases where a provider’s decision did not stand
Seven summaries selected by the OIA for publication are not a sample and should not necessarily be seen as a pattern. It is still worth noting, though, that in both cases where the outcome changed the provider had restricted or penalised speech. In these seven, no provider was criticised for declining to act on a report, but this may tell us more about who is likely to complain than anything else.
- CS082606 describes the analysis the OIA looked for and did not find. A student was disciplined for two matters after a pro-Palestinian rally. The first was refusing to remove signs that the provider said were causing distress to its community. The second was disruption caused by an unplanned protest. The OIA found the second decision reasonable and the first unreasonable. It said the provider should have balanced distress against its legal obligations on freedom of speech. It also said the provider had not properly considered whether the speech was lawful, or whether it was reasonable to restrict it. The student had graduated and the penalty would have been the same on the second breach alone, so the OIA recommended an apology and £250 rather than a reconsideration. It also recommended training and guidance on freedom of speech duties for all staff making decisions under the disciplinary procedures.
- CS082605 shows a similar problem in a student-on-student case. The provider applied its own definitions of hate speech and anti-social behaviour to conduct the student argued was lawful. The student raised the OfS guidance and the provider’s own free speech code at appeal, and raised a procedural point about the same conduct being considered under two categories of misconduct. When the case reached the OIA, what the provider accepted was about its procedures rather than its view of the speech.
Both cases involve the application of a conduct code definition without first asking whether the speech is lawful, and without a clear record of any triage stage (the stage the OfS guidance does not describe).
Academic judgment and SUs
The OIA interprets academic judgment narrowly, but it still applies. In CS082601 the OIA decided that assessing whether a research survey presented an ethical risk was a matter of academic judgment, because that assessment needs relevant academic expertise. In CS082602, where a student said their political views had influenced their marks, the provider arranged for the work to be reviewed by another member of academic staff with relevant expertise and the OIA described that as good practice. This is a simple step worth considering where a student says their views have affected their marks.
On students’ unions, the OIA generally cannot consider the actions of a union that is legally separate from the provider. It can consider how the provider carried out its own responsibilities in relation to the union, including where the provider made the final decision on a complaint about it. The escalation route is important and providers should be clear about which decision is their own.
What is still missing?
Measured against what I said would be useful in May and at the beginning of August, the position has moved a little. But, as before, the proactive guidance is far clearer than guidance about how universities ought to react.
Student-on-student reports now have worked examples through the OIA’s case summaries, which the OfS guidance still does not provide. They come from a body reviewing decisions after the event against a standard of reasonableness, rather than from the regulator applying the duty to secure freedom of speech. They show what a defensible decision looked like once it had been made but they do not tell us what to do with a report we have received. The triage process is still not described by the OfS.
What you say to a reporting student when the decision is not to act is also not addressed. In CS082603 and CS082604 reporting students went through an internal process, a review, and an OIA complaint, and were not upheld at any stage. I could not find anything in the note or the summaries about how those outcomes should be explained.
The OIA also notes that some of the cases pre-date recent changes to the law and OfS guidance, or were decided before particular duties came into force, and should be read in that context. That is the same caution I would apply to the OfS examples that were not reassessed in August. As before, in the OfS examples the outcomes are a better guide than the reasoning.
Questions to ask in your own institution
- When a report about another student’s speech arrives, does anyone ask whether the speech is lawful before conduct code definitions are applied?
- Is the balancing exercise (triage) recorded, and would it make sense to someone reading the case file later?
- Do your codes contain definitions of hate speech or offensive behaviour that could be applied to lawful expression without further analysis?
- Can the same conduct be considered under more than one category of misconduct, and does anyone check whether that has happened?
- Who explains a decision not to take further action to a reporting student, and what are they able to say?
- Have the staff making decisions under your disciplinary procedures had training on the freedom of speech duties?
The OfS has said it expects to publish further examples reflecting experience across the sector. The OIA publishes case summaries as its casework develops. For those of us involved in assessing new incidents or reports, worked triage decisions in student-on-student cases would still be the most useful thing either of them could publish next.