On Tuesday, the Open University published the full, independent report by Dame Nicola Dandridge concerning the events that lead to Professor Jo Phoenix’s employment tribunal last year. The results are not promising for the future of academic freedom at the Open University.
Jo Phoenix is a respected criminologist who was formerly Dean of Durham University and Professor of Criminology at the Open University. Due to her “gender critical” views (i.e. her belief that biological sex cannot be changed) and her published research defending single-sex spaces in prisons, Professor Phoenix was subjected to a two-year campaign of bullying and intimidation.
The Open University’s response was to do nothing. On two occasions, Phoenix’s manager likened her to a racist. When Phoenix complained to the University about the abuse she was receiving, they recommended that she refrain from discussing her research in departmental meetings, and offered her counselling.
Eventually, Phoenix could not take it no longer. She was diagnosed with acute post-traumatic stress disorder and resigned from the OU. Last year, she initiated an employment tribunal, which eventually found that the University had failed to protect her from abuse in the workplace, and that it was liable for discrimination, harassment, and constructive dismissal.
Moreover, the tribunal found that a deep-rooted “fear of the pro-gender identity section of the Open University” had caused the institutional failure to protect Phoenix. The judgement went on to describe a “gender-identity culture” within Professor Phoenix’s faculty, in which academics “felt obliged to support the gender identity position”.
Following this public embarrassment, the Open University Council commissioned an independent review to be carried out by Dame Nicola Dandridge. The resulting report was published on Tuesday. Its findings and recommendations are far from encouraging for the future of academic freedom at the OU.
Rather than addressing the culture of fear and the perceived obligation to agree with a certain viewpoints within the faculty, the Dandridge report primarily concerns itself with the “balance between free speech and EDI”. Indeed, several lengthy paragraphs are devoted to devising ways in which the “manifestation of protected beliefs” can be “proactively managed in advance of disagreements emerging”.
Based on the tribunal judgement, one might have thought that the real issue at the Open University was not the “disagreement” itself but rather the continuous harassment of a staff member by her colleagues. However, the report offers little advice on how such behaviour could be “proactively managed” in the future. This is because, according to Dandridge, “unlawful or unacceptable [behaviour] is an HR matter which falls outside the scope of this review.”
Conversely, the report does have something to say about speech or policy initiatives that may provoke the “unacceptable behaviour”. When troublesome ideas that could lead to disagreements emerge, Dandridge suggests they be “anticipated” so that “steps can be taken in advance to mitigate their impact”. Such steps include “proportionality assessments” and the more ominously named “Equality Impact Assessments” or EIAs.
The report offers an example of when an EIA would have been useful during the events leading up to Jo Phoenix’s constructive dismissal. Specifically, it highlights Phoenix’s founding of the Gender Critical Research Network (GCRN), which aimed to maintain “a space within academia […] for rigorous exploration of issues of sex and gender”. Dandridge believes that an EIA could have eased some of tension surrounding this initiative through discussions about “the appropriate material to use” and the “likely impact on other groups of staff”, which would identify “ways of mitigating negative reactions”.
It almost sounds as if the report is blaming Phoenix for the abuse she received. At the very least, it seems to imply that a rough equality of blame attaches to both sides. But what Phoenix did in expressing her beliefs, as part of her academic work, is not remotely comparable to the two years of intimidation and bullying she endured at the hands of her colleagues and anonymous online harassers. As she notes on X/Twitter, “Debate and discussion [are] the LIFEBLOOD of universities. […] We play the ideas, not the people.”
In fairness, Dandridge does acknowledge the existence an unhealthy environment at the Open University. During the investigation, many witnesses “expressed uncertainty, even bewilderment, as to what was lawful and acceptable free speech”. The report further notes that this confusion largely arose because the “regulations and principles of free speech seemed to be pointing in one direction, with EDI legislation and policies pointing in the other.”
Given these contrasting interests, Dandridge considers “the only possible way forward” is for “the OU to separate out its approach to issues of belief from its approach to other aspects of identity”. This, then, is the aforementioned balancing of “the competing demands” of EDI and academic freedom. While both these goals may be desirable in principle, there are some cases where the protection of free speech and what the reports calls the right of staff to have their identities “respected and acknowledged” are going to be in conflict.
One such case was Phoenix’s launch of the GCRN and the publication of her views more broadly. What many of her colleagues took issue with was not just the way she phrased her arguments but the very arguments themselves. Dandridge’s suggestion that Phoenix’s views could have been anticipated and handled in advance is tantamount to saying that her academic freedom should have been restricted. When the principles of free speech are in conflict with those of EDI, the former must be given priority. The report’s convoluted system of Equity Impact Assessments and “proactive management” flips this on its head, which is exactly what went wrong at the OU in the first place.
Indeed, some interviewees told Dandridge that the efforts to promote EDI at the University had “translated into excessive caution” regarding what could be said, “even when the views in question were legitimate and lawful, albeit contentious.” According to the report, “this approach to EDI had the effect of […] precluding legitimate debate and discussion about contentious matters.” This is more evidence of the stifling culture described in the tribunal judgement, yet Dandridge gives almost no thought to correcting it.
The only remedy she offers is more vague language about the need to balance free speech and EDI, as well as three and a half lines of text urging the University to continue the “ongoing work to set up systems promoting free speech and academic freedom through the development of a new Code of Practice”. In other words, the OU should continue to do what it is already doing. There are not even any proposed guidelines for this new Code of Practice.
Following the publication of the report, the University Council announced that it would accept its recommendations, and instructed the University Executive to come up with a plan for implementing them. This will include the establishment of a working group, a recommitment to an EDI approach that embraces “the full diversity of the OU’s staff and their identities”, and more mandatory training for managers in the “expected standards of behaviour”. In short, a lot of new bureaucracy with a scant chance of changing anything.
Perhaps the only good thing to come out of the report is the recommendation from Dandridge that the OU continues to develop and implement the requirements of the Higher Education (Freedom of Speech) Act 2023, “regardless of uncertainties” about the law’s commencement. This is indeed a great suggestion. The OU, as well as every other British university, should do their best to abide by the standards of this act, even if the Education Secretary eventually decides to repeal it. If they do so, we might be able to avoid another academic being hounded out of their institution the way Jo Phoenix was.