Over the past decade, it has become increasingly common for universities to require an EDI statement or similar affirmation of values and beliefs from job applicants. This is highly likely to be unlawful, for reasons explained below. Our friends at Alumni for Free Speech (AFFS) are conducting a campaign to identify and root out this pernicious practice. Some institutions are proving more responsive to the changing times than others.
The efforts from AFFS usually start with an investigation of a university’s hiring practices, particularly for academic positions (professor, lecturer, researcher, etc.). If they find any requirements for a statement regarding the applicant’s values or beliefs, they contact the institution in question, alert them to the fact that this practice is likely to violate several laws relating to the protection of free speech and require them to change it.
One particularly egregious previous example concerns Kings College London (KCL). In 2023, KCL was found to have required applicants for promotion to submit proof of support for the university’s “equality, diversity and inclusion ambitions” such as, in a list of appropriate examples, “participating in equality, diversity and inclusion activity” such as Stonewall. AFFS wrote to KCL, but received what appeared to be a brush-off:
“Insofar as your letter contains general criticisms or allegations about King’s practices, these are not accepted. We are fully aware of the statutory framework which governs the operations of higher education institutions in the UK, and of our various legal obligations thereunder; and we keep our policies and practices under regular review to ensure compliance with those obligations”.
The campaign group Sex Matters subsequently sought and published a legal opinion from Akua Reindorf KC to the effect that KCL’s policy was indeed highly likely to have been be unlawful. So far, KCL has kept its head down, but a recent check by AFFS of application material available online indicates that it may have changed its ways. AFFS will be investigating further.
The campaign proceeds. For example, while investigating a respected northern university’s practices, AFFS recently discovered a document which informed applicants that they would be required to submit some or all of the following: CV, cover letter, research plan, prior publications, and an “EDI and values statement”. This last might include an expression of “awareness of current barriers faced by underrepresented groups (students and/or staff) in your area, through personal experience or research” and evidence of “involvement in equality, diversity, and inclusion activities such as mentoring, volunteering or involvement with Athenanna Swan [sic] or similar work”.
The first example seems to require certain factual beliefs about the world, including the belief that “barriers” can explain why some groups are underrepresented in any academic field. Regardless of where one falls on this question, academic job listings should not require the holding of any specific view of the facts. Nor should public institutions seek to hire only candidates who, implicitly or explicitly, conform to one specific worldview.
The second example emphasises work with the Athena Swan Charter, which aims to promote gender equality in higher education. While this initiative was initially well-received by most, it has since taken a controversial turn and, as argued by John Armstrong and Alice Sullivan in The Critic magazine, might no longer be fit for purpose. At the very least, it can hardly be considered a politically neutral organisation after it officially recognised gender as a spectrum in 2020.
Imposing specific requirements for political or ideological commitment to an particular position is likely to be in breach of several laws, in particular, Section 43 of the Education (No. 2) Act 1986, the Equality Act 2010, and the Human Rights Act 1997. While this is not the place to present a full legal analysis, those of a technical mindset might have a look at Best Free Speech Practice’s statement on the relevant legal requirements in this respect and their implications in practice,
It is particularly interesting that the Office for Students, in its draft 2024 guidance for complying with the Higher Education (Freedom of Speech) Act 2023, wrote as follows:
“[Higher Education] Providers […] should not require applicants to any academic position to commit (or give evidence of commitment) to values, beliefs or ideas, if that may disadvantage any candidate for exercising their academic freedom within the law.”
You would need an above-average set of lawyers to argue convincingly that the university’s requirement for an EDI and values statement did not conflict with this guidance.
When AFFS alerted the university to these potential transgressions, it did not attempt to defend the practice. In fact, after a perhaps slightly awkward pause, it confirmed that it no longer has “the requirement for applicants to complete a statement on values and beliefs as part of their application for academic roles”.
It is a great sign that the university proved so responsive to AFFS’s letter, and we commend its willingness to correct a flawed and outdated policy. Similarly encouraging results were reached at another well-known university in London. Once AFFS reached out about the potential breach of laws and regulations, the Russell Group institution quickly responded and agreed to update its hiring practices.
That these universities have proven willing to remove EDI and values statements from their requirements, without the need for regulatory intervention or public shaming, supports our belief that most institutions are not acting in bad faith.
During the 2010s, the influence of Equality, Diversity, and Inclusion grew steadily throughout the public and private sectors, but particularly gained momentum in 2020. Many institutions signed up to the practices and programmes, either because it was the trendy thing to do or simply because they thought they were doing the right thing.
After all, much of what happens under the banner of EDI is perfectly harmless and some of it is even required by law. However, many of the policies also have negative second or third order effects, such as viewpoint discrimination in hiring decisions. The Dandridge Review into the legal disaster that was the Phoenix/Open University case cited numerous ways in which EDI requirements and agendas caused problems for free speech at the Open University. Many people have similar concerns regarding EDI’s being used as cover by some activists to push extreme agendas: this is not the preserve of right-wingers, as is sometimes portrayed.
As the tide turns against the more extreme versions of these policies, it is encouraging to see prominent institutions like the one’s mentioned above willingly changing outdated policies in favour of neutral hiring standards. At the same time, some institutions are choosing to fight back, refusing to acknowledge the potential breech of law, regulation and best practice for recruitment in academic departments.
AFFS plans to check up on every university, starting with the Russell Group, which it is half way through: it will then publish a study on that elite group, which we look forward to sharing. AFFS will continue to pressure these institutions to change their offending policies, but if they refuse to comply, CAF will happily help publicise their failings.
As the government prepares to bring back the Higher Education (Freedom of Speech) Act, there may also be better options for regulatory intervention. Although the Education Secretary wishes to remove the tort mechanism, through which universities could be sued for failing to adequately protect academic freedom, the Act will still include a complaints scheme at the Office for Students. In addition, HEFOSA broadens existing protections of free speech to job applicants. As such, once the new law commences, it will be much easier to report universities for this sort of viewpoint discrimination to the government watchdog.
Even where these hiring practices are not actually in breach of the law, they are still contrary to regulatory expectations. Moreover, requiring a demonstration of fealty to any set of beliefs is a serious violation of academic freedom and damaging to a university, its students and staff. We call on all universities to review their policies and, where needed, update them to remove the demand for EDI statements from all job listings, and honour their commitment to free speech and academic freedom.