Usually, when new legislation is set to commence, organisations affected by it will whip their lawyers into a frenzy several months in advance, hoping to avoid the regulatory scrutiny or even penalties that may results from noncompliance. Yet, this does not appear to be case for the universities of England, which as of yesterday are subject to several new provisions of the Higher Education (Freedom of Speech) Act.
Instead, most institutions of higher education seem to favour a blasé approach to their new duties. Perhaps they imagine that they have already secured the highest level of protection for free speech and academic freedom. If so, they are seriously self-deceived.
Over the past few weeks, CAF has asked our supporters to let us know of any potential violations of the new rules. As it turns out, several universities have policies which are likely to violate the regulatory expectations set out by the Office for Students in its latest guidance. When CAF reached out to these universities, warning them of their potential non-compliance, the vast majority simply ignored the warnings and gave no indication of willingness to change.
The OfS guidance (paragraph 207) states that “academic staff should not be constrained or pressured in their teaching to endorse or reject particular value judgements”. Despite this, many universities still put pressure on teaching staff to “decolonise” curricula and syllabi. One lecturer at a very prestigious university recalled being reprimanded for having had the audacity to provide postgraduate students with “parallel readings” to explore alongside the “decolonised” authors during supervisions. Another institution allegedly demands that module convenors “submit evidence of how they are “decolonising the curriculum” in order for “courses and modules to be validated and revalidated”.
It is not just efforts to decolonise, however. Several English institutions have mandatory or quasi-mandatory trainings with value-laden messages. One academic shared with us the details of a training module that listed providing “gender-neutral bathrooms” and “donations to an organisation that supports LGBTQ+ people” as objective organisational positives.
The same module also reminded employees that they can complain over “flippant use of language” overheard “at a photocopier or in a coffee queue”. Examples of such irresponsible banter included the sentences “LGB… T… Q… I whatever it is”, “They don’t know what hard work is. They’re snowflake millennials”, and most strikingly “All this diversity talk means that you can’t say anything these days”. Perhaps a mandatory course in irony would be more appropriate for some of these institutions.
In one particularly telling example of value-driven training, one academic described being told to complete an online module by a line manager, at the end of which there was a test. According to this academic, “the questionnaire [was] highly coercive, as it transpired that one either filled in the answer as they wanted, or else, you could not complete the questionnaire”. This apparently included statements such as ‘it is good to spend money towards a float for the Pride Parade’. If you dissented from the statement, you had to start over again.
This is “coerced speech” and is illegal under common law. Paragraph 212 of the OfS guidance says: “Providers and constituent institutions should not require training or induction that imposes a requirement on the person completing the training actively to endorse any viewpoint or value judgement”. Example 53 explicitly mentions a training course with “true or false” answers on a controversial issue.
Finally, CAF and other free speech campaigners have previously highlighted how providers are probably breaking several laws by requiring job applicants to submit evidence of their support for EDI. This practice has now largely been dropped from the written part of the application process. However, several Russell Group universities have allegedly added it to the interview instead.
At least one department at a prominent London-based institution has made it common practice to ask interviewees: “Equality, Diversity, and Inclusion are an important part of our culture at […]. What approach would you take to promote EDI and what are the challenges to doing so?” Simply moving the ideological screening test from the written to the oral part of the application does not alter its legality. Again, the OfS guidance states (paragraph 151): “Providers and constituent institutions should not require applicants to any academic position to commit (or give evidence of commitment) to a particular viewpoint.”
In this article, we have refrained from naming any of the offending institutions under the generous assumption that they are currently working hard to ensure compliance with the new rules. However, we will continue to reach out to universities that appear to be in breach of the law, and unless they change their policies, we will publicise their failings. The new protections are no longer theoretical – they are real, legal obligations. If providers do not take them seriously, there will be consequences.