‘Untested’ legal issues loom for OfS’ new free speech scheme

The Office for Students (OfS) could face a significant caseload and “untested” legal issues when its new free speech complaints scheme launches next month, with advocacy groups already reporting hundreds of cases related to higher education. 

The English regulator’s long-delayed scheme will provide a free grievance process that allows people who feel that universities have impinged on their free speech and academic freedom rights to seek redress.

The Free Speech Union said it had received 166 higher education cases over the past year, of which 117 involved “substantive assistance”. It declined 31 cases and referred 18 elsewhere.

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The group said it expected “similar numbers of requests for help from people in higher education from 1 September, perhaps more given that the complaints scheme becomes operational from that day”, but it has not yet been approached by academics specifically planning to use the new route.

The Committee for Academic Freedom (CAF) said it typically receives two or three complaints a week involving possible infringements of academic freedom or freedom of speech.

While a “significant number” come from students, who have been exempted from the scheme but can take complaints to the Office of the Independent Adjudicator, CAF estimated that about two-thirds of the staff and academic cases it has handled could potentially have been eligible for the OfS to consider.

But the group added that this was a “counterfactual assessment” and said it was still too early to precisely predict how many complaints it would ultimately help bring.

“Although we have not yet been approached by anyone specifically saying that they intend to make an OfS complaint once the scheme opens, we are continuing to receive approaches concerning possible infringements of academic freedom and freedom of speech, including cases that may fall within the new scheme once it is operational,” CAF research manager Freddie Attenborough told Times Higher Education. 

“The fact that people are not yet necessarily approaching us in those terms suggests that there is still work for organisations such as ours, as well as the OfS and universities themselves, to do in making academics aware that this new route exists.”

Attenborough pointed out that the OfS allows complainants to appoint representatives to help formulate complaints and correspond with the regulator on their behalf. 

“We therefore expect an important part of CAF’s role to be upstream: helping academics work out whether they have a viable complaint, identify the strongest issues, assemble the relevant evidence and put the complaint into a form that gives the OfS a clear question to determine,” he added. 

Smita Jamdar, head of education at law firm Shakespeare Martineau, said it will be difficult for the OfS to adjudicate individual cases they decide have merit given the complex nature of the complaints that would reach them, adding that they will also have to face a lot of “untested legal material”. 

Universities were generally good at dealing with clear-cut free speech disputes, she added, but more complex cases that involve, for example, accusations of harassment and balancing that with someone’s free speech rights could be challenging for the regulator, particularly in the early stages. 

“If we think about the things that are currently sensitive within universities, such as is it an antisemitic comment or is it a robust comment on the dispute in the Middle East? That is not a straightforward thing to adjudicate,” she said.

“You have to think about context, you have to think about the intention of the person writing it and you have to think about how reasonably it might be interpreted by other parties. This is not always black and white, there is always potential for people to reach different conclusions.”

Jamdar said she anticipates more judicial reviews after the last decision the OfS made on free speech issues, at the University of Sussex, was challenged in this way.

“There will be a winner and a loser in every one of these complaints and somebody who’s got skin in the game to challenge it, whether it’s the institution, or whether it’s the complainant who feels the OfS has failed to uphold their free speech right.”

The regulator revised its free speech guidance following its defeat in the University of Sussex’s judicial review earlier this year. Jamdar said the case also raised questions about how the regulator investigates cases. “There was a tension between wanting to send signals to the sector about what is and isn’t acceptable, while maintaining an impartial and unbiased assessment of the specific facts in front of them. And I think that tension still exists,” she added. 

“The OfS needs to think carefully about separating out the judgments on the individual complaints which have to be impartial based on the evidence in front of them and their wider role of promoting good practices and freedom of speech. The two should not become conflated,” she said. 

“My worry is that this is an entirely new role for the OfS. They don’t have experience as a complaints adjudicator. So far, everything is about being a regulator, and the two roles are quite different. Nothing I’ve seen from them explains how they’re planning to balance those two things.”

seher.asaf@timeshighereducation.com