One way the Higher Education (Freedom of Speech) Act is reinforced is through the threat of legal action – such as suspension of registration, public accountability, and financial consequences. The intent of the OfS’s oversight is to guarantee protection to students expressing personal views and opinions, including the opportunities to pursue academic interests. Therefore, delaying the act placed many protection measures on hold; not having clear guidelines on handling issues discouraged universities from supporting open debate or any expression of political views on campus, in addition to prohibiting potentially controversial speakers or events, infringing upon students’ rights to hear from diverse voices without censorship.
Another part of this act bans the use of non-disclosure agreements (NDA) in cases of harassment, bullying, and sexual misconduct within higher education institutions, preventing the use of NDAs to silence details of sensitive allegations. Such agreements had been used in prior cases in compromise or settlement agreements to stop students from speaking out. This ban would be hugely important should students choose to disclose any information about their experiences without restriction from universities aiming to protect the institution’s reputation over a student’s wellbeing.
This ban would be hugely important should students choose to disclose any information about their experiences without restriction from universities aiming to protect the institution’s reputation over a student’s wellbeing.
With the new regulations this act brings, universities must be well-equipped to handle any issues that may arise – whether this be an allegation of harassment or complaint regarding censorship. Convening an informed, objective team of staff to deal with these problems will come as a challenge of its own when the diversity of issues may be incredibly broad. One critic discusses this issue as ‘objective harassment’: whether one’s behaviour constitutes harassment or not. Since the act states it is necessary to consider: 'the perception of the person who is at the receiving end of the conduct; other circumstances of the case; and whether it is reasonable for the conduct to have that effect.'
Those entrusted with cases of harassment must decide whether it was reasonable that the person affected felt harassed by the conduct presented, calling into question the possibility of objectivity when cases could easily concern personal characteristics that staff relate to or lack experience in dealing with. Should an all-white panel decide whether comments on race felt “offensive and hurtful” to a student of colour? Is it ever possible for someone to be completely abandon personal beliefs and be objective?
While there may be many hurdles in its implementation and practicality in safeguarding students at university in the UK, this act hopefully produces clearer guidelines in protecting students’ freedom of expression and opportunities to explore different perspectives.