CASEWORK NOTE: FREE SPEECH AND STUDENT COMPLAINTS

Free speech and student complaints

Students have always been able to bring complaints to the Office of the Independent Adjudicator for Higher Education (OIA) about issues involving academic freedom and freedom of speech. This remains the case.

There has been increased focus on free speech issues across higher education in recent years, alongside changes to the legal and regulatory landscape. Those changes place different obligations on providers in England and Wales and may affect regulated and unregulated providers differently. Despite this, they do not change the OIA’s role in considering student complaints.

Our role

Our remit comes from the Higher Education Act 2004. It allows us to review complaints about an “act or omission of a qualifying institution”, in other words, something a provider that is a member of our Scheme has done, or failed to do.

That is a broad remit. It means that where a student’s complaint involves academic freedom or freedom of speech, we can generally consider how the provider has handled the issues raised.

There are some limits to our remit. In particular, we cannot review a complaint to the extent that it relates to academic judgment. We interpret academic judgment narrowly. It does not mean any decision made by an academic; it means a judgment that can only properly be made by someone with the relevant academic expertise.

What these complaints look like

Freedom of speech is an important part of a high-quality student experience. That said, complaints involving free speech make up a very small proportion of our overall casework.

Our experience is also that students rarely complain to us about freedom of speech as an abstract principle. More often, free speech forms part of a wider complaint about something that has happened to them.

For example, we may see complaints where:

• a student believes they have been disadvantaged because of something they have said or a view they have expressed;
• a student has reported comments made by another student or member of staff that they consider harmful or distressing, and the provider has considered freedom of speech as part of its response;
• a student is subject to disciplinary proceedings and argues that their conduct was an exercise of freedom of speech; or
• a student believes their academic work has been marked unfairly because of the views expressed in it or because of the subject of their research.

Students do not always describe their complaint as being about freedom of speech. That does not mean the issue is irrelevant. Providers still need to identify and take account of the legal and regulatory responsibilities that apply to the circumstances of the case.

Students’ unions and other representative bodies

Some complaints arise from things that have happened within a students’ union, guild or other student representative body (SRB).

Where the SRB is legally separate from the provider, we will generally not be able to consider the actions of the SRB itself. We may, however, be able to consider how the provider has carried out its own responsibilities in relation to the SRB.

For example, where the provider has made the final decision on a complaint concerning its SRB, we can consider whether the provider’s decision was reasonable.

How we approach freedom of speech complaints

Our role is not to decide for ourselves whether particular speech was acceptable, or to substitute our judgment for that of the provider.

As with other complaints, we consider:

• whether the provider followed its procedures;
• whether those procedures were themselves reasonable;
• whether the provider took account of the legal and regulatory responsibilities relevant to the case; and
• whether the provider’s final decision was reasonable in all the circumstances.

We do not act as a court and we do not try to predict what a court might decide if faced with the same facts. But the law, regulatory requirements, and relevant guidance form part of the context we take into account when reaching a view about what was reasonable and what represents good practice.

This allows us to focus on the central questions for our Scheme: whether the student’s complaint was handled fairly and reasonably and whether the final decision was reasonable.

Case studies

We have published a number of case summaries showing how issues relating to academic freedom and freedom of speech can arise in student complaints, and how we have approached them.

Some of the cases pre-date more recent changes to the law, Office for Students’ (OfS) guidance or the commencement of particular duties. They should therefore be read in the context in which they were decided. Taken together, however, they illustrate both the range of circumstances in which free speech issues can arise and the approach we take when reviewing complaints.

Thank you for taking the time to read this note and the associated case studies.