10 March 2022 | OPINION

A radical overhaul of the regulation of free speech on university campuses for staff and students is on the way, but also – and vitally – for visiting speakers. The question for students concerned with free speech, however, is whether it goes far enough.

The Higher Education Bill was proposed by the former Secretary of State for Education, Gavin Williamson, who received significant support within political circles for the Bill’s perceived ability to tackle cancel culture within universities.

The key tenets of the Bill are that opportunities, promotion and compensation must not be impacted by any legal speech at either universities or student unions. In order to guarantee compliance with the Bill, civil hearings may be brought against higher education providers and student unions for violations of it. Further implications of the Bill include that higher education institutions, as well as the Office for Students, must actively protect academic freedom and promote free speech, provided it falls within the law.

The motivations for the introduction of the Bill are explicit. Cases of academic staff losing tenure for their work frequently make national press, and instances of visiting speakers being cancelled, sometimes through the use of force, are not infrequent, although they do present a real challenge to students receiving a balanced range of views on campus.

At my own university, the London School of Economics, recent controversies surrounding free speech include an organisation called LSEClassWar calling for protestors to smash in the window of Israeli Ambassador Tzipi Hotovely’s ambassadorial car during a speaking engagement last year.

This was not, however, the only recent de-platforming attempt at the LSE. As serving President of the LSESU Hayek Society, we too had been targeted by LSEClassWar as we found ourselves accused of promoting views “outwardly calling for the oppression of the working class”. Alongside calling for the dissolution of Hayek Society, it demanded the barring of private school students, the ‘decolonisation’ of the curriculum, and to put the Student Union on trial for funding the Israel Society.

These instances are just a limited number of the examples that have been used to justify the Higher Education Bill. However, some vital questions regarding the Bill’s pertinence must be asked. Such fundamental issues include whether it is the Government’s prerogative in any instance to intervene in the rising tide of campus censorship. Furthermore, if we do believe the Government has the right to intervene, issues such as so-called ‘cancellation by stealth’ do not appear to be addressed within the Bill.

Free speech in education is vitally important and, in my view, the Government does possess the authority to intervene to support freedom of expression. Since the mid-20th century, universities have become increasingly regulated, with a growing share of finance coming from government. Following the rise in the tuition fee cap, the main source of university funding has become fees and government-funded student loans.

Importantly, the majority of this cost – 54% of the total face value of loans to undergraduates – is still being picked up by the British taxpayer through loans going unpaid. Consequently, the Government is by far the leading financier of higher education in England, which furnishes it with a clear mandate to intervene in this. This raises a pertinent question regarding the institutional classification of universities and why that necessitates a public defence against cancel culture.

Firstly, the fact that the overwhelming funding source is the Government suggests that it is not for universities to decide what is acceptable speech on campus, but rather the justice system.

An additional and far stronger argument for the defence of free speech on campus is that the money granted to universities under the current system is explicitly for educational purpose; students will never hold under their name the money paid out by Student Finance England for their tuition.

We must determine how best to ensure that universities fulfil this educational function. In any rigorous educational environment, a key constituent of the teaching will be students engaging in debate, for which free speech is a prerequisite. A curriculum that fails to explore varying views is little more than indoctrination.

In relation to the Israeli Ambassador speaking at the LSE, we can neither learn nor develop as students and thinkers without listening to her and without the ability to access a forum for engagement. We would instead form little more than an echo chamber, which serves no purpose in understanding the issues in the Middle East. Clearly, this is of limited value to LSE’s educational function, and even undermines the university’s founding motto – “understanding the causes of things”.

Secondly, in classroom settings, an understanding of balance and variety is central to a university’s educational function. The invitation to the Ambassador clearly fell within those parameters; her Palestinian counterpart was due to speak just two days later as part of the debate programme. This made it of even greater import that neither speaker was ‘cancelled’ – the cancelling of either being to the detriment of freedom of expression and intellectual curiosity. Universities are, after all, a ‘marketplace of ideas’, through which the irrational can be refuted, alternatives proposed, and compromises articulated.

As society has generally accepted that tertiary-level education should be at least part-funded by the state, with many viewing it as a public good, we must protect free speech to ensure that universities fulfil their educational purpose. This is not, however, a call for universities to protect and tolerate all speech. Qualifying factors should of course be considered, namely whether a specific speaker and their associated views are relevant and lawful, which the Bill has rightly addressed.

Despite this, some universities have taken a radically different perspective – introducing strict measures under which speakers can participate in campus discussions. This may not always be through visible protest, but ‘cancellation by stealth’. Such tactics often slip under the media radar and, without clarification within the Higher Education Bill, they may continue to proliferate.

In this context, the Government’s Higher Education Bill is a solid foundation from which we can move forward. Empowering the Office for Students to monitor infringements upon free speech and to determine which cases can be reported is essential. It is imperative that taking action to report violations of free speech is both free and accessible; students running societies often have neither the time nor the money to undergo extensive legal challenges against universities.

However, I believe this does not go far enough either. We should not fear having a police presence on campus at events when there is a credible threat of them being violently cancelled – as has occurred across the country. In recognising that universities are public institutions with an educational purpose, it becomes imperative that we continue to defend free speech on campus.

Two significant areas of concern do remain. The first is that, as history has informed us, when governments interfere in matters of free speech, we often find ourselves more restricted in what we can say. Universities, in times of government tyranny, have commonly acted as bastions of liberty, as has been demonstrated throughout history with the actions of Hans and Sophie Scholl to the more recent protests in Hong Kong.

The Government must understand and respect this role. Placing the powers with the Office for Students is a positive step for preventing undue interference, but we must be cautious of setting a precedent for government action upon campus.

The second is that although speech may be legal, it does not mean that it has a right to be heard. Extremist individuals may exploit the Bill to force through engagements upon campuses, merely to extend their presence through a legitimate and public platform. In recent years, platforms such as Twitch that operate on donation models have contributed towards a form of ‘shock culture’, in which viewers will donate for grotesque statements to be played in public.

The Bill must not incentivise radical speech to the extent that individuals can force universities to host them, in order to facilitate their desire for fame and wealth through needlessly controversial and unpleasant speech.

In order for the Bill to receive widespread support, both of these issues must be addressed. One potential pathway could be to clarify the rights of protesters on campus. Although often controversial and viewed as a challenge to free speech, actions such as peaceful event walk-outs provide what is in my view a legitimate form of action.

With that said, while the Higher Education Bill does find legitimacy in the Government’s majority funding of higher education, we must continue to be cautious of any legislation impacting universities that oversteps the mark.

Oliver Paterson is a Policy Fellow of The Pinsker Centre, a campus-based think tank which facilitates discussion on global affairs and free speech. The views in this article are the author’s own.

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