Earlier this week, the Secretary of State issued guidance to the OfS in relation to his strategic priorities for the coming year (although if the years’, since the OfS’s inception are anything to go by, it is likely to be updated and modified well before then).
There is much of interest and concern in the guidance, particularly in relation to the section on academic freedom.
What does the guidance say?
The relevant part of the guidance is this:
All students deserve the opportunity to receive a rigorous and high-quality education. While providers are rightly free to determine the content of their courses, university administrators and heads of faculty should not, whether for ideological reasons or to conform to the perceived desires of students, pressure or force teaching staff to drop authors or texts that add rigour and stretch to a course. The OfS should robustly challenge providers that have implemented such policies and clearly support individual academics whose academic freedom is being diminished.
What is the legal framework?
HERA 2017 imposes on the OfS the duty to have regard to a number of matters in the exercise of its functions, including the need to protect institutional autonomy. It must also have regard to guidance given by the Secretary of State, who must himself have regard to the need to protect institutional autonomy.
Institutional autonomy is defined in the Act as including the freedom, within the law, of academic staff at English higher education providers to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at those providers. However, it also includes the freedom of institutions to determine to contents of their own courses and how they are to be taught and assessed.
A duty to “have regard” to a matter leaves a degree of discretion to the decision-maker as to the weight to attach to it, when considered in the context of the decision maker's wider duties and other relevant factors. Clearly, guidance from the Secretary of State cannot just be ignored, but the OfS is entitled and indeed obliged, as an independent statutory body, to assess it in context.
In addition, the general principles of public law require guidance from the Secretary of State to be clear, capable of being implemented and relevant to the matter in hand.
What is the problem?
The guidance is extremely unclear in a number of respects. Is the OfS only to intervene where there is evidence of a lack of rigorous, high quality education? Or only where action that constrains academic freedom is undertaken on ideological grounds? or under pressure from students, rather than cost pressure? Is this about dropping authors and texts generally or only those that can be shown to offer “rigour and stretch”? What if the texts that replace them are considered by other academics to be even more rigorous and stretching but in a different way? Is this about the rights of individual members of staff who feel their personal academic freedom is being diminished?
It really is not clear and in some cases, these considerations may conflict: an academic may feel their freedom is being infringed but the institution may consider that their work is not sufficiently rigorous or high quality.
And this leads to a fundamental question: what is the proper authority for deciding these matters? In this country, judgments about pure academic questions such as these have so far been left as pretty much the exclusive preserve of the academic community, through our traditions of institutional autonomy, peer review, external examiners etc.
Clark vs the University of Lincoln and Humberside
The courts, for example, have repeatedly refused to become adjudicators of matters of academic judgement, because, as famously summarised by Lord Justice Sedley in the case of Clark vs the University of Lincoln and Humberside [2000 1WLR 1988]: “there are issues of academic and pastoral judgment which the university is equipped to consider in breadth and in depth but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class.”
That was a case involving a student, but in our view, the courts are likely to apply the same hands-off approach to considerations about whether there is an academic justification for removing a particular text from a course of study. (For completeness, in other cases the courts have shown a preparedness to look at aspects of the processes by which academic judgments are arrived at, but have remained resolute that they will not rule on matters of “pure” academic judgment).
Engaging in disputes over academic judgment
The courts, of course, are established for the very purpose of adjudicating complex disputes with the assistance of expert and detailed witness evidence. The OfS is not, and yet, it seems, is considered by the Secretary of State to be able to second guess whether or not a decision to remove an author or a text is for ideological reasons (a bad thing) or because the course needs refreshing or broadening or made more relevant to a modern, changing world (a good and indeed necessary thing). Even within universities, these decisions can be hotly, but in complete good faith, contested by different parts of the academic community. How is the OfS going to resolve these conflicts, and how can its decisions in turn be reviewed if the courts will not engage in disputes over academic judgment?
There is also a question mark over what the OfS can realistically do in such circumstances. It has powers to impose registration conditions, to fine, suspend or deregister. It does not have the power to order a text to be reinstated or an academic to be allowed to continue to research or teach a subject, still less to “support” individual academics.
For all these reasons this is in our view bad guidance: bad because of the very great problems entailed in implementing it and bad because producing guidance that cannot really be implemented and so must ultimately be withdrawn or modified undermines public trust and confidence in the authority of the office of Secretary of State.
It is important to remember that upholding academic freedom is already part of the public interest governance principles and so where there is evidence of a provider’s governing body failing to take appropriate steps, the OfS could treat that as a breach of the registration conditions relating to management and governance. However, that is very different to adjudicating on individual cases and disputes in the way that the Secretary of State appears to want.
Finally, it is notable and alarming to recall that when the institutional autonomy provisions were introduced by way of amendment into HERA, they were designed to protect institutions from excessive interference by politicians and regulators. Interestingly they are being used here, on the curious and questionable basis that the government believes institutions need protection from their own autonomy, to justify a potentially significant erosion of autonomy by those very politicians and regulators.
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