The current OfS consultation on quality and standards ends on 27 September 2021 and is a good example of how, irrespective of any bureaucracy-busting regulatory bonfires that may be going on in other sectors, higher education is seeing regulation expand further and farther into its core activities than it has ever done.
In fairness to the OfS, the consultation contains reassuring statements about its intention to regulate in a risk-based way, but if recent history has taught anything it is that once a regulatory framework is established, it can influence and intervene in circumstances and ways that could not necessarily be predicted.
Few would seek to argue (and this blog most certainly does not) that demonstrably high quality and standards in higher education are unimportant, or that regulatory oversight does not have a vital role in ensuring there is public confidence in this area.
Much of the substance of the new conditions of registration is uncontentious: of course programmes of study should be robust and challenging, rigorously assessed, well-resourced and of value. There are, however, three areas that cause concern:
- Who makes the judgments?
- What might be the impact be on innovation?
- Are there other potential unintended consequences?
Who makes the judgments?
The new conditions include matters of expert academic judgment. For example, the accompanying guidance indicates that one of the circumstances in which the OfS might intervene is where “The subject matter of a course is not representative of current thinking and practices. For example, course content, including topics and reading lists, that is not informed by research and scholarship, or does not reflect professional developments, such as the adoption of the latest professional or industry standards, would be likely to be of concern.”
In reaching its decisions on matters such as this, the OfS says that it expects to “draw on expert academic judgment”. Elsewhere it says that it “may” ask the designated quality body or another appropriate body to investigate concerns or may do so itself. These are hardly robust guarantees. “Drawing on” expertise does not mean following it.
Additionally, experts don’t always agree especially in academic matters: this is in part why the courts have always declined to adjudicate matters of pure academic judgment. And (except in relation to standards, where it is statutorily obliged to do so) the OfS does not commit to utilising existing, well-established expertise and processes in assessing quality in higher education through the designated quality body, but only that it ‘might’. So, overall, there is a lack of clarity both as to who makes the judgments and how those judgments are arrived at.
It is no answer to this to say that the OfS will only act in clear cut cases, as the current quality and standards conditions would surely equally enable it to act in such cases (if not, it calls into question how it has decided to accept or reject applications for registration to date.).
The new conditions therefore inevitably broaden and deepen the potential for regulatory intervention in questions that have until now been the preserve of academic debate and deliberation.
What might be the impact on innovation?
One of the driving forces behind the Higher Education and Research Act was the belief that the regulation of higher education should not make it unnecessarily difficult for new and innovative providers and provision to enter the market. The new quality conditions will apply to all higher education, including new providers, new provision, micro-credentials and partnership delivery, whether in the UK or transnational.
It will be important that the requirements are applied proportionately, to prevent a situation where providers are deterred from innovation because of concern that all of the requirements cannot immediately be met. An example might be a course that is taught with extensive practitioner input to align with the needs of a particular industry. Could this be said to have an over-reliance on visiting staff, which is given as an example of non-compliance? If the OfS was willing to engage with providers to discuss whether such new delivery was likely to comply, that would be one thing. But it is very fond of the mantra that it is for providers to decide how to comply with the regulatory framework, not for it to tell them how to. This may lead some providers to decide that innovation is simply too risky.
A possible solution is for the OfS to consider the “sandbox” approach adopted by other regulators to support innovation. This includes temporarily offering bespoke support and advice, comfort around regulatory enforcement and relaxation of certain regulatory requirements to allow new products and services to be trialled.
Are there other unintended consequences of the new approach?
As stated above, the new conditions involve matters of academic judgment, and may in due course involve matters of contested academic judgment. Say an institution disagrees with the OfS about whether a course, for example, provides sufficient educational challenge or is assessed “reliably”. Will the courts relent in their long-standing unwillingness to adjudicate on pure academic judgment and make a ruling? If so, will that open up challenges to academic judgment in other areas, such claims and complaints by students to their marks and degree classifications?
Given that the culture wars show no sign of ending, it is worth remembering this section of the then Education Secretary’s statement of priorities to the OfS in February 2021: “All students deserve the opportunity to receive a rigourous 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 text 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 has been diminished.”
It does not take psychic abilities to foresee articles bemoaning that “woke” students and academics have forced institutions to adopt more authors of colour on reading lists, or to revisit the prevailing analysis of Empire, and presenting the changes as reducing rigour and stretch. Is there therefore a risk that the quality and standards conditions become yet another proxy war for a wider ideological struggle?
Finally, some of the proposed amendments to the Higher Education (Freedom of Speech) Bill propose extending the definition of academic freedom to include the freedom to decide what to teach and how, without institutional interference. If adopted, it is difficult to see how the OfS could reconcile its new proposed approach to quality and standards with the proposed new duty to protect the academic freedom of staff.
The quality and standards of UK higher education clearly matter and are regarded as amongst the best in the world. Any further regulation in this area needs to ensure that institutions remain free to drive high quality and innovation, through the expertise of their talented staff and the longstanding processes for internal and external quality assurance that underpin the UK’s global reputation in this area. The new conditions need to be implemented in a way that avoids the risk of throwing the baby out with the bathwater and creating a host of unintended consequences.
For further information please contact Smita Jamdar, head of education.
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Smita leads the team that works to shape the universities and colleges of the future by providing strategic advice and sector specific insight across all their legal needs.