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Law students could challenge marking on grounds of free speech

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Experts raise concerns over costly new claims against universities from government’s new Free Speech and Academic Freedom Bill

The government’s proposed Free Speech Bill could lead to many more claims against universities by disgruntled law students, academics, and external individuals and organisations, experts have warned.

New rules put before parliament last week aim to tackle head on the “unlawful silencing”, as Gavin Williamson, education secretary, put it, of academics, students and visiting speakers as a result of a combination of ‘no platforming’ by students, disciplinary action being taken against staff who have controversial opinions, and widespread self-censorship being done by staff and students alike.

The bill imposes new duties on higher education providers and students’ unions to promote free speech and academic freedom.

It also introduces a new statutory tort that allows people to bring civil claims if the duty to uphold free speech is breached, such as if a controversial visiting speaker is cancelled, and to get compensation.

But, says, Smita Jamdar, head of education law and partner at national firm, Shakespeare Martineau, the bill could create more problems than it solves. She told Legal Cheek:

“Universities already have a duty to uphold free speech, and in practice do everything they can to make events happen and to facilitate free speech. It’s only in a few very small number of cases, where there is very strong disagreement on all sides, that there is a problem and speakers get cancelled. We really shouldn’t overstate the prevalence of successful ‘no platforming’.”

But that is not the only problem area. Professor Steven Peers, an expert in human rights and EU law at the University of Essex, says it could lead to students challenging their marks on the grounds of free speech. He tells us:

“Say a student writes an essay, half of which is in support of a right-wing figurehead. The arguments are not substantiated with any facts. For that reason (and that reason alone) they don’t get a great mark for that section. With this bill, I can envisage a scenario where such a student feels aggrieved by their marks because they feel that they have been penalised because of their unpopular opinions, and decides to litigate over them. The bill politicises and judicialises the university experience and student life.”

Further, not only does the bill impose a duty to uphold and promote free speech but it also includes the obligation to ensure that this happens “without … adverse consequences” for the individual or organisation, such as protecting them from a student protest.

Jamdar explains: “An individual or organisation could argue that even though they have been allowed to speak at an event, they will be made to feel uncomfortable or threatened whilst on campus by students protesting outside the event, and so the duty to protect them under the new Bill has been breached and they could sue for compensation. Universities will have to weigh up these possible claims versus the students’ competing right to legitimate protest.”

Jamdar also observes that there could be the appetite for disgruntled individuals to be supported in bringing legal action against universities by third party organisations, such as the Free Speech Union or through crowdfunding. Even when such claims have no foundation, “there is the cost of having to deal with all that.”

The latest comments from across Legal Cheek

Putting forward the bill, the government’s position is that there is “a growing body of evidence citing a ‘chilling effect’ on staff and students, domestic and international, who may feel unable to express their cultural, religious or political views without fear of repercussion — suggesting that the space for free speech at universities, often contested and febrile, may be becoming constrained.”

It also cites “a creeping culture of censorship” where: “it is seen as acceptable, even virtuous, for an academic to sign an open letter that calls for another to be dismissed or defunded.” The government argues that this fear of repercussion is justified in the light of evidence of individuals actually losing their jobs.

It also cites high-profile cases where speakers have been no-platformed and cancelled such as Amber Rudd whose visit to Oxford University was cancelled (it is presumed in the light of her former role as home secretary and its connection with the Windrush scandal).

The bill creates a free speech champion in the guise of a new director for freedom of speech and academic freedom within the Office for Students, the higher education regulator that only came into being in 2018. The bill’s second reading will be scheduled in due course.

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20 Comments

Legal Cheek Deletes All Interesting Comments

“We really shouldn’t overstate the prevalence of successful ‘no platforming’.”

Correct. ‘No platforming’ is a side issue / minor symptom. Indeed, for people to even be ‘no platformed’, they must have been ‘platformed’ in the first place – something which generally doesn’t happen for those who fail to submit to the dogmas and catechisms of woke ideologies.

The real issue is widespread groupthink, the death of reason and self-censorship.

(32)(7)

Jane

The objections to the freedom of speech proposal are ridiculous. If a student writes unpopular views in an essay but can justify them they should still get a decent mark. I asked my son what would happen if he did not have the same views as his lecturers (BSc) – could he write opposite views from the prevailing left wing ethos? Yes he said but none of the reading and suggested sources was from the alternative view points (which was no problem for him as he agreed wit his lecturers) – however if he found good alternative reading and sources it would be fine. I am not so sure. The reading list should be unbiased instead.

(5)(1)

Barry

Spelling mistakes, immediate appeal to the authority of ‘experts’, one of these experts gives an incredibly niche hypothetical situation (notice they take a swing at the ‘right wing’) while also arguing that “We really shouldn’t overstate the prevalence of successful ‘no platforming’” because “it’s only in a few very small number of cases”.

This whole piece boils down to.. this person doesn’t like efforts to reduce the impact of cancel culture on campuses, so they will grasp at straws as to why it is a bad idea.. but you should listen because they are an ‘expert’.. what qualifies them to be an expert? We called them one…

The bias is as thick as treacle.

(25)(9)

Natasha Wright

“Putting forward the bill, the government’s position is that there is “a growing body of evidence citing a ‘chilling effect’ on staff and students, domestic and international, who may feel unable to express their cultural, religious or political views without fear of repercussion — suggesting that the space for free speech at universities, often contested and febrile, may be becoming constrained.”

What kind of world do we live in if we can’t voice and express our own opinions? How can we have an education system that supposedly encourages ideas and opinions when the fear of repercussion for offending someone is on the line. Free speech is most certainly constrained.

(12)(3)

Russell Group Uni Alumni

“Universities already have a duty to uphold free speech, and in practice do everything they can to make events happen and to facilitate free speech.” Are you telling the truth? It has been reported that numerous UK universities, in order not to lose lucrative tuition money from China’s international students, are shutting Hong Kong students’ voices – the latter are simply trying to voice out their support for the pro-democracy movement in Hong Kong. These include a Russell Group university in London!

(22)(3)

Hackaforte

This deserves a dense, unreadable, book of its own, with a title like “Legally Blind: Paradigmatic Horizons, ‘Othering’ and Post-Structuralist Epistemiology within Von Brandt’s Hypothesis of Octagonal Cognition and Reticulated Cogency”.

(10)(1)

A uni student

Students have many issues from racial discrimination to university accommodation costs.
These significant problems are never litigated upon and Professor Steven Peers reckons someone is going to litigate against essay feedback? Uni students aren’t that weak c’mon.

(3)(2)

Befuddled onlooker

No platforming is a form of free speech, shutting down people who are transphobic isn’t shutting down free speech, nor is shutting down someone who suggests that women are incapable of x thing that they are in fact capable of. List ad nauseum. I find it interesting that the denizens of legal cheek side with the bill nearly unanimously when it’s primary target is effectively student activism, which was decried as useless for decades; now it is being legislated against.

Further the idea that free speech entails that your opinion must be heard, when this clearly pertains to opinions that have been heard and summarily rejected speaks to the absurdity of it all. If there are people out there who hold views that are outdated whilst at the same time as being harmful such as Will Knowland’s escapades at Eton, then the problem is that people still adhere to these ideas despite there being stronger arguments and evidence against them. It is not that ‘people are being silenced for their beliefs’ – it is that those beliefs are the equivelant to being a flat earther.

Speaking of – would any of you let a flat earther teach your children geography? A Christian Fundamentalist or an EDL member history? biology? Your answer might be that if they’re capable and they do not impose their ideas, which is near impossible given their relation to radically ignorant ideas, then it should be fine to ‘facilitate debate’. However a debate needs good faith, we are not debating in universities whether gravitas or gravity exists. Anybody who would try to debate that topic seriously would be rejected by the university; they would be no-platformed without extordinary evidence or a credible hypothesis.

When someone is deplatformed, can it be for the wrong reasons? Absolutely. In the majority of cases where it has happened, has there been an instance where the subject matter was legitimate as opposed to fringe or radical? Not one case to date. When you allow this kind of ‘free speech’ to go unhindered, you get people calling for capital punishment again despite it being statistically, empirically shown to be a needless cruel practice (See: Ian Hislop and Priti Patel). You get people saying that the earth is flat (and growing in number).

Ignorance is infectious precisely because it requires no intellectual rigour or curiousity and often challenges nothing. It may have started as free speech to say “I think that transwomen are not women”, “gay people are unnatural”, “black people are inferior”, “Women are inferior at x” and so on. However at a certain point, after being repeated over and over again by individuals who do not even want to take a cursory glance at the arguments proving these points wrong, the only option is silence.

As for losing one’s job due to hateful or ignorant comments. Seeing as I brought him up earlier, let’s take Will Knowland as an example. He was banned by the TRA (Teachers Regulation Authority) from all schools indefinitely. Eton plead with the TRA not to do so. The TRA did it on the grounds that he is an english teacher using his position to make politically charged points and misogynistic comments. I think in that case he should of been sacked by Eton – however the process clearly went through some kind of trial and deliberation. The idea that there is a ‘woke’ machine attacking people based on their justified political beliefs is a misunderstanding at best.

Bring on the hate inhabitants of legal cheek, I feed off your ire.

(10)(35)

Barry

“Further the idea that free speech entails that your opinion must be heard, when this clearly pertains to opinions that have been heard and summarily rejected speaks to the absurdity of it all.”

Let me guess, it is yourself and those who align with your political beliefs who get to decide when an opinion has been heard and summarily rejected?

If you are going to spend six paragraphs of dense screed to promote your fascist ideals of censorship, you may not want to come down do hard on the EDL.

(17)(5)

Legal Cheek Deletes All Interesting Comments

“shutting down people who are transphobic isn’t shutting down free speech”

As I said above, “the real issue is…the death of reason”.

(13)(3)

Bateman

“Shutting other viewpoints down is actually an exercise of free speech, guys!”

Yeah, just like Parliament voting to give its sovereignty to a Lord Protectorate would technically be an exercise of sovereignty.

Why can’t midwitted leftists such as yourself just admit that you don’t like free speech when it comes to ideas you disagree with?

(8)(1)

Name

Absolute hogwash.

As someone who has just finished a law degree (I won’t mentioned at which institution however, I’ve been silenced enough by lecturers, students and those at the top of the chain of command), I can tell you that freedom of expression is not a thing at university, or at least not at my one.

Some brief examples include lecturers peddling anti-brexit beliefs and telling us that ‘it was only old people and racists who voted to leave, sooner or later they’ll realise they f***ed up’, being marked down for something I can’t help which is part of one of my health conditions as a direct result of challenging the idea of the ‘pay gap’ as portrayed in the media and explaining that ‘equality of outcome’ is not desirable, and my favourite example is having a huge group of students and lecturers turn their back on me and refuse to talk to me or collaborate with me for the rest of the year for daring to go against their beliefs by explaining that in the vast majority of cases you can not come to the UK and claim to be an asylum seeker.

Now, after being silenced, marked down, left behind etc because of my beliefs try and tell me that freedom of expression exists at university. After all, I never said anything which could amount to discrimination, and yet I was discriminated against as a result.

(6)(2)

Bateman

It’s okay mate, they were actually using their freedom of expression to shut yours down mate. Also there is such thing as freedom of expression in universities, you’re just not allowed to say things that others might disagree with mate.

(10)(1)

hm

If no platforming is as rare as these experts think, then the number of claims that will be entertained by the courts (not just brought, but actually heard and decided upon) will be correspondingly small. So I don’t see how these anti-Bill arguments stand. We have plenty of legislation that is meant to cover minute and remote risks that has never been litigated and of whose existence few will ever be aware.

(7)(3)

Scouser of Counsel

No platforming has been going on for years.

Trying to get outside speakers for a debate on anything controversial was very frustrating back in the 2000s because the university union kept no-platform if speakers who expressed views contrary to the prevailing tide then, which (for students) was inevitably left-wing.

As a result, “debates” were often like echo chambers with speakers all pleading allegiance to the same overarching values and debating about the minutiae.

Genuine alternative views were shut out.

Even as a left winger myself, I for one welcome the flat earthers, the racists and the nutters to come and debate, for it is it through reasoned debate that those with bonkers views can be exposed.

Letting Nick Griffin appear on question time was a stroke of genius because it exposed him and the party he stood for. Remember his reference to having spoken to a “Non-violent Ku Klux Klan” and the incredulity that followed?

(17)(4)

Bateman

Agreed

(3)(1)

Bateman

One academic complains that students would get unduly high marks simply for citing a “right-wing figurehead”.

As if that doesn’t happen when students cite “left-wing figureheads”… lol.

So citing hard-left perspectives like Marxism is seen as acceptable, desirable even, but don’t you dare mention Jordan Peterson bigot.

(7)(1)

Touker

“Universities already have a duty to uphold free speech, and in practice do everything they can to make events happen and to facilitate free speech.” No they don’t, leftist groupthink is so dominant that any dissenting opinions are met with demands for cancellation and false accusations of ‘racism’.

“Say a student writes an essay, half of which is in support of a right-wing figurehead.” This shows how dominant left-wing thinking is among the lecturers of most universities. Citing half-baked Chomsky-esque ideas that ‘capitalism is bad’ is apparently fine but you’re not allowed to cite even moderate right-leaning thinkers.

(11)(1)

Nah mate stop being problematic mate

Actually mate, I think you’ll find there’s plenty of freedom of expression, you just can’t say things that faculty or students would disagree with mate. Also if an academic fails you for citing a conservative thinker, then gets you expelled for it, then that’s them using their own freedom of expression and all that mate.

(6)(4)

Deed U No

Here we go again…..
legislation overkill
…let’s fix it with another act of parliament.

(1)(3)

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