The Dandridge Review, The Open University and The Higher Education Freedom of Speech Act 2021

A Cautionary Tale

Only days before the Higher Education Freedom of Speech Act 2021 was to come into force, Labour suspended its progress. This blog is partly about The Open University’s latest failed attempt to address the problems it has ( i.e. the Dandridge Review) but mostly about why we need Labour to implement the Higher Education Freedom of Speech Act.

Why is academic freedom in peril?

There is a widespread culture of political and belief bullying and discrimination that has taken hold within our universities where plurality or diversity of viewpoints is not valued and seen as secondary to ensuring equality, diversity and inclusion. Worse still, bullying, harassment and discrimination is seen as being a justified means to a greater end. To put it more pointedly, many academics are prepared to exclude those whose views they disagree with in the name of inclusion.

This problem is made worse by the fact that university leaders, as I know only too well, fail to act and at times even fail to acknowledge the idea that there is a problem. Perhaps unsurprising because even though universities have legal obligations to uphold academic freedom, without the HEFOSA there is no mechanism by which  individual academics can force reluctant Vice Chancellors or derelict senior executives to uphold those responsibilities. Hence, back in 2021 when I was facing the targeted harassment campaign and Prof Tim Blackman and the rest of the senior executive did nothing to stop it, the only way I could hold them to account was a costly, time-consuming and damaging employment tribunal. The Open University’s position – which seems to be that of many universities, even today – was that just as they could not shut down my research network because of their obligations to academic freedom, so too they had Equality Act duties towards transgender and gender non-binary staff and students and could not interfere with the freedom of speech and academic freedom of my harassers. As time told, this is a wrong approach.

Academic freedom is not a free for all

The judgment against The Open University was excoriating. It began by stating that many of the academic witnesses the Open University called lacked “rigour” (the now infamous para 22). It found that the senior management team was, effectively, in thrall to a vocal minority of trouble makers whose “irrational fear” and prejudice of people who hold gender critical beliefs was writ large for all to see.

If I had been the OU’s VC – or any member of the executive or The Council – I would have been horrified at the judgment if only because it demonstrated how spectacularly badly the senior leadership team of The Open University understood the legal framework they were operating within.

Academic freedom is not a free for all. Academic freedom is not a shield to be used against the claim of bullying and harassment. While it may be difficult to state for all purposes where the line is between academic freedom and bullying, there is a line and universities need to know this and act on it.

The HEFOSA could help here. We know that the law on academic freedom, freedom of speech and equalities legislation is hugely complex. Part of the implementation of the complaints scheme the HEFOSA establishes is the guidance it gives to universities in order that they may comply.

I fear that without the HEFOSA other VCs will not learn the lessons of my judgment. Remember, The Open University got it so wrong even after paying for top quality legal advice. Why Labour assumes other VCs would get it right without HEFOS remains a mystery to me.

The apology

A few days after I won my claim, Prof Tim Blackman, the Vice Chancellor,  apologised and promised “a major independent review of the working environment at the OU.”

Good, I thought. Maybe, an independent review will strengthen their arm to protect academic freedom in the face of evidence of overwhelming belief bigotry. Maybe.

Sadly, everything about the review lived up to my low expectations.

The review and the reviewer

The OU appointed Professor Dame Nicola Dandridge. She was Head of the Office for Students and before that she was CEO of Universities UK (which is, for all intents and purposes a VC club that functions as an ‘advocacy group’ for university VCs).

Although she practised as a discrimination lawyer, she is not a legal expert on academic freedom, freedom of speech or how these rights and obligations intersect with employment and equalities law.

Before anyone thinks I am playing the person and not the ideas, knowing Dandridge’s background speaks directly to her capacity and skills to review the working environment of a university and the behaviours people engage in when conducting themselves as academics.

She has had an impressive career. She is a university sector policy technocrat. What is she is not is an academic - despite the Professor title. Her professorship is not a title that reflects years working in universities, doing the hard graft of teaching and research. Dandridge was anointed a Professor of Practice in HE policy from University of Bristol, as a strategic appointment.

This means that Dandridge has not been trained in academic methods of inquiry or academic rules of debate. Without this training, I doubt she fully understands the mind breaking poverty of analytical skills that is an academic arguing that some ideas are too harmful to have any place in a university or the comatose inducing gaslighting of an academic publicly saying that they support academic freedom but think academic freedom should not come at the expense of this, that or the other minoritised group. For it is through our training in academic methods of inquiry that we learn about the vital importance of debate and subjecting ideas – even awful, horrible ones – to scrutiny.

In fact, as a colleague noted, “I find it comic that a supposed expert on equalities is hired in a way that contradicts all equalities best practice and that a watchdog of university standards should have a fake title”. A rather cutting, and droll, observation.

The terms of reference established were nothing like what Prof Blackman promised. There was no review of the working environment. There was instead the task of considering “how difficult and contested matters can be debated in a way that respects the rights of others and is consistent with and supports the OU values”.

I could have answered that task easily: don’t engage in unlawful harassment! Play the ideas. Use evidence. Use arguments. Do not use negative stereotyping. Tell the truth. But most of all, do not shut down debate because you do not agree with someone else’s starting premise.

What did the review say?

The Dandridge review is little more than an attitudinal survey of staff at The Open University who self-selected to take part. Dandridge asked a series of questions and took the answers she was given at face value (in common with all attitudinal surveys)

Doing this in a serious review of how an institution got the protection of academic freedom so hideously wrong replicates the fatal error that, in my opinion, was the reason The Open University ended up in an employment tribunal with me. Some of the claims she treated at face value were, as proven in the employment tribunal, blatantly false and wrong. So for instance, she treated at face value the claim that  the name of the research network OUGCRN was chosen as a provocation. It was not and there is an employment tribunal judgment that confirms this. There was no attempt by the OU in summer 2021 to assess the claims made about me or the research network and nor is there any attempt to do so by Dandridge.

The most problematic claim that she treats at face value is also the claim made by several of her respondents that expressions of gender critical beliefs and doing gender critical research denied the existence of trans people. What rubbish. The entire point of researching who, where, why biological sex matters more than gender identity in social and political life is that these questions acknowledge the existence of trans people and start to unpick the implications of protecting their rights as well as protecting women’s rights.

And anyway, why should universities ‘treat at face value’ the idea that the mere expression of GC beliefs denies trans people existence? This is the equivalent of treating at face value the idea that the expression of atheism denies the existence of Islamic or Jewish people. It is an intellectual nonsense, especially in a university.

Belief and Research

There is a mystery at the heart of the Dandridge Review. The review was prompted after The Open University lost an employment tribunal that was all about a concerted and unlawful attempt to close down a research network and bully a senior professor into silence, yet research is barely mentioned in the Dandridge Review. Less than ten times, in fact, and even then she demonstrates almost no understanding of the interrelationships and connections between belief and research. Instead, Dandridge provides a discussion about whether it is appropriate to bring your beliefs into the workplace. I have some sympathy here and have often thought when listening to colleagues talk about their political beliefs that I really wished they would not bring “their whole selves to work”. But to imply that belief is separate from research, as Dandridge does, is well…. idiosyncratic. I cannot think of an engaged academic, especially in the social sciences, whose beliefs are not directly connected to our chosen research topics in a way that is almost impossible to disentangle.

I’d go further: every university I have ever worked for has research groups that are diametrically opposed and come from fundamentally antagonistic and conflicting perspectives and beliefs. Take for instance a hypothetical reproductive health research network and a disability rights research network operating out of the same Faculty. Members of the former may do work that directly supports women’s rights to abortion, including where women discover that their foetus, if delivered, will be disabled. Disability researchers may well see that as a (literal) existential threat to disabled people. Fine. Universities have always accommodated this. The difference between this example and what ‘the problem’ is that the Dandridge Review was meant to address is that 368 academics were not interested in having difficult conversations. They wanted to shut debate down and expel the research network from The Open University.

The only time Dandridge gets near to dealing with the challenge facing universities is when she directly states that academics cannot decide not to work with someone whose philosophical belief they disagree with. Yes. Well. But it hardly takes a legal expert to figure out why refusing to work with someone who is GC, or maybe disabled, or perhaps a female, black or pregnant runs contrary to equality law.

Dandridge’s way forward

Finally, Dandridge’s suggestions for how The Open University can move forward are, if I am being kind, unworkable, and potentially unlawful and damaging to the research culture of a university if fully implemented.  I won’t go into detail as the Committee for Academic Freedom provided a detailed analysis here. I encourage readers of this blog to read that. All I will say is that the idea of having university managers “assessing proportionality” of the manifestation of protected beliefs will create a hellish system of bureaucracy and will necessarily leave academic freedom and freedom of speech up to the bureaucrats. We can all predict how that will end up: risk averse bureaucrats will, in the name of assessing proportionality and impact, stop risky controversial research groups or agendas setting up.

Back to HEFOSA

To be fair to Dandridge, she produced the report that (I suspect) The Open University wanted all along as opposed to the report that Prof Blackman promised me.  One which whitewashes the ET’s findings while allowing the OU to pretend that they are doing something to address the judgment. As Sun Tzu’s said in The Art of War, "Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.”  Maybe we shouldn’t be too surprised, after all the judgment left the institution with a lot of egg on its face.

But what does this tell us about the need for the HEFOSA, and especially its complaints scheme to be implemented? A lot. If left to their own devices, it allows some universities to make up the rules, deal with things on an ad hoc basis, outsource their responsibilities for academic freedom and freedom of speech to their HR departments or employment tribunals or external reviewers. We have the receipts. When Essex cancelled and blacklisted me, the VC outsourced his responsibilities to Akua Reindorf. Her review was fabulous, but there is a question – why not take her legal advice and then act on it. Why wait for the review to apologise to me?  And now the OU.

How many more apologies will be issued? How many more VCs and senior leadership teams will fail to grasp the thorny issue of tackling staff who do not (perhaps are incapable of) understanding the vital importance of diversity of viewpoint. Without the HEFOSA, I suspect a lot. For, to truly tackle the problem that is threatening academic freedom means dealing with the bullies. Properly. Once and for all. And why do that when there is no cost of not doing it. Without HEFOSA, there is no effective enforcement mechanism except individual employment tribunals. To drive the point home: in the absence of the HEFOSA, the handful of academic bullies who gave such poor evidence in my tribunal are free to bully and harass and discriminate. Nothing stops them except the leadership of the OU. But, without HEFOSA, the leadership are free to play the numbers game, let individual GC academics submit their individual grievances. The leadership are free to settle, as they did with Professor Jon Pike and PhD student Pilgrim Tucker, if it looks like it is going to get as far as a tribunal. After all, it is much easier to do that than produce the root and branch culture change that is required. And other universities are free to do the same.

If HEFOSA gave us anything, it gave academics like me hope that we had some type of redress in the face of institutional cowardice and indifference. I remain hopeful that it will, despite Labour prevarications, be implemented. But without HEFOSA, I fear nothing will change and that irresponsible politicians will end up positioning academic freedom as a left/right issue and people like me will slowly leave the profession.