23 Spring-Summer 2017 Under The Equality Act 2010, Section 149,19 every university has a legal duty to exercise its functions with due regard to the need to eliminate harassment and to foster good relations between students of different ethnic groups and religious beliefs by tackling prejudice and promoting understanding. This is known as the Public Sector Equality Duty (PSED) and it applies to Jewish students who are protected as both a religious group and as an ethnic group under the law. In exercising its function of providing an educational environment, each university must seek to ensure that Jewish students can realize their full educational potential without fear, threat or intimidation. Compliance with this duty requires that each university place some limitations on free speech, and indeed this is recognized by each university’s "AntiHarassment Policy" and other codes, such as the Student Charter, which typically promises to provide students with a safe and supportive educational environment. The Public Sector Equality Duty is flouted whenever a university fails to take reasonable steps to prevent or remove campus expression that is antisemitic, thereby causing a hostile environment for Jewish students which harasses them. With respect to Brian’s antisemitism complaint against Any University UK, the University demonstrated ignorance and misunderstanding of its legal responsibilities under section 149 Equality Act 2010, and of its obligations under its Student Anti-Harassment Policy and its Student Charter. Brian complained that in tolerating the Palestine Society’s antisemitic, anti-Zionist behavior on campus, the University failed to have due regard to the need to eliminate harassment under section 149(1)(a) Equality Act; failed to have due regard to the need to foster good relations between Jewish students and the wider university community contrary to section 149(1) (c) Equality Act; facilitated the creation of an environment of harassment contrary to the Student Anti-Harassment Policy; and failed to provide Brian with an environment that fosters the inclusive, supportive and collaborative university community which he is entitled to expect under the Student Charter. In support of these allegations, Brian stated that he felt that he could not be open about his Jewish identity, and was unable to attend classes during Israeli Apartheid Week in 2013 and 2014 due to a flare-up of his disability caused by stress and anxiety. He explained that: Hate speech is recognised by the fear which it generates, and I feel threatened by the campaigning of PalSoc, and in particular its output on Facebook and Twitter […] The nature of the behaviour that PalSoc engaged in … has been threatening, abusive and insulting and contributes to an intimidating climate where students feel they cannot speak their mind ….20 Brian provided a statement from his personal caregiver in support of his complaint which stated that the activities of the Palestine Society had adversely impacted on his emotional wellbeing and had jeopardized his ability to study. The University, however, misapplied section 149 of the Equality Act to Brian’s case. It interpreted the civil tort and criminal offense of harassment as requiring the behavior to have been directed at the complainant in order for him to experience harassment. This is incorrect. It is the complainant’s perception of behavior that is important, and not whether harassment was intended by the perpetrator. This is also the case under the University’s Student Anti-Harassment Policy, indicating that the University also misunderstood and misapplied its own anti-harassment policy. As a result, and as noted and documented by the OIA, the University failed to adequately explore whether a hostile, intimidating, offensive or humiliating environment had been created for Brian and instead, focused too heavily on whether Brian had been personally threatened or whether there was an intention on the part of the Palestine Society to be threatening, abusive or insulting. This was entirely the wrong approach. In considering whether Brian was a victim of unlawful harassment, the OIA further noted that the University had failed to take into account relevant sector guidance in the form of a document entitled, Universities UK: Freedom of Speech on Campus, which Brian had referred to throughout his complaint. This guidance, which advises universities on how they can reconcile their legal duties to promote good campus relations and avoid unlawful discrimination with their legal obligation to promote free speech, states that “it is often the manner and form in which views are expressed, rather than the opinions themselves, which take the relevant speech and conduct into unlawful harassment.”21 The OIA stated that this sector guidance should have been used by the University to ask itself whether the blood libels and abusive posts were evidence of antisemitic behavior or material that 19. The Equality Act 2010, Sec. 149. 20. Brian’s Complaint paras. 207 & 209. 21. Freedom of Speech on Campus: Rights and Responsibilities in UK Universities, Feb. 18, 2011, para. 43.
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