42 No. 67 JUSTICE intimidation. Compliance with the PSED requires each university to place some limitations on free speech, and indeed this is recognized by each university’s “antiharassment” policy and other codes, such as the “acceptable behaviour at work”policy and the student charter, which typically promises to provide students with a safe and supportive educational environment. The PSED is arguably 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, in turn, contributes to the harassment of Jewish students. The Equality Act 2010, Section 26 Wherever a university allows a hostile antisemitic campus environment to persist, a Jewish student can pursue a claim for “harassment”under section 26 of the Equality Act 2010. Section 26 defines “harassment” as “unwanted conduct related to a protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for him.” “Jewish” is a protected characteristic under UK law – Jews are protected as both a“race”and as a“religion.” The Report of the Equality and Human Rights Commission’s Investigation into Antisemitism in the Labour Party, published on October 29, 2020, found that illegitimate criticism of Israel, such as using the trope of equating Israel's actions to those of the Nazis, amounted to the unlawful harassment of its (Jewish) members, contrary to section 101(4)(a) of the Equality Act 2010, related to race (Jewish ethnicity). The commission is a statutory body established by the Equality Act 2006 to promote and enforce compliance with the equality and non-discrimination laws in England, Scotland, and Wales. While this decision does not set a precedent, it would presumably be highly persuasive in a claim by a student against a university for hostile environment harassment caused by antisemitism under section 26 of the Equality Act 2010. In 2016, the dismissal of a complaint alleging antisemitic hostile environment harassment against Sheffield Hallam University was brought before the Office of the Independent Adjudicator for Higher Education (OIA), a statutory body that was established by the Higher Education Act 2004 to consider the handling of university student complaints. The OIA found that it was unreasonable for the university to have refused to use the EUMC Working Definition of Antisemitism, now known as the IHRA Working Definition of Antisemitism, as a guide to determining whether criticism of Israel by the student Palestine society had crossed the line into antisemitism. The OIA also found that it was unreasonable for the university to have refused to consider whether the social media activity of its student Palestine society had been likely to cause a Jewish student to feel harassed. The social media activity in question consisted of blood libels against Israel and the Nazi-Israel trope. The OIA ordered the university to pay the Jewish student complainant £3000 compensation for having failed to consider his harassment complaint properly under section 26 of the Equality Act. This decision has no precedent value, but it would presumably be highly persuasive in a claim by a Jewish student against a university for hostile environment harassment on account of antisemitism under section 26 of the Equality Act. The Macpherson Principle Another factor that would strengthen the chances of a successful claim for antisemitic hostile environment harassment against a university is the Macpherson Principle. This principle was stipulated in the Macpherson Report, published in 1999, which documented Macpherson’s inquiry into the racist killing of Stephen Lawrence. The Macpherson Principle states that a racist incident should be defined by the victim. This does not mean that students who report an experience of antisemitism are necessarily right; but rather that they should be taken seriously and assumed to be right until an informed decision can be made on the available evidence. The contemporary practice on campus when dealing with allegations of anti-Black racism is to apply the Macpherson Principle, but it does not appear to be used in relation to student allegations of antisemitism. Anti-racism and Diversity Training The only anti-racism and diversity training provided in the UK university sector focuses on promoting educational opportunity for Black-Minority-And-Ethnic (BAME) students. Jewish students are not included in that group, despite being legally classed as a“race”and an“ethnic minority”under the anti-discrimination law. The exclusion of Jewish students from the BAME category might stem, in part, from the belief that Jews are white, privileged, and come from families that are well integrated into British society. Moreover, Jewish students do not under-perform at university and are not regarded as needing help. Another factor that comes into play is
RkJQdWJsaXNoZXIy MjgzNzA=