63 Winter 2025 implication is that Zionism is also a protected belief, but this has yet to be tested in court.16 The question of how universities should deal with antisemitism on campus, particularly Israel-related antisemitism, sits at the intersection of these legal duties. Freedom of conscience, thought, and belief is an absolute right, whereas the freedom of expression is a qualified right.17 This means that the right to expression may be limited where it is proportionate and legitimate to do so. UK criminal law, for example, prohibits racially or religiously aggravated speech; threats to kill; endeavors to break up a public meeting; speech that intentionally seeks to provoke violence, or cause harassment, alarm or distress; speech that is intended or likely to stir up hatred; speech that incites the commission of acts of terrorism overseas or invites or encourages support for proscribed organizations; and speech which encourages or glorifies terrorism.18 Nor can the right to expression be used to limit the rights of others to free expression. The 1988 Education Reform Act established the right to academic freedom, which is defined as the “freedom [of scholars] within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions.”19 Academic freedom goes beyond the right to freedom of expression: it is the right of scholars to pursue their research free from political, social, or economic pressures.20 Academic freedom ensures – or at least aims to ensure – that scholars are able to challenge orthodox thinking and practice without fear of reprisals from their employer or colleagues. Unlike the general right to free expression, the right of academic freedom is coupled with an obligation that academic expression adheres to the professional standards and competence expected within a given discipline, including the consideration of and engagement with opposing views and arguments. In this way, academic freedom protects the right of students and staff to study and research. The Equality Act 2010 sets out the legal duties of universities relating to discrimination or harassment of individuals with a protected characteristic, and as noted above, Jewish identity is protected under both the categories of race and religion, with Israeli nationality falling under “race.” Discrimination can be either direct or indirect. As public bodies, universities are also subject to the Public Sector Equality Duty under the Equality Act. Universities must “advance equality of opportunity” and “have due regard to the need to…foster good relations” between “people who share a relevant protected characteristic and persons who do not share it.”21 In the Equalities and Human Rights Commission (EHRC) guidance on the Public Sector Equality Duty (PSED) for universities, it advised that universities “have a legal responsibility to think about how they can promote equality and minimise tension and prejudice within different groups on campus.”22 These responsibilities mean that universities are legally justified in regulating expression on campus that constitutes discrimination or harassment of a person with a protected characteristic. Moreover, according to the EHRC, universities should recognize that some students may feel “vilified or marginalised by the views expressed” within certain divisive debates, and “think about how to ensure those students feel included and welcome within the university environment.” However, the EHRC also advised that “views expressed in teaching, debate or discussion on matters of public interest, including political 16. The concept of Zionism constituting a legally protected belief is indicated by the Employment Tribunal Appeal decision in the leading case, Grainger Plc & Ors v. Nicholson, [2009] UKEAT 0219/09, where a belief is defined as concerning “a weighty and substantial aspect of human life and behaviour,” with “a certain level of cogency, seriousness, cohesion and importance.” McEleny v. Ministry of Defence, [2019] EWCA 4105347/2017 established that a belief in Scottish national independence constitutes a protected belief. 17. Gehan Gunatilleke, “Justifying limitations on the freedom of expression,” 22 HUMAN RIGHTS REVIEW 91-108 (2021). 18. These are all contained in different criminal law Acts and are an illustrative list of the ways in which freedom of expression is proportionately and legitimately limited by the law. 19. Education Reform Act 1988, c.40, § 202(2)(a) (UK). 20. Ralph F. Fuchs, “Academic freedom – Its basic philosophy, function, and history,” 28 LAW AND CONTEMPORARY PROBLEMS 431-446 (1963). For a more comparative analysis and understanding across jurisdictions, see Conrad Russell, ACADEMIC FREEDOM (Routledge, 2002). 21. Equality Act 2010, c. 15, §§ 149–157 (UK). 22. Freedom of expression: A guide for higher education providers and students' unions in England and Wales,” EQUALITY AND HUMAN RIGHTS COMMISSION (Feb. 2019), available at https://www.equalityhumanrights.com/sites/ default/files/what_equality_law_means_for_you_as_an_ education_provide_further_and_higher_education.pdf
RkJQdWJsaXNoZXIy MjgzNzA=