Racism in British universities is not being addressed, it is being managed. As far as it is possible to do so, the “management” of racism principally takes the form of an assertion - advanced through a variety of discursive forms - that university governing bodies and their senior management teams are not involved in the creation of racist cultures or in the perpetration of racist acts (such as racial harassment) other than through possible neglect. In most cases, university senior personnel are proved innocent by default because lack of access to the financial support needed to help an individual pursue legal remedies for racial discrimination and harassment has shielded them from the scrutiny of courts and tribunals. However, there is one measurable legal risk which universities have not yet succeeded in evading. I allude here to the risk that a university may be found to have breached its duty under section 149 of the Equality Act 2010 (the Public Sector Equality Duty) by failing to provide sufficient evidence that it has paid “due regard” to the need to eliminate racial “discrimination, harassment, victimisation” or conduct of a similarly injurious nature. It is a risk which threatens to take the matter of racism in British universities outside of the control of university senior management. To date, the risk of economic and reputational injury which the Public Sector Equality Duty (PSED) presents has been managed by universities through the simple expedient of seizing upon the PSED’s limitations and downplaying its strengths The publication, in October of this year, of the findings and recommendations of the Equality and Human Rights Commission’s (EHRC) year-long investigation into racial harassment in British universities signals an end to these strategies of disavowal.
The EHRC report represents a resolute and (to my mind) very welcome attempt to bring the law back into the university setting (see p.13-14 and p. 36 especially). The “... 13% of all current students in British universities…” (EHRC, 2019, p. 26) who have suffered from racial harassment, most of whom are “ Black...and Asian” (EHRC 2019, p. 26), may well gain some comfort from the intervention of the EHRC in this regard. In the main, the report reminds universities that, like other public bodies, they are subject to a higher authority. This it achieves by laying stress on the ways in which university senior personnel have repeatedly failed to ensure that university policies and procedures comply with basic legal obligations. For example, very early on in the report’s executive summary, readers are advised that:
“Universities have an incomplete picture of the scale of racial harassment because of underreporting and informal complaints not being recorded routinely. This calls into question the extent to which universities are meeting their PSED obligations which include having regard to the need to eliminate harassment and to foster good relations. To meet these obligations, universities must have reliable evidence when developing and reviewing their policies and procedures. If a university has a poor understanding of the scale of the problem, this can lead to their priority setting, resource deployment and activities being inadequate to tackle the issues” (EHRC 2019, p. 10).
My strongest criticism of the EHRC report is its tendency to endorse what is, in fact, a rather thin opposition between so-called “positive” and “negative” legal duties. Thus, it is said that the PSED’s “limits” stem from the fact that it does not create “positive” duties (e.g. p. 8 and p. 81). However, Barrister Claire Darwin identifies “...two recurrent themes in recent PSED case-law…” (2016, p. 5) suggestive of how the law might respond to a public body that (to use the words of the EHRC report) fails to develop and review racial harassment policies on the basis of “reliable evidence” (ECHR 2019, p.10). The consequences are very real, even ‘though they may stem from so-called “negative” legal obligations. According to Darwin, “...the failure of public authorities to provide proper evidence of compliance with the PSED is likely to lead to a finding of a breach of the duty;...[t]he same is true of a failure of public authorities to provide evidence that all relevant protected characteristics have been considered (2016, para. 12).
This lapse aside, the EHRC report does not shy away from warning universities that although the PSED cannot be used to compel them to take specific measures to tackle racial harassment, it could be utilised in cases where governing bodies, through their senior management teams, are found to have prioritised the university’s “...reputation above the safeguarding and welfare of their students and staff” (EHRC 2019, p. 12). The way in which the PSED will displace current management priorities in the not too distant future is highlighted in several areas of the report. For example, it is a theme which drives the report’s recommendations relating to much needed changes in university culture (2019, p. 13 and p. 19).
The EHRC is the body responsible for the monitoring and enforcement of the PSED. Among other means at its disposal, it has the power to take action in the courts against public bodies which fail to comply with the duties imposed by section 149 of the Equality Act 2010. The possibility of enforcement action against any particular university is not mentioned in the report - for good and obvious reasons. However, the EHRC has sent a clear signal to universities that it will no longer tolerate a situation where “[a]lmost half of the students...who did not report their experiences said this was because they had no confidence that incidents would be addressed by their universities…[t]his was the single most important reason for a quarter...of these students (EHRC 2019, p. 59); nor will it tolerate a continued display of ignorance of “...the Equality Act 2010 definition of harassment…” (EHRC 2019, p. 63); for universities “...must comply with the PSED, and will be legally responsible for harassment committed by their staff and agents unless they have taken all reasonable steps to prevent it, such as having appropriate policies, procedures and training in place…” (EHRC 2019, p. 63).
In conclusion, the EHRC report deploys the disciplined force of law against the increasingly undisciplined force of management. It serves as a warning to university senior managers that the interests of the universities in which they are employed lie in addressing racial discrimination and harassment, not in managing it.
Claire Darwin, The Public Sector Equality Duty: An Update and Overview, 29 January 2016. https://www.matrixlaw.co.uk/wp-content/uploads/2016/03/27_01_2016_12_40_30_Public-Sector-Equality-Duty-Update-and-OverviewvP.pdf
Equality Act 2010 (UK), c. 15.
Equality and Human Rights Commission, Tackling racial harassment: universities challenged, October 2019. https://www.equalityhumanrights.com/sites/default/files/tackling-racial-harassment-universities-challenged.pdf