A landmark freedom of speech ruling against the University of Sussex that resulted in a fine in excess of half a million pounds has prompted fears other institutions could face investigation and even bigger penalties.
The record £585,000 fine, the biggest ever from the higher education regulator in England, was issued after an investigation into the university’s handling of the case of the philosophy professor Kathleen Stock, who resigned after protesters targeted her over her views on gender identification and transgender rights.
In a ruling that prompted a furious reaction from Sussex, which is planning a legal challenge, the Office for Students (OfS) found the university had failed to uphold freedom of speech and academic freedom, breaching two conditions of registration.
The resulting fine, described as “wholly disproportionate” by the university, was lower than it might have been, having been reduced since it was the first of its kind. Without mitigating factors the OfS said it could have been as high as £3.7m, at a time when the sector is struggling owing to financial pressures.
The OfS’s main criticism was targeted at Sussex’s policy on trans and non-binary equality, which included a requirement to “positively represent trans people”. The regulator warned of a “a chilling effect” that could lead staff and students to self-censor and avoid voicing opposing views, for fear of disciplinary measures.
Amid concerns that every university in the country will have policies designed to prevent harassment and hate speech on campus, Universities UK (UUK), which represents the sector, is seeking urgent clarification from the OfS in order to be able to advise members.
“It’s absolutely essential that universities uphold freedom of speech and academic freedom, and they are legally bound to do so,” said Vivienne Stern, UUK’s chief executive.
“This judgment, however, raises concerns about how universities can, in practice, discharge freedom of speech and academic freedom duties alongside other important legal obligations, for example under legislation to prevent harassment and hate speech.
“We will therefore be writing to the OfS to ask for clarity as the judgment appears to find that it is a ‘failure to uphold freedom of speech and academic freedom’ if a university has policies to prevent ‘abusive, bullying and harassing’ material or speech.”
In a briefing with the media after the publication of the investigation findings, Arif Ahmed, the director for freedom of speech and academic freedom at the OfS, acknowledged there was a potential for higher fines in future cases.
“Clearly, future cases will not be the first case of their kind, so there will be a potential for higher fines in the future,” he said, adding: “I think universities should be looking at their policies and thinking carefully about what they need to do to comply with the law and to comply with regulatory requirements.”
Ahmed was forced to defend the investigation and its findings against ferocious criticism from Sussex’s vice-chancellor, Prof Sasha Roseneil, who said they were “egregious and concocted” and claimed no one at the university had been interviewed during the course of the three-and-a-half-year investigation.
Describing the process as “Kafkaesque”, she accused the OfS of “perpetuating the culture wars” and said the findings meant it was now all but impossible for universities to prevent abuse, harassment or bullying on campuses.
Ahmed responded: “I’ve been really clear since my appointment, we’ve got no interest in getting involved in any kind of culture wars. Our interest is simply protecting freedom of speech.”
He acknowledged that much of the engagement with Sussex was in writing, although the OfS did interview Stock. “But we did engage with the university. We looked at the university’s representations to us and considered [them] very carefully, and we took our time over this because we wanted to make sure that we got it right.”
Stock welcomed the OfS ruling, saying: “I’m very pleased to see the OfS finding and I hope it sends a strong message to the many universities that still have policies with the very clauses the OfS has ruled against. There is no doubt in my mind that these policies chill lawful speech.”
The education secretary, Bridget Phillipson, said: “If you go to university you must be prepared to have your views challenged, hear contrary opinions and be exposed to uncomfortable truths. We are giving the OfS stronger powers on freedom of speech so students and academics are not muzzled by the chilling effect demonstrated in this case.”
