A ruling by the higher education regulator for England on freedom of speech breaches at the University of Sussex has sparked anxiety in the sector, as vice-chancellors scramble to review their policies to avoid potential violations.
Two weeks after the Office for Students (OfS) handed out a record £585,000 fine, many university leaders are still not clear what it means in practice.
The OfS concluded Sussex had “failed to uphold freedom of speech and academic freedom” in the case of Kathleen Stock, a philosophy professor who resigned after she was the subject of protests over her views on gender identification and transgender rights.
One of the few vice-chancellors willing to speak out condemned the OfS ruling as “a lesson in authoritarianism, with threats of more to come”.
Prof David Green, University of Worcester vice-chancellor and chief executive, said: “Using coercive powers of the state risks terrifying university leaders into a culture of compliance which is the very opposite of the democratic and free culture for which we should be working.”
Many university leaders have turned to lawyers, in some cases spending tens of thousands of pounds, to review not just transgender and non-binary equality policy, which was at the heart of the Sussex case, but a range of university statements, documents and policies.
“I wouldn’t say that they were in a state of panic,” said one lawyer who did not want to be named, “but I think there is genuine anxiety they don’t know what they need to do to get this right.”
University leaders are struggling to find the right balance between freedom of speech duties and a legal requirement to protect students and academics from abuse and harassment, and feel they have not been given enough clarity by the OfS.
Sussex University was fined for two “historic” breaches of its regulations related to freedom of speech and governance. The ruling followed a three-and-a-half-year OfS investigation following Stock’s resignation.
A legal challenge to the ruling and fine – which is 15 times larger than any previous OfS penalty, despite being reduced as it was the first case of its kind – has been launched by the university. A letter sent under the pre-action protocol for judicial review claimed the OfS “acted unlawfully, irrationally and is wrong in law”.
Writing for the Higher Education Policy Institute this week, Sussex vice-chancellor, Sasha Roseneil, said the implications of the OfS finding were “wide ranging and highly corrosive of attempts to create diverse, inclusive and equal working and learning environments, and threaten university autonomy”.
Arif Ahmed, the OfS’s director for freedom of speech and academic freedom, addressed vice-chancellors at a Universities UK meeting last week. The mood among them was described as “frightened”, with the risk of fines running into millions hanging over their heads, at a time when the sector is facing severe financial difficulties.
The OfS has written to a small number of institutions that have, and may be reviewing, policies where its findings on Sussex are relevant. The regulator says it wants to engage with institutions and be supportive, but it is not clear whether they will face investigation.
Green condemned the fine imposed on Sussex: “Instead of taking courageous action at the time, followed by reasoned criticism of the actions of Sussex and others, the OfS has chosen to deal Sussex and all England’s higher education institutions a lesson in authoritarianism, with threats of more to come.”
He said there was no need to fine Sussex. “The policy changed as soon as new vice-chancellor Sasha Roseneil started in 2022. A highly critical report of Sussex’s failures would have achieved the objectives of strengthening democratic culture and encouraging vice-chancellors and university leaders to champion freedom of speech in future.”
Sir David Bell, vice-chancellor at Sunderland University, said: “We’re not overreacting as we’ve never had any free speech problems in Sunderland. We’ll take a look at our policies given the publicity around the Sussex case.
“However, we don’t envisage making any changes as we’ve always had a sensible, pragmatic, tolerant and, crucially, balanced attitude here.” Another university leader said: “I hope that the matter will be expedited given the importance and potential impact on the sector.”
Vivienne Stern, the chief executive of Universities UK, said: “The most important question is how measures which universities might have put in place to prevent bullying, harassment and abuse, interact with the requirements around freedom of speech.
“The question we have asked the OfS is whether they are suggesting that it is always inappropriate to place restrictions on speech or material which is bullying, harassing or abusive, or only in some circumstances? And if the latter, then which circumstances?”
The OfS’s final ruling on Sussex focused on a trans and non-binary equality policy statement passed in 2018 which the regulator argued had a “chilling effect” that could result in self-censorship by staff and students.
An OfS spokesperson said: “Freedom of speech and academic freedom are foundational principles for higher education and the pursuit of knowledge. It’s right that we investigate where we have concerns that students may not be benefiting from the free and robust exchange of ideas, or that academics are not able to teach or research what they choose.”
The regulator is due to share further guidance before new free speech duties come into effect this year. It said: “Our published case report explains our findings in relation to the University of Sussex and sets out the reasons we concluded it had breached our regulatory requirements.”
