Freedom of Speech – first fine indicates strong stance
University of Sussex Fined £585,000 for Failing to Uphold Freedom of Speech
The University of Sussex has been fined £585,000 by the higher education regulator, the Office for Students (OfS), for failing to uphold freedom of speech. This significant penalty follows the high-profile case of Professor Kathleen Stock, who left the university in 2021 after facing accusations of transphobia due to her views on sex and gender issues.
Background of the Case
Degree awarding powers and the ‘university’ title are subject to registration with the OfS who set out Conditions of Registration. Condition E1 requires the provider’s governing documents to uphold public interest governance principles that are applicable to the provider, and Condition E2 requires the provider to have in place adequate and effective management and governance arrangements.
The OfS investigation did not focus on Professor Stock’s specific case but instead whether the University’s adoption of its policy statement on trans and non-binary equality breached Conditions E1 and E2. The regulator criticised the policy, particularly its requirement to "positively represent trans people" and the assertion that "transphobic propaganda [would] not be tolerated." The OfS argued that such stipulations amounted to constraints of freedom of speech and academic freedom could lead to self-censorship among staff and students, restricting the expression of lawful views.
The OfS highlighted the experience of Professor Stock as an example of this chilling effect materialising in practice. Professor Stock published a book questioning whether gender identity was more socially significant than biological sex. This lead to protests on campus and criticism from the Sussex branch of the University and College Union. Ultimately, she resigned from the University.
It is important to note that ‘gender critical’ views are a protected belief under the Equality Act 2010, and the University’s Trans and Non-Binary Equality Policy Statement did not include safeguards to protect the expression of legally protected beliefs.
Shortly after Professor Stock’s resignation, the OfS started an investigation. More than three years later, the OfS issued its findings and decision.
Importantly, it was not just the content of the Policy Statement that the OfS found Sussex at fault, but the governance around adoption and revision of policies without proper delegated authority. Most of the media reporting has focussed on the Policy Statement, but universities should carefully consider the OfS findings in relation to a failure of governance decision-making.
The breach of Condition E2 was considered significant by the OfS as the policy adoption was decided by individuals or groups that had not been identified by the University as appropriate decision-makers for that purpose.
Decisions at OfS registered providers must be taken in accordance with their governing documents and must be taken at ‘the appropriate level’. This ensures such decisions are made with sufficient scrutiny, expertise, and knowledge. Universities would be wise to consider reviewing governance arrangements around policy adoption, and reminding constituent committees of the limits of their decision-making powers.
University's Response
The University of Sussex has strongly contested the OfS findings. Vice-Chancellor Professor Sasha Roseneil said the OfS did not engage with the University and the decision was an "unreasonably absolutist definition of free speech." This reflects the tricky balancing act placed on universities between ensuring freedom of speech, protecting their communities and preventing harmful content.
Regulatory and Governmental Stance
Freedom of speech at universities has been a regulatory focus over the past few years, with intense debate over the passing of the Higher Education (Freedom of Speech) Act 2023 in the last parliament only for its entering into effect to be paused by the new government with uncertainty over which parts will ever enter into effect.
It is important to note that the OfS investigation proceeded under the existing regulatory framework for academic freedom of speech primarily set out in s.43 of the Education (No. 2) Act 1986 and the right to freedom of expression set out in the European Convention of Human Rights. As noted above, gender critical beliefs are also protected beliefs for the purposes of the Equality Act 2010.
The existing regime does not permit the OfS to act on behalf of any individual which is one reason why the investigation did not focus on Professor Stock’s case in particular. This may change with the introduction of the OfS free speech complaints scheme which would allow the OfS to directly investigate matters relating to individuals.
Although the headline fine is significant, the maximum penalty that the OfS could have levied for a breach of a condition of registration (based on Sussex’s qualifying income) was in excess of £4.5 million. The OfS has indicated that, as the first penalty levied in this area, it has been set at a level that will act as a deterrent however future penalties may be less lenient.
With the pause of the Higher Education (Freedom of Speech) Act 2023, the sector may have considered this an indication of a change in government stance on the scrutiny of academic free speech. However, the Education Secretary, Bridget Phillipson, has supported the OfS decision, saying that freedom of speech is “non-negotiable” for universities. This suggests the Government’s direction of travel supports this more robust stance on freedom of speech.
Conclusion
The fine imposed on the University of Sussex is likely to be seen as endorsing a firm stance on freedom of speech. The OfS's decision underscores the importance of upholding freedom of speech within academic institutions, even as universities navigate the complex landscape of equality and non-discrimination policies. The outcome of the University of Sussex's legal challenge will be closely watched, as it may set a precedent for how universities balance these competing duties in the future.
We recommend that Universities consider taking the following four steps:
- Review all exiting policies to ensure they do not inadvertently restrict freedom of speech within the law, including for people with gender critical beliefs;
- Ensure that guidance for the adoption of new policies or amendment of existing policies includes an obligation for the decision-making body to receive an assessment of the policy’s effect on freedom of speech;
- A review of governance arrangements to ensure decisions are taken at the correct level within the institution via clear lines of delegated authority; and
- A reminder is sent to governance bodies within the institution of their obligations in respect of freedom of speech.
