The Office for Students (OfS) slapped University of Sussex with a £585,000 fine for breaching conditions E1 and E2 of its regulatory framework. These conditions pertain to public interest governance and management and governance, respectively. The ruling highlights significant concerns about how universities balance free speech, academic freedom, and institutional policy-making.
What were the violations?
The university was found to have breached Condition E1 due to restrictions on free speech and academic freedom found in its Trans and Non-Binary Equality Policy Statement, which had been in effect since 2018. The policy included provisions that:
- Required positive representation of trans people;
- Prohibited stereotypical assumptions;
- Banned transphobic propaganda;
- Classified transphobic abuse as a disciplinary offense.
The OfS determined that these provisions went beyond reasonable protections and effectively restricted lawful expression, including gender-critical views protected under the Equality Act 2010. The ruling emphasised that these restrictions created a “chilling effect”, particularly impacting Professor Kathleen Stock, who felt unable to teach certain topics. Despite updates to the policy in 2022 and 2023, the OfS found the university failed to implement adequate safeguards to protect free speech. As a result, Sussex was fined £360,000 for this violation.
The second breach, concerning Condition E2, related to the university’s governance and decision-making processes. The OfS found that Sussex’s leadership had made key policy decisions, including the adoption of the Trans and Non-Binary Equality Policy Statement, without proper delegated authority. Groups such as the University Executive Group made decisions outside their remit, which undermined governance standards and posed risks to the quality of institutional decision-making. This led to an additional £225,000 fine.
What triggered the investigation?
The OfS launched its investigation following a 2021 protest against Professor Stock and concerns that Sussex had failed to uphold academic freedom. The charges also alleged that the university had violated wider legal duties under The Education (No 2) Act 1986, which requires universities to secure free speech; The European Convention on Human Rights (ECHR), which protects free expression; and The Equality Act 2010 and its Public Sector Equality Duty.
A key aspect of the ruling was the OfS’s stance that a blanket restriction on lawful speech is incompatible with regulatory requirements. While Sussex had attempted to refine its policy by introducing an “objectivity requirement” in 2023, the OfS found it insufficient. The university’s failure to conduct a proper proportionality test when introducing the policy was a significant factor in the ruling.
How did Sussex respond?
The Vice-Chancellor of Sussex publicly criticized the OfS, claiming that the ruling prioritises “free speech absolutism” and makes it difficult for universities to prevent abuse and harassment. Reports from Financial Times and BBC indicate that Sussex may legally challenge the decision, arguing that the OfS has placed universities in an impossible position by creating conflicting duties.
However, legal experts suggest that the OfS’s decision is consistent with recent case law, including Higgs v Farmor’s School, which found that restricting the expression of gender-critical beliefs constitutes unlawful discrimination. The OfS also emphasised that universities have an obligation to prevent a chilling effect on campus, reinforcing the importance of free academic discourse.
What are the lessons for universities?
- The OfS is taking a firm stance on free speech. This ruling demonstrates the regulator’s willingness to impose significant penalties on institutions that fail to uphold academic freedom. With the Higher Education (Freedom of Speech) Act 2023 coming into full effect, universities should expect continued scrutiny.
- Policies must be carefully drafted to avoid restricting lawful speech. Sussex’s case highlights the risks of implementing overly broad policies without providing a clear framework for assessing proportionality and reasonableness.
- Governance and decision-making must follow proper procedures. Sussex was fined not just for restricting free speech, but also for failing to adhere to proper decision-making processes. Universities should review their internal governance structures to ensure compliance with regulatory requirements.
- Expect more legal battles between universities and regulators. Sussex’s response suggests it is prepared to challenge the OfS ruling, signaling further tensions between higher education institutions and the regulator over free speech issues.
What should your HE/FE institution do now?
This case underscores the importance of comprehensive compliance training for university staff and leadership. Institutions must ensure that policies are aligned with legal requirements and also provide training that fosters an inclusive and open academic environment.
VinciWorks’ safety and compliance training package for higher and further education institutions includes over 50 courses that meet the training requirements of all staff and students in the most commonly used and requested areas. The package provides training in five suites – compliance, information security, health & safety, diversity & inclusion and performance & leadership. The suite includes courses that provide practical guidance on free speech, governance, and regulatory compliance.
