University of Sussex Fined £585,000 by Office for Students Over Free Speech Breaches

OfS Investigation: What Did the Report Say?

The Office for Students (OfS) has fined the University of Sussex £585,000 for breaching conditions E1 and E2 of its regulatory framework. Condition E1, concerning public interest governance, was breached due to restrictions on free speech and academic freedom in the university’s Trans and Non-Binary Equality Policy Statement, effective from 2018.

Four specific statements—requiring positive representation of trans people, prohibiting stereotypical assumptions, banning transphobic propaganda, and classifying transphobic abuse as a disciplinary offense—were found to limit lawful expression, including gender-critical views protected under the Equality Act 2010.

This created a “chilling effect,” notably affecting Professor Kathleen Stock, who felt unable to teach certain topics. The breach spanned from August 2019 to at least March 2024, with inadequate safeguards despite policy updates in 2022 and 2023. A £360,000 penalty was imposed for this violation.

Condition E2, relating to management and governance, was breached due to a pattern of decisions, including the adoption of the Trans and Non-Binary Equality Policy Statement and other policies, made without proper delegated authority by groups like the University Executive Group. This risked lower-quality decision-making, prompting a £225,000 fine.

The OfS investigation, triggered by a 2021 protest against Professor Stock and her gender-critical views, found the university failed to ensure freedom of speech and academic freedom, potentially violating wider legal duties under the Education (No 2) Act 1986, the European Convention on Human Rights (Convention), the 2010 Act, and the Public Sector Equality Duty of the 2010 Act.

The OfS emphasized the importance of these freedoms for quality education, aiming to deter similar breaches across the sector through publication of its findings. The penalties, calculated based on the breach’s severity, duration, and impact, reflect a balanced approach, considering the university’s financial capacity and the need to protect students and staff while fostering diverse academic discourse.

Sussex’s Response: “virtually impossible for universities to prevent abuse"

As reported by the Financial Times, Sussex’s vice-chancellor critiqued the OfS and stated that they had decreed “free speech absolutism as the fundamental principle” for higher education institutions. She added that the ruling made it now “virtually impossible for universities to prevent abuse, harassment or bullying, to protect groups subject to harmful propaganda, or to determine that stereotyped assumptions should not be relied upon in the university curriculum”.

Further, as reported by the BBC, she claimed the OfS had adopted an "unreasonably absolutist definition of free speech" which meant that the university had "opposing and irreconcilable duties" and were "powerless to prevent abusive, bullying and harassing speech". Sussex have now brought a legal challenge to the decision.

On these points of law, does the Sussex report actually reveal a misunderstanding on the part of the OfS?

Analysis: Did the OfS get the law wrong?

As a general point, the Sussex report correctly states the general legal principles under the 1986 Act and the Convention (in particular, that any restriction on free speech must be proportionate). The real question is whether it erred in applying these principles. I do not think it obviously did (though of course, we only have the benefit of the contents of the report itself as this stage).

Perhaps the most potentially controversial statement in the Sussex report relates to the Trans and Non-Binary Equality Policy Statement. Even though this was amended to provide further safeguards for free speech and academic freedom, it was still considered a breach because it “continued to prohibit lawful speech and have a chilling effect” and “This implied that the university considered these statements and restrictions (which restrict lawful speech) to be proportionate restrictions on freedom of speech and therefore justified. This meant that the restrictive effect, including the chilling effect, created by these statements persisted.”

In other words, a blanket restriction on the content of lawful speech is not in itself compatible with an institution’s regulatory requirements, as opposed to restrictions on the time, manner and place of such speech. A blanket policy cannot satisfy the obligations of proportionate restriction in and of itself because – necessarily – it does not provide sufficient scope for a nuanced and fact sensitive assessment.

Sussex did attempt to introduce an objectivity requirement (presumably to provide some space for such a fact-sensitive safety valve to review the proportionality of any interference with lawful speech). This was framed as follows: “unwanted behaviours and communications that could reasonably be expected to cause distress or fear among trans people”.

I agree that this does not import sufficient scope for an objective, fact-sensitive proportionality assessment. In short, I think this placed the objectivity requirement in the wrong place. You might reasonably expect a hypersensitive person to take offence to a whole range of behaviour that the hypothetical person on the Clapham Omnibus would not. The question should be whether that offence was reasonable. This is how the harassment provisions under the 2010 Act are framed, for example: subjective offence is the gateway and then whether it was reasonable in all the circumstances to take offence is the objective test.

So, there is no obvious mistake (on the face of the report) in the OfS’s reasoning or conclusion that this incompatible with the regulatory requirements: it restricted the content of lawful free speech and did not provide sufficient scope for fact sensitive enquiries of either “reasonably practicable steps to secure” (under the 1986 Act duty) or proportionate interference under the Convention.

There was a failure antecedent to either legal assessments being brought to bear. In its conclusion on Article 10 compliance, the OfS noted that the introduction of the relevant policy was not accompanied by a proportionality test “or that the potential interferences were themselves proportionate”. While Article 8 of the Convention generally protects individuals from otherwise lawful bullying and the Article 10 jurisprudence has a nuanced position on stereotyping, this is fundamentally a question of balance – if the decision making mechanism does not provide for genuine, fact-sensitive and nuanced balancing, without a finger on the scale one way, then it will be sufficient to ensure compatibility with the Convention.

This analysis of the OfS’ reasoning is further bolstered by what the OfS says about the presence of the university’s statute VII protecting academic freedom for academic staff – this did provide a safety valve for a narrow category of members of Sussex and so was mitigation which reduced the overall penalty. The attempt to introduce the objective test above (although ultimately ineffective) was also a mitigating factor in Sussex’s favour.

In supporting the OfS’s reasoning here, we should also be mindful of the Court of Appeal’s recent decision in Higgs v Farmor’s School. There it was made clear that restrictions on the mere manifestation of a protected philosophical belief (such as the gender critical views of Professor Stock) would be unlawful discrimination – it is only potentially permissible to interfere with the manner of the manifestation and only if that interference is proportionate under the Convention.

And last, we should be mindful of the fact that the 1986 Act duty to secure free speech has, within it, an obligation not to create a ‘chilling effect’ on campus, and the Convention case law makes it clear that academic free expression is hyper-sensitive to chilling effects. The potential for such a chilling effect forms a key underpinning of the OfS’ reasoning, and it is hard to find fault with this.

In conclusion, the OfS does not appear to have adopted an “absolutist definition” of free speech, nor has it created an impossible and irreconcilable position for universities. The law here is complex, but it is understandable: Sussex just seems to have got it wrong and have paid a hefty price.

Key Lessons for Universities from the Sussex Case

First and foremost, Arif Ahmed and the OfS mean business. This is a huge fine and will worry many higher education institutions. Even before the full implementation of their new powers (and the new duties) under the Higher Education (Freedom of Speech) Act 2023 are implemented, they have shown that they are prepared to make bold and decisive interventions.

They are taking free speech on campus and academic freedom with the utmost seriousness and they are not afraid to punish institutions who imperil those key freedoms. As they say in the Sussex Report, when the free speech complaints scheme comes online, they will be empowered to make swifter and more individualised decisions. This is a bold statement of intent: we can expect more of the same under the complaints scheme.

Second, it is a clear demonstration of just how careful institutions must be with respect to the wording of their policies / procedures and how these are implemented. The draft free speech advice on the 2023 Act has been clear on how far reaching the compliance expectations are with respect to free speech and academic freedom, and how the percolate into very many aspects and levels of policy and training at universities.

Given the 2023 Act is so similar to the existing law with respect to its primary duties, there are direct lessons to be drawn. In short, institutions must undertake a thorough compliance review of their governing documents, policies / procedures and training. You may think you’re compliant, and/or have made attempts to amend documents to be more pro-free speech, but Sussex shows you may not have gone far enough, in particular by not allowing fact sensitive assessments of reasonableness or proportionality.

Third, the VC of Sussex has made some bold statements publicly challenging the OfS. It has suggested it will litigate. If we thought the culture wars on campus were over, it appears that we were wrong – they seem to be heating up to a whole new level intensity. I predict we will have many more of these public battles between the sector and its regulator in the coming years.