Tag: Sussex

  • The OfS’s fine on Sussex is a blow against free speech, not for it

    The OfS’s fine on Sussex is a blow against free speech, not for it

    • Peter Scott is Emeritus Professor of Higher Education Studies at UCL and was Vice-Chancellor of Kingston University between 1998 and 2010.

    Freedom of speech and academic freedom are difficult enough to define and police. The task has become more difficult because they have got caught up in the two most toxic issues of the moment – Palestinian rights and anti-Zionism (seen as shading into anti-semitism) on the one hand and support for the Israeli Government on the other; and women’s and trans rights and transphobia. Never has it been more true that hard cases make bad law.

    This seems to have been lost on the Office for Students with its recent decision on the Kathleen Stock case, whose gender-critical views had led to protests and demonstrations by trans activists, to fine the University of Sussex more than £500,000 (with the threat that fines could be even higher for universities which, in the eyes of the OfS, fail to protect free speech and academic freedom in a similar way). Unsurprisingly, that decision is being challenged by Sussex on a number of grounds, including the OfS’s refusal to meet the University’s representatives face-to-face before reaching it, a curious decision in the light of normal proceedings in legal and quasi-legal cases. Remember the lawyers’ old Latin tag audi alteram partem.

    The Stock case was one of three recent high-profile free speech cases. The two others were the case of David Miller, the University of Bristol professor who won an employment tribunal case after his dismissal by the University for his anti-Zionist views and that of Jo Phoenix, the Open University (OU) professor who won a similar case for constructive dismissal following the University’s failure to support her when attacked for her gender critical views.

    The same two toxic issues were in play in all three cases. It is difficult to see how, from the OfS’s perspective, Bristol and the OU were not as much in breach as Sussex of the OfS’s regulatory condition E1 for failing to uphold the relevant public interest governance principles (ensuring staff have the freedom ‘to question and test received wisdom’ and ‘to put forward new ideas and unpopular opinions’ without placing themselves in jeopardy). Two separate employment tribunals found that this is exactly what happened to Professors Miller and Phoenix, although in the first case through gritted teeth. Constructive dismissal and dismissal certainly count as being placed ‘in jeopardy’.

    The OfS opened its investigation into ‘free speech matters’ at Sussex under the general powers it had under its regulatory framework. The fine was assessed within the same framework. The Higher Education (Freedom of Speech) Act, which has given the OfS extra powers to investigate individual complaints, had not yet been passed. In any case, the incoming Labour Government chose last year not to implement some key provisions in that Act. So, when it launched the Sussex enquiry, the OfS did not yet have the power to investigate individual cases. Officially, it did not do so in the case of Kathleen Stock, although it appears she was interviewed as part of the investigation.

    So it remains a mystery why the OfS decided not to investigate the Miller and Phoenix cases which, on the face of it, raised the same issues and, as a result, should have led to the same concern – and similar fines? Surely not because of the political and media firestorm that the Stock case set off. Instead, the OU was allowed to ‘mark its own homework’ by setting up the Dandridge review, which failed to placate Professor Phoenix. Bristol publicly expressed its ‘disappointment’ at the tribunal’s findings, so no regrets and no acknowledgement that free speech had been an issue. The involvement of employment tribunals was no bar to an OfS investigation. Any differences between the three cases cannot explain why Sussex was picked out, because the OfS did not carry out investigations into the other two cases and so could not be aware of any differences.

    The OfS report is a curious document. It is largely context-free, in the sense that Professor Stock’s case is so briefly sketched that anyone unfamiliar with the case would find it difficult to understand what had happened. The formal reason for this context-lite brevity is that the OfS was not investigating what had happened to Professor Stock. Officially there was no Stock case. But a more substantial reason surely is that this absence of context was necessary in the light of its claim, in the words of the Director for Freedom of Speech and Academic Freedom, Professor Arif Ahmed, that ‘The OfS will continue to focus on a protection and promotion of lawful speech – irrespective of the views expressed. We will continue to be impartial and viewpoint neutral in our regulation and decisions’.

    In truth, free speech and academic freedom, even within the law, can never be absolute. This is explicit in section 43 of the Education (No. 2) Act of 1986 which states that universities ‘must take such steps as are reasonably practical to ensure that freedom of speech within the law is secured’. ’As are reasonably practical’ is an essential phrase, to which I will return. There will always be views which it is lawful to express but nevertheless are highly objectionable in the eyes of many people, and especially of those who feel they are threatened.

    Nor can they really be ‘viewpoint neutral’. The two toxic issues under discussion demonstrate this clearly. The expression of anti-Israeli and anti-Zionist views, because it is sometimes in danger of shading into anti-Semitism, is treated as beyond the pale. Gender-critical views, in contrast, despite the fact that they may be perceived to be transphobic, are firmly within it. The former, therefore, deserve to be banned and universities that tolerate their expression stigmatised or punished; the latter to be protected and universities that do not do so punished – as Sussex has been with its hefty fine. To be clear, I am not expressing an opinion about these viewpoints, just highlighting how they are treated differently.

    Why? Both Jewish and trans people, rightly or wrongly, feel threatened by what for them are hostile views. That is not sufficient in itself to override freedom of speech or academic freedom which, remember, are expected to be ‘unpopular’. This difference in treatment can only be explained with reference to history and politics. But, if the definition, and protection, of free speech and academic freedom are essentially political, the ‘viewpoint neutrality’ espoused by the OfS is an illusion. Its own decision to investigate Sussex was clearly partisan. The 2023 Act, which gave the OfS the mandate to investigate individual complaints, arose in a particular political context. It reflected the belief that conservative viewpoints were unwelcome in universities and therefore needed to be protected. Protecting liberal views was never the game.

    If free speech and academic freedom are context-specific, two questions arise. The first is practical. If that context is to be assessed and common sense applied – or, in the phrase in the 1986 Act, steps ‘as are reasonably practical’ defined – who is best placed to do that? In short, who is competent to make these complex decisions in which competing, and passionate, differences must be balanced? The effective choice is between officials in a State agency who are likely to have limited experience at the sharp end of university management, and vice-chancellors, their senior colleagues and university communities at large who know the people and personalities and real-world contexts. Free speech cases will not always be straightforward. They may contain multiple strands – breakdowns in professional relationships, complaints by students (ostensibly sovereign ‘customers’), even underperformance.

    The second question is one of principle, and much more important. In a liberal democracy that aspires to be an open society, should the State, or State agencies, ever be allowed to decide these delicate issues, particularly with regard to academic freedom, in the process invading and inevitably reducing the autonomy of universities? Of course, authoritarian and totalitarian States routinely behave in this way. They have no interest in academic freedom. But in a democracy, a foundational principle of academic freedom is surely that it is not defined or policed by the political authorities.

    The only conceivable justification for State intervention in a free society is that, if universities do not protect freedom of speech, they must be made to do so, as the partially implemented 2023 Act prescribes. There are two answers to this.

    • First, during the modern era, the practice has always been to trust universities to protect academic freedom because they understand it best. When I was a member of the board of the former Higher Education Funding Council for England two decades ago, no one would have suggested that HEFCE should have the power to fine universities for failing to uphold free speech. What is truly chilling is the erosion of institutional autonomy, with remarkably little protest or pushback. It is interesting how the political right, while believing passionately in a small State in the context of public services, economic regulation and taxation, believes equally passionately in a very strong State in the context of ideological surveillance.
    • Second, is there really a problem here – or, more accurately, a new problem? There is little evidence that universities have become less trustworthy in terms of protecting academic freedom. Of course, there have always been issues with ‘viewpoint diversity’ (in the phrase used by the US Government to justify its assault on Harvard – I’m coming on to Trump next…). In Economics departments dominated by econometricians behavioural economists are not always welcome. Some education departments may have ‘coloniality’ on the brain. Even peer review or the Research Excellence Framework may have ‘chilling effects’ in certain circumstances. But overall universities have always known, better than politicians, that intellectual creativity and productivity depend on a variety and diversity of ideas and of people.  

    … which brings me finally to Trump and Harvard. In a crooked sense, we should be grateful to President Trump for his brutish honesty. No serious attempt to disguise partisanship beneath a cloak of dispassionately protecting all free speech and academic freedom, just the driving desire to punish America’s greatest universities for refusing to toe the MAGA line in an extraordinary spasm of national self-harm. Harvard has been asked, and bravely refused, to allow the US Government to carry out ‘audits’ of departments suspected of being ‘woke’, to influence admissions, to vet academic appointments, to have access to lists of students, especially international students, who have taken part in demonstrations against Israel’s actions in Gaza, and outlaw all policies designed to promote diversity, equity and inclusion.

    The US example is important for two reasons, however little the OfS may appreciate being bracketed with Trump. First, the political focus on free speech, in the current form of the ‘war on woke’, has all the marks of being ‘made in America’, ideology borrowing rather than truly home-grown. Now we have been shown the future, and it stinks. Do we really want to go there? Second, the same politically partisan focus has actually made it more difficult to have a measured debate about free speech and academic freedom which, very sadly, is badly needed in a world from which reason, trust and mutual respect appear to have fled – and online abuse, fake news and AI have arrived. The OfS report on Sussex, and its disproportionate fine, are – in effect – a blow against rather than a blow in favour of free speech in higher education.

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  • What is a ‘governing document’ in the University of Sussex?

    What is a ‘governing document’ in the University of Sussex?

    by GR Evans

    The  Office for Students has found that the Trans and Non-Binary Equality Policy Statement  of the University of Sussex involves breach of two of the relevant OfS Regulatory Requirements in late March 2025, and imposed an unprecedentedly substantial fine. The first of those criticised (OfS Condition E1) concerns the duty to protect freedom of speech and academic freedom:

    The provider’s governing documents must uphold the public interest governance principles that are applicable to the provider.

    A further OfS Condition (E2) requires that ‘the provider must have in place adequate and effective management and governance arrangements’ so as  to ‘operate in accordance with its governing documents’.

    On 9 April 2025 the Vice-Chancellor of the University of Sussex published a fierce criticism of the unprecedented decision of Office for Students that it had failed to comply with one of its own ‘policies’. The Vice-Chancellor considered that the policy in question was:

    a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university  are its charter and statutes and regulations.

    There was press coverage about the ensuing uncertainty. UniversitiesUK, as the ‘collective voice’ of universities promised to write to the OfS to ask for clarity as its decision 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.

    The University has notified the OfS of its intention to apply for judicial review.  Among the grounds Sussex relies on is that the Office for Students did not have powers to treat ‘documents that are not a provider’s “governing documents”’ as creating the public interest governance condition necessary to permit the OfS to seek judicial review. The OfS defines ‘governing documents’ somewhat inadequately as ‘set out in’ its ‘Regulatory Framework’, where  ‘the provider’s governing documents must uphold the public interest governance principles that are applicable to the provider. In this case it held:

    that the University of Sussex breached ongoing condition of registration E2 because it failed to have adequate and effective management and governance arrangements in place to ensure that it operates in accordance with its governing documents.

    The definition of ‘governing documents’ is therefore of the first importance if a precedent is to be set by this OfS decision. The Higher Education and Research Act (2017) s.3(8)(a) protects the autonomy of higher education providers, defining it as ‘the freedom of English higher education providers within the law to conduct their day to day management in an effective and competent way’. Sussex was created among the batch of new universities of the 1960s.

    The Act created a new Regulator, the Office for Students, stating that the Regulator ‘must have regard to’ the ‘need to protect the institutional autonomy of English higher education providers’. This requires a fine balance if the OfS is to avoid intrusion upon a provider’s autonomy.

    The institutional autonomy of higher education providers gives them control of the drafting of their internal legislation. External authorities may insist on particular points in certain cases. For example medical qualifications set by a provider cannot constitute a qualification to be a doctor unless they are recognised by the General Medical Council.  But the right to create its own rules (within the law) largely lies with the provider, who may design them  and order them in its own preferred hierarchy.  The Office for Students may not interfere.

    Nevertheless the creation of ‘governing documents’ must carry certain implications about the source of the internal or external authority to create, review or amend them.  It is suggested that ‘Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King’, and:

    cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

    Where the Monarch is not the Visitor it is normally a Bishop.

    However a Visitor is not essential to the law-making of a higher education provider. ‘Alternative providers’ may not have Visitors. As eleemosynary bodies their Colleges normally have Visitors of their own but neither Oxford nor Cambridge has a Visitor. Under the Oxford and Cambridge Universities Act of 2023, both Universities create their own Statutes. In Oxford’s case those which are King-in-Council Statutes require the consent of the Privy Council on behalf of the King. In Cambridge all its Statutes require that consent to their creation or modification. Their subordinate legislation, most Regulations in Oxford (some of Oxford’s Regulations may be created by its Council) and Special Ordinances and Ordinances in Cambridge, simply require the consent of their governing bodies, Oxford’s Congregation of over 5000 and Cambridge’s Regent House of over 7000 members.

    The rules at the top of a provider’s hierarchies may constitute governing documents but it is far from clear how far down that status applies. For purposes of management ‘procedural or process documents’ explain the required ways of doing things and the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, 2022, 2023 and 2024 and placed under the heading of Equality, Diversity and Inclusion(revised in 2022, 2023 and 2024).  Is it a governing document in this lowly position?

    Also found relevant by the Office for Students in the Sussex case was the exercise of powers of delegation. It identified ‘a pattern of decisions taken at the university to adopt and/or revise policies without proper delegated authority’, both that its:

    Prevent Steering Group approved and adopted the 2021 version of the University’s Freedom of Speech Code of Practice despite not having delegated authority to do so

    and also that ‘the 2023 version of the External Speakers Procedure was approved by the University Executive Group, despite that group not having delegated authority to do so’.

    Like similar universities Sussex has an Executive Team composed of a Vice-Chancellor, Pro-Vice-Chancellors, their deputies, Deans of Schools and Faculties, with senior academic-related staff headed by a University Secretary, a Financial Officer and various Directors. These are not directly responsible for framing its legislation but may have authority to apply it, though not necessarily powers to delegate its application.

    The Office for Students could turn to the University’s rules about delegation in framing its criticism. Sussex has given thought to that. Sussex’s Council approved a Scheme of Delegation in March 2018. ‘Responsibility’ may be delegated by the Council except for the appointment of the Vice-Chancellor and President; ‘the variation, amendment or revocation of the Charter or Statutes’; and responsibility for approving the University’s annual audited accounts or the appointment of Auditors. The Scheme of Delegation clarifies where roles and responsibilities are allocated between Council and its Committees, among Committees, and between Council and Senate. The ‘Executive’ and a University Executive Group are described as exercising ‘leadership’ and there is also a University Leadership Team, though ‘leadership’ is undefined.

    Sussex has also given thought to overall responsibilities for supervision of the exercise of its internal rules. It has chosen to describe them collectively as ‘policies’. It is recognised to be ‘important that a clear and consistent approach is taken to drafting and updating policies across the institution’ details the requirements for the creation, approval, review, and updating of policies.  However it clarifies the difference between policies and other associated documents, sets out responsibilities relating to policies, and details the requirements for the creation, approval, review, and updating of policies. An overarching Policy on Policies has been agreed by the ‘University Executive Team and Council’. This consists in a Policy on the Creation and Management of University Policies (‘Policy Framework’).

    The aim of the University’s Policy Framework is to make clear what a policy is and what policies should be used for, to differentiate between policies and other types of documents (e.g. procedural documents, codes of practice, etc), and to outline the process that should be followed when drafting, reviewing, and updating policies. An outline of where responsibilities lie in relation to policies is also included.

    This suggests that if pressed Sussex might take all these to constitute its ‘governing documents’, while recognising distinctions among them.

    Nevertheless Sussex distinguishes governance and management. ‘A policy is a high-level statement of principles, requirements or behaviours that apply broadly across the University’ and ‘reflects institutional values’, thus supporting ‘the delivery of the University’s strategy’.  It  reflects ‘legal and regulatory obligations, sector standards, or high-level operational requirements’. These create obligations.

    Among them Sussex lists ‘Regulations’, which  must be made ‘pursuant to the Charter’. These contain detailed rules governing a wide variety of actions of, or on behalf of, the University falling under governance but extending into management: staffing procedures, student disciplinary and appeals procedures, the Students’ Union, the composition of Council and Senate, titles of degrees and Schools, roles of Heads of Schools, lists of collaborative institutions, academic titles and dress, the various degree courses awarded by the University, and general University regulations (library, ICT, administrative). These Regulations are updated annually and approved by Council and/or Senate. Next come written ‘Resolutions’ which Council members may choose to approve or not, ‘in accordance with procedures set out in the Regulations’, though amendments to the Charter and the Statutes and certain Regulations require ‘a three-fourths majority’.

    For purposes of management ‘procedural or process documents’ going beyond these categories explain the required ways of doing things at Sussex and ‘the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, revised in 2022, 2023 and 2024. placed under the heading of Equality, Diversity and Inclusion.  Are they still among ‘governing documents’ with a constitutional role in the University’s  governance? An application for a judicial review will take a considerable time to produce a recommendation even if it supports Sussex’s argument

    SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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  • Explaining Sussex v the Office for Students

    Explaining Sussex v the Office for Students

    The University of Sussex has published a pre-action protocol letter to the Office for Students (OfS).

    The letter notifies the regulator of the university’s intention to seek judicial review and appeal the decision – which imposed a £600k fine over breaches related to academic freedom and freedom of speech.

    Thus far we’ve had a war of words – now we see the legal basis for the argument. Sussex argues that OfS acted ultra vires (ie beyond its powers), misinterpreted legal principles, misapplied statutory definitions, and demonstrated irrationality in its findings, particularly over the Trans and Non-Binary Equality Policy Statement (TNBEPS).

    It also asserts that OfS overstepped its authority, failed to engage in procedural fairness, and ignored safeguards already in place – putting meat on the bones of its eye-catching “free-speech absolutism” claim.

    Some of it concerns a regulatory regime that’s set to be replaced – but some of it concerns an allegation of “absolutism” about how the regulator is interpreting the law. The second of those could go on to matter quite a bit once the Higher Education (Freedom of Speech) Act 2023 actually gets implemented.

    Chilling effects and balancing acts

    Sussex’s disciplinary statement classified “transphobic abuse, harassment or bullying” – including name-calling and derogatory jokes – as serious disciplinary offences, and it argues that OfS made a legal error in finding that the statement breached regulatory requirements around freedom of speech.

    It arguies that the language targets conduct already covered by existing laws – like section 5 of the Public Order Act 1986, which prohibits abusive speech likely to cause harassment or distress.

    In 2023, the university introduced clarifications – a “harm threshold” requiring speech to be reasonably expected to cause fear or distress, and an explicit statement safeguarding lawful academic freedom and speech, stating that the policy should not justify disciplinary action for expressing controversial or unpopular views.

    It claims OfS ignored those contextual safeguards and wrongly interpreted the policy as restricting lawful speech, even though its objective meaning, when read in full and in context, demonstrates otherwise.

    Broadly, this is about the “chilling effect” – Sussex is saying that universities can lawfully discipline harmful or abusive speech, as long as there’s an alignment with existing legal prohibitions, and as long as there are clear safeguards for lawful expression – limiting OfS’s power to challenge policies based on hypothetical misreadings. Doing so gives universities freedom to uphold respectful environments without breaching free speech duties.

    Expression that you can restrict

    Next, Sussex argues that OfS misunderstood what “freedom of speech within the law” actually means – taking the position that universities can’t prohibit any speech unless it’s already explicitly banned by civil or criminal law.

    Sussex’s argument is that universities, like other institutions, are allowed to set standards of conduct and discipline behaviour – like plagiarism, abuse, or poor academic quality – even if those behaviours aren’t technically illegal:

    The University would have to tolerate academics designing curriculums which lack academic rigour, for example a curriculum which seeks to reinforce stereotypes (as distinct from a curriculum that discusses stereotypes).

    The University would have to tolerate an academic starting every lecture by swearing at and demeaning students, so long as such action did not relate to protected characteristics.

    The University would have to tolerate an academic conducting every lecture through the medium of song or mime (noting that freedom of speech protects the manner of speech as well as the content).

    The argument is that lawful speech can still be restricted if the restriction is lawful and proportionate, as allowed under Article 10 of the European Convention on Human Rights, and that the mere possibility of disciplinary action doesn’t amount to an unlawful restriction on speech, citing European case law to back this up.

    This one’s interesting because it’s a key part of the “absolutism” argument – in its draft guidance on the new legislation last year, for example, OfS said:

    It is likely to be extremely difficult, if not impossible, for higher education providers and other relevant organisations to comply with their free speech duties if they seek directly or indirectly to restrict the particular content of speech. For instance, a provider, constituent institution or relevant students’ union may wish to restrict or prohibit speech because it has made a negative value judgement about the content of the speech. There is likely to be very little scope to restrict or prohibit lawful speech in this way.

    Sussex is basically saying that the case law suggests that it’s not nearly as difficult or impossible as OfS claims – and that universities retain the lawful authority to set and enforce standards of behaviour, academic integrity, and professionalism – even where those rules affect speech that isn’t illegal. It’s also saying that having disciplinary procedures in place isn’t, by itself, a breach of free speech obligations, so long as they aren’t used to punish lawful expression improperly.

    Stereotyping standoffs

    One of the things we’ve reflected on before is the apparent refusal of the regulator to accept that the case law puts a higher value on free speech in academic contexts than in others – and of course a university encompasses all sorts of contexts.

    Put another way, what a student writes in an essay or what an academic teaches (with all the usual qualifications about proper rigour) that might, say, stereotype a trans person is a world away from stereotyping banter on a society social.

    In the letter, Sussex challenges the logic and legality of OfS’s conclusion about the 2023 “Stereotyping Statement” in the TNBEPS. OfS accepted the statement didn’t infringe academic freedom, noting the policy included a safeguard against constraining academic freedom or imposing disproportionate limits on free speech. Yet it still found the same policy breached freedom of speech duties, because it could chill other lawful speech, particularly by students or non-academic staff.

    Sussex argues this is irrational because the Stereotyping Statement only relates to how the curriculum is designed – something that exclusively involves academics. If OfS was satisfied that the policy didn’t infringe the academic freedom of those academics in setting the curriculum, it argues there is no rational basis to then conclude that their freedom of speech was infringed by the same policy.

    This standoff matters. OfS is saying that even if a policy respects academic freedom, it can still breach free speech duties if it chills broader expression – while Sussex argues that in curriculum design, those duties converge, and protecting academic freedom inherently protects speech.

    Is a policy statement a governing document?

    Sussex argues that the Trans and Non-Binary Equality Policy Statement (TNBEPS) is not a “governing document” as defined by section 14(1) of the Higher Education and Research Act 2017 (HERA), which it says only refers to foundational legal documents like a university’s Charter and Statutes.

    In comments to the Guardian at the end of last month, Sussex vice chancellor Sasha Roseneil argued as follows:

    This is a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university are its charter and statutes and regulations. So that’s the core of the problem

    In the pre-action letter, Sussex claims OfS has wrongly expanded the definition through its regulatory framework, which includes broader policy documents, without the legal authority to do so – insisting that only Parliament can define those terms – and that interpreting TNBEPS as a governing document is beyond the OfS’s powers (ultra vires).

    You might argue that it’s sensible for both the law and the regulator to only look at proper, formal governing documents when assessing breaches of things, you might not – but if Sussex is right on that, it does underline a key difference between the law operating in 2021 and what would be the position if the Higher Education (Freedom of Speech) Act 2023 was fully in force.

    It goes on to argue that the regulator “misunderstood and misapplied” its regulatory role, because OfS was supposed to determine whether the university’s governing documents were consistent with principles of academic freedom and freedom of speech – not to speculate on how someone might misread a policy.

    It criticizes OfS for relying on “hypothetical misinterpretations” rather than objectively interpreting the actual text, ignoring contextual safeguards like the university’s disciplinary rules and Free Speech Code – which the university says led to a flawed and unlawful decision.

    If Sussex is right, it’s saying that OfS may have failed a basic legal duty – to interpret documents in context and according to their actual effect, not based on imagined misunderstandings.

    Delegation and proportionality

    You’ll recall that the other big fine for Sussex was about delegation. Sussex argues that OfS acted beyond its legal authority by making findings about whether the university properly followed its internal rules on who has the power to approve policies (its delegation arrangements).

    Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King.

    It cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

    Sussex says HERA 2017 doesn’t meet the test, because it neither expressly nor necessarily implies that OfS can judge whether a university has followed its internal delegation rules.

    OfS argues that cases like Thomas v University of Bradford [1987] AC 795 make clear that HERA 2017 grants it the power to impose conditions as long as those conditions fall within its statutory mandate.

    This one’s interesting because it has echoes of arguments about the powers OfS has over consumer protection. In that area, C1 allows it to assess whether a provider has paid “due regard” to guidance, but OfS doesn’t have actual powers to judge whether a provider is in breach – which is partly why it’s busy proposing to remix consumer law as a “fairness condition” of its own, and partly why interim Chair David Behan has been arguing to DfE that it needs to be given proper powers to become an enforcement body.

    Poking around in the annex

    As such, Sussex also argues that OfS exceeded its legal authority by including Annex H in its Final Decision.

    That contains OfS’ views on whether the university may have breached other legal obligations – like Article 10 of the European Convention on Human Rights (ECHR) and the Equality Act 2010. Sussex asserts that HERA 2017 doesn’t authorise OfS to investigate or make findings about compliance with these separate legal duties, which fall outside its jurisdiction.

    OfS tries to justify its actions by saying that potential non-compliance with these laws might indicate whether Sussex breached Condition E1 (the requirement for governing documents to support freedom of speech and academic freedom).

    But Sussex argues this logic is flawed – it says E1 is about the content of governing documents and whether they align with public interest governance principles – not about whether the university might have violated unrelated legal duties that OfS doesn’t oversee.

    The university also points out what it says are legal errors in OfS’ analysis. OfS claimed the university might have breached Article 10 ECHR simply because it didn’t conduct a formal “proportionality assessment” – but case law says that’s not a requirement to prove a breach.

    The case referenced is a fascinating one – in Belfast City Council v Miss Behavin’ Ltd [2007] the council had denied a licence to an adult entertainment business, who argued their freedom of expression was infringed because the council hadn’t assessed whether the denial was proportionate.

    The House of Lords rejected the argument, deciding that what matters is whether the interference was in fact justified – not whether the council had formally weighed it up using proportionality language.

    And Sussex argues that OfS wrongly suggested the university’s curriculum content could amount to indirect discrimination under the Equality Act, even though curriculum content is explicitly excluded from that law under section 94(2).

    Process issues

    Some of the process issues are eye-opening. We learn, for example, that OfS suggested various potential penalties and breaches throughout the 1246 days of the investigation, “most of which were later dropped”.

    We already knew that OfS “never met with university representatives”, declined all requests for meetings or discussions about its findings or decisions, and would not confirm whether changes the university made to its policy addressed the concerns raised.

    Here Sussex says that when the provisional decision was reached and sent in March 2024, it was “259 pages long, repetitive and poorly written”. A year or so later, out of the blue, it says it got a call from OfS requesting a meeting within 3.5 hours – a courtesy call that the final decision was coming that day.

    It says that the majority of the findings and proposed penalties in the provisional decision had been abandoned, but the proposed penalties had actually increased – with no explanation.

    Sussex claims OfS acted unfairly during its investigation by meeting with Kathleen Stock multiple times while refusing nine requests to meet with university representatives – and argue OfS relied on a second statement from Stock, obtained after the university’s submissions, without disclosing it or allowing any response, using it to reject the university’s position on harm caused under condition E1.

    What happens next will hinge on whether OfS engages with the university’s legal challenge or digs in for a court fight – there’s a question over whether there’s any pre-action protocol for this kind of tribunal, and Sussex reserves the right to rely on other grounds.

    But more broadly, the case lays bare fundamental disagreements about how speech should be regulated in higher education, who gets to interpret the law, and where the boundaries lie between institutional autonomy and regulatory oversight.

    Whether you think Sussex is bravely standing up for a more balanced view of the campus culture see-saw, or is simply resisting accountability, the outcome may well reshape how free speech duties are understood and enforced across the sector.

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  • Free speech and the University of Sussex 

    Free speech and the University of Sussex 

    • Naimat Zafary is a PhD researcher at the University of Sussex and a former Afghan Chevening Scholar.

    There are times, as a scholar from another country, that events in your adopted home catch you off guard. The fears of those around you are so far removed from your own experience that you are baffled by them. Sometimes, this simply demands that you learn more about the society and culture around you or chalk up different perspectives to the rich experience of a global education. 

    At other times, though, there is a desire to share with your colleagues your own thoughts about an issue, especially when you think others are at risk of undervaluing the freedoms and advantages they have. This week was one of those times. 

    First a bit about me. I came to this country at a moment of deep crisis. An Afghan accepted for a prestigious Chevening Scholarship, I had been excited by the opportunity to study at the top university in the world for international development and to gain knowledge that I could put to use in my home country. 

    But even as I packed my cases, the unimaginable happened. The US withdrew its forces and the Taliban entered Kabul. As fearful Cheveners worried whether they would or would not be granted a place on the last flights from the chaotic airport, I gathered my family. I was permitted a small rucksack as I turned my back on my family home and car, my library where local children had studied, and gathered my loved ones for the two-day journey through hell to the airport perimeter fence. When a British soldier finally recognised us and saw my name on the list, he lifted us over the wall and to safety. I kissed his shoulder and wept. 

    From there, we sat on the floor of a military cargo ship and flew to an asylum hotel in London, safe at last from the Taliban, who would see us as a threat for our academic links to the UK and deep commitment to education for all, including women and girls. And so, it was I travelled by train for my first class at my academic home and inspiration, University of Sussex. 

    What I found in Sussex could not have contrasted more profoundly with what I left behind. Sussex has been ranked 1st in the world for Development Studies for seven consecutive years in the QS World University Rankings. And here was a global community of men and women dedicated to the highest standards of education and using academic rigour and debate to acquire knowledge which would benefit not only the immediate community of Brighton but the wider world. 

    My wife Saima and my daughters were also inspired by the women leaders who surrounded me. While former female colleagues and family members in Afghanistan were being barred from education and being driven behind burqas and closed doors, their voices silent, I was at an institution led by a courageous and principled woman committed to supporting diverse perspectives from across the world. I expressed my views in the classroom, at conferences and seminars, and in print without fear of brutal consequences. Sussex has given a platform to voiceless Afghan girls, whereas, in Afghanistan, asking a question about girls’ education is banned; Sussex made sure to value our voices and let us speak with wider audiences.

    This was truly free speech. I was gifted the ability to challenge the accepted norms of government and aid agencies, and in turn, my own ideas were challenged daily by my fellow students, my supervisor, my community. I learned and grew to appreciate the diversity of thought and background which typified the world I had entered. 

    So how do I respond to the idea that a place that has been to me and many hundreds of Chevening scholars from across the globe has been such a haven for free enquiry and open expression has been fined for a breach of free speech? 

    I understand that the issues and debate that led to this circumstance predate the leadership of the institution I have entered. I appreciate that there are deeply held views and profound concerns at play and that the ability to speak without fear of harassment or intimidation is core to educational exchange. 

    But I also know that the commonly held stereotype of my institution in some parts of the media is very wide of the mark. Those who have, like me, known the cost of true tyranny understand that places like Sussex are the very antithesis of that and an antidote to it. And so, I offer my voice and support to the university and community that not only welcomed me but encouraged me to challenge and be challenged in the pursuit of truth and global justice. It is a proud tradition and we undervalue it at our cost. 

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  • Five regulatory process points you may have missed from the University of Sussex decision

    Five regulatory process points you may have missed from the University of Sussex decision

    We’ve covered elsewhere the implications for policy related to academic freedom and freedom of speech stemming from the Office for Students’ decision to fine the University of Sussex for breaches of ongoing registration conditions E1 and E2.

    The publication of a detailed regulatory report also allows us insight into the way in which OfS is likely to respond to future breaches of registration conditions. It is, effectively, case law on the way OfS deals with concerns about higher education providers in England – and while parts of your university will be digesting what the findings mean for academic freedom policies, others will be thinking more widely about the implications for regulation.

    The University of Sussex, perhaps unsurprisingly, wishes to challenge the findings. It is able to challenge both the regulatory decisions and the amount of the fines at a first tier tribunal.

    As always, appeals are supposed to be process based rather than just a general complaint, so the university would have to demonstrate that the application of the registration conditions was incorrect, or the calculation of the fine was incorrect, or both. As above, there is no meaningful defence of the way the fines were calculated or discounted within the judgement so that would feel like the most immediately fertile ground for argument.

    Here’s some of the points that stood out:

    How and why was the decision to investigate made?

    We are told that, on 7 October 2021, the OfS identified reports about an incident at the University of Sussex. This followed the launch of a student campaign at the University of Sussex the previous day – which involved a poster campaign, a masked demonstrator holding a sign, and a hashtag on social media – calling for Kathleen Stock (a professor in the philosophy department) to lose her job.

    This was widely covered in the media at the time, and sparked commentary from interest groups including the Safe Schools Alliance UK and the Free Speech Union. The OfS subsequently contacted the university seeking further information, before starting a full investigation on 22 October 2021. However, despite significant public interest, the decision to start an investigation was not made public until a statement by an education minister in the House of Lords on 16 November (when we were told that the Department for Education was notified on 11 November).

    Kathleen Stock resigned from her role at the university on 28 October – six days after the start of the investigation, and substantially before the public announcement. She noted that “the leadership’s approach more recently had been admirable and decent”, while the university claimed to have “vigorously and unequivocally defended Prof Kathleen Stock’s right to exercise her academic freedom and lawful freedom of speech, free from bullying and harassment of any kind”.

    What’s not clear from this timeline is the nature of the notification on which the Office for Students was acting: the regulatory framework in place at the time suggested OfS would take action on the basis of lead indicators, reportable events, and other intelligence and sources of information. There are no metrics involved in this decision, and we are told the provider did not notify the OfS so there was no reportable event notification.

    We are left with the understanding that “other sources of information” were used – these could be “volunteered by providers and others, including whistleblowers”. Perhaps it was the same “source of information” that caused then Minister Michelle Donelan to shift from backing the university response on 8 October to calling for action on 10 October?

    We also know that – despite OfS’ insistence that it “does not currently have a role to act on behalf of any individual” – it appears that the only person to submit a “witness statement” to OfS was Stock. If OfS was concerned generally about the potential for a chilling effect on academic speech, would it not want to speak to multiple academics to confirm these suspicions? Doesn’t speaking to just one affected individual feel a little like acting “on behalf” of that individual?

    Finally – sorry to bang on – we don’t know who at OfS made the decision to conduct an investigation or on what basis. Can, say, the director of regulation just decide (based on a story in the press, or general vibes) to investigate a university – or is there a process involving sign-off by other senior staff, ideally involving some kind of assessment of the likelihood of a problem being identified within a reasonable period of time? If I were an internal auditor I would also want to be very clear that the decision was made using due process and free from political or ideological influence (for instance I’d be alarmed that someone was content for then-chair James Wharton to posit an absolutist definition of free speech in the Telegraph) shortly after the investigation started.

    Why did it take so long to investigate and make a decision?

    The only clue we are given in the regulatory report is that this is a “complex area”. OfS requested a substantial amount of documentation from Sussex – it even used a “compliance order” to make sure that no evidence was destroyed. However, it does not appear that OfS ever visited the provider to speak to staff and students – in other regulatory investigation reports, OfS has been assiduous in logging each visit and contact. There is none of that here – we don’t know how many interactions OfS had with Sussex, or on how many occasions information was requested. Indeed, OfS appears not to have visited Sussex at all. Arif Ahmed told us:

    “There may have been occasions where the university wanted to meet in person and communication was done in writing instead

    Various points of law are referred to in the regulatory report : it is notable that none of this is new law requiring additional interpretation or investigation (the new Higher Education (Freedom of Speech) Act had not even left the House of Commons committee stage at this point). It shouldn’t really take a competent lawyer that knows the sector more than a few weeks to summarise the law as it then stood and present options for action.

    The investigation into the University of Sussex was mentioned in the Chief Executive’s report from the 2 December 2021 Board meeting, and it turned up (often just as an indication that the investigation was ongoing)

    If OfS was able to fine a university for a breach of an ongoing registration relating to academic freedom, why do we need the Higher Education (Freedom of Speech) Act?

    Well, quite. On our reckoning, the Act would have made no difference to the entire affair, save potentially for a slight chilling effect on students being empowered to exercise their own freedom of speech, and a requirement for both providers and OfS to promote free speech. The ability of the OfS to reach the conclusion it reached, and to instigate regulatory consequences, suggests that further powers were not necessary to uphold freedom of speech on campus – despite the arguments made by many at the time. There is nothing OfS could have done better, or quicker, or more effectively had the Act been in force. Sussex, in fact, had a freedom of speech policy at the time, something that the regulatory report fails to mention or take account of.

    It is curious that the announcement of the investigation came at the start of a long pause in parliamentary activity on the Higher Education (Freedom of Speech) Act – at that time we were keenly anticipating a report from the House of Commons committee stage, but we got no action at all on the bill until it was carried forward into the next session of parliament.

    How was the amount of the fine arrived at?

    There is a detailed account of the process by which it was decided to fine Sussex £360,000 for a breach of registration condition E1, and £225,000 for a breach of registration condition E2. It appears thorough and convincing, right until the point that you read it.

    OfS appears to be using a sliding scale (0.9 per cent of qualifying income for “failing to uphold the freedom of speech and academic freedom governance principle”, 0.5 per cent of qualifying income for “a failure to have adequate and effective management and governance arrangements in place”, an additional 0.2 per cent for not reporting the breach, a 0.2 per cent reduction for taking mitigating action…) and although Regulatory Notice 19 takes us through the process in broad terms we don’t get any rationale for why those proportions apply to those things.

    It’s all a bit “vibes based regulation” in truth.

    It is to be welcomed that OfS reduced its initial calculation of a £3.7m (1.6 per cent of qualifying income) fine to a more manageable £585,000 – but why reduce to that amount (by a hair under 85 per cent) purely because it is the first fine ever issued for this particular offence? What reduction will be applied to the next fines issued under registration conditions E1 and E2? If none, why not – surely “sufficient deterrence” is possible at that amount so why go higher?

    The documentation covers none of this – it is very hard to shake the impression that OfS is pulling numbers out of the air. When you compare the £57,000 (0.1 per cent) fine issued to the University of Buckingham for not providing audited accounts for two years (something which would have yielded something altogether nastier from Companies House you do have to ask whether the Sussex infractions were 1.5 percentage points more severe at the initial reckoning?

    Are the wider implications as the regulator intends?

    There are so many questions raised that will now be hurriedly posed at universities and higher education all over England – and my colleague Jim Dickinson has raised many of them elsewhere on the site. He’s had enough material for four pieces and I’m sure there will be many more questions that could be explored. Why – for example – should the regulator have a problem with “prohibiting the harmful use of stereotypes”? Is there a plausible situation where we would want to encourage the harmful use of stereotypes?

    It would also be worth noting the many changes to the policy that appears to have caused the initial concern (the Trans and Non-Binary Equality Policy Statement) between 2018 and 2024. Perhaps these changes demonstrated the university dealing with a rapidly shifting public debate (conducted, in part, by people with the political power to influence culture more generally) as seemed appropriate at each point? So why is OfS not able to sign off on the current iteration of this policy? Why is it hanging a hefty fine on a single iteration on what is clearly a living document?

    There’s also a burden issue.Is it the position of the regulator that every policy of each university needs to be signed off by the academic council or governing bodies? Or are there any examples of policies where decisions can be delegated to a competent body or individual? A list would be helpful, if only to avoid a burdensome “gold plating” of provider-level decision making.

    Beyond the freedom of speech arguments

    There are 24 ongoing conditions of registration currently in force at the Office for Students – a regulatory report and a fine (or other sanctions) could come about through an inadvertent breach of any one of them. Many of these conditions don’t just apply to students studying on your campus – they have an applicability for students involved in franchised (and in some cases validated) provision around the world.

    We should be in a position where the sector can be competently and reliably regulated, where providers can understand the basis, process, and outcomes of any investigation, and that these are communicated promptly and clearly to the wider public. On the evidence of this report, we are a long way off.



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  • Podcast: Sussex fine, franchising | Wonkhe

    Podcast: Sussex fine, franchising | Wonkhe

    This week on the podcast we’re discussing the Office for Students fine of £585,000 levied against the University of Sussex for breaches of free speech conditions, as vice chancellor Sasha Roseneil calls the process “Kafka-esque” and plans a legal challenge.

    Plus we examine what Bridget Phillipson has called “one of the biggest financial scandals universities have faced” – franchising. Does the scandal point towards a shift towards a more “planned” system?

    With Vivienne Stern, Chief Executive at Universities UK, Jonathan Simons, Partner and Head of the Education Practice at Public First, Debbie McVitty, Editor at Wonkhe and presented by Mark Leach, Editor-in-Chief at Wonkhe.

    Sussex fined almost £600k over free speech

    So are universities allowed to chill misogyny or not?

    The franchise problem may not have a quick answer

    Welcome to the walk-in degree

    What is the franchising boom doing to drop-out?

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  • Sussex fined almost £600k over free speech

    Sussex fined almost £600k over free speech

    The University of Sussex is to be fined a record £585,000 over a failure to uphold free speech and academic freedom.

    The Office for Students (OfS) has found “significant and serious breaches” of free speech and governance issues at the University of Sussex.

    The regulator’s investigation, which followed the departure of academic Kathleen Stock from the university, says that said policies intended to prevent abuse or harassment of certain groups on campus had created “a chilling effect” that might cause staff and students to “self-censor.”

    OfS found that Sussex’s policy statement on “trans and non-binary equality” failed to uphold the principles of freedom of speech and academic freedom governance – and had created a “chilling effect” on campus.

    It also said the university failed to have “effective and adequate management and governance arrangements in place” to uphold those principles.

    Officially, OfS’ inquiry focused on the university’s general compliance with the regulatory framework, rather than the departure of Kathleen Stock specifically – but also found “no evidence to suggest that Professor Stock’s speech during her employment at the university was unlawful.”

    Sussex has come out fighting. Vice chancellor Sasha Roseneil told the Financial Times that universities are now exposed to regulatory risk if they have policies that protect staff and students from racist, homophobic, antisemitic, anti-Muslim or other abuse, and said the regulator had decreed “free speech absolutism as the fundamental principle” for universities.

    She also claims the regulator had “refused to speak to us,” and that the fine imposed was “wholly disproportionate” – arguing the university had defended Stock’s right to pursue her academic work and express her “lawful beliefs.”

    The report – some 1,224 days since OfS says it opened the investigation – comes at a tricky time for the government. Its decision first to pause, and then announce an intention to partially repeal the Higher Education (Freedom of Speech) Act, has to some extent been centred on concerns that the Act as passed represented a “hate speech charter” preventing universities from taking steps to protect marginalised groups on campus.

    OfS’ decision – notwithstanding that it is one taken in the context of a previous and pre-existing legal framework – will therefore be widely seen as rebuttal of the idea that protection of that sort conflicts with free speech and academic freedom.

    But on the other side of that argument is Sussex itself – experiencing OfS’ fifth ever fine, and arguing that OfS’ decision will itself have a chilling effect on efforts 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.

    Kathleen Stock left her post as Professor of Philosophy at the University of Sussex in October 2021, shortly after which the Office for Students (OfS) announced that it had opened an investigation focused on whether or not the university had met its obligations for academic freedom and freedom of speech within the law for all students and staff, whatever their views.

    Although Stock and her departure from Sussex has become easily the most-referenced example used to illustrate the need for the Higher Education (Freedom of Speech) Act, it had at that stage only recently completed its run in the Commons – so the investigation opened by OfS was over whether the university had complied with general ongoing conditions E1 and E2 – which, in the original Jo Johnson design, were designed to give regulatory force to the “public interest governance principles” for academic freedom and freedom of speech.

    This report outlines how OfS determined breaches of conditions E1 and E2, how penalties were calculated, and raises concerns that the university may have breached broader legal duties on free speech and academic freedom. Here there’s a short background, a look in detail at the report itself, and what it might mean for the campus culture wars in coming years.

    Background

    In late 2021 at the University of Sussex – a campus with a long history of radical politics – a group of students describing themselves as queer, trans, and non-binary had mounted a campaign calling for Stock’s dismissal.

    Responding both to her teaching and books, they claimed she was espousing a “bastardised version of radical feminism that excludes and endangers trans people.” Posters and protests ensued, Stock reported receiving death threats and was advised by police to take safety precautions, and the university’s vice chancellor, Adam Tickell (now at Birmingham) defended Stock’s academic freedom and announced an investigation into the protests.

    More than 200 academic philosophers from across the UK went on to sign an open letter supporting Stock’s right to “engage in open and scholarly debate without fear of harassment,” but notably the Sussex branch of the University and College Union (UCU) criticized Tickell’s stance, expressing solidarity with the protesting students and calling for an investigation into “institutional transphobia” at the university.

    Stock resigned on 28 October, and in a subsequent radio interview on Woman’s Hour, she denied being transphobic, and explained that her resignation followed attacks from colleagues who opposed her views and who, according to Stock, encouraged an “extreme” response from their students. Stock also said that it was the UCU statement that had “effectively ended” her career at Sussex.

    What was novel about the affair is that while there had been quoted incidents of “mobbing,” “cancellation,” and “no platforming,” these had tended to be focused on figures outside of universities, visiting as speakers.

    Since the Education Act 1986 had started to require to universities to “take reasonably practicable steps to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers,” it had been the last of that list that had caused that legislation – and the last of that list that had largely generated skirmishes since.

    But when Arif Ahmed – now OfS’ Director for Academic Freedom and Freedom of Speech, then a fellow philosopher at the University of Cambridge – wrote for Index on Censorship in early 2022, he noted a new character to conflict on campus. Ahmed picked up other cases – the 500 students that had petitioned Oxford University to force two professors to include trans women in their research into women’s equality, and the academics that had had talks cancelled at Essex University after they were accused of transphobia.

    Not wanting to “anticipate what that inquiry finds,” the article also argued that in principle, there may be academic freedom issues on both sides, including “the right of students (or anyone else) to protest against her” – albeit that:

    …we must distinguish peaceful protest in favour of a principle like rights for trans people… harassment and victimisation of an individual aimed at blocking their speech.

    That often fraught line – between freedom to speak (and research), and freedom from harm – is both as old as John Stuart Mill’s On Liberty (1859), and one that has dogged the debate about campus culture generally and the Higher Education (Freedom of Speech) Act specifically ever since. Where a regulator might draw the line has been an open question – and the report now illustrates it clearly.

    An inspector calls

    On 7 October 2021, OfS contacted the university seeking information on what steps it had taken to protect free speech and academic freedom for Kathleen Stock and others with similar views, and how it had assessed whether the incident amounted to harassment based on her gender critical beliefs. After reviewing this and examining relevant policies, it formally launched an investigation on 22 October.

    The investigation focused on whether the university had taken reasonably practicable steps to uphold lawful free speech and academic freedom, whether its governance documents complied with OfS public interest principles and legal duties (including under the Equality Act 2010), and whether its policies – particularly those on academic freedom, HR, and EDI – had negatively impacted free expression.

    It imposed “cooperation requirements,” reviewed multiple rounds of documentation, and considered policy changes made during the process. Provisional findings were shared in March 2024, and final decisions were made on 14 February 2025 after considering the university’s response.

    The first breach – of Condition E1 – concerns the university’s governing documents, and the way in which OfS says they restricted lawful speech – including “gender critical” views, which are protected under the Equality Act 2010.

    OfS says this created a chilling effect – discouraging staff and students from expressing certain views. Though not officially about Stock’s case per se, it’s cited as a real-world example – OfS taking the opportunity to remind readers of its role in safeguarding lawful free speech through a viewpoint-neutral, “impartial” approach.

    The university first adopted a Trans and Non-Binary Equality Policy Statement in November 2018. On 12 November, a proposal was made to publish it on 20 November – Trans Day of Remembrance. The draft was reviewed by the University Executive Group (UEG) on 13 November, which supported its general direction, but called for further discussion after review by the Equality, Diversity and Inclusion Committee.

    Despite this, the UEG held an unscheduled meeting on 14 November 2018, during which it approved the statement for publication on 20 November. No separate minutes were recorded for this meeting. That 2018 version remained in effect when OfS began its investigation in October, and is the main source of the compliance problem.

    Some tricky timeline issues ensue which relate to later revisions, and OfS has not yet determined whether one of its identified breaches has extended beyond March of last year.

    But essentially, the judgement centres on four aspects of different versions of the university’s policy – which it’s counting here for E1 purposes as one of the university’s governing documents:

    • A requirement for “any materials within relevant courses and modules [to] positively represent trans people and trans lives.” OfS refers to this as the Positive Representation Statement throughout its report;
    • A statement that “the curriculum shall not rely on or reinforce stereotypical assumptions about trans people”. It refers to this as the Stereotyping Statement;
    • A statement that “transphobic propaganda … will not be tolerated.” It refers to this as the Transphobic Propaganda Statement;
    • A statement that “transphobic abuse, harassment or bullying (name-calling/derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences for staff and students and will be dealt with under the appropriate University procedures.” It refers to this as the Disciplinary Statement.

    OfS’ conclusion is that the university breached E1 because the four statements breached the academic freedom and freedom of speech principles.

    That’s partly because the statements were capable of restricting lawful speech – including in-course content – and signalled that some views weren’t welcome. This, says OfS, produced a chilling effect – Stock self-censored, and others likely did too. She removed lawful material from her curriculum, narrowing academic debate and reducing students’ exposure to diverse views. Other staff may have followed suit or felt pressured to.

    Its argument is that the policy lacked safeguards for legally protected beliefs like “gender critical” views and that its other governing documents didn’t fill that gap. The university’s wider “Statute VII” offered some protection for free speech and academic freedom, but in OfS’ view was insufficient.

    Partly because the investigation has been on for a long time – and partly because the university has been making changes to policies throughout – there’s also some complex evaluation of what’s happened since the initial investigation opened, all of which is of a similar nature.

    See-saw

    Much of the material on wider legal duty breaches is focussed on gender critical views as a protected belief – anyone searching for the ways in which OfS might have evaluated efforts to protect trans students just won’t find it.

    Hence OfS found no “credible evidence” that the university assessed whether its restrictions on expression under the Trans and Non-Binary Equality Policy Statement were proportionate – a key requirement under Article 10 of the European Convention on Human Rights – that it says raised the risk that the policy’s interferences with freedom of expression were disproportionate and therefore unlawful.

    Similarly, OfS was concerned the university may have breached equality law under section 19 of the Equality Act 2010 by indirectly discriminating against individuals with gender critical beliefs – a protected characteristic. The Trans and Non-Binary Equality Policy Statement included provisions (e.g. the Positive Representation, Stereotyping, Transphobic Propaganda, and Disciplinary Statements) that it says restricted lawful speech, including gender critical views. Again, OfS found no credible evidence that the university conducted an objective justification assessment for the restrictions when adopting the policy.

    OfS was also concerned that the university may have failed to comply with the Public Sector Equality Duty (PSED). It found no credible evidence that the university properly considered the equality implications of the policy, as required under the PSED, and while the university claimed to have conducted an Equality Impact Assessment for the 2023 version, this appeared limited to the removal of the Positive Representation Statement and did not assess the remaining content.

    Taken as a whole, this is a pretty extensive illustration of the principle both in the Higher Education (Freedom of Speech) Act 2023 and OfS’ draft guidance on it – both on “particular regard” to the importance of freedom of speech, and these two notable paras in the draft:

    Freedom of speech within the law is protected. Unlawful speech is not protected. However, there is no need to point to a specific legal basis for speech. Instead, the starting point is that speech is permitted unless restricted by law.

    Free speech includes lawful speech that may be offensive or hurtful to some. Speech that amounts to unlawful harassment or unlawful incitement to hatred or violence (for instance) does not constitute free speech within the law and is not protected.

    There are likely to be debates about the extent to which that was clear to providers in the old regime, and whether the new regime is merely an enforcement wrapper around pre-existing legal duties – but that’s the framing in use in this decision.

    A record (reduced) fine

    The fining decision is then explained in in line with Regulation 4 of the 2019 Monetary Penalties Regulations, where OfS considered several factors – the nature, seriousness, duration, and impact of the breach; any financial or other benefit the university may have gained or losses it avoided; and whether the breach had been repeated.

    OfS assessed that the breach was “serious, prolonged, and had a chilling effect on lawful speech and academic freedom” – and while no direct financial gain was identified, the regulatory failure was significant enough to warrant a monetary penalty to reflect the severity and ensure accountability.

    In setting the penalty, OfS also considered steps the university took to prevent future breaches and the likely impact of a monetary penalty on students. A “baseline penalty” was established as per Regulation 4, then adjusted based on aggravating and mitigating factors, including the university’s compliance history. The maximum penalty allowable was either 2 per cent of qualifying income or £500,000, whichever was higher.

    For 2023–24, Sussex’s qualifying income was £232,358,874, making the cap £4,647,177. OfS applied its published framework (Regulatory Advice 19) to determine the final penalty, ensuring it was “proportionate, targeted, and justified” in light of the breach’s seriousness and the steps taken by the university since.

    The university’s financial position was relevant – with (at the time) substantial income and reserves, OfS concluded that a penalty would not materially harm students. Instead, it would promote future compliance, both at Sussex and, notably, across the sector. The baseline penalty was set at 0.9 per cent of qualifying income: £2,091,230.

    Mitigating factors included steps taken by the university to reduce the restrictive effect of its policy like removing the “positive representation” requirement, adding an objective definition of “transphobic abuse,” and including a safeguard for academic freedom in the 2023 policy.

    Aggravating factors included the length of the breach (over four years) and the failure to self-report. After applying both sets of factors – each justifying a 0.2 per cent adjustment in opposite directions – the penalty remained unchanged at 0.9 per cent.

    The university’s compliance history did not warrant any further adjustment. It cooperated with the investigation and there was no evidence of dishonesty, recklessness, or concealment. Accordingly, after the first three steps of the process, the final penalty for the breach remained £2,091,230.

    Governance and delegation

    The second breach (Condition E2) was a process one – key policies were adopted by groups lacking the delegated authority to do so. The Prevent Steering Group approved the 2021 Freedom of Speech Code of Practice, the University Executive Group approved the 2023 External Speakers’ Procedure, and also approved the 2022 and 2023 versions of the Trans and Non-Binary Equality Policy Statement – each time acting outside its remit.

    These governance failures were deemed significant. Decisions were made by bodies not authorised to take them, raising the risk of insufficient scrutiny or expertise and potentially compromising compliance with legal and regulatory duties. Those failures, found OfS, could result in decisions not in the best interests of staff or students. The breach was not an isolated incident, but part of a pattern suggesting “systemic weaknesses rather than a one-off lapse.”

    The university didn’t report the breach to OfS (the old Kafka-esque rules around the reportable events regime), nor has it taken clear steps to address or rectify its governance failures. As such, OfS concluded that its intervention factors supported a breach of condition E2(i), and that regulatory action was necessary to address the university’s ongoing non-compliance with its own governance framework.

    This time the baseline penalty was 0.5 per cent of the university’s qualifying income (£1,161,794) for the E2 breach, reflecting its seriousness as a governance failure. While the decisions made without proper authority risked poor quality outcomes, the direct impact on students was assessed as less severe than the E1 breach, and the penalty was also viewed as a means to incentivise future compliance, both at Sussex and across the sector.

    Because of aggravating factors – like the longstanding nature of the breach, failure to report it, and lack of remedial steps – the penalty was increased by 0.2 percentage points, bringing it to 0.7 per cent (£1,626,512). No mitigating factors were identified.

    As with the E1 breach, the university’s compliance history didn’t affect the penalty, and it had cooperated with the investigation – but OfS ultimately concluded that penalties at the calculated levels would be disproportionately high. And so balancing all considerations – the seriousness of the breaches, financial capacity, cumulative penalty size, and the novelty of regulatory enforcement in this area – OfS reduced the final penalties and imposed £360,000 for the E1 breach and £225,000 for the E2 breach, totalling £585,000.

    This was deemed “sufficient” to deter future non-compliance while maintaining financial sustainability. Sussex says the fine is “wholly disproportionate.”

    Fallout and next steps

    There will doubtless be some fallout from the decision – not least because Sussex is (at least in principle) very publicly criticising the process, the fine, and the judgement made on the EDI/freedom of speech see saw.

    In some ways what’s surprising – although on reflection inevitable – is that this wasn’t really an investigation about the Stock affair at all. She and others calling for full implementation of the Higher Education (Freedom of Speech) Act may well argue that the investigation ought to have handled how she was treated, how she was protected (or otherwise) by the university, and drawn conclusions about the handling of events leading to her departure. OfS may well argue – campaigners almost certainly will – that that would only have been possible under the Higher Education (Freedom of Speech) Act.

    There are real questions over how long the process has taken, that are not substantially addressed or answered in the report – and the huge fine imposed. That OfS is able to follow the logic of its own documents is one thing, but when compared against some of the teaching and learning investigations it’s done so far, either those providers are in for huge fines, or inevitable comparisons are going to be drawn about relative impact.

    There will also be questions about Arif Ahmed himself. The report dots the Is and crosses the Ts as we would expect it to – and includes the “neutrality” defence we’ve come to recognise. But even though he’s unlikely to have been personally involved in this process, we should be reminded of the OIA’s advice that providers need to take steps to avoid “actual bias and the reasonable perception of bias” when handling complaints. Given in a previous role that Index on Censorship blog was entitled “We academics must fight the mob – now”, it’s not hard to see why some might at least perceive an agenda.

    The other questions surround the jurisprudence. It remains the case that in the cases we’ve seen, different levels of protection for freedom of speech apply in different contexts – there’s no doubt that in a lecture hall or seminar room, the way the Human Rights Act is applied is different to during someone’s personal life, free time, and so on. There’s nothing in here on the different contexts of conduct that a “university” encompasses – and it remains a hole in what OfS has published so far, and arguably in the way it has evaluated the policies for the breaches.

    The practical compatibility of the decision with impending heavy duties on harassment will also be a concern – with frantic rewrites of policies similar in nature and tone to that adopted by Sussex likely to face pushback from those who fear a wider retreat from equality-focussed work.

    It’s the government, though, that faces the trickiest set of decisions from here on in. Its decision to pause and intent to soften somewhat the Act has all been about a perception that it was to result in free speech absolutism at the expense of the protection of minorities.

    It may be a reflection of the law or a very particular (and contestable) interpretation of it – and legal challenges may ensue – but if nothing else, it’s hard to see how the version of “absolutism” deployed here is compatible with (for example) the IHRA definition of antisemitism – something successive governments have consistently supported, and which Ahmed himself only changed position on when taking up his role.

    Notwithstanding that Labour has disappointed trans campaigners since taking office, it will now have to decide whether Sussex is right that universities are now “exposed to regulatory risk if they have policies that protect staff and students from racist, homophobic, antisemitic, anti-Muslim or other abuse.” And if they are, whether the problem is the Higher Education (Freedom of Speech) Act, the Human Rights Act, or Arif Ahmed himself.

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