University says ruling leaves institutions unable to prevent abusive speech and will "perpetuate culture wars"
The Office for Students has concluded its long-running freedom of speech investigation into the Kathleen Stock case, levying a £585,000 fine on the University of Sussex.
The philosophy professor resigned from the institution in 2021 amid protests over her gender-critical views.
The investigation focused on the university’s compliance with regulatory requirements, rather than the particular circumstances relating to Stock. The OfS concluded that Sussex breached two conditions of registration.
England’s higher education regulator found that Sussex’s policy statement on trans and non-binary equality failed to uphold freedom of speech and academic freedom principles set out in the regulatory framework. This was deemed a breach of the OfS conditions of registration.
The investigation also found that Sussex “failed to have adequate and effective management and governance arrangements in place to ensure that it operated in accordance with the delegation arrangements set out in its governing documents, including its scheme of delegation”.
The ruling identifies a “chilling effect” of self-censorship on campus. “Staff and students may have self-censored as a result of the [trans and non-binary equality] policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.” The OfS said it had seen no evidence that Stock’s speech during her time at Sussex was unlawful.
“There were some views [staff] did not feel able to express, and therefore teach, despite those views being lawful. Other staff and students may have felt similarly unable to express these, or other, lawful views,” the regulator said in its ruling.
The OfS said Sussex may have also breached the 1986 Education Act’s stipulations on free speech, the public sector equality duty, the 2010 Equality Act and article 10 of the European Convention on Human Rights, on the right to freedom of expression.
The Labour government was set to repeal the Higher Education (Freedom of Speech) Act, after pausing it shortly after coming to power. However, the legislation will now be implemented minus the legal tort that would entitle individuals to financial recourse against universities.
The investigation into the Stock case was conducted according to the OfS’s regulatory framework, not the statutes of the free speech act. Arif Ahmed, director for freedom of speech and academic freedom at the OfS, said the investigation found “significant and serious breaches of the OfS’s requirements”.
He added: “Our investigation also found deficiencies in the University of Sussex’s decision-making process, with decisions about important free speech and equality matters taken by people without the authority to do so. Those decisions may not have been in the best interests of students and staff.”
‘Egregious findings’
The University of Sussex said in a statement that it “condemned” the findings of the investigation, which will “leave universities unable to have policies to prevent abusive, bullying and harassing speech and that will perpetuate the culture wars”. Sussex said that over the course of the regulator’s review, “the OfS refused to meet or speak with anyone from the university…with only one person interviewed”.
The OfS then handed “down a record fine…over 15 times larger than any other sanction it has previously imposed”, the university said.
The statement continued: “The implications of the OfS’s findings are that universities could be powerless to remove offensive propaganda or to discipline those who engage in abuse, harassment or bullying, unless the propaganda or speech is unlawful. Universities may be unable to set expectations of behaviour or issue guidelines to protect staff and students from abusive, bullying and harassing speech which is not unlawful.”
Vice-chancellor Sasha Roseneil said the university would mount a legal challenge against the “egregious and concocted” findings of a “completely unacceptable” investigation. She said: “Universities must be able to have policies and expectations of behaviour that support respectful communication and enable us to manage cultural tensions on campus. It cannot be that we are only able to expect people to obey the law and that poor behaviour can only be challenged in the courts.
“Under this ruling, we believe that universities would not be permitted to expect their staff and students to treat each other with civility and respect. The OfS is effectively decreeing libertarian free speech absolutism as the fundamental principle for UK universities. In our view, the OfS is perpetuating the culture wars.”
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