University of Sussex fined £585,000 for free speech and governance breaches

The investigation concluded that the university breached two OfS conditions of registration. In addition, the OfS is concerned that the university may not have complied, or acted compatibly, with a range of other legal requirements, including in relation to freedom of speech and equality matters.

The OfS launched its investigation following protests calling for the dismissal of Professor Kathleen Stock, a senior academic at the university. She had teaching and research interests relating to sex, gender, and the rights of individuals in connection to these. The OfS has seen no evidence to suggest that Professor Stock’s speech during her employment at the university was unlawful.

The OfS does not currently have a role to act on behalf of any individual. Its investigation was therefore focused on the university’s compliance with the OfS’s regulatory requirements, rather than the particular circumstances relating to Professor Stock.

The OfS has concluded that:

1. The University of Sussex’s Trans and Non-Binary Equality Policy Statement failed to uphold the freedom of speech and academic freedom public interest governance principles set out in the OfS’s regulatory framework. This breached OfS condition E1.
2. The University of 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. This breached OfS condition E2.

The investigation also found that a chilling effect arose as a result of the Trans and Non-Binary Equality Policy Statement and the resulting breach of condition E1. By ‘chilling effect’, the OfS means the potential for staff and students to self-censor and not speak about or express certain lawful views. Staff and students may have self-censored as a result of the policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.

An example of this chilling effect materialising in practice is the experience of Professor Stock while at the university. Professor Stock said that she became more cautious in her expression of gender critical views as a result of the policy. There were some views she 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.

Universities and colleges registered with the OfS are subject to a range of wider legal requirements relating to freedom of speech and equality matters. While the OfS is not responsible for enforcing these directly, there is likely to be overlap of these wider legal obligations with the OfS’s regulatory requirements and our assessment of providers’ compliance with those requirements. All universities and colleges should therefore ensure that they understand and comply with these legal obligations.  

In the course of assessing compliance with condition E1, the OfS identified concerns that the university may not have complied, or acted compatibly, with some of these legal obligations in relation to the Trans and Non-Binary Equality Policy Statement. Specifically, the OfS is concerned that the university may not have complied, or acted compatibly, with:

• Section 43 of the Education (No. 2) Act 1986 (duty relating to freedom of speech)

• Article 10 of the European Convention on Human Rights (the right to freedom of expression)

• Section 19 of the Equality Act 2010 (indirect discrimination)

• The Public Sector Equality Duty.

Commenting, Arif Ahmed, Director for Freedom of Speech and Academic Freedom at the OfS, said:

‘Free speech is a fundamentally important aspect of our successful and vibrant higher education sector. All universities and colleges have a duty to protect academic freedom and to take steps to secure freedom of speech within the law. So it is right that we investigate where we have concerns that students may not be benefitting from the free and robust exchange of ideas, or that academics are not able to teach or research what they choose.

‘Today sees publication of the outcomes of a thorough investigation which included careful consideration of a wide range of detailed evidence. We have found that the University of Sussex’s Trans and Non-Binary Equality Policy Statement meant that students or staff wishing to express or discuss lawful views, including gender critical views, could have been concerned about breaching that policy and facing potential disciplinary action. We know that Professor Stock changed the way she taught her course as a result. And we are concerned that a chilling effect may have caused many more students and academics at the university to self-censor their expression or discussion of lawful views.  

‘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.

‘These are significant and serious breaches of the OfS’s requirements. Substantial monetary penalties are appropriate for the scale of wrongdoing we have found. However, we have significantly discounted the monetary penalties we initially calculated on this occasion to reflect that this is the first case of its type we have dealt with. We hope that publishing our findings in this case is helpful to all universities and colleges as they consider their own compliance with their freedom of speech duties, and ensure they have proper decision-making processes in place.

‘This case illustrates the importance of a clear and accurate understanding of the relationship between legal requirements for free speech and those for equality matters. It is entirely appropriate for universities to pursue equality objectives. But they must take care to do so without curtailing lawful speech and without creating the risk of indirect discrimination against people with protected beliefs.

‘The OfS will continue to focus on the protection and promotion of lawful speech – irrespective of the particular views expressed. We will continue to be impartial and viewpoint neutral in our regulation and decisions. The test is simple. Students and academics are free to express and discuss their and others’ lawful views – even, or especially, where they may be controversial. Anything else undermines the core purpose of higher education – the pursuit of knowledge.’

Notes

1. The Office for Students is the independent regulator for higher education in England. We have recently concluded a consultation on a new strategy for 2025-2030 which seeks to ensure that students from all backgrounds benefit from high quality higher education, delivered by a diverse, sustainable sector that continues to improve.
2. In this press release we use the word ‘fine’ as a shorthand reference to a monetary penalty imposed by the OfS under section 15 of the Higher Education and Research Act 2017.
3. The OfS has imposed the following monetary penalties in this case:
   • For the breach of condition E1 relating to the Trans and Non-Binary Equality Policy Statement: £360,000
   • For the breach of condition E2: £225,000.
4. Condition E1 requires a provider's governing documents to uphold the public interest governance principles that are applicable to the provider. Public interest governance principles cover freedom of speech and academic freedom.
5. Any references in this press release and the accompanying case report to condition E2 are references to condition E2(i). Condition E2(i) requires a provider to have in place adequate and effective management and governance arrangements to operate in accordance with its governing documents.
6. An accompanying case report sets out the OfS’s findings in more detail. Further information about the obligations providers must currently meet in this area is set out in Freedom to question, challenge and debate, an OfS Insight brief.