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

The Office for Students (OfS) also found ‘failings in the university’s management and governance processes’.

The OfS is the regulator for higher education in England – protecting the interests of students by ‘supporting a diverse and independent’ higher education sector.

"The investigation concluded that the university breached two OfS conditions of registration,” a spokesperson for the investigators said.

"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 University of Sussex has condemned the findings of the investigation by the higher education regulator.

It said it leaves universities ‘unable to have policies to prevent abusive, bullying and harassing speech’ and that ‘will perpetuate the culture wars’.

The university plans to legally challenge the OfS’s findings and warned of the implications for the wider sector.

A spokesperson added: “Following a three-and-a-half-year investigation, in which the OfS refused to meet or speak with anyone from the university, and with only one person interviewed, the regulator has handed down a record fine of £585,000, over 15 times larger than any other sanction it has previously imposed, for two historic breaches of its ‘conditions of registration’.

“The implications of the OfS’ 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, bulling and harassing speech which is not unlawful.”

The OfS said it 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,” a statement read.

"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 concluded that:

– 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;

– 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 OfS added: “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.

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.”

Dr Ahmed said the 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’.

He added: “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 director said 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,” he said.

"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.”

In response, the vice-chancellor of the University of Sussex – Professor Sasha Roseneil – said the OfS’s findings mean that it is ‘now virtually impossible for universities to prevent abuse, harassment, or bullying on our campuses’.

She added: “It means universities cannot protect groups subject to harmful propaganda or determine that stereotyped assumptions should not be relied upon in the university curriculum.

“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.”

Professor Roseneil also criticised the manner in which the OfS conducted its investigation.

She added: “The way the OfS has conducted this investigation has been completely unacceptable, its findings are egregious and concocted, and the fine that is being imposed on Sussex is wholly disproportionate. After three and a half years of trawling thousands of pages of paperwork, whilst never interviewing anyone employed by the University, the behaviour of the OfS sets a dangerous precedent and constitutes serious regulatory overreach in service of a politically motivated inquiry.

“How the OfS has behaved throughout this investigation demonstrates that it has not changed the way it operates and it is not acting in the interests of students, taxpayers, or the sector.

“It has pursued this flawed investigation to make an example of a university without any regard for the impact of its investigation on students and staff and the wider sector. The OfS is simply not fit for purpose.”

Professor Sasha Roseneil said the circumstances around Professor Stock’s resignation from the University of Sussex are ‘deeply regrettable’.

She added: “[She] has consistently and publicly defended her right to pursue her academic work and to express her gender critical beliefs.

"Academic freedom and freedom of speech are the foundational elements of a university, and the University is committed to ensuring that diversity in all its forms, particularly diversity of thought and identity are able to flourish at Sussex.”