Academic freedom revisited

An important decision was published this week by the Office for Students (OfS), the regulator for English higher education, in which the University of Sussex was found to be in serious breach of its regulatory obligations relating to academic freedom and freedom of speech. Concern was also expressed in the OfS decision about whether the university had complied with its legal obligations under existing legislation to secure freedom of speech on campus, the European Convention on Human Rights and the Equality Act 2010.

Given the significance of the breaches, the OfS concluded that it needed to impose a sanction in the form of a monetary penalty to the tune of £585,000.

The Higher Education (Freedom of Speech) Act 2023 has not yet been implemented. When it is, following the Government’s pause on the legislation coming into effect, an individual member of academic staff will be able to bring a complaint to the OfS directly under its new complaints scheme. This regulatory intervention and decision was made under the OfS’ existing powers where there is found to have been a breach of a registered provider’s conditions of registration.

The decision follows an investigation started by the OfS in October 2021, in respect of an incident at the University of Sussex. The background relates to protests by students against a senior member of academic staff, Professor Kathleen Stock, in which calls were made for her employment to be terminated. According to the OfS regulatory case report, the protest included a masked demonstrator holding a sign with the message ‘Stock Out’, posters calling for her employment to be terminated and a social media site with similar messages. The OfS confirmed that no evidence was found in the investigation that Professor Stock had expressed views which were unlawful. Her research and teaching included writing on matters relating to sex and gender. Professor Stock resigned from the university following the protests.

The OfS required documents to be provided by the university as part of the investigation. One document in particular was found by the OfS to have failed to uphold freedom of speech and academic freedom, namely the Trans and Non-Binary Equality Policy Statement, which was adopted by the university in 2018.The OfS found that four statements in the policy did not uphold freedom of speech and academic freedom, including a requirement for teaching materials to positively represent trans people and that “transphobic propaganda” would not be tolerated.

The OfS noted in its regulatory case report that “gender critical” beliefs are “protected beliefs” under the Equality Act 2010 and explained that the OfS considers that these relate to beliefs that biological sex is real, important, immutable and not to be conflated with gender identity.

It is also noteworthy that the OfS found serious breaches of two conditions of registration, namely E1 relating to the public interest governance principle and E2 relating to management and governance. One of the public interest governance principles is “academic freedom”, which the OfS defined as follows:

“Academic staff at an English higher education provider have freedom within the law:

• to question and test received wisdom; and
• to put forward new ideas and controversial or unpopular opinions

without placing themselves in jeopardy of losing their jobs or privileges they may have at the provider.”

The OfS concern about management and governance was that the university had failed to ensure that it operated in accordance with its governing documents (here, Royal Charter and Statutes) relating to the delegation of decision-making. The OfS emphasised the importance of decisions being taken at an appropriate level to avoid the risk of decision-making “of a degraded quality” where there may not be sufficient scrutiny, expertise or knowledge, which would not be in the best interests of students.

The relevant policy statement did not include adequate safeguards for academic freedom for members of academic staff and for freedom of speech for others, including students at the university.

In the OfS press statement accompanying the regulatory case report, Arif Ahmed, Director for Freedom of Speech and Academic Freedom, commented as follows:

“The 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 University of Sussex has strongly criticised the OfS regulatory decision and stated that it will bring a legal challenge.

Such a challenge would likely to be by way of judicial review in the High Court, where the university would need to show that the OfS has in some way either acted outside its statutory powers, erred as a matter of law, failed to provide procedural fairness or made a decision that is wholly unreasonable as a matter of public law. Permission of the High Court would be needed in the first instance for a judicial review to be allowed to proceed.

While the OfS regulatory decision does not set a legal precedent – unlike a decision of the High Court – it does show that the OfS has significant regulatory powers at its disposal which it is prepared to use when it considers appropriate to do so. The regulatory case report helpfully sets out the OfS’ reasoning and factors which it took into account when reaching its decision.

The facts and issues in this matter also give rise to questions of employment law for the former member of academic staff and charity law in respect of the university’s compliance with its governing documents and legislation.