Universities may face fines higher than £585k over free speech, watchdog warns

Universities in England could face fines higher than £585,000 in the future if they fail to uphold free speech, the higher education regulator has said.

Professor Arif Ahmed, director for freedom of speech and academic freedom at the Office for Students (OfS), has defended the decision to impose the record fine on the University of Sussex for failing to uphold freedom of speech after the watchdog was accused of perpetuating “culture wars”.

The OfS’s investigation, which ran for nearly three-and-a-half years, found that the institution’s trans and non-binary equality policy statement had “a chilling effect” of possible self-censorship of students and staff on campus.

It was launched after high-profile protests called for the dismissal of academic Professor Kathleen Stock in 2021 over her views on gender identity.

The report concluded that Prof Stock “felt unable to teach certain topics” as a result of the university’s policy.

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

The University of Sussex plans to legally challenge the investigation, which its vice-chancellor Prof Sasha Roseneil has criticised as being “Kafka-esque”.

The maximum fine for the University of Sussex could have been £3,253,024 after the institution was found to have breached two of conditions of registration – but it was reduced to £585,000, the OfS said.

In a briefing with the media following the publication of the investigation into freedom of speech, Prof Ahmed said: “Clearly, future cases will not be the first case of their kind, so there will be a potential for higher fines in the future.”

The free speech tsar added: “I think universities should be looking at their policies and thinking carefully about what they need to do to comply with the law and to comply with regulatory requirements.”

On the discounted fine of £585,000, which has been imposed on the University of Sussex, Prof Ahmed told the media: “Part of the reason for the discount was because this is the first case of its kind.

“We also thought carefully about things that Sussex had done, the changes that had taken place in their policies and so on.”

Prof Roseneil, vice-chancellor of the University of Sussex, has accused the OfS of “perpetuating the culture wars” and she warned of the implications of the investigation’s outcome for the higher education sector.

In a Politics Home article, she claimed the “Kafka-esque” investigation only spoke to Prof Stock and was “desk-based”, and she added that the OfS had refused to hold “any substantive meeting” with the university.

Prof Roseneil said: “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.”

She added: “The OfS’s findings mean that it is now virtually impossible for universities to prevent abuse, harassment, or bullying on our campuses.

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

I think universities should be looking at their policies and thinking carefully about what they need to do to comply with the law and to comply with regulatory requirements

In response to the criticism from the University of Sussex, Prof Ahmed told the media on Wednesday: “We did engage with the university.

“We spoke with them a few times, much of the engagement was in writing, but we did engage repeatedly and at length with the university.”

He said: “There may have been occasions where they wanted to see somebody, and in fact that was done in writing instead, I’m quite sure that could well have happened.

“But the engagement would nevertheless have happened in the sense that we communicated with them and they communicated with us.”

Prof Ahmed added: “Our interest is in ensuring the protection and promotion of lawful speech, irrespective of the views expressed.

“This is a really important point and something that we’re going to emphasise, as I’ve been really clear since my appointment, we’ve got no interest in getting involved in any kind of culture wars.”

Vivienne Stern, chief executive of Universities UK (UUK), said: “It’s absolutely essential that universities uphold freedom of speech and academic freedom, and they are legally bound to do so. Universities must also create an environment where all people can work and learn together.

“This judgment, however, raises concerns about how universities can, in practice, discharge freedom of speech and academic freedom duties alongside other important legal obligations, for example under legislation to prevent harassment and hate speech.

“We will therefore be writing to the OfS to ask for clarity as the judgment 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.”

Education Secretary Bridget Phillipson said: “Free speech and academic freedom are non-negotiables in our universities, and I have been clear that where those principles are not upheld, robust action will be taken.

“If you go to university you must be prepared to have your views challenged, hear contrary opinions and be exposed to uncomfortable truths.

“We are giving the OfS stronger powers on freedom of speech so students and academics are not muzzled by the chilling effect demonstrated in this case.