The High Court’s decision in R (University of Sussex) v Office for Students was handed down this week and deals a serious blow to the ability of academics and students in English universities to express themselves freely. At the heart of this lengthy and, at times, legally complex ruling are findings that may curtail the sector watchdog’s powers to scrutinise the very policies – EDI, trans inclusion and mandatory decolonisation agendas – through which not just speech, but research, teaching and supervision are increasingly policed on campus.
The case arose out of the university’s handling of internal policies in the wake of the campaign against Professor Kathleen Stock over her gender-critical views, which culminated in her resignation after a sustained campaign of ostracism, harassment and intimidation, including protests by masked demonstrators.
Shortly afterwards, the Office for Students opened an investigation. Unable to act on behalf of an individual, it instead examined whether Sussex had complied with its legal obligations to uphold public-interest principles, including free speech and academic freedom. Its focus fell in particular on the university’s Trans and Non-Binary Equality Policy Statement. Among other things, the 2018 version stated that course materials must “positively represent trans people and trans lives”. The OfS concluded, not unreasonably, that such wording risked chilling lawful speech and academic freedom, and its wider investigation led to a £585,000 fine.
Although Sussex ultimately accepted that this wording should not have been included, it brought a judicial review, reportedly spending more than the fine itself, and challenged the OfS’s decision on a range of public-law grounds, including the claim that this kind of policy was never within the regulator’s reach in the first place.
The court found for Sussex on a number of grounds. Most fundamentally, it held that the OfS had misinterpreted the meaning of “governing documents” under the Higher Education and Research Act 2017, and had wrongly determined that Sussex’s trans policy fell within that category. But the OfS also lost on another ground, with the court holding that it had erred in law by misdirecting itself as to the meaning of “freedom of speech within the law”, and by treating the possible restriction of lawful speech as sufficient to find a breach of its core free speech duty.
It is in the course of reaching that latter conclusion that one of the judgment’s most striking passages appears. Having criticised the OfS for taking too blunt an approach to lawful speech, the court illustrates its reasoning with a hypothetical: a lawful gender-critical feminist lecture, objected to by someone, allowed to proceed only on condition that it is “read in advance” by the university.
The difficulty is what this might look like in practice. Who would carry out the review? Legal counsel? An EDI officer? The chair of the LGBTQ+ Staff Network? On what basis would changes be requested: tone, language, framing – or simply a sense of distaste? Would passages deemed likely to generate upset need to be reformulated, or accompanied by trigger warnings? And what would any of this mean for how the academic delivering such a lecture is regarded by colleagues and students?
Under the OfS’s own guidance on complying with the Higher Education (Freedom of Speech) Act 2023, the starting point for universities is simple: if it is “reasonably practicable” to allow the speech to go ahead – including by not restricting it at all – then that step must be taken. The judge’s example begins to blur that line, suggesting that even where speech could simply proceed, some form of prior control may still be considered appropriate.
The risk is that the question “should we allow it?”, even if answered in the affirmative, is then followed by another: “how can we control it to minimise upset or complaints?”
There is a certain irony to the judge’s hypothetical reasoning. It is arguably this way of thinking about lawful speech – not whether it should be permitted, but how it should be managed – that helped cultivate the conditions in which Sussex’s senior leadership paid only lip service to Kathleen Stock’s right to academic freedom in the face of sustained protest, until it was too late, prompting the OfS investigation that culminated in this judicial review.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.