Office for Students declines to appeal Sussex free speech ruling

The Office for Students (OfS) will not appeal a landmark ruling that found it acted beyond its powers in fining the University of Sussex for alleged breaches of free speech and academic freedom. 

The High Court ruled in April that the English higher education regulator was wrong to have imposed a £585,000 fine on the university following its investigation into circumstances surrounding the departure of gender-critical academic Kathleen Stock.

The OfS announced on 19 May that it would not seek to appeal the court’s judgment, which found in favour of the university on five counts and overturned the regulator’s decision that Sussex had failed to protect free speech. 

“We believe that prolonging litigation in this case would not be in the best interests of students or the higher education sector,” said OfS chair Edward Peck. 

“We want to focus on the future, learn lessons from the judgment, and work constructively with the sector as we continue our important work to protect and promote free speech on campus.”

Peck added that the decision also reflects that the OfS will soon have “a range of sharper tools to help it effectively intervene where freedom of speech or academic freedom is compromised,” including an incoming complaints scheme. 

“It is important to note that the judgment broadly endorsed the approach set out in our free speech guidance. Some aspects of the guidance will need to be updated, though, to make sure there is clarity as preparations continue for the launch of the complaints scheme.”

The court case scrutinised the regulator’s approach to the investigation. In her judgment, Mrs Justice Lieven found that the OfS “was vitiated by bias” and “approached the decision with a closed mind and had therefore unlawfully predetermined the decision”. 

But some have called for the regulator to appeal the decision, with Maya Forstater, chief executive of sex-based rights charity Sex Matters, arguing that the judgment failed to fully account for the 2010 Equality Act. 

“If this judgment is allowed to stand, it will leave the OfS as a toothless watchdog,” Forstater writes. 

Much of the case centred around Sussex’s trans and non-binary equality policy statement, which the judge said did not amount to a governing document and was therefore not within the power of the OfS to police. 

Legal experts have suggested that other universities could now be in a stronger position to defend their equality policies following the ruling. 

Peck added that with new joint chief executives set to join the regulator in June, the OfS will “continue to improve the way we regulate universities and colleges”. 

“We look forward to working collaboratively with the sector to ensure that all students continue to benefit from a higher education experience that encourages free expression and learning from diverse perspectives.” 

helen.packer@timeshighereducation.com