The OfS’s fine on Sussex is a blow against free speech, not for it

• Peter Scott is Emeritus Professor of Higher Education Studies at UCL and was Vice-Chancellor of Kingston University between 1998 and 2010.

Freedom of speech and academic freedom are difficult enough to define and police. The task has become more difficult because they have got caught up in the two most toxic issues of the moment – Palestinian rights and anti-Zionism (seen as shading into anti-semitism) on the one hand and support for the Israeli Government on the other; and women’s and trans rights and transphobia. Never has it been more true that hard cases make bad law.

This seems to have been lost on the Office for Students with its recent decision on the Kathleen Stock case, whose gender-critical views had led to protests and demonstrations by trans activists, to fine the University of Sussex more than £500,000 (with the threat that fines could be even higher for universities which, in the eyes of the OfS, fail to protect free speech and academic freedom in a similar way). Unsurprisingly, that decision is being challenged by Sussex on a number of grounds, including the OfS’s refusal to meet the University’s representatives face-to-face before reaching it, a curious decision in the light of normal proceedings in legal and quasi-legal cases. Remember the lawyers’ old Latin tag audi alteram partem.

The Stock case was one of three recent high-profile free speech cases. The two others were the case of David Miller, the University of Bristol professor who won an employment tribunal case after his dismissal by the University for his anti-Zionist views and that of Jo Phoenix, the Open University (OU) professor who won a similar case for constructive dismissal following the University’s failure to support her when attacked for her gender critical views.

The same two toxic issues were in play in all three cases. It is difficult to see how, from the OfS’s perspective, Bristol and the OU were not as much in breach as Sussex of the OfS’s regulatory condition E1 for failing to uphold the relevant public interest governance principles (ensuring staff have the freedom ‘to question and test received wisdom’ and ‘to put forward new ideas and unpopular opinions’ without placing themselves in jeopardy). Two separate employment tribunals found that this is exactly what happened to Professors Miller and Phoenix, although in the first case through gritted teeth. Constructive dismissal and dismissal certainly count as being placed ‘in jeopardy’.

The OfS opened its investigation into ‘free speech matters’ at Sussex under the general powers it had under its regulatory framework. The fine was assessed within the same framework. The Higher Education (Freedom of Speech) Act, which has given the OfS extra powers to investigate individual complaints, had not yet been passed. In any case, the incoming Labour Government chose last year not to implement some key provisions in that Act. So, when it launched the Sussex enquiry, the OfS did not yet have the power to investigate individual cases. Officially, it did not do so in the case of Kathleen Stock, although it appears she was interviewed as part of the investigation.

So it remains a mystery why the OfS decided not to investigate the Miller and Phoenix cases which, on the face of it, raised the same issues and, as a result, should have led to the same concern – and similar fines? Surely not because of the political and media firestorm that the Stock case set off. Instead, the OU was allowed to ‘mark its own homework’ by setting up the Dandridge review, which failed to placate Professor Phoenix. Bristol publicly expressed its ‘disappointment’ at the tribunal’s findings, so no regrets and no acknowledgement that free speech had been an issue. The involvement of employment tribunals was no bar to an OfS investigation. Any differences between the three cases cannot explain why Sussex was picked out, because the OfS did not carry out investigations into the other two cases and so could not be aware of any differences.

The OfS report is a curious document. It is largely context-free, in the sense that Professor Stock’s case is so briefly sketched that anyone unfamiliar with the case would find it difficult to understand what had happened. The formal reason for this context-lite brevity is that the OfS was not investigating what had happened to Professor Stock. Officially there was no Stock case. But a more substantial reason surely is that this absence of context was necessary in the light of its claim, in the words of the Director for Freedom of Speech and Academic Freedom, Professor Arif Ahmed, that ‘The OfS will continue to focus on a protection and promotion of lawful speech – irrespective of the views expressed. We will continue to be impartial and viewpoint neutral in our regulation and decisions’.

In truth, free speech and academic freedom, even within the law, can never be absolute. This is explicit in section 43 of the Education (No. 2) Act of 1986 which states that universities ‘must take such steps as are reasonably practical to ensure that freedom of speech within the law is secured’. ’As are reasonably practical’ is an essential phrase, to which I will return. There will always be views which it is lawful to express but nevertheless are highly objectionable in the eyes of many people, and especially of those who feel they are threatened.

Nor can they really be ‘viewpoint neutral’. The two toxic issues under discussion demonstrate this clearly. The expression of anti-Israeli and anti-Zionist views, because it is sometimes in danger of shading into anti-Semitism, is treated as beyond the pale. Gender-critical views, in contrast, despite the fact that they may be perceived to be transphobic, are firmly within it. The former, therefore, deserve to be banned and universities that tolerate their expression stigmatised or punished; the latter to be protected and universities that do not do so punished – as Sussex has been with its hefty fine. To be clear, I am not expressing an opinion about these viewpoints, just highlighting how they are treated differently.

Why? Both Jewish and trans people, rightly or wrongly, feel threatened by what for them are hostile views. That is not sufficient in itself to override freedom of speech or academic freedom which, remember, are expected to be ‘unpopular’. This difference in treatment can only be explained with reference to history and politics. But, if the definition, and protection, of free speech and academic freedom are essentially political, the ‘viewpoint neutrality’ espoused by the OfS is an illusion. Its own decision to investigate Sussex was clearly partisan. The 2023 Act, which gave the OfS the mandate to investigate individual complaints, arose in a particular political context. It reflected the belief that conservative viewpoints were unwelcome in universities and therefore needed to be protected. Protecting liberal views was never the game.

If free speech and academic freedom are context-specific, two questions arise. The first is practical. If that context is to be assessed and common sense applied – or, in the phrase in the 1986 Act, steps ‘as are reasonably practical’ defined – who is best placed to do that? In short, who is competent to make these complex decisions in which competing, and passionate, differences must be balanced? The effective choice is between officials in a State agency who are likely to have limited experience at the sharp end of university management, and vice-chancellors, their senior colleagues and university communities at large who know the people and personalities and real-world contexts. Free speech cases will not always be straightforward. They may contain multiple strands – breakdowns in professional relationships, complaints by students (ostensibly sovereign ‘customers’), even underperformance.

The second question is one of principle, and much more important. In a liberal democracy that aspires to be an open society, should the State, or State agencies, ever be allowed to decide these delicate issues, particularly with regard to academic freedom, in the process invading and inevitably reducing the autonomy of universities? Of course, authoritarian and totalitarian States routinely behave in this way. They have no interest in academic freedom. But in a democracy, a foundational principle of academic freedom is surely that it is not defined or policed by the political authorities.

The only conceivable justification for State intervention in a free society is that, if universities do not protect freedom of speech, they must be made to do so, as the partially implemented 2023 Act prescribes. There are two answers to this.

• First, during the modern era, the practice has always been to trust universities to protect academic freedom because they understand it best. When I was a member of the board of the former Higher Education Funding Council for England two decades ago, no one would have suggested that HEFCE should have the power to fine universities for failing to uphold free speech. What is truly chilling is the erosion of institutional autonomy, with remarkably little protest or pushback. It is interesting how the political right, while believing passionately in a small State in the context of public services, economic regulation and taxation, believes equally passionately in a very strong State in the context of ideological surveillance.

• Second, is there really a problem here – or, more accurately, a new problem? There is little evidence that universities have become less trustworthy in terms of protecting academic freedom. Of course, there have always been issues with ‘viewpoint diversity’ (in the phrase used by the US Government to justify its assault on Harvard – I’m coming on to Trump next…). In Economics departments dominated by econometricians behavioural economists are not always welcome. Some education departments may have ‘coloniality’ on the brain. Even peer review or the Research Excellence Framework may have ‘chilling effects’ in certain circumstances. But overall universities have always known, better than politicians, that intellectual creativity and productivity depend on a variety and diversity of ideas and of people.  

… which brings me finally to Trump and Harvard. In a crooked sense, we should be grateful to President Trump for his brutish honesty. No serious attempt to disguise partisanship beneath a cloak of dispassionately protecting all free speech and academic freedom, just the driving desire to punish America’s greatest universities for refusing to toe the MAGA line in an extraordinary spasm of national self-harm. Harvard has been asked, and bravely refused, to allow the US Government to carry out ‘audits’ of departments suspected of being ‘woke’, to influence admissions, to vet academic appointments, to have access to lists of students, especially international students, who have taken part in demonstrations against Israel’s actions in Gaza, and outlaw all policies designed to promote diversity, equity and inclusion.

The US example is important for two reasons, however little the OfS may appreciate being bracketed with Trump. First, the political focus on free speech, in the current form of the ‘war on woke’, has all the marks of being ‘made in America’, ideology borrowing rather than truly home-grown. Now we have been shown the future, and it stinks. Do we really want to go there? Second, the same politically partisan focus has actually made it more difficult to have a measured debate about free speech and academic freedom which, very sadly, is badly needed in a world from which reason, trust and mutual respect appear to have fled – and online abuse, fake news and AI have arrived. The OfS report on Sussex, and its disproportionate fine, are – in effect – a blow against rather than a blow in favour of free speech in higher education.