The University of Sussex has won its appeal against the Office for Students (OfS) after a judge ruled the regulator acted beyond its powers and with “a closed mind” over alleged breaches of academic freedom.

A £585,000 fine imposed a year ago has now been overturned.

In a judgment handed down on 29 April, Mrs Justice Lieven found in favour of the university on five counts, including that the regulator had acted beyond its powers in fining the university over its Trans and Non-Binary Equality Policy Statement. The statement included a requirement for staff to “positively represent trans people”.

The university had argued in court that the statement was not one of its governing documents.

ߣߣ��Ƶ

The OfS also misunderstood the meaning of “freedom of speech within the law” in treating any potential restriction of lawful speech as a breach of its regulatory requirements, the verdict said.

In addition, the OfS “misdirected itself” on whether the policy statement amounted to a “governing document” that would fall within its remit as a breach of the Higher Education and Research Act.

ߣߣ��Ƶ

The court also found the OfS was wrong not to have considered whether the alleged breaches had been remedied when it made the decision to fine the university.

Overall, the OfS’ decision to fine the university “was vitiated by bias because the OfS approached the decision with a closed mind and had therefore unlawfully predetermined the decision”, the judgment concludes.

The initial investigation was brought by the regulator following philosopher Kathleen Stock’s departure from the university in 2021 after she was targeted by protesters over her gender-critical views, which some students claimed were transphobic.

Welcoming the verdict, Sasha Roseneil, vice-chancellor and president of the University of Sussex, said it was a “good day for everyone who cares about the proper and effective governance and regulation of universities”.

“The university has always maintained that the OfS adopted an erroneous and absolutist approach to freedom of speech, that it deliberately ignored comprehensive protections of academic freedom and freedom of speech at Sussex, and that it prosecuted its torturous three-and-a-half-year-long investigation with a ‘closed mind’,” said Roseneil.

ߣߣ��Ƶ

The judgment found in the regulator’s favour on three lesser counts, stating it was not irrational to believe the policy statement read in isolation could have a significant effect on free speech.

However, the court’s overall judgment was a “comprehensive vindication” of the university’s belief that the regulator had acted unlawfully, insisted Roseneil.

“It is a devastating indictment of the impartiality and competence of the OfS, implicating its operations, leadership, governance, and strategy,” she claimed.

ߣߣ��Ƶ

“It raises important and urgent questions for the government as it plans to grant ever more powers to the regulator,” she added, saying she was seeking a meeting with the education secretary “to discuss this excoriating judgment and its implications for the higher education sector”.

“We need a regulator that can be trusted, that properly understands freedom of speech, academic freedom, lawful commitments to inclusion, and the scope of its own powers. We need a regulator that works with the sector, not against it – in the interests of the students of today and of the future. I stand ready to work with the government to find better ways to regulate and support universities in serving the public good.”

Josh Fleming, interim chief executive of the OfS, said the regulator was “disappointed” by the ruling and would “carefully consider the consequences of the judgment before deciding on next steps”.

“Our focus remains on students and the sector, and we are pleased that following our investigation, a dozen institutions, including the University of Sussex, have amended policies which restricted freedom of speech. As a result, students and academics should feel greater confidence in their ability to engage in the free and frank exploration of thought that characterises English higher education,” Fleming said.   

ߣߣ��Ƶ

jack.grove@timeshighereducation.com