Court blocks OfS free speech fine for University of Sussex

The High Court has overturned the decision by the Office for Students (OfS) to issue a fine against a university for failing to secure freedom of speech in a high-profile judgment for the higher education sector.
The ruling in favour of the University of Sussex is a damaging blow to the credibility of OfS, the higher education regulator.

In her statement on the ruling, the Honourable Mrs Justice Lieven said that the OfS “approached the decision with a closed mind and had therefore unlawfully predetermined the decision”.

Further, the judge said the OfS misdirected itself on the meaning of “freedom of speech within the law” and “academic freedom”, and failed to have proper regard to the protective effect of the university’s Freedom of Speech Code of Practice.

The university regulator’s £585,000 (approximately US$798,000) fine against the university in March last year had been the largest ever and came in the wake of campus protests against gender-critical views and the resignation of Professor Kathleen Stock, a gender-critical feminist.

It was issued following an OfS investigation into the university, which opened on 22 October 2021 and concluded on 27 March 2025, prompted by a series of student protests at the university concerning Stock, although those events were not the subject of the investigation nor part of the decision to fine the university.

The court statement on its ruling said OfS had issued the fine based on its view that the university had breached public interest governance conditions and consequently OfS conditions of registration in relation to free speech. The OfS based its findings on the university’s Trans and Non-Binary Equality Statement, equating the policy to a “governing document”.

But in the 29 April ruling the High Court rejected many of the OfS’ reasons for implementing the fine.

No jurisdiction

Mrs Justice Lieven said the university did not have jurisdiction to make its finding of breach of conditions because the policy statement was not a ‘governing document’.

Trish D’Souza, legal director in the education team at UK and Ireland law firm Browne Jacobson, said: “The judgment is clear that the court considers OfS to have acted beyond its powers in its expansive interpretation of the conditions of registration and the procedure adopted in its enforcement action.

She said the High Court had confirmed that not every university policy governs how a provider operates and therefore does not amount to a governing document (unlike charters, statutes and articles).

“Compliance with free speech obligations must include consideration of a university’s freedom of speech code, even if not expressly referenced within each policy, and the proportionality of any measures which potentially interfere with lawful freedom of expression taken into account.

“Even where the OfS has jurisdiction, it must act fairly, openly and without predetermination. The finding that the OfS acted with apparent bias is striking, and this undermined the entire decision-making process. This underlines that enforcement can’t be driven by a desire to ‘send a message’,” she noted.

D’Souza said the judgment will have wide ramifications across the sector, for institutions seeking further guidance on what freedom of speech “within the law” means in context and in how the judgment outcomes are taken into account in the forthcoming regulations to bring the OfS’ complaints scheme into force.

“While the court ruled that academics should not be in danger of losing their jobs as a result of exercising such freedoms, it distinguished this from a university’s right to instigate disciplinary proceedings.

“Beyond the free-speech headlines, this is a significant public law ruling that reins in regulatory overreach and confirms the OfS will be held strictly to the limits of its statutory powers and its own published regulatory framework.

She said the court’s finding of institutional predetermination and that the OfS proceeded with a closed mind is particularly striking. “This judgment signals that ‘test case’ enforcement strategies can fatally undermine the lawfulness of regulatory decisions.”

University hails ‘full vindication’

Professor Sasha Roseneil, vice-chancellor of the University of Sussex, commenting on the judgement, said in a statement: “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’.

“The Court’s judgment is a comprehensive vindication of that position.”

Josh Fleming, interim chief executive of the OfS, said: “We are disappointed, of course, by this ruling. We will carefully consider the consequences of the judgment before deciding on next steps. We will reflect on the Judge’s findings and use them to help inform our future approach.”

Fleming said the OfS is pleased that, following its 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,” he noted.

He stressed that the case and the OfS’ investigation were not about the substance of ongoing debates around sex and gender.

“Freedom of speech extends to all sides of this and other subjects,” and the OfS’s new complaints scheme “will help make sure we can take swift action where free speech rights are restricted.”

Stock says ruling is ‘astonishing’

Kathleen Stock, writing in UnHerd, said that central to the finding was that the transgender policy did not count as a “governing document”, but on the ground at the time it “very much felt like a policy document. Indeed, it seemed positively Stalinesque in its effect”.

She said one astonishing thing to have emerged from the ruling is that existing free speech statutes “have literally nothing meaningful to say about the hundreds of politicised documents that have proliferated like weeds in British universities in the last decade, praising some forms of expression as desirable and proscribing others as suspicious or outright hateful, fuelling a culture of student complaints, disciplinary investigations, and fear”.

She argued that the ruling implies that it is not the regulator’s concern whether a university’s culture produces intimidating obstacles to freedom of expression like these or avoids them, which she said rendered the Higher Education and Research Act (HERA), on which the judgement was based, “irrelevant to freedom of expression in the modern context”.

She said a new approach was needed and hoped the forthcoming Higher Education (Freedom of Speech) Act will “do much better” when enacted, but in the meantime “thousands of academics are still self-censoring”.