Universities could face multi-million-pound fines for breaches of freedom of speech rules, the Office for Students (OfS) said.
The University of Sussex was fined £585,000 after the OfS said its equality policy – which includes rules to “positively represent trans people” – could prevent staff and students voicing opposing views. Sussex was investigated after Prof Kathleen Stock left the university in 2021 accused of transphobia.
Arif Ahmed, OfS director for freedom of speech, said the fine could have been as high as £3.7m and there was “potential for higher fines in the future”.
Universities have told the OfS they were concerned about how to uphold free speech while preventing hate speech.
The University of Sussex was the first to be fined under new powers given to the OfS in January.
The higher education regulator’s investigation examined the university’s trans and non-binary equality policy, which said that course material must “positively represent trans people and trans lives” and also said “transphobic propaganda… [would] not be tolerated”.
The watchdog said the “chilling effect” this would have on anyone wanting to voice an opposing view meant the university failed in its duty to uphold freedom of speech on campus.
The University of Sussex plans to legally challenge the OfS findings, vice-chancellor Prof Sasha Roseneil said.
The OfS investigation into the University of Sussex started with the case of Prof Kathleen Stock, who left the university in 2021 after being accused of transphobia for her views on sex and gender issues.
The OfS report concluded that Prof Stock “felt unable to teach certain topics” and feared disciplinary action as a result of the university’s policy.
Describing the judgement as an “unreasonably absolutist definition of free speech”, the university said the ruling would leave institutions “powerless to prevent abusive, bullying and harassing speech”.
The OfS, it added, had pursued a “vindictive and unreasonable campaign” against the university.
It also said the OfS had failed to respond to the university’s requests to engage with its staff in person, with Prof Roseneil describing the investigation as a “trawl of documents”.
But Dr Ahmed defended the investigation and its ruling on Wednesday, saying that “we communicated with them and they communicated with us”.
He added: “I think universities should be looking at their policies and thinking carefully about what they need to do to comply with the law and to comply with regulatory requirements.”
The report said maximum penalties for universities would be capped at whichever is higher: 2% of a university’s annual “qualifying income” – the amount they receive from tuition fees and OfS grants – or £500,000.
Many universities post incomes in the hundreds of millions every year, meaning maximum fines could comfortably reach seven figures.
The University of Sussex fine was capped at £4.6m, the OfS said, adding that an “appropriate deterrent” against future breaches could be achieved with the lower fine.
“Clearly, future cases will not be the first case of their kind, so there will be a potential for higher fines in the future,” Dr Ahmed said on Wednesday.
The OfS was given the power to issue fines where freedom of speech was not upheld at a university in January.
Education Secretary Bridget Phillipson described free speech and academic freedom as “non-negotiables” in universities, adding that the OfS would get stronger powers to handle such cases so that students and academics are not “muzzled” by restraints on free speech.
