Will academic freedom be upheld?

A High Court challenge by the University of Sussex will test just how far the Office for Students can lawfully reach into the internal policy machinery through which universities now regulate campus speech. At stake is a £585,000 penalty imposed by the regulator for alleged failures to uphold freedom of speech and academic freedom.

Listed for four days at the Royal Courts of Justice, the judicial review is being watched closely across the sector because it will help define the OfS’s enforcement powers under the higher education regulatory regime. In particular, the case centres on whether the regulator can apply its registration conditions, including the “public interest governance principles” that encompass free speech and academic freedom, to the kind of internal policy instruments that shape — and, some would argue, unduly limit — day-to-day university life, from equality and inclusion policies and dignity-at-work rules to harassment frameworks and wider guidance used to regulate staff and student conduct. The judge has indicated that judgment will be reserved, with a decision expected within a few weeks.

The dispute goes back to October 2021, when the OfS opened an investigation following protests by trans activist students against Kathleen Stock, a philosophy professor, including harassment as she walked to work and demands that her employment be terminated. The trigger? Her perfectly lawful gender-critical views and the related belief that some spaces, like prisons, should remain female-only. In its case report, the regulator said the incident, and its review of Sussex’s documents, raised concerns about whether the university was unlawfully restricting academic freedom and lawful free speech, including for those holding “gender-critical” beliefs, defined by the regulator as the belief that biological sex is real, important, immutable and not to be conflated with gender identity.

Despite the prominence of Stock’s case in the public debate, the eventual penalty, imposed in March 2025, didn’t centre on her case directly, but on the OfS’s finding that Sussex had breached two ongoing conditions of registration under the regulatory framework established by the Higher Education and Research Act 2017 (HERA) — requirements universities must meet to remain on the OfS register and participate in the public funding and student finance system. The OfS found breaches of E1, the condition requiring each university’s governing documents to uphold the public interest governance principles, and condition E2, which concerns management and governance, including operating in accordance with the university’s governing documents and delivering the public interest governance principles.

In four passages of Sussex’s 2018–2023 Trans and Non-Binary Equality Policy Statement — a document the OfS treated as one of the university’s “governing documents” — the regulator identified language it said was capable of restricting lawful speech and creating a “chilling effect”. Among the statements cited was a requirement that “any materials within relevant courses and modules [must] positively represent trans people and trans lives”, alongside provisions referring to “transphobic propaganda” and stating that “transphobic abuse, harassment or bullying … are serious disciplinary offences for staff and students”. In the OfS’s analysis, the expression of “gender critical” views could have fallen within the scope of those statements, exposing staff to disciplinary risk. Stock’s witness statement was also cited as an illustration of how such a chilling effect could materialise in practice.

Sussex’s challenge advances six grounds, contending that the OfS’s decision was ultra vires, wrong in law, irrational and procedurally unfair. As a legal assemblage, the grounds span jurisdictional arguments, complaints about the conduct of the investigation, and disputes about the OfS’s substantive approach to permissible restrictions on speech. But one of the arguments likely to attract the widest attention across the sector is its first ground of challenge on the meaning of “governing documents” and, in turn, the range of internal policies to which the OfS can lawfully apply that condition.

At the centre of that dispute is a threshold question of statutory interpretation under HERA: what counts as a university’s “governing documents” for the purposes of Condition E1, as distinct from lower-level policy material. In Ground 1, Sussex argues that “governing documents” refers to the instruments that constitute a university’s legal form and governance arrangements, and that HERA’s practical effect was to move formal oversight of those instruments from the Privy Council to the OfS, not to expand that category. Against that background, Sussex contends that the OfS adopted an unlawfully broad definition by treating “governing documents” as extending to any document describing a provider’s objectives or values – an approach set out in the regulator’s guidance and said to have been adopted in the final decision – and that such guidance cannot enlarge the statutory scheme from which Condition E1 is derived.

The upshot of all this terribly clever — yet for the lay reader, it must be admitted, decidedly enervating — legalistic wrangling? Sussex says its Trans and Non-Binary Equality Policy Statement was not a “governing document” within the meaning of the Act and therefore fell outside the scope of Condition E1. It’s worth noting that the same definitional argument also frames Sussex’s broader complaint about the shape of the investigation. Indeed, Sussex’s skeleton argument does what might, in the trite yet irresistibly gnomic parlance of the tight-shirted modern football pundit, be described as “going in studs-up”, advancing the claim that the OfS recognised it had no jurisdiction to investigate Stock’s treatment and therefore pursued an inquiry “primarily focused” on the wording of the Policy Statement instead.

That would sharply limit the regulator’s ability to act on equality, dignity-at-work, harassment and curriculum-facing policies which all too frequently curtail lawful disagreement

The broader significance of Ground 1 isn’t difficult to discern: Sussex is inviting the court to confine Condition E1 to formal governing instruments alone, and to reject the OfS’s broader approach under which internal policy documents can be treated as in-scope. In practice, that would sharply limit the regulator’s ability to act on equality, dignity-at-work, harassment and curriculum-facing policies which all too frequently curtail lawful disagreement, debate and dissent on campus, while leaving formal commitments to free speech intact at the level of statutes and charters.

And speaking of charters, could there be a final twist to this story — at least, for the OfS as a serious enforcement regime? Where Ground 1 would effectively neuter the regulator by confining it to the rarefied realm of technocratic aspiration, in Ground 2 Sussex reaches for an older and more unexpected authority that could shut the regulator out of the question altogether. As a Royal Charter institution, this representative of a sector so often disposed to treat inherited “white privilege” as the master explanation of all today’s social pathologies is arguing that disputes about its internal laws and delegation arrangements fall within the Crown’s visitorial jurisdiction. On this basis, so the argument goes, the OfS had no power to step into that role when enforcing Condition E2.

“God bless you, your Majesty! (But also, of course, down with all colonial epistemologies!)”