Students want free-speech clarity but universities fear catch-22

Clearer advice is needed on how to make campuses inclusive without falling foul of free speech regulations, the National Union of Students (NUS) has said.

The body representing university students has expressed concern after the University of Sussex was fined £585,000 by the Office for Students (OfS) this week for failing to uphold free speech - the first case of its kind.

The higher education regulator launched an investigation back in 2021 when Professor Kathleen Stock left the university. She had faced protests after saying that biological sex was more important than gender identity.

According to the OfS, the university's policy statement on trans and non-binary equality, including a requirement to "positively represent trans people", might have led to staff and students preventing themselves from voicing opposing views.

That has triggered not only the threat of a court showdown, after the university vowed to challenge the OfS's findings, but also put universities across the UK on alert over further free speech-related fines - and leaving some fearing a catch-22 situation.

Universities in England are asking for clarity behind the scenes on how to protect their students from abuse and harassment because the regulator hasn't spelt out what is acceptable.

The regulator told the BBC it would be writing to a handful of institutions to remind them of their duty to protect free speech. Arif Ahmed, from the OfS, warned the University of Sussex fine could have been as high as £3.7m and there was "potential for higher fines in the future".

Finding the balance

Commenting for the first time since the fine was issued to Sussex, the NUS said it was concerned about the size of the fine at a time when university finances are under pressure.

Its vice president for liberation and equality Saranya Thambirajah said it was important universities were welcoming places for all marginalised groups of students - and suggested the money could have gone towards improving student welfare instead.

She told the BBC it's "really unclear" where the OfS is drawing the line on what is or isn't acceptable.

"We would say at the NUS, that the line between freedom of harm and freedom of speech right now is not falling in the right place, or at the very least, there is very little clarity from the regulator as to where that line should be falling," she said.

The OfS has said it should be possible to express any lawful view on campus - but the trans and non-binary equality policy at the heart of the Sussex row, which was in place until last year, illustrates the potential challenges ahead.

One of the concerns raised by the regulator was a section in the policy which said that harassment or bullying including intrusive behaviour, name calling or derogatory jokes were serious disciplinary offences.

Now, the university has replaced it with a new trans and non-binary policy - but the regulator hasn't told bosses yet whether or not that passes the free-speech test.

And in another potential point of tension, from 1 August a new regulation comes into force requiring universities in England to go further in showing how they will promote and uphold free speech on campus.

The OfS says this shouldn't include the content of courses or discussions in the lecture hall. All higher education institutions have to meet conditions to register with the OfS in order to charge tuition fees.

But they will also have to show how they are acting to prevent the harassment of students - and universities are required to try to increase applications from underrepresented groups, through initiatives to make them feel more included.

Lawyer Smita Jamdar, who advises universities in England on how to comply with regulations, says that to reduce harassment, universities need to be "really clear about the behaviour you will and will not tolerate" and that action will be taken when students "transgress those boundaries".

While that has to be balanced against freedom of speech, Ms Jamdar said most people would expect "the line to be drawn somewhere other than name calling and derogatory jokes".

When the BBC looked at similar trans equality policies at a number of universities it wasn't entirely clear whether they would be considered a challenge to free speech.

Of course, the implications of the Sussex fine for universities across the country straddle many other free speech debates and groups of students, including all the potential flashpoints of race, religion, ethnicity and conflict which sometimes play out on university campuses.

The impacts of the Sussex fine are unlikely to go away any time soon, with vice-chancellors and students alike calling for more clarity.

One of those major tests would be if University of Sussex's vice-chancellor, Prof Sasha Roseneil, gets her day in court. The university has confirmed it will seek a review by a senior judge of the inquiry.

If the Sussex case gets debated in court, plenty of people on other campuses would be listening closely.