The Office for Students’ investigation into events surrounding the resignation of Kathleen Stock at the University of Sussex has entered its third year, hinting at the difficulties the English regulator will face when trying to adjudicate over free speech issues, according to legal experts.
Nearly 26 months after the OfS opened its review into whether the university had met its obligations on academic freedom and freedom of speech during the tumultuous period, it has still not published its findings.
Professor Stock resigned from the institution in October 2021 after protests by staff and students who accused her of transphobia over her views on gender identity. The universities minister at the time, Michelle Donelan, said there had been a “toxic environment” at Sussex that had made the philosophy professor’s position “untenable”.
In November 2021, the OfS confirmed that it was investigating because of potential concerns that the university had breached its conditions of registration in relation to its duties on free speech and academic freedom, but has since declined to provide any updates beyond saying the investigation was ongoing.
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While the reasons for the delays have not been made clear, the unresolved case has been hanging over the OfS’ efforts to devise a free speech complaints scheme, which will be expected to make judgements on similar cases, according to Smita Jamdar, head of education for the law firm Shakespeare Martineau.
It showed, according to Ms Jamdar, the difficulty of dealing with “thorny” issues for which the OfS will have to reach conclusions on whether or not laws have been broken, something she said it appeared unqualified to do.
“They have almost got to the position where whatever judgement they reach it’s going to be viewed as unsatisfactory and it is going to create anxiety about their new scheme. It is not a good start to have this going on in the background,” she said.
Ms Jamdar said she was “struggling to understand what more evidence is going to emerge after two years” that would influence the OfS’ decision and pointed out that, under the terms of the new complaints scheme outlined last month, universities were expected to reach conclusions on free speech issues within 30 days.
The scheme also allows the OfS to recoup costs from an institution where a complaint is found to be partially or fully justified – which, if investigations are going to last two years, would probably be very high, Ms Jamdar said.
Dennis Hayes, the director of the group Academics for Academic Freedom, said the “lackadaisical approach” of the OfS to its investigation “mirrors that of universities in response to free speech issues” and showed the need for “pressure from below” to ensure that the new regulations would be effective.
Andrew Tettenborn, professor of commercial law at Swansea University, and another free speech campaigner, said the OfS would “enhance its reputation, especially in high-profile free speech cases like this one, if it gave regular press updates on the progress of its investigations, even if it did on occasion have to say that matters were delayed by factors that it could not at present discuss”.
