(At Least) Thirteen Ways in Which OfS’s Guidance on Free Speech May Now Need to Change

Why It Matters

Universities face regulatory risk and potential litigation if they follow RA24’s current examples, while students’ lawful expression could be chilled or inadequately protected. Aligning guidance with the Sussex decision safeguards academic freedom and ensures compliant handling of harassment and equality duties.

Key Takeaways

• Sussex judgment forces OfS to apply proportionality, not absolute free‑speech test.
• RA24’s 54 vignettes often presume breach without full legal analysis.
• Investigations alone rarely constitute unlawful restriction under academic freedom duty.
• Policies must balance harassment duties with Article 10 proportionality, not blanket bans.
• OfS guidance should include examples where failing to restrict also breaches duty.

Pulse Analysis

The Office for Students (OfS) issued Regulatory Advice 24 (RA24) to help universities meet the Higher Education Freedom of Speech Act (HEFoSA). Its 54 vignettes were intended as practical road‑maps, but the recent University of Sussex v OfS judgment exposed a fundamental flaw: the guidance treats any policy that could affect lawful speech as presumptively breaching, ignoring the required proportionality assessment under Article 10 of the European Convention on Human Rights. This absolutist stance runs counter to the court’s three‑step analysis—identifying lawful speech, assessing reasonably practicable steps, and evaluating proportionality—leaving institutions vulnerable to regulatory action for merely investigating complaints or drafting broad policies.

In practice, several RA24 examples illustrate the problem. Example 40 assumes that a prolonged investigation automatically punishes a professor’s lawful expression, while Example 35’s blanket ban on misgendering fails to consider safeguards that could make the rule proportionate. The Sussex decision clarifies that investigations, policy wording, and even harassment‑related duties must be examined in context; a policy may restrict certain conduct yet remain lawful if it includes clear exemptions for academic freedom and undergoes a balanced test. Universities therefore need guidance that differentiates between genuine threats to free speech and legitimate, proportionate restrictions aimed at protecting students from harassment or hate.

Moving forward, OfS should overhaul RA24 to incorporate both over‑restriction and under‑restriction scenarios, reflecting the nuanced interplay between free speech and other statutory duties such as the new E6 harassment condition effective August 2025. Updated examples must demonstrate how institutions can design policies—like pronoun guidelines or content‑note requirements—that respect academic freedom while meeting equality and safety obligations. By aligning its guidance with the Sussex precedent, OfS will provide clearer compliance pathways, reduce legal uncertainty, and protect the core mission of higher education: the robust exchange of ideas.