Freedom of speech in higher education: emerging challenges and priorities
Penningtons Manches Cooper’s specialist education sector team recently hosted a roundtable discussion on freedom of speech in higher education, bringing together senior figures from leading universities and colleges with the firm’s legal experts and expert counsel from Blackstone Chambers.
Daff Richardson, co-head of the education sector team, was joined by partner James Harrison, managing associate Sophie Whitbread, and senior associate Rachel Spruce. Blackstone Chambers was represented by Gemma White KC and Tom Lowenthal.
The discussion, which took place under Chatham House rules, considered the practical implications of recent developments in this fast-evolving area of law. A number of significant changes to the legal and regulatory framework governing free speech on campus over the last year – including the landmark High Court judgment in University of Sussex v Office for Students and the introduction of new duties under the Higher Education Act – has seen institutions across the sector review their policies, governance arrangements and decision-making processes.
A changing legal and regulatory landscape
An overarching theme throughout the discussion was the uncertainty many institutions continue to face despite the growing volume of guidance and regulation. Participants observed that universities frequently find themselves balancing competing legal obligations, including freedom of speech, academic freedom, equality duties, protection from harassment, employment law considerations and contractual commitments.
While the law aims to provide a framework for navigating these tensions, several attendees noted that decisions ultimately have to be made by individuals operating at an institutional level, often in complex and highly charged circumstances.
Balancing competing rights in practice
The challenge of balancing competing rights emerged as another central issue: it was highlighted that freedom of speech disputes rarely involve a straightforward assessment of whether something should be permitted. Instead, institutions are often required to weigh the rights and interests of different groups, including speakers, students, staff and various external stakeholders. Concerns were raised about where boundaries should be drawn, particularly in relation to controversial or unpopular opinions, and whether certain topics are capable of being discussed openly without creating legal, welfare or reputational risks.
Events and institutional responsibility
Discussion also focused on the practical realities faced by universities when organising and hosting events. Attendees shared experiences of requests involving external speakers, student societies and third-party venue hirers, all of which can raise difficult questions about risk assessment and institutional responsibility. Issues such as security arrangements, disruption to teaching and examinations, and the extent to which an institution may be perceived as endorsing an event were identified as common operational challenges.
Participants noted that institutions frequently have to make judgement calls in circumstances where information is incomplete and potential consequences are difficult to predict. This was particularly evident in discussion around external bookings and invited speakers, where attendees explored how institutions might assess risks without inadvertently appearing to pre-judge particular viewpoints or creating perceptions that certain views are inherently unacceptable.
Governance and decision-making
A second major theme was the importance of governance and decision-making processes. Some of the practical challenges discussed centred on the need to move beyond policy documents and ensure that governance frameworks operate effectively in practice. While it was acknowledged that there is often no objectively ‘perfect’ answer in freedom of speech cases, there was broad agreement that the quality of the decision-making process is critical.
The value of clear governance structures, careful record-keeping and contemporaneous evidence demonstrating how decisions were reached, were all emphasised as important. Documenting thought processes and ensuring that decisions can be explained and justified were also seen as key safeguards.
Training and support were identified as potential areas for further development. Participants suggested that case-based training, practical examples and clearer explanations of how institutions have previously approached difficult scenarios may help colleagues navigate complex situations with greater confidence.
The wider culture on campus
The discussion also highlighted concerns about the wider culture surrounding freedom of speech in higher education. Several participants referred to a growing sense of nervousness among academics and professional services staff, with some expressing concerns about self-censorship and uncertainty over what can or cannot be said. Others noted that disputes in this area can quickly become emotionally charged, particularly when amplified through social media, making it more difficult for institutions to manage competing expectations and maintain confidence in decision-making.
Looking ahead, attendees reflected on the likelihood of continued change. Questions were raised about the future role of the Office for Students, the operation of the freedom of speech complaints framework, and the potential impact of AI on complaints processes and information-sharing.
Conclusion
There was significant agreement that freedom of speech will remain a major governance and regulatory challenge for the sector. As institutions continue to tackle evolving legal duties and heightened public scrutiny, the discussion underscored the importance of thoughtful governance, clear processes and a willingness to engage openly with difficult questions for which there are rarely easy answers.