The note, when read alongside the accompanying case summaries, reveals what could be a significant limitation: the OIA’s approach appears designed primarily to scrutinise decision-making processes rather than to provide robust protection for substantive free speech rights.
The OIA is explicit about its role. It emphasises that it does not decide whether particular speech was acceptable, nor does it seek to substitute its judgment for that of a university. Instead, it focuses on whether institutions followed reasonable procedures, took account of relevant legal and regulatory obligations, and reached decisions that were reasonable in the circumstances.
There is much to commend in this approach. An ombudsman should be cautious about becoming a quasi-court or a free speech tribunal. Universities operate in complex environments where competing rights and obligations frequently collide. The OIA’s procedural focus reflects the limits of its statutory remit and provides a degree of institutional consistency.
However, the case summaries suggest that this restraint may come at a cost. Across multiple cases, the OIA appears reluctant to engage directly with the substance of contested speech, instead asking whether the provider’s reasoning process was defensible. The consequence is that complainants seeking vindication of free speech principles may find that the central question becomes not whether speech was wrongly restricted, but whether the university documented its decision-making adequately.
The clearest example is CS082606, involving disciplinary action against a student who participated in a pro-Palestinian rally where anti-Zionist slogans were displayed. The OIA concluded that the university had failed properly to consider the balance between the distress allegedly caused by the signs and its legal obligations relating to freedom of speech.
It therefore found that part of the disciplinary decision was unreasonable. Yet the remedy was limited to an apology, £250 compensation and staff training because the student had already graduated and the disciplinary outcome would likely have remained unchanged due to a separate misconduct finding.
This case demonstrates both the strength and weakness of the OIA’s model. On the one hand, the OIA was prepared to identify a failure to engage properly with free speech considerations. On the other, the practical consequences for the institution were modest. The message appears to be that universities must show their workings when restricting speech, rather than that certain forms of expression deserve particularly strong protection.
By contrast, the OIA showed considerable deference to institutional decision-making where universities could demonstrate that competing rights had been considered. In CS082604, concerning allegations of transphobic comments during an online teaching session, the OIA supported the provider’s conclusion that students were entitled to express differing opinions in an academic setting, even where others found those views offensive. It accepted the provider’s reliance on the Equality Act 2010’s protection of both gender reassignment and gender-critical beliefs, and emphasised the importance of context and academic discussion.
Similarly, in CS082607, the OIA upheld a university’s decision to permit a controversial international speaker to appear at an event. The OIA accepted that the provider had appropriately balanced its Prevent obligations with its free speech duties, placing weight on the absence of any legal prohibition, court findings or police concerns regarding the speaker.
These decisions suggest that the OIA is more comfortable assessing whether balancing exercises occurred than interrogating the quality of those judgments. Indeed, the casework note repeatedly stresses that the OIA does not seek to replace institutional judgment with its own.
The treatment of academic freedom complaints is even more deferential. In both CS082601 and CS082602, students alleged that academic decisions had been influenced by disagreement with their views. In each case, the OIA ultimately relied on the doctrine of academic judgment. It accepted that decisions concerning research ethics, assessment standards and academic quality were matters for appropriately qualified academics, provided there was no evidence that action had been taken because of the student’s beliefs or research topic itself.
This is legally orthodox, but it raises an important question. If a student genuinely believes that their academic work has been disadvantaged because of unpopular viewpoints, what evidence would ever be sufficient to overcome the presumption that assessment decisions are manifestations of academic judgment? The case summaries offer little guidance on where that threshold lies.
Taken together, the OIA’s free speech casework reveals an organisation striving for neutrality amid polarised debates. The difficulty, some might say, is that neutrality can look remarkably similar to institutional deference. Universities will likely welcome the message that carefully reasoned and procedurally sound decisions are unlikely to be overturned. Free speech advocates, however, may conclude that the OIA offers only limited protection against restrictions on expression unless universities have clearly failed to consider free speech at all.
While some of the casework examples predate legal changes and the revised OfS’ free speech guidance, the general approach to such cases nonetheless seems clear. The OIA is not positioning itself as a champion of free speech in any ideological sense. It is positioning itself as a guardian of procedural fairness. Whether that is enough to maintain confidence in higher education’s commitment to free expression remains an open question. In my next blog, I will contrast this approach with that of the OfS.
