The US Supreme Court, though depleted at present to eight Justices after the death of Antonin Scalia, can still muster majorities in controversial cases.

One of the most controversial issues regularly before the Court (up there with abortion and guns) is affirmative action, especially in college admissions. At the end of last week, in Fisher v University of Texas __ US __ (23 June 2016) the Court held that a race-conscious admissions program in use at the time of petitioner’s application was lawful under the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. In the course of his judgment for the majority, Kennedy J stressed that, in the case of “an academic judgment … some, but not complete, judicial deference is proper”.

In this post and the next, I want to leave aside the (relatively narrow, but – in my view – sensible and precise) holding on the affirmative action issues, and focus instead on the issue judicial deference to academic judgment. In this post, I will consider the nature of such deference. In the next post, I will consider its limits.

In Fisher, Kennedy J held that, once “a university gives ‘a reasoned, principled explanation’ for its decision, deference must be given ‘to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals’,” (citing an earlier stage in the Fisher litigation: Fisher v University of Texas at Austin 570 US __ (24 June 2013); the earlier decision was referred to in the sequel as Fisher I, and the sequel under consideration here is being referred to as Fisher II). This is entirely consistent with earlier US Supreme Court authority. In Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) 90 Rhenquist J held that academic decisions are “not readily adapted to the procedural tools of judicial or administrative decisionmaking”; and in University of Michigan v Ewing 474 US 214 (1985) 225 Stevens J held that “considerations of profound importance counsel restrained judicial review of the substance of academic decisions”.

This judicial deference is afforded whether the academic judgment in question is challenged at public or private law (see, generally, S Hedley “Students as Litigants: A Public Law or a Private Law Issue?” (2015) 14 Hibernian Law Journal 1; P Kamvouniasa & S Varnhamb “In-house or in court? Legal challenges to university decisions” (2006) 18(1) Education and the Law 1). At public law, it is – at the very least – a reflection of the general principle that, on judicial review, specialist decision-making bodies are entitled to deference for decisions within their specialist ambit (see, eg, Canada (Director of Investigation and Research) v Southam [1997] 1 SCR 748, 1997 CanLII 385 (SCC) (20 March 1997); Dunsmuir v New Brunswick [2008] 1 SCR 190, 2008 SCC 9 (CanLII) (7 March 2008); Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34, [1997] IESC 9 (1 December 1997); Orange Communications Ltd v Director of Telecommunications (No 2) [2000] 4 IR 159, [2000] IESC 79 (18 May 2000); Fitzgibbon v Law Society [2014] IESC 48 (29 July 2014); Millar v Financial Services Ombudsman [2015] IECA 126 (24 June 2015). Whether at public law or at private law, it also reflects the academic freedom of higher education institutions to make academic decisions, which is protected in Ireland by section 14 of the Universities Act, 1997 (also here).

The deference is strongest where the university has a Visitor or Visitors who can make the necessary academic decisions. On the public law side of the line, in Thomson v University of London (1864) 33 LJ (Ch) 625, Kindersley VC refused an application to restrain the award of a gold medal to another candidate, as this was an internal matter for the University and its Visitor. On the private law side of the line, in Thorne v University of London [1966] 2 WLR 1080, Diplock LJ upheld an order striking out the claim of a law student that his examination papers had been negligently marked, as this was an internal matter for the University and its Visitors. In Patel v University of Bradford Senate, at first instance ([1978] 1 WLR 1488, [1978] 3 All ER 841 (ChD)) Megarry VC followed Thorne and held that the Court had no jurisdiction to entertain a claim where the university excluded and declined to re-admit a student who had twice failed his examinations; the Court of Appeal ([1979] 1 WLR 1066, [1979] 2 All ER 582 (CA; .doc) affirmed Megarry VC’s judgment; and an application to the European Commission on Human Rights was dismissed as manifestly ill-founded (Application 8844/80 (1982) 4 EHRR 256); on the role of the Visitor, see JW Bridge “Keeping Peace in the Universities: the Role of the Visitor” (1970) 86 LQR 531; W Ricquier “The University Visitor” (1977-8) 4 Dalhousie Law Journal 647; JW Bridge “A Post-Revolutionary Problem in Visitatorial Jurisdiction” 20 Wm & Mary L Rev 415 (1979); JL Caldwell”The Visitor and the Visited: Judicial Review of Universities” (1982) 1 Canterbury Law Review 307; RJ Sadler “The University Visitor. Visitorial Precedent and Procedure in Australia” (1981) 7 University of Tasmania Law Review 2; PM Smith “The Exclusive Jurisdiction of the University Visitor” (1981) 97 LQR 610; PWF Whalley & DM Price “The University Visitor in Western Australia” (1995) 25 UWALR 146 – and note that it has since been superseded in England and Wales (but not in Ireland).

But the deference is afforded to academic decisions and internal academic procedures, even where they do not have a Visitor at their apex. On the public law side of the line, in R (Echendu) v School of Law, University of Leeds [2012] EWHC 2080 (Admin) (22 June 2012) HHJ Jeremy Richardson QC (sitting as a Judge of the High Court) was emphatic that a “court has no jurisdiction to hear a claim which relates to the exercise of academic judgment … the question of academic judgment is not open to challenge by judicial review” (see, generally, Nelson “Judicial Review in the Community of Scholars” (2004) 13 Education & Law Journal 367). Hence, the appointment of examiners is wholly a matter of academic judgment in which the court should not interfere (R v Judicial Committee ex parte Vijayatunga [1990] 2 QB 444 (CA); R v Cranfield University ex parte Bashir [1999] ELR 317, [1999] EWCA Civ 995 (16 March 1999). Again, in Clark v University of Lincolnshire and Humberside [2000] EWCA Civ 129 (14 April 2000), Thomson was affirmed; Sedley LJ held that issues of academic or pastoral judgment are issues on which a university is equipped to consider “in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate” ([12]); and Lord Woolf MR held that a court “will not involve itself with issues that involve making academic judgments … The courts are far from being the ideal forum in which to resolve the great majority of disputes between a student and his or her university” ([29], [39]). Following Sedley LJ here, the majority of the High Court of Australia in Griffith University v Tang (2005) 221 CLR 99, [2005] HCA 7 (3 March 2005) referred to Sedly LJ here with apparent approval (at [58]); and Kirby J (dissenting) went so far as to recognise “the special position of universities” and to endorse Sedley LJ’s approach (at [165]):

I recognise that universities are in many ways peculiar public institutions. They have special responsibilities … to uphold high academic standards about which members of the academic staff will often be more cognisant than judges. There are issues pertaining to the intimate life of every independent academic institution that, sensibly, courts decline to review: the marking of an examination paper; the academic merit of a thesis; the viability of a research project; … the contents of a course; particular styles of teaching; and the organisation of course timetables. As Sedley LJ noted in Clark v University of Lincolnshire and Humberside, such matters are “unsuitable for adjudication in the courts … because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate”. Judges are well aware of such peculiarities. The law, in common law countries, has consistently respected them and fashioned its remedies accordingly.

Furthermore, a degree classification, and a refusal to reclassify the degree, were upheld, where the impugned “assessments were plainly a matter of academic specialised judgment” deserving of great deference (Re Croskery [2010] NIQB 129 (8 December 2010) [16] (Treacy J) (blogged here; see also here | here | here | here | here). The basic point was well put by York J in the New York case of Keefe v New York Law School 25 Misc 3d 1228(A) (2009) (and he was affirmed on appeal 71 AD3d 569 (2010); blogged here):

As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions.

Similarly, deference is afforded to academic decisions and internal academic procedures on the private law side of the line. For example, in S v Chapman [2008] EWCA Civ 800 (20 May 2008) [43]-[46], in a negligence claim, Ward LJ afforded deference to academic decisions relating to curriculum and timetabling. In Gauthier v Saint-Germain 2010 ONCA 309 (CanLII) (3 May 2010) [27] Rouleau jca held while “there may be contractual or tortious issues within the broader claim, if the pith and substance of the impugned conduct is academic in nature, the action cannot be continued in the courts”. Consequently, in Jaffer v York University 2010 ONCA 654 (7 October 2010) [26], [28], [45] (blogged here | here) Karakatsanis JA held that “a student will usually have to do more than simply argue that an academic result is wrong or a professor is incompetent in order to make out a cause of action in breach of contract or a duty of care”. Hence, in van Mellaert v Oxford University [2006] EWHC 1565 (QB) (pdf) (29 June 2006) (blogged here), objections to the merits of failing a doctoral thesis raised “questions of academic judgment” which were “non-justiciable and unsuitable for adjudication” ([23] (Gray J). Again, in Wogu v University of Bradford (Daily Telegraph, 16 February 2011 (blogged here), Judge Andrew Collender QC a student’s claim for damages for breach of contact in awarding him a 2:2 rather than a First, on the grounds that the court has “the most limited of powers to interfere” in a university’s decision to award a mark, which is “a decision particularly within the scope of an academic institution”. Moreover, in Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) (18 March 2011) blogged here | here) [58] Burnett J held that the essence of Lord Woolf’s point in Clark “that a Court is not well placed to engage in questions which go to academic merit remains good law”, and that the “classic example of an argument concerning academic judgment would arise if a student sought to suggest that his papers should have led to the award of a first class degree rather than a 2:1” (ibid).

Against this backdrop of academic judgments relating to curriculum, supervision, assessment (marks, grades, gold medals, failures, and readmissions), Fisher II shows that academic judgment applies also to questions of admission. It is a matter that is less likely to arise in respect of Irish higher education institutions, which admit undergraduates largely through the Central Applications Office (the CAO), on the basis of state policies which survived challenge in Prendergast v Higher Education Authority [2010] 1 IR 490, [2009] 1 ILRM 47, [2008] IEHC 257 (30 July 2008). However, Trinity College Dublin’s recent Feasibility Study for an alternative, more holistic, admissions track, would doubtless attract deference if challenged. Indeed, Fisher II shows that academic judgment can go further, into broader questions of academic policy such as diversity in the student body. Kennedy J cited Vinson CJ in Sweatt v Painter 339 US 629, 634 (1950) that “[a] university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness'”, and continued that “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission”. It is an excellent summary of the justifications for judicial deference to academic judgment considered in this post.

So much for the nature of judicial deference to academic judgment. It is not an absolute principle. There are limits. And those will be the subject of my next post.