In my first post yesterday, I took certain comments of Kennedy J in the recent US Supreme Court decision in Fisher v University of Texas __ US __ (23 June 2016) as the context for an analysis of the nature of judicial deference to academic judgment. In this post, I want to look at the limits to such deference. Once those limits have been reached, substantive claims are entertained, even if they often fail (see M Davies “Challenges to ‘academic immunity’ – the beginning of a new era?” (2004) 16 Education & the Law 75).

This is true at both public and private law; and, whilst the public law analysis has dominated the cases (S Hedley “Students as Litigants: A Public Law or a Private Law Issue?” (2015) 14 Hibernian Law Journal 1 [hereafter: Hedley]), the line between these two procedures isn’t always clear. On the one hand, in Green v Master and Fellows of St Peter’s College Cambridge (The Times, 10 February 1896; cited in Hedley, 1; jpg) Wills J held that it was “obvious that the relation between an undergraduate and his college was not a contractual one”. Hence, in Jaffer v York University 2010 ONCA 654 (7 October 2010) [26], [28] (blogged here | here) Karakatsanis JA held that judicial review is the proper procedure when seeking to reverse an internal academic decision (approving Gauthier v Saint-Germain 2010 ONCA 309 (CanLII) (3 May 2010) [46] (Rouleau jca). She further held that, where a private claim was “simply an indirect attempt to appeal an academic decision”, the “appropriate remedy would be judicial review”. By contrast, in Quinn v Honourable Society of King’s Inns [2004] IEHC 220 (15 June 2004), Smyth J declined to give the applicant leave to challenge an exam grade at public law by way of judicial review, on the grounds that the applicant was not entitled to invoke the public law remedy of judicial review for a private law right arising out of contract, though he also rejected the applicant’s substantive public law submissions as well. Moreover, in Jaffer, Karakatsanis JA went on to consider the claim in tort and breach of contract.

One important set of limits at public law arises where rights – under the constitution, the European Convention of Human Rights (ECHR), or the EU Treaties – are engaged (see, eg, T Kaye “Academic judgment, the university Visitor and the Human Rights Act 1998” (1999) 11 Education & the Law 165). The argument that rights under the ECHR were engaged failed in Patel v University of Bradford Senate [1978] 1 WLR 1488, [1978] 3 All ER 841 (ChD, Megarry VC) aff’d [1979] 1 WLR 1066, [1979] 2 All ER 582 (CA; .doc); (Application 8844/80 (1982) 4 EHRR 256 ECmnHR). The argument that rights under the EU Treaties were engaged also failed in a long-running case (which effectively terminated in Kelly v UCD [2013] IEHC 23 (29 January 2013) after a long and winding trip through the courts, including an application to the CJEU in C-104/10 Kelly (21 July 2011)) in which the plaintiff unsuccessfully alleged that he had not been offered a place on a Masters programme by virtue of discrimination on grounds of gender.

The leading case on this issue is probably Re Croskery [2010] NIQB 129 (8 December 2010) [16] (Treacy J) (blogged here; see also here | here | here | here | here), where the argument that rights under the ECHR were engaged also failed. Treacy J not only afforded deference to the university’s academic decisions, he also held that there was nothing in the caselaw of the European Court of Human Rights to support the proposition that the assessments and/or the procedures for determining disputed degree assessments and classifications fall within the right to a fair trial (.doc) guaranteed by Article 6 ECHR.

Similarly, in Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) the US Supreme Court held that there is no constitutional requirement of a hearing before the exercise of academic judgment. As Rhenquist J put it: “Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information, and is not readily adapted to the procedural tools of judicial or administrative decisionmaking” (435 US 78, 90).

The limitation upon judicial deference to academic judgment by constitutional rights is very well illustrated by the Fisher litigation, where the plaintiff argued that the reliance by the University of Texas at Austin upon diversity as an element of its admissions policy violated the Equal Protection Clause of the Fourteenth Amendment. In Fisher I (Fisher v University of Texas at Austin 570 US __ (24 June 2013)), the Supreme Court remanded that case to the Court of Appeals for the Fifth Circuit, so the appeals court could consider whether UT Austin’s admission policy survived strict scrutiny (following Grutter v Bollinger 539 US 306 (2003)). On remand, the Fifth Circuit held that the policy did indeed survive strict scrutiny (758 F 3d 633 (5th Cir, 2014) (pdf)); and, on appeal, in last week’s decision in Fisher II (Fisher v University of Texas __ US __ (23 June 2016)), the Supreme Court affirmed. Kennedy J (Ginsburg, Breyer, and Sotomayor JJ concurring) for the majority held that Fisher I established three principles. First, a university may not consider race unless the admissions process can withstand strict scrutiny. Second, the decision to pursue the educational benefits that flow from student body diversity “is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper”. And, third, when applying the strict scrutiny standard of whether the use of race is “narrowly tailored” to achieve the university’s permissible goals, the university bears the burden of demonstrating that available and workable race-neutral alternatives do not suffice. Kennedy J held that the admissions policy at issue in Fisher satisfied this three-step test, and in particular was narrowly tailored to achieve the educational benefits that measurably flow from student body diversity. Alito J (Roberts CJ and Thomas J, concurring) dissented on the basis of a much narrower reading of Fisher I. They held that that Fisher I rejected deference in the context of “inherently suspect” race classifications, that the only question was whether the admissions policy survived strict scrutiny, and that it was not sufficiently narrowly tailored to do so.

Another important set of limits, at public and private law, arises where the court holds that the matter at issue is not, in the event, one of academic judgment at all, such that no deference is called for, and the ordinary rules of judicial review at public law, or of tort and contract at private law, apply.

On the public law side of the line (see, generally, HWR Wade “Judicial Control of Universities” (1969) 85 Law Quarterly Review 468; P Kamvounias and S Varnham “Legal challenges to university decisions affecting students in Australian courts and tribunals” [2010] MelbULawRw 5, (2010) 34 Melbourne University Law Review 140), in Harelkin v University of Regina [1979] 2 SCR 561, 1979 CanLII 18 (SCC) (30 March 1979) the Supreme Court of Canada held that the internal academic appeal procedures of the defendant were an adequate remedy alternative to judicial review, but – as in Quinn – the Court also considered and dismissed the substantive judicial review arguments. Hence, Hedley demonstrates that “a duty of procedural fairness is well-established” in UK caselaw “concerning allegations of failure to (i) follow the university’s own exam regulations , (ii) properly consider whether an oral hearing was appropriate , (iii) consider mitigating circumstances , (iv) protect legitimate expectations , or (v) deal with multiple complaints about fairness”.

On the private law side of the line (see, generally, DC Holland “The Student and the Law: Freedom and Responsibility” (1969) 22(1) Current Legal Problems 61 (sub req’d); F Rochford “The Relationship Between The Student And The University” (1998) 3(1) Australia & New Zealand Journal of Law & Education 28 (pdf); W Hoye & D Palfreyman “Plato vs Socrates: the devolving relationship between higher education institutions and their students” (2004) 16 Education & the Law 97), in van Mellaert v Oxford University [2006] EWHC 1565 (QB) (pdf) (29 June 2006) (blogged here), Grey J not only afforded deference, he also held that the plaintiff’s Claim Form and Particulars of Claim did not disclose reasonable grounds for bringing the claim. Notwithstanding Green v St Peter’s (avbove), in Tansey v College of Occupational Therapists Ltd [1995] 2 ILRM 601, [1986] IEHC 2 (27 August 1986) Murphy J considered, and dismissed, an action in breach of contract for the exclusion of a student for failing her exams. Indeed, in Griffith University v Tang (2005) 221 CLR 99, [2005] HCA 7 (3 March 2005) the High Court of Australia held that the dismissal of a graduate student for academic misconduct was the termination of a voluntary agreement between the two parties and not an exercise of public power amenable to judicial review (noted M Gangemi [2005] SydLawRw 28; (2005) 27(3) Sydney Law Review 567; P Kamvounias & S Varnham (2005) 10(1) Australia & New Zealand Journal of Law & Education 5 (pdf); D Stewart [2005] FedLawRw 17; (2005) 33(3) Federal Law Review 525; see also M Davis “Students, academic institutions and contracts – a ticking time bomb?” (2001) 13 Education & the Law 9 [hereafter: Davis]; R Deech “The student contract” (2009) 43 Law Teacher 3). Again, in Young v Bella [2006] 1 SCR 108, 2006 SCC 3 (CanLII) (27 January 2006), the Supreme Court of Canada affirmed that the relationship between a student and university is, of its nature, contractual and that it can give rise to obligations both in contract and in tort. As both Gauthier and Jaffer subsequently emphasised, these obligations arise outside the sphere of academic judgment. Hence, in Jaffer, Karakatsanis JA (Feldman and MacFarland JJA concurring) considered on the merits the plaintiff’s claim that the defendant would accommodate his disability (Trisomy 21 Down Syndrome) was an implied term of the contract between them, and held that there was no basis on the facts for finding such an implied term ([45]-[51]). She also considered on the merits the plaintiff’s claim that the defendant had misrepresented the position to him, and held that no misrepresentation was established on the facts ([52]-[58]). Hence, breach of a contractual promise to provide a facility or service or procedure can be litigated, but the courts will be slow to cross the line into second-guessing questions of academic judgment.

The questions of accommodation at issue in Jaffer are very far removed from questions of academic judgment. Much closer to the line are the decisions of Underhill J in Moroney v Anglo-European College of Chiropractic [2009] ELR 111, [2008] EWHC 2633 (QB) (07 November 2008) and of Burnett J in Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) (18 March 2011) (blogged here | here). In Moroney, Underhill J accepted that the plaintiff’s claims did not raise questions of academic judgment but concerned complaints which fell outside that prohibited zone, though he then went on to hold that the claims failed on the facts. In Abramova, the plaintiff sued the now defunct Oxford Institute of Legal Practice (OxILP) for £100,000 for negligence and breach of contract, but Burnett J dismissed her claim. She argued that the teaching provided by the Institute was lacking in reasonable skill and care; and, since she did not base her claim on a disagreement about the outcome of her examinations or argue that should have been awarded a pass in the subject that she failed, Burnett J (at [58]) held that her claim was outside the range of academic judgment to which the court should afford deference. Hence, he held that she was entitled to maintain her claims in tort and breach of contract. In particular, he held that section 13 of the Supply of Goods and Services Act 1982 implied a term in the contract between the parties that the educational services provided by the defendant to the plaintiff would be provided with reasonable care and skill, and without negligence (Phelps v Hillingdon Borough Council [2001] 2 AC 619 [2000] UKHL 47 (27 July 2000) followed). However, he found no negligence on the part of the Institute ([64]-[68]) and the plaintiff’s claim failed on the facts.

[The equivalent Irish provision is section 39 of the Sale of Goods and Supply of Services Act, 1980 (also here); see generally sections 43-46 of the Sale of Goods and Supply of Services Act, 1980 (also here), and sections 42-45 of the Consumer Protection Act, 2007 (also here); and see also the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (S.I. No. 27/1995; Davis (above); F Rorke “The Application of the Consumer Protection Provisions of the Trade Practices Act 1974 (Cth) to Universities” (1996) 12 QUTLJ 176 (pdf); S Corones “Consumer guarantees and the supply of educational services by HE providers” (2012) 35 UNSWLJ 1].

Surprisingly, there are fewer claims in tort than in contract. In Abramova, a claim in tort for negligence was bound up with the claim in contract, and failed for the same reasons. And in Saha v Imperial College [2013] EWHC 2438 (QB) (7 August 2013) Hamblem J found that the tort of harassment was not made out on the facts.

One important area where the courts are increasingly finding that there is no exercise of academic judgment, such that the ordinary rules – of judicial review, or of contract and tort – can apply, is in the case of disciplinary procedures. Hence, whilst it is clear that there is no requirement of a hearing before the exercise of academic judgment (Horowitz, Croskery (above)), such a hearing may be necessary in the disciplinary rather than academic context (see, eg, Flanagan v UCD [1988] IR 724; Zhang v AIT [2013] IEHC 390 (14 June 2013; see also Goss v Lopez 419 US 565 (1975); In re CS [2015] NIQB 36 (30 April 2015) (blogged here); Tang (above) [166] (Kirby J, dissenting)). This distinction gives rise to nice questions as to where the line between academic and disciplinary decisions is to be drawn. In R v University of Cambridge, ex parte Persaud [2000] EWHC Admin 374 (21 July 2000) Kay J held that the dispute related to academic rather than disciplinary decisions, approved Clark, and found that there was no substance to the plaintiff’s complaints. The line between academic and disciplinary decisions is particularly difficult to draw in cases of disciplinary procedures concerning allegations of plagiarism, which involve both academic judgment as to whether there has indeed been plagiarism (eg, R (Echendu) v School of Law, University of Leeds [2012] EWHC 2080 (Admin) (22 June 2012)), and disciplinary procedures if there has been (Flanagan; see, generally, J Cumming “Where Courts and Academe Converge: Findings of Fact or Academic Judgment” (2007) 12(1) Australia & New Zealand Journal of Law & Education 97 (pdf)).

The combined issues of the nature and extent of judicial deference to academic judgment, whether at public or at private law, are increasingly complex. The issues are pressing in the operation of modern universities. The outlines and structures of the resolutions of these issues are tolerably clear, but the devil – as always – is in the detail; and elucidation comes dropping slow. Even more than usual, there is a distinct dearth of considered Irish authority. I have tried, in this post and my first post yesterday, as well as in many other posts on this blog referred to in these two posts, to fill in some of the blanks. But more litigation is inevitable; and when it happens, there will be more analysis on this blog. Meanwhile, it is worth returning whence we came, and recalling the words of Kennedy J in Fisher II (internal quotation references omitted): in the case of an academic judgment

… some, but not complete, judicial deference is proper. … deference must be given to the University’s conclusion[s], [where they are based] on its experience and expertise … A university is in large part defined by those intangible qualities which are incapable of objective measurement but which make for greatness. Considerable deference is owed to a university in defining those intangible characteristics … that are central to its identity and educational mission.

Long may this continue to be the case!