Category: Litigation

The limits of judicial deference to academic judgment

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| Academic judgment, Litigation, Universities, US Supreme Court

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).…

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The nature of judicial deference to academic judgment

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| Academic judgment, Litigation, Universities, US Supreme Court

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).…

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Judicial review and the exclusive jurisdiction of University Visitors

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| Litigation, Universities

Memorial to Sir Andrew Porter MR in QUBInstitutions such as cathedrals and colleges are often overseen by Visitors. The recent decision of Horner J in In re CS [2015] NIQB 36 (30 April 2015) has reaffirmed many basic principles relating to the jurisdiction of University Visitors.

In Ireland, section 19 of the Universities Act, 1997 (also here) provides for Visitors for Irish universities. Hence, for example, in Trinity, the Visitors hear internal appeals against decisions of the Board and other bodies in College. If there is no such decision, the Visitors have no jurisdiction on this ground (Kelly v TCD [2007] IESC 61 (14 December 2007)). And, if they have jurisdiction, the hearing is not a review but a full appeal where they will look afresh at the matters in dispute and form their own views (R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1, [1993] 2 All ER 876).

The exclusive jurisdiction of Visitors, rather than the courts, to make such internal determinations has been established by an unvarying line of authority from Philips v Bury (1694) Shower PC 35, (1694) 1 ER 24, [1694] EngR 11 (1 January 1694) (pdf) and Bracken v Visitors of the College of William & Mary 3 Call (7 Va) 573 (1790) [noted Bridge 20 Wm & Mary L Rev 415 (1979)], to Thomas v University of Bradford [1987] AC 795 (HL) (.doc…

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The dubious second Employment Control Framework is revised

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| Litigation, Universities

HEA logo, via the HEA websiteIn March, I blogged about the dubious legality of the second Employment Control Framework, which the outgoing government had introduced to control employment in the third level sector. It was misguided and controversial (eg, Liam Delaney here, and here | Dermot Frost | Bernie Goldbach | Aidan Kane | Stephen Kinsella | Rob Kitchen | James McInerney | Donncha O’Connell | Stefano Sanvito | Ferdinand von Prondzynski, passim, but esp here, here, and here). After some discord and delay, that framework has now, it seems, been greatly revised to resolve many of the contentious issues (see Revised ECF 2011-2014 June 2011 (pdf)).

Tom Boland, Chief Executive of the Higher Education Authority, said that the revised Framework “provides reasonable flexibility to the higher education institutions to manage their staffing requirements”; and the public response has been largely positive. For example, in today’s Irish Independent Katherine Donnelly writes that Ministers softened their approach after an outcry from colleges about ‘Soviet-style’ controls, which greeted the original proposals published earlier this year. Again, in today’s Irish Times, Sean Flynn points out that the revised framework removes the onus on colleges to notify the Higher Education Authority of appointments which are funded from external sources, and gives colleges additional flexibility on promotional posts.…

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Abramova and Croskery – updates

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| Academic judgment, Litigation, Universities

Burnett J’s judgment in Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) (18 March 2011) – about which I blogged last week – is now available on BAILII. The [update: now defunct] Oxford Institute for Legal Practice successfully defended this case. On the other side of the line is Mike Austen who received £30,000 from the University of Wolverhampton in an out-of-court settlement in 2002. More and more students are now taking such cases. The Scotsman on the weekend reported recent Scottish examples of the phenomenon. Extract, (with added links):

Students sue universities for higher grades

By Fiona MacLeod, Education Correspondent

GROWING numbers of students in Scotland are taking legal action against their universities for failing to provide adequate support for degree courses. Six students across the country have taken out cases after receiving lower grades than they expected, according to the legal firm Ross Harper.

A spokesman for the firm said it was dealing with four cases of former students seeking legal action against their university, and added that a further two had settled through the institution’s own grievance procedure. The spokesman said that students now see themselves more as consumers of services and were more likely to complain when they believed university courses were sub-standard.

…

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Abramova: judicial deference and the litigious student

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| Academic judgment, Litigation, Universities

After Andrew Croskery and Tony Chinedu Wogu comes Maria Abramova (Above the Law | BBC | Cherwell | Legal Week | Mirror | Oxford Mail | Oxford Times | The Lawyer | PA). In Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) (18 March 2011) (pdf), the plaintiff sued the [update: now defunct] Oxford Institute of Legal Practice (OxILP) for £100,000 for negligence and breach of contract, but Burnett J dismissed her claim. Her case is the latest example of the increasingly frequent phenomenon of the litigious student, and it raises some very important legal issues.

An important threshold question in such cases is whether the matter can be litigated at all. There is judicial deference to matters of academic freedom, so the courts are very slow to interfere in matters of purely academic judgment, and generally regard such matters as unsuitable for adjudication in the courts (Harelkin v University of Regina 1979 CanLII 18 (SCC), [1979] 2 SCR 561 (30 March 1979); Clark v University of Lincolnshire & Humberside [2000] 1 WLR 1988, [2000] EWCA Civ 129 (14 April 2000); George van Mellaert v Oxford University [2006] EWHC 1565 (QB) (29 June 2006) (pdf) (blogged here); Re Croskery [2010] NIQB 129 (8 December 2010) (blogged here)).…

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The dubious legality of the second Employment Control Framework

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| Litigation, Universities

moratoriumOn 26 March 2009, the Minister for Finance confirmed that the Government had decided to implement a moratorium on public service recruitment, precluding recruitment, promotion, renewal of fixed-term contracts, or payment of an allowance for the performance of duties at a higher grade. The standard letter sent to the various government departments emphasised that exceptions to this principle would arise only in very limited circumstances and would require the prior sanction of the Minister for Finance. There were additional rules for Education and Health, and these were supplemented for the third level sector by a controversial Employment Control Framework. That framework has now run its course, but news has seeped out over the course of the weekend that, in one of his last acts before leaving office, Brian Lenihan, the outgoing Minister for Finance, last week sanctioned a successor Employment Control Framework. It has been been much derided on Twitter at #ecf11, and it has drawn a chorus of detailed criticism from Des Fitzgerald, Ferdinand von Prondzynski, Colm Kearney, Paul Walsh, Dermot Frost, and Donncha O’Connell. For a bunch of academics, the unanimity is extraordinary. All are agreed that this new Framework is a thoroughly bad idea.…

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Is a lost First worth £5m?

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| Academic Freedom, Academic judgment, Andrew Croskery, Contract, Grading and Marking, Litigation, Universities

University of Bradford Faculty of Engineering and Informatics buildingAfter Andrew Croskery comes Tony Chinedu Wogu. According to the Daily Telegraph and The Register, Tony Chinedu Wogu has failed in his bid to sue the University of Bradford for £5m compensation, alleging that a 2:2 and not a First in Computing Science was the result of discrimination and breach of contract. Judge Andrew Collender QC struck out his case, saying academics had a much better understanding of the quality of a student’s work than lawyers did. As Treacy J had done in Croskery, Collender QC pointed out that Mr Wogu could seek judicial review of the university’s decision to award him a 2:2, but only after he had exhausted his internal appeals. Moreover, he reasserted the principle of judicial deference to matters of purely academic judgment (as opposed to breaches of procedure):

This court has the most limited of powers to interfere in such a decision. This court has not the power or expertise to simply examine or to determine the proper degree grade to which the claimant would have been entitled from the University of Bradford. That is a decision particularly within the scope of an academic institution. It would not be for this court to apply its judgment as to the degree level reached and substitute that for the university’s … and the defendants’ application to strike out is successful.

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