Category: Litigation

Academic tenure in the Universities Act, 1997

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| Academic Freedom, Litigation, Tenure, Universities

DVD cover for the movie 'Tenure', via Amazon width=Tenure:

the very word connotes safety, security, and a sense that you have made it in academia. But is the system really all it is cracked up to be, or is it lumbering into the world of 21st century academia like a dinosaur that hasn’t heard it is supposed to be extinct?

In earlier posts on this blog, I have looked at various issues relating to the various legal protections of academic freedom and at the concomitant concept of academic tenure as a matter of principle. In today’s post, I want to look at it as a matter of law.

The starting point is the Universities Act, 1997. Section 25(6) (also here) of the Act provides (with added emphasis):

A university may suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute made following consultation through normal industrial relations structures operating in the university with recognised staff associations or trade unions, which procedures or conditions may provide for the delegation of powers relating to suspension or dismissal to the chief officer and shall provide for the tenure of officers.

The Statutes of a university constitute its basic law, and section 3 of the 1997 Act (also here) provides that “officer[s]” include “permanent, full-time member[s] of the academic staff of the university”.…

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Re Croskery [2010] NIQB 129

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

Royal Courts of Justice, Belfast, via FlickrOn this blog last year, I discussed the circumstances in which a university student could challenge a grade in court. Just before Christmas, the Northern Ireland High Court handed down a very important judgment on this issue. In Re Croskery [2010] NIQB 129 (8 December 2010), the applicant, Andrew Croskery, sought leave to apply for judicial review against a refusal by Queens University Belfast to reclassify his degree. In the Queen’s Bench Division of the Northern Ireland High Court (pictured left), Treacy J denied the application. In cases of this kind, where an objection is simply to matters of academic judgment, the courts show great deference to such matters, and are very slow to interfere. The deference is stated in different ways in the cases, and the parties accepted a strong form of it in Croskery. As Treacy J held

on the authority of Re Wislang’s Application [1984] NI 63 (.doc) and Thomas v University of Bradford [1987] AC 795 (.doc) the matters in dispute would presently fall exclusively within the visitorial jurisdiction of the university – subject only to the possibility that any ultimate decision of the Board of Visitors might itself be judicially reviewable.

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Leave is refused in QUB graduate’s judicial review of his degree result

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| Andrew Croskery, Grading and Marking, Litigation, Universities

QUB crest, via WikipediaIt’s being reported that Andrew Croskery has failed in his bid to review the 2:2 engineering degree he was awarded by Queen’s University Belfast. According to the BBC:

Judge rules no judicial review over disputed degree

A judge refuses leave for a judicial review of decisions made by Queen’s University over a graduate’s disputed degree classification.

Andrew Croskery, from County Down, was seeking leave for a review of decisions made by the university’s Board of Examiners. But a High Court judge ruled the case should remain exclusively within the jurisdiction of Queen’s appeals body. …

Mr Justice Treacy said that even if this confirmed the existing classification, two further rights of appeal were open to Mr Croskery. He can take his challenge to the University’s Central Students Appeals Committee, and to a Board of Visitors. …

According to the UTV news website, Mr Justice Treacy concluded: “The matter in dispute remains exclusively within the jurisdiction of the Board of Visitors.” And, according to the RTÉ news website, Queen’s has said it will convene a further hearing of the Board of Examiners to study the case. When the judgment is available on the NI Courts & Tribunals website or Bailii, I’ll return to this case.…

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Grading and marking, updates

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| Andrew Croskery, Grading and Marking, Litigation, Restitution, Universities

Graded Paper, viaFirst, to my posts on grading and marking, I must add a wonderful post by not that kind of doctor applying the Elisabeth Kübler-Ross model of five stages of grief – denial, anger, bargaining, depression, acceptance – to the process of grading papers! Wonderful (h/t efdel).

Second, in another grading and marking story, this time by way of comparison with my posts on Andrew Croskery‘s case against QUB, consider the case of a student who sued the University of Pennsylvania for awarding him a degree from their engineering college rather than Wharton School of Business: his misrepresentation and unjust enrichment claims failed.

Third, in one of my posts on the Croskery litigation, I analysed a similar recent case in the Ontario Court of Appeal: Jaffer v York University 2010 ONCA 654 (7 October 2010). There’s an interesting post on the case on the Canadian blog, The Court, This Student Isn’t Just a Number:

(1) Universities: Now, Not-So-Independent Centres of Learning
Perhaps the most interesting and relevant aspect of this case concerns the Court’s finding that academic disputes grounded in contract or tort can be heard by the Superior Court of Justice in Ontario.

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Making the grade

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| Andrew Croskery, Grading and Marking, Litigation, Universities

QUB logo, via the QUB blogVia the incomparable 9th level Ireland blog, I (rather belatedly) learn that Andrew Croskery, a graduate of Queen’s University Belfast who has taken judicial review proceedings to challenge his degree results (on which I have previously blogged: 1, 2, 3, 4; and there is also an excellent post Jason Smith), might have got a result during the week. According to the BBC, QUB has agreed to review his grade. It seems that he was only 0.5% off obtaining a 2:1 in his degree, and in his judicial review proceedings, he claimed that if he had received better supervision he would have achieved that 2:1. On Tuesday, the High Court granted a three-week adjournment to allow QUB to review his degree classification on the alleged grounds of inadequate supervision and procedural irregularities. QUB told the Court that it made the proposal without prejudice in a bid to ease his concerns. Moreover, the Belfast Telegraph reported that if he is still unhappy with the outcome, he would now be able to appeal his results. As Education Law Blog points out

This appears to be a successful outcome for the student, as the provision of a review is about as much as he could have expected to achieve by way of his legal proceedings.

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Academic judgment and breach of contract in Ontario

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| Academic Freedom, Academic judgment, Andrew Croskery, Contract, Litigation, Universities

York University law, via their website.Omar Ha-Redeye has blogged on Slaw about an Ontario CA decision that is very relevant to the judicial review proceedings being taken by Andrew Croskery to challenge his degree results in Queen’s University Belfast (on which I have previously blogged: 1, 2, 3). The gravamen of those posts was that courts are slow to disturb substantive academic decisions, though beyond that sphere, they will of course give effect to claims in tort or for breach of contract. This distinction is at the heart of the case at issue in Omar’s blogpost: Jaffer v York University 2010 ONCA 654 (7 October 2010).

In this case, the plaintiff challenged a decision to exclude him at the end of his first year because he had not maintained a sufficient grade average, on the grounds that the university had failed to make proper accommodation for his Trisomy 21 (Down’s Syndrome) and that he had detrimentally relied on an alleged promise by a professor to defer his status while the dispute over disability was resolved. His claim failed at first instance, in part on the ground that, “[w]hile 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” ([24] Pitt J).…

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Grievance poses academy ‘threat’

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

Queen's University Belfast, via wikipediaFurther to my two previous posts concerning student challenges to degree classification, there is a piece in this week’s Times Higher Education on the judicial review proceedings taken by Andrew Croskery challenging his degree results in Queen’s University Belfast. The piece contains some interesting reactions to the challenge [with added links]:

Grievance poses academy ‘threat’

… Bahram Bekhradnia, director of the Higher Education Policy Institute, warned that if the case were successful it could unleash a wave of similar challenges. “Of course it is important that universities do right by students. But if a student feels they are getting inadequate supervision, contact or anything else, they should deal with it up front and at the time. Otherwise the floodgates will be opened and it will be impossible to judge genuine cases from chancers,” he said.

Roger Brown, professor of higher education policy at Liverpool Hope University, described the case as a battle between academic authority and the marketisation of higher education. He said a ruling in favour of Mr Croskery would be “disastrous” because it would undermine universities’ academic authority. He noted that legal challenges of college grades were quite common in the US but said British courts had taken the view in similar previous cases that universities were in the best position to make academic judgements.

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Student challenges to degree classification, and examiners’ academic freedom – redux

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

St Cross Building, Oxford, which houses the Faculty of Law, University of Oxford, via their websiteNo sooner had I published yesterday’s post on student challenges to degree classification, and examiners’ academic freedom, than Afua Hirsh blogged that it’s not just law students who are learning how to sue. Against the background of the QUB case which I discussed in that post, she gave many other examples of cases in which students sued their universities because they had performed poorly in their degrees. (Indeed, yet another may be brewing here). In many of the cases Afua discusses, the students were successful in their claims. But probably the most important case she discusses concerned a Belgian DPhil student who claimed £3m from Oxford University for failing his thesis. George Van Mellaert complained about the examiners and about the university’s procedures. Unlike many of the other cases to which Afua referred, this case did not have a happy outcome for the student. As she said:

The court was less impressed with this claim, stating that “the claimant’s thesis is a matter of academic judgment with which it would be inappropriate for the court to interfere”.

Almost as soon as I had finished reading her article, I received an email from Martin George, with the full text of the decision in George van Mellaert v Oxford University [2006] EWHC 1565 (QB) (29 June 2006).…

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