Some time ago, I blogged about the question of whether a low mark is a breach of contract. A little while ago, in a gallimaufry (omnibus) post, I briefly returned to this issue. The context was a US case, Keefe v New York Law School (17 November 2009) [update: 25 Misc 3d 1228(A) (2009) aff’d 71 AD3d 569 (2010)], but now it seems that the issue has arisen rather closer to home. Yesterday’s Irish Times tells the story:
A Queen’s University [Belfast] graduate yesterday launched a High Court challenge to his degree classification. In one of the first cases of its kind, Andrew Croskery has brought judicial review proceedings over his lower second-class honours classification.
Mr Croskery, from Co Down, claims if he had received better supervision he would have instead obtained an upper second-class in his electrical engineering degree.
Read more here.
There is similar coverage on the BBC and UTV; in the Belfast Telegraph, Cherwell, the Guardian (also here, on the Human Rights in Ireland blog), and the Mirror; and commentary on the Cantakerous, Gullibility, and Learning Architecture blogs. Update: Slugger O’Toole’s post has the QUB regulations at issue.
The New York and Belfast cases raise two important issues. First, at private law, when can there be a contract between a student and a university, and as a matter of policy will the courts get involved in purely academic matters to determine whether the contract has been breached? Gullibility argues strongly that the metaphor of students as customers is misleading, and that Andrew Croskery’s case should be dismissed.
Second, universities in the UK – and, for that matter, Ireland – have more of a public flavour than US colleges normally have, the question arises as to whether they are subject to judicial review, and if so, whether the courts will as a matter of policy accord significant deference to purely academic matters.
Whether at public law or at private law, a judicial policy of declining to get involved in purely academic decisions respects the academic freedom of the university and the examiners to make academic decisions. Provided that the appropriate procedures have been followed, the courts are very slow to go behind substantive academic decisions. The classic US cases are Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) and University of Michigan v Ewing 474 US 214 (1985); (and see eg Douglas Rush “Through the Looking Glass: Judicial Deference to Academic Decision Makers …” bepress esp Part III). An extremely strong version of this judicial deference can be discerned in the Irish High Court in Quinn v Honourable Society of King’s Inns  IEHC 220 (15 June 2004) in which Smyth J declined to give the applicant leave to challenge an exam grade. The reports do not make clear whether counsel for QUB referred to this case, though he did argue that the judicial review application should be dismissed as the court was not the proper forum for the challenge. Mr Justice Treacy adjourned the application and will give his decision on the application for leave to commence judicial review proceedings next month.
I await judgment with great interest, and some trepidation. Doubtless I will blog about it when it is handed down. Now, in the meantime, perhaps I had better reconsider my marking techniques!