The Bible tells Christians that ‘Man does not live on bread alone, but on every word that comes from the mouth of God’ (Matthew 4:4). The aphorism is echoed in the title and plot of Vladimir Dudintsev’s anti-Stalist novel Not by Bread Alone. Now it is the main title of a recent book about the importance of higher education in developing modern societies built upon the fundamental values of democracy, human rights and the rule of law: Sjur Bergan Not by bread alone (Council of Europe higher education series No 17; 2011). Public debate often assumes that the only purpose of higher education is to prepare gradutes for employment, and this view feeds back into third-level entry requirements and second-level curricula. Hence, we see an increasing focus on “training” (rather than educating) graduates in science, technology, engineering, and mathematics (with attendant risks to the arts, humanities, and social sciences). This third-level policy brings a concommitant focus at second-level on bonus CAO points for maths generating calls for bonus points for science and a compulsory leaving certificate science course (perhaps to the detriment of the study of foreign languages; and quite how this stands with the Minster for Education’s stated aim of moving away from the CAO points culture is unclear).

To be sure, preparing graduates for employment is indeed an important purpose of higher education; but, as this book emphasises, it is not the only one. As the editor put it in an earlier publication, as man does not live by bread alone, human existence is about more than work, and higher educuation should be directed to every facet of human existence, and in particular to sustaining the values of the kind of society in which we desire to live. This argument is at the heart of Not by bread alone; from the abstract:

Not by bread alone gathers essays on higher education … [which] spell out a view of higher education as a key factor in developing modern societies built on the fundamental Council of Europe values of democracy, human rights and the rule of law. …

To fulfil its role, higher education needs to prepare for citizenship as well as for employment, for personal development as well as for the development of a broad knowledge base. … We also need to take a close look at how the public responsibility for higher education and research can best be exercised in a society with many actors, all of which have their own legitimate agendas. In this situation, public authorities have an overall responsibility for coherent education policies.

Contents include essays on

• Higher education governance and democratic participation: the university and democratic culture
• Democracy: institutions, laws, culture and the role of higher education
• Higher education between market and values
• Safeguarding ethics and values in higher education: a shared responsibility
• Higher education as a “public good and public responsibility”: what does it mean?
• Public responsibility and institutional autonomy: where is the balance?
• Academic freedom and institutional autonomy: impact on international students
• Institutional autonomy between myth and responsibility
• Reflections on ranking in Europe.

This books therefore stands as an important corrective to the rather instrumentalist views sweeping european higher education at present.

In 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. And, in today’s Irish Examiner, Niall Murray reports that Mike Jennings, general secretary of the Irish Federation of University Teachers accorded the revision a cautious welcome. Similarly, Ned Costello, Chief Executive of the Irish Universities Association, said that “the revisions acknowledge that the response to the national financial crisis must be balanced by according universities the flexibility to manage their resources to best effect”. Moreover, über-critic Ferdinand von Prondzynski concluded:

The new revised framework is still not entirely unproblematical, but most of the objectionable aspects of the original have now been removed. This is a welcome development for the higher education system.

This is all well and good, but whilst the new framework addresses many substantive concerns, my doubts about its legality remain. Although it seems likely that the necessary ministerial consents were obtained this time around, I am not convinced that the still-expansive framework is justified by the provisions of the Universities Act, 1997. Nevertheless, since the sector is prepared to live with the new framework, its legal dubieties are likely to go unchallenged.

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 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. Read the rest of this entry »

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 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)).

Nevertheless, as Julian Sladdin recently pointed out “… Students rarely think of it like this, but there is a contract between them and their universities”, and this relationship can give rise to obligations both in contract and in tort (Gauthier v Saint-Germain 2010 ONCA 309 (CanLII) (3 May 2010), Jaffer v York University 2010 ONCA 654 (7 October 2010) (blogged here and here)). In such cases, the courts do not lack jurisdiction solely because the claim arises out of a dispute of an academic nature (Young v Bella 2006 SCC 3 (CanLII), [2006] 1 SCR 108 (27 January 2006)).

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.

As to the formation of the contract and its terms, Sladdin argues that “when a university makes an offer, and it is accepted, a contract is formed, incorporating all sorts of documents including the student handbook and regulations”. This may overstate the case, as not every such document will always amount to a contract (see, eg, Tansey v College of Occupational Therapists Ltd [1995] 2 ILRM 601, [1986] IEHC 2 (27 August 1986)). So, in a recent US case, Keefe v New York Law School (17 November 2009) York J held that general statements of policy in a school’s bulletins, circulars, catalogues, handbooks and website are not sufficient to create a contract between a student and law school. In his view, only specific promises that are material to the student’s relationship with the school can establish the existence of a contract.

Nevertheless, despite questions of judicial deference to academic judgment and difficulties in establishing that every piece of paper is incorporated into the contract between the college and the student, there is still considerable scope within which to found a claim that a contract existed and was breached. And it was in this space that Ambrova sought to make her claim against OxILP. Read the rest of this entry »

On 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. I agree too, but I would go further. I think that it is also of dubious legality.

At least two questions arise. First, did the Minister for Finance have the legislative authority to sanction the Framework. Second, even if he did, is the Framework a valid exercise of that authority. Read the rest of this entry »

After 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 he 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.

The rather arcane principles of academic tenure and academic freedom, which have long featured on this blog, have recently moved close to the centre of industrial relations debate and political discussion. The National Strategy for Higher Education in Ireland (the Hunt Report) and the Public Service Agreement 2010-2014 (the Croke Park Agreement) seem to imperil both concepts. The current conception of academic tenure is threatened by proposals to make significant changes to academic employment conditions, and the current conception of academic freedom is undermined by recommendations that fundamental academic choices should be determined not by academics or institutions but at national level. It is unsurprising, therefore, that a recent meeting of Irish academics protested against the implementation of the Croke Park agreement in third-level institutions, and called for the defence of tenure and academic freedom.

Some colleges and universities have been strong in their defence of these concepts. For example, I have already discussed the provisions of Trinity’s 2010 Statutes protecting tenure and academic freedom. Moreover, the Trinity’s Council and Board have recently approved a detailed and progressive Policy on Academic Freedom. I have also discussed similar statutory provisions in other Irish universities. To that, I can now add the provisions of NUI Maynooth’s statutes relating to tenure. Read the rest of this entry »

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”. Hence, section 25(6) effectively requires that each university’s statutes must only specify disciplinary procedures leading to the suspension or dismissal for their employees, but must also provide for tenure of full-time members of academic staff. This rider to section 25(6) is very important. Dismissal procedures be set out in universities’ fundamental constitutional documents, and where such procedures affect full-time members of the academic staff, they must specifically provide for tenure. This is a strong legislative commitment to the principle of academic tenure. As with the Act’s comcomitant protection of academic freedom, there are very few similar general legislative provisions elsewhere. In this respect at least, Irish legislation is particularly progressive, and – as Prof Jim McKernan, formerly of UCD and UL, and now of the College of Education in East Carolina University, has recently argued on Ninth Level Ireland – these freedoms must be jealously guarded and zealously protected:

Academic Freedom and Tenure: Necessary Rights for Irish Academics

Academic freedom is the right of the faculty member to select one’s materials, methods, pedagogy and points of view in teaching one’s discipline. … Academic freedom is an absolute necessity for a democratic society. … Faculty need to be free of the constraints of censorship and interference in the conduct of their duties by the institution or other agents and agencies in the community.

… Faculty members, after a probationary period have a property right to their position and cannot be removed barring ‘just cause’. Tenure does not guarantee a post for life. When I was first appointed at UCD in 1981 there was one condition in my contract letter for removal-being guilty of ‘gross moral turpitude’. Irish academics had real tenure in those days. I do not know if new conditions for removal of tenured faculty have been introduced. … Tenure really means that one ‘owns their position’ and the right to return to that position year after year after the probationary period. … Tenure secures a working community of scholars based on accepted academic values and aims, and it guarantees that a person cannot be dismissed from that community without due process and without consideration based on well established objective academic criteria. As it turns out, the truth is not always popular, especially within circles of power and wealth. Remove the system of tenure and we shall witness a ‘Flight of the Dons’. …

The answer to Jim’s question in bold about the current state of tenure in Irish universities is in three parts. Read the rest of this entry »