Category: Universities

The following headlines have caught my eye:

After Protest, Society for International Affairs Cancel Event with Israeli Ambassador (from the University Times)

and

Trinity College Dublin event involving Israeli ambassador cancelled (from the Irish Times)

Update (21 Feb 2017): Planned talk by Israeli Ambassador at Trinity College is cancelled after protests (from theJournal.ie)

I don’t have time to write a considered post about this right now, but I could not let it pass unremarked, so I will content myself for the time being with noting: oh no, not again.

Update (23 Feb 2017): The protest and cancellation garnered headlines in Israel (Algemeiner | Jerusalem Post | Jewish Press | Times of Israel here and here) and further afield (Yahoo! news – even Breibart, with typical hyperbolic misrepresentation)

The University Times updated their piece and headline: After Event with Israeli Ambassador Cancelled, Trinity Criticises “Unacceptable Attack on Free Speech”; the Irish Times ran a follow up: Trinity condemns ‘unacceptable attack’ on free speech; and the Hearld also ran a story: Anti-Israel protest is ‘antithesis of what Trinity stands for’. These pieces refer to a statement from the Provost:

Trinity College Dublin regrets attack on free speech

Dublin, Tuesday February 21st 2017 – Trinity College Dublin regrets that Israel’s ambassador to Ireland, HE Ze’ev Boker, was unable to take part in a question and answer session on Monday evening after protesters from inside and outside the university threatened to disrupt the event. The university regards what happened as an unacceptable attack on free speech.

Ambassador Boker had been due to address a student society on Monday but the event was cancelled before he arrived at the proposed venue amid security concerns. University officials had unsuccessfully tried to get the protesters to leave an area surrounding the door to a lecture theatre. The ambassador has been a regular and welcome visitor to Trinity since his appointment. He had dinner in the university earlier in the same evening and attended another event in Trinity last week.

Trinity’s Provost Patrick Prendergast criticised the protesters for preventing a guest from expressing his opinions. “This was most unfortunate and represents the antithesis of what Trinity stands for. Universities should be able to facilitate the exchange of ideas. The protesters have violated that fundamental belief. Trinity will remain a home for debate and we will do everything possible to make sure that efforts to suppress the free exchange of ideas do not succeed. I look forward to welcoming Ambassador Boker back to Trinity to speak again in the near future.

Hear! Hear!

Update (6 April 2017): from Trinity News:

Students for Justice in Palestine fined for protest at Israeli ambassador talk

College has also refused to accept a petition on behalf of the group

Students for Justice in Palestine (SJP) have been fined €150 following their protest of a talk, organised by the Society for International Affairs (SoFIA), given by the Israeli ambassador to Ireland. …

I have written on this blog in the past about university free speech rankings in the UK and the US. The online current affairs magazine, spiked, has published its third annual Free Speech University Rankings (FSUR) of the UK’s universities (THE | The Tab | The Times here and here):

… it paints a grim picture. Our survey, ranking 115 UK universities using our traffic-light system, shows that 63.5 per cent of universities now actively censor speech, and 30.5 per cent stifle speech through excessive regulation. This marks a steady rise in censorship over the past three years. Now only six per cent of UK universities are truly free, open places.

Tom Slate, Deputy Editor of spiked, and co-ordinator of the survey, comments:

For anyone who’s been anywhere near a campus recently, this will come as no surprise. Students’ unions no longer just No Platform the odd edgy speaker – they ban ‘tarts and vicars’ parties and ‘offensive hand gestures’. But what’s perhaps most striking in this year’s findings is how fast universities are catching up. Though SUs are still far more censorious than universities, 23.5 per cent of university administrations are now ranked Red, compared with 15 per cent just last year.

The Foundation for Individual Rights in Education (FIRE) maintain an equivalent survey of US universities; and the Institute of Public ­Affairs do the same in Australia. These assessments are not the only sources of such dispiriting information. Direct surveys of students on campus in the US (pdf) and the UK (pdf) found that, while students support free speech in principle, many are willing to entertain significant restrictions. In any event, and whatever about Trinity’s return to the Times Higher Education‘s World University Rankings, in my view a green light on these free speech rankings would be a university ranking worthy of the name. If any benefactor out there wants to support similar research for higher education institutions in Ireland, I would be happy to co-ordinate it. Roll up; roll up!

A little while ago, I argued on this blog that Irish competition and copyright law should be amended to enable open access to universities’ research. In particular, the Irish Universities Association (the IUA), the representative body of the universities which employ academics whose research is published by the large publishers should negotiate the terms on which their employees will transfer copyright in their research and content to the publishers. They could this, either on their own, or jointly with the Technological Higher Education Association (the THEA), the representative body for Institutes of Technology in Ireland. This co-ordination and collaboration could improve the terms offered by publishers both to individual academics when submitting their research for publication, and to institutions for subscriptions to research resources – and it could in particular pave the way to ensuring greater open access to research. Because such co-operation could amount to an anti-competitive agreement, decision or concerted practice in breach of section 4 of the Competition Act, 2002, I suggested in that post an amendment to that section. I now learn that similar joint-action has been taken in the Netherlands and Germany, and without such legislative cover.

The deal between the Association of Universities in the Netherlands and Elsevier (joint press release) was concluded at the end of November:

In unique deal, Elsevier agrees to make some papers by Dutch authors free

A standoff between Dutch universities and publishing giant Elsevier is finally over. After more than a year of negotiations—and a threat to boycott Elsevier’s 2500 journals—a deal has been struck: For no additional charge beyond subscription fees, 30% of research published by Dutch researchers in Elsevier journals will be open access by 2018.

“It’s not the 100% that I hoped for,” says Gerard Meijer, the president of Radboud University in Nijmegen, the Netherlands, and the lead negotiator on the Dutch side. “But this is the future. No one can stop this anymore.” …

The German action, taken by the Alliance of German Science Organisations, represented by the German Rectors’ Conference, is similar:

No full-text access to Elsevier journals to be expected from 1 January 2017

From 1 January 2017 on, Göttingen University — as well as more than 60 other major German research institutions — is to be expected to have no access to the full texts of journals by the publisher Elsevier. …

The DEAL project, headed by HRK (German Rectors’ Conference) President Prof Hippler, is negotiating a nationwide license agreement for the entire electronic Elsevier journal portfolio with Elsevier. Its objective is to significantly improve the status quo regarding the provision of and access to content (Open Access) as well as pricing. It aims at relieving the institutions’ acquisition budgets and at improving access to scientific literature in a broad and sustainable way. …

Given that the Netherlands and Germany have competition laws similar to section 4, I find it interesting that the publishers came to an agreement in the former and are continuing to negotiate in the latter, in both cases without recourse to the powerful Dutch or German competition authorities. I hope that the Germans are as successful as the Dutch were, and that the IUA (perhaps jointly with the THEA) will soon follow suit.

1. Introduction
John Naughton began a classic column, on the world of university research being held to ransom by academic publishers charging exorbitant prices for subscriptions, by quoting Sir Patrick Cullen’s observation in George Bernard Shaw’s play The Doctor’s Dilemma that “All professions are conspiracies against the laity”. Then he continued:

To update the observation for a contemporary audience, simply replace the term “professions” with “publishers of academic journals” and you’ve got it in one. For, without the knowledge of the general public, a racket of monumental proportions has been milking the taxpayer for decades.

Most rackets can be prevented by good legal regulation. And a Bill that has just been given a very high chance of enactment demonstrates how that regulation might work. In this post, I want to explain the racket and the Bill, and then show how the legislative strategy in the Bill might provide a regulatory solution to the racket.

2. The Racket
Naughton explains the racket this way:

If you’re a researcher in any academic discipline, your reputation and career prospects are largely determined by your publications in journals of mind-bending specialisation … Everything that appears in such journals is peer-reviewed – that is to say, vetted by at least two experts in the field. … In any major scientific field, success depends on getting your articles published in such high-impact journals.

And not just personal success, either: under the research funding arrangements now in place in the UK and elsewhere, the survival of entire university departments depends on the publication records of their leading academics. So academia has become a publish-or-perish world.

This gives enormous power to outfits like Elsevier that publish key journals. And guess what? They wield that power [with high annual subscriptions] … The result is that unconscionable amounts of public money are extracted from our hapless universities in the form of what are, effectively, monopoly rents for a few publishers. …

But it’s not just the exorbitant subscriptions that stink; it’s the intrinsic absurdity of what’s involved in the academic publishing racket. Most publishers, after all, have at least to pay for the content they publish. But not Elsevier, Springer et al. Their content is provided free by researchers, most of whose salaries are paid by you and me.

The peer reviewing that ensures quality in these publications is likewise provided gratis by you and me, because the researchers who do it are paid from public money. … And then the publishers not only assert copyright claims on the content they have acquired for nothing, but charge publicly funded universities monopoly prices to get access to it. …

This is from 2012. If anything, the situation is worse now. (more…)

Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer. It is also likely to cover incoming requests from overseas to access to data held in Ireland. It may also include preparatory work for the response to the investigations being carried out by retired Chief Justice John Murray and retired Supreme Court judge Nial Fennelly. However, at present, this is just speculation, so we shall have to wait and see what the Department has in mind.

As to the administration of justice, priority legislation to be published by the Department of Justice and Equality this session includes a Bill to make provision for periodic payment orders to replace lump sum damages, and a (hastily-promoted?) Bill to establish the long-awaited Judicial Council. Indeed, that Bill is expected to undergo pre-legislative scrutiny this session, as is a Bill to replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission – indeed, the cabinet agreed yesterday to bring forward the heads of such a Bill by November. All of these developments are very welcome – provided that the Appointments Bill permits legal academics to apply for appointment to be bench, especially at appellate level. It would not be difficult to draft the necessary legislative provisions, and there is no reason in principle not to do so.

As to cybercrime, first, the busy Department of Justice and Equality is promoting the Criminal Justice (Offences Relating to Information Systems) Bill 2016, to implement Directive 2013/40/EU on attacks against information systems. It is on the Dáil Order Paper, awaiting Second Stage. Second, in the ‘I’ll believe it when (if) I see it’ category is the long-promised and almost long-forgotten Cybercrime Bill to give effect to the Council of Europe Convention on Cybercrime 2001. Yes, you read that right, it’s a 2001 Convention. It is 15 years old, which is a lifetime online.

As to education, legislation envisaged at some stage from the Department of Education, but probably not in this session, includes the Higher Education (Reform) Bill and the longer-threatened Universities (Amendment) Bill (critiqued here, here, here, and here). And the Technological Universities Bill 2015 remains on the Dáil Order Paper, awaiting Committee stage.

As to intellectual property, pre-legislative scrutiny is expected shortly on the Knowledge Development Box (Certification of Inventions) Bill. Heads of a Bill to amend Article 29 of the Constitution to recognise the Agreement on a Unified Patent Court were approved on 23 July 2014, though, in the light of Brexit, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Jobs, Enterprise and Innovation to the Oireachtas. Finally, the Copyright and Related Rights (Amendment) (Miscellaneous Provisions) Bill has been “referred to committee” pre-legislative scrutiny. This is presumably the Joint Committee on Jobs, Enterprise and Innovation. However, the Bill is not in the pre-legislative scrutiny list for this session, so we probably won’t see it in committee before Christmas.

As to privacy, the most important piece of legislation mentioned in the Programme is the Data Protection Bill, to transpose the EU Directive 2016/680 and give full effect to the General Data Protection Regulation (Regulation 2016/679). Heads are expected before the end of 2016 (but I’m not holding my breath). A Data Sharing and Governance Bill will be published and sent for pre-legislative scrutiny, to mandate and facilitate lawful data-sharing and data-linking for all public bodies, and a Health Information and Patient Safety Bill go further in the context of health information. In both cases, the drafting will be tricky, not least because the Bills will have to be compliant with the decision of the Court of Justice of the European Union in Case C?201/14 Bara. The Criminal Records Information System Bill and the Passenger Name Record Bill implement EU obligations. However, in the case of the latter, since there is a challenge before the CJEU in respect of a related measure, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Justice and Equality to the Oireachtas.

Finally, it is heartening to see that work has commenced on a Bill to remove blasphemy from the Constitution, and interesting to see active proposals to establish an Electoral Commission and to amend the transfer of records in the National Archives from 30 years to 20 years.

(more…)

I have the following op-ed in the current edition of the University Times:

Even as Public Funding to Universities Decreases, Government Preoccupation with Control Increases

The political agenda looks for control over the raising and expenditure of funding received from non-state sources.

As students return to college, the politicians return to Leinster House. Both students and politicians are facing very interesting terms, and each group has the capacity to make life difficult for the other.

One of the issues on the returning government’s plate is the vexed question of third-level funding. All sides are agreed that our higher education sector is woefully underfunded. The ongoing fall of Irish universities in international rankings is due, in no small part, to the funding cutbacks that began in 2003 and were cumulatively deepened after the 2008 global financial crisis. A recent report by an expert group, chaired by trade unionist Peter Cassells, made several recommendations on the future funding for higher education, and any choice the government makes will be controversial.

Two questions will have to be answered. The first is: who pays? The second is: how much? (more…)

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. (more…)

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). This is entirely consistent with earlier US Supreme Court authority. In Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) 90 Rhenquist J held that academic decisions are “not readily adapted to the procedural tools of judicial or administrative decisionmaking”; and in University of Michigan v Ewing 474 US 214 (1985) 225 Stevens J held that “considerations of profound importance counsel restrained judicial review of the substance of academic decisions”.

This judicial deference is afforded whether the academic judgment in question is challenged at public or private law (see, generally, S Hedley “Students as Litigants: A Public Law or a Private Law Issue?” (2015) 14 Hibernian Law Journal 1; (more…)