As I have observed on this blog in the past, The Hunting of the Snark is a nonsense poem written by Lewis Carroll, which describes “with infinite humour the impossible voyage of an improbable crew to find an inconceivable creature” (Williams and Madan (1974) via wikipedia). We have waited so long for the Hunt Report that it has taken on much of the mythical quality of the “inconceivable” Snark. In February 2009, the Minister for Education and Science established a high level Strategy Group, chaired by Dr Colin Hunt, to develop a National Strategy for Higher Education in Ireland. The Report does not seem to be on the relevant page of the Higher Education Authority (HEA) website, but the Irish Times has today published a draft of the Report on its website (pdf). There have already been many press pieces and blog comments on the Report, so I’m only going to highlight a few of the recommendations that I find particularly interesting.

The Report is a difficult mixture of platitudes (”Ireland’s higher education system has played a major role in the development of Irish society and the economy”) and management jargon (”Ireland’s higher education institutions need to continue to break new ground in research of the highest standards across the spectrum of disciplines and activity”), but that is probably inevitable. For all that, it does say some very important things. Read the rest of this entry »

On 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. [emphasis in original]

Given the extreme reluctance on the part of the courts go behind purely academic decisions, the best strategy for an applicant is to object to a different matter, not to the academic judgment but the procedures that led to it or to the subsequent appeal procedures. The two main routes to put such procedures in issue are to seek judicial review or to allege that the failure to follow them constituted a breach of contract (and such claims are becoming increasingly common). The applicant in Croskery sought judicial review. Some internal procedures were still available to the applicant, up to and including the Board of Visitors [in England and Wales, the Visitorial jurisdiction has been replaced by the Office of the Independent Adjudicator], but he sought to argue that Article 6 of the European Convention on Human Rights applied to ensure that such hearings complied with Article 6, so that, in particular, that he will have the benefit of legal representation. His essential argument was that the decisions in Wislang and Thomas could no longer be regarded as sound law because of the application of Article 6 of the Convention. It provides, in pertinent part:

In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …

Applying Andre Simpson v UK 14688/89 (Commission decision of 4 December 1989) and Hanuman v UK 56965/00 (admissibility decision) [2000] ELR 685, and distinguishing Emine Arac v Turkey 9907/02 [2008] ECHR 1883 (23 September 2008), Treacy J 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 Article 6. The assessments themselves are plainly a matter of academic specialised judgment and whilst the outcome of the procedures for determining disputed classifications is a matter of considerable import for an individual they are not concerned … with determining rights of access or any other civil right within the meaning of Art 6. The assessments and, more importantly for present purposes, the reviewing supervision of the relevant subject Board of Examiners, which is made up of senior academics in the relevant subject field, does not, in my view, involve the determination of any civil right … [emphasis added]

The applicant also relied on Article 2 of the First Protocol to the Convention, providing that “No person shall be denied the right to education”, but Treacy J held this right had not been denied; rather, the applicant has had access to and has exercised his right to third level education. Moreover, Treacy J held that the Article “says nothing about rights to degrees or other academic qualifications much less to their academic assessment” and therefore did not apply in this case.

As a consequence, since neither Article of the Convention was engaged, the matter remained exclusively within the jurisdiction of the Board of Visitors, Wislang and Thomas applied, and the application for leave to apply for judicial review was refused.

It’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. In the meantime, it seems to be a welcome endorsement of the view that the courts should be slow to become embroiled in matters of purely academic judgment.

Updates (9 December 2010): Belfast Telegraph | Irish Times

Updates (10 December 2010): Education Law Blog | iLawBlog

By way of a brief update on my two recent posts about third level policy, a story in yesterday’s papers caught my eye. First, a report in the Irish Times:

Less than 15% in some Dublin areas going to college

Less than 15 per cent of Leaving Cert students in some poorer areas of Dublin are progressing to third level, according to the 2010 Irish Times feeder school list published today. … In stark contrast, most schools in south Dublin have a progression rate of 100 per cent; every one of their students who sat the Leaving Cert this year has progressed to third level.

The new figures come amid renewed controversy about the impact of the abolition of third-level fees in 1995 and as students face increased registration charges in next month’s budget. The list appears to show that “free fees” have have had only a marginal impact in boosting participation levels in poorer areas. …

The Irish Times also publishes a separate list focusing on progression rates to high-points courses, mostly in the university sector. This list is dominated by feepaying schools. …

Unfortunately, I haven’t been able to locate either list on the Irish Times website. The Irish Independent has a similar story:

Parents buying school success, figures reveal

More than 90pc of students who sat the Leaving Cert in fee-paying or grind schools went on to higher education, figures compiled by the Irish Independent reveal. … In total, students who had studied for the Leaving Cert in either fee-paying or grind schools made up one in every eight of those who enrolled in college in September.

By contrast, the average transfer rate for schools in the free education scheme was lower. It varied from below 10pc for schools in disadvantaged areas to an impressive 100pc for some schools, particularly Gaelscoileanna, such as Colaiste Eoin and Colaiste Iosagain in Stillorgan, Co Dublin. …

Dr Selina McCoy from the Economic and Social Research Institute said: “Given the nature of the intake to fee-paying schools, you would expect a large proportion to progress to higher education. … What we really need to focus on in future research is the extent to which schools add value or make a difference in enabling students to successfully compete for higher education entry.”

Again, I haven’t been able to locate if the Irish Independent has made available online the figures that they have compiled in this regard.

These developments come as a survey of education and skills by the Irish Business and Employers Confederation (IBEC) shows that

75% of employers are satisfied with the calibre of graduates from Irish higher education institutions. However, employers also felt graduates fell down on their people skills and their ability to work independently. … The ability to work autonomously, ‘attitudinal’ and ‘people-related’ skills were ranked as the top three gaps in graduates’ competence.

The full survey is available here.

Picking up where I left off with yesterday’s post about the Economic and Social Research Institute (ESRI) Higher Education Policy Conference, Professor David Raffe, Director of the Centre for Educational Sociology in the University of Edinburgh spoke on “Higher education policies across the UK since devolution”, and his paper put the higher education policy issues into context. In particular, he demonstrates not only the challenges being faced by higher education at present but also the diversity of available policy responses even in the UK. I’m going to summarize those aspects of his paper which are relevant to Irish circumstances and leave to one side his application of those elements to devolution in the UK [my occasional comments about the Irish position are in parentheses], and I will use his paper to put the contribution of Dr Selina McCoy in context. Read the rest of this entry »

I attended the Economic and Social Research Institute (ESRI) Higher Education Policy Conference yesterday on the topic “Higher Education Policy: Evidence from Ireland and Europe”. In the first session, Dr Selina McCoy of the ESRI spoke on “Higher education research in Ireland: where are we now?” and Muiris O’Connor of the Higher Education (HEA) spoke on “Higher education policy in Ireland: achievements and challenges”. In the second session, Professor David Raffe, Director of the Centre for Educational Sociology in the University of Edinburgh spoke on “Higher education policies across the UK since devolution” and Research Professor Liv Anne Støren of the Norwegian Institute for Studies in Innovation, Research and Education, Oslo spoke on “New trends in higher education in Norway – Are traditional male students ousted by female working class students and immigrant students?”. It was a fascinating series of presentations. Muiris O’Connor’s paper was an excellent survey of the evolution and present state of the Irish higher education sector. David Raffe’s paper put the higher education policy issues into context. Selina McCoy examined the very important specific issue of access to higher education in Ireland, whilst Live Anne Støren provided a comparative perspective on that issue. In this post, I’ll summarize what Muiris O’Connor had to say, and I’ll return to the other presentations tomorrow.

For Muiris O’Connor, the main achievement in Irish higher education policy is the participation rate. Over the last 50 years or so, after a late start – the free second level education scheme was introduced in 1967, about 25 years after the rest of Europe – there has been a rapid expansion of the third level sector and a rapid catch-up to international levels. Ireland is above the OECD average for 25-34 year-olds’ educational attainment in second and third level education. Although Ireland is not quite at OECD levels for PhDs, policy in recent years has been to boost that figure. On the other hand, Ireland is a long way from the OECD average for life-long learning rates. Moreover inequalities at the point of entry to higher education are still severe; in particular, there is a serious drop in participation by those just above the grant eligibility threshold. Read the rest of this entry »

The first item in the Trinity College Dublin (TCD) news feed at present is the report that Professor Petros Florides was recently inaugurated as a Pro-Chancellor of the University of Dublin. This reminds me that I often hear the question: “what is the University of Dublin for?”. And in the context of NUI Galway, NUI Maynooth, UCC, UCD et al, I often hear the similar question: “what is the NUI for?” Answers to these questions usually focus on history. The Charter of 1592 which founded TCD established it as “mother of a university”; whilst the Irish Universities Act, 1908 consolidated many of the existing Irish universities and colleges into the National University of Ireland. However, these answers only tell us where the University of Dublin and the NUI came from. They don’t tell us what these institutions are for. Other answers focus on degree-awarding powers, commencements, graduations, university governance, elections, connections with alumni, and ancillary academic services, before trailing off into a slightly embarrassed silence. These answers certainly get closer to telling us what these institutions are for, but they don’t really offer a strong justification for their continuing existence or future relevance. I’m actually a fan of both; and I think that the University of Dublin is symbiotically integral to Trinity College Dublin. Moreover, I do recognise the force of the objection implicit in the question “what are they for?”; and I think that one satisfactory answer might be to expand rather than to contract their roles. Read the rest of this entry »

First, 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. Karakatsanis JA overturned the motion judge’s finding that academic disputes on the basis of a very recent decision not available to the motion judge, Gauthier v Saint-Germain 2010 ONCA 309.

Gauthier establishes that in cases where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even when a dispute is academic in nature and arises from the academic activities of the university. While the University argued Gauthier was wrongly decided, Karakatsanis JA clearly addressed and disposed of this line of reasoning, finding that past decisions upholding the dismissal of claims relating to academic matters were done under r. 21.01(1) as the pleadings did not disclose a reasonable cause of action based upon tort, contract or negligence, not on the basis the court lacked jurisdiction.

Karakatsanis JA emphasized though, that the court’s jurisdiction will only extend to academic disputes with causes of action in tort or contract. For internal academic decisions not grounded in a civil cause of action, judicial review remains the appropriate remedy. However, the court will (and does) have jurisdiction to hear claims with a basis in tort or contract – the scholastic nature of the dispute is irrelevant.

In my opinion, I agree that this is the correct outcome. Establishing this guideline will only allow those claims with more substance than a single student’s biased belief or personal grudge to be heard. We must remember that students agree to be subject to their institution’s discretion in resolving academic matters upon enrolling, and only substantiated academic issues should be brought before the Superior Court.

Finally, for those who have reached this far, a cartoon from PhD Comics about the realities of weekend marking (click on the image for a bigger version):