Last Tuesday, in the My Education Week column in the Irish Times, Paddy Prendergast, the Provost of Trinity College Dublin (and thus my boss) wrote a diary of his working week. This is how his entry for Wednesday, October 5th, began (with added links):

I meet with the Senior Dean and Dean of Students to discuss the student debating society, the Philosophical Society’s invitation to the BNP leader, Nick Griffin, to participate in a debate later this month. The issue has received considerable media coverage, but more importantly there are objections from our own college community. Freedom of speech is an important principle as is that of self-governance of student societies. We agree to meet with the Philosophical Society and consider this serious matter further. …

This seemed positive enough. Both freedom of speech and student society self-governance would pull in favour of allowing Nick Griffin to speak. Don’t get me wrong: Griffin’s views are loathsome, and the BNP is a hateful organisation, but I defend their right to spew their foul and horrid bile simply so that it can be exposed for the obnoxious and indefensible nonsense that it is. But this debate is not to be. According to a statement on the TCD website:

The University Philosophical Society and Trinity College Dublin have decided to withdraw the invitation to Mr Nick Griffin, leader of the British National Party. Mr Griffin was invited by the Philosophical Society to participate in a debate on October 20th next. After careful consideration of the matter, involving a series of discussions between the Philosophical Society’s officers and the College and taking all safety considerations into account, the decision was taken today (October 14th).

The College encourages balanced debate and freedom of speech at all times. It is a very important part of academic life, particularly among students and their societies. As part of the education of our students, the College also promotes the autonomy and self governance of student societies. These are important principles observed by the College.

Following careful review of operational and safety issues, the Philosophical Society and the College are now not satisfied that the general safety and well being of staff and students can be guaranteed. Access to the College will not be given to Mr Griffin or members of the BNP.

The University Philosophical Society feels it is unfortunate that circumstances have arisen under which the planned debate cannot go ahead without compromising safety.

The original invitation was predictably controversial. The decision to rescind it has garnered quite a bit of media coverage (BBC | DailyUpdate.ie | Irish Examiner | Irish Independent | Irish Times here and here | PA | RTÉ | StudentNews.ie | TheJournal.ie | University Times | UTV); and this has been welcomed by some of the visit’s critics (including the youth wing of the Irish Labour Party, and the Socialist Workers Party).

I am dismayed by this turn of events. Having several times wrapped themselves in the mantle of freedom of expression, TCD and the Phil have now let the mantle slip. Those who claim to respect freedom of speech must actively do so when it is difficult; else they do not really respect it at all. Freedom of speech is not always self-executing – when push comes to shove, it is necessary to be active in its defence and support. If a society such as the Phil invites controversial speakers, making a grab for the headlines, then that society must take all necessary steps to ensure that the controversial speakers actually have the opportunity to speak. Otherwise, the hecklers in a hostile audience will have a veto on the speakers. And the heckler’s veto is antithetical to freedom of speech. Hence, the US Supreme Court has rejected it as inconsistent with the freedom of expression guarantees in the First Amendment.

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 »

Hart Publishing have just published Academic Freedom and the Law: A Comparative Study (cover left) by Eric Barendt:

Academic Freedom and the Law: A Comparative Study provides a critical analysis of the law relating to academic freedom in three major jurisdictions: the United Kingdom, Germany and the United States. The book outlines the various claims which may be made to academic freedom by individual university teachers and by universities and other higher education institutions, and it examines the justifications which have been put forward for these claims. Three separate chapters deal with the legal principles of academic freedom in the UK, Germany, and the USA. A further chapter is devoted to the restrictions on freedom of research which may be imposed by the regulation of clinical trials, by intellectual property laws, and by the terms of contracts made between researchers and the companies sponsoring medical and other research. The book also examines the impact of recent terrorism laws on the teaching and research freedom of academics, and it discusses their freedom to speak about general political and social topics unrelated to their work.

This is the first comparative study of a subject of fundamental importance to all academics and others working in universities. It emphasises the importance of academic freedom, while pointing out that, on occasion, exaggerated claims have been made to its exercise.

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). This does not seem surprising, since the proposition that the Courts will be slow to interfere in matters of purely academic judgment is well-established as a matter of Canadian law (see, eg, Harelkin v University of Regina 1979 CanLII 18 (SCC), [1979] 2 SCR 561 (30 March 1979); followed in Ontario in Paine v University of Toronto (1982) 34 OR (2d) 770 (Ont CA) and Gauthier v Saint-Germain 2010 ONCA 309 (CanLII) (3 May 2010) ([30]-[31], [46], [50] Rouleau jca, en français)).

On the other hand, in Gauthier, Rouleau jca pointed out that since the relationship between a student and university is, of its nature, contractual, it can give rise to obligations both in contract and in tort ([32]-[33], [46]) and the court does not lack jurisdiction solely because the claim arises out of a dispute of an academic nature ([45]). This, too, is well established in Canadian law (Young v Bella 2006 SCC 3 (CanLII), [2006] 1 SCR 108 (27 January 2006)). As ever, the question is not so much about the line as to the side of it on which any given case might fall.

In the appeal in Jaffer, Karakatsanis JA held that Rouleau jca’s judgment in Gauthier “clarified that the decisions of this court upholding the dismissal of claims relating to academic matters did not do so on the basis that the court lacked jurisdiction …, but rather … because the pleadings did not disclose a reasonable cause of action based upon contract, tort, or negligence or … because the cause of action was untenable in law” ([22]). In other words, the proper judicial deference to academic decisions does not deprive the court of jurisdiction, but it does mean that the plaintiff has no exigible claim.

Hence, the question in Jaffer was not whether the dispute was academic in nature, but rather whether the pleadings support a cause of action in either contract or tort ([31]). Unlike Pitt J at first instance, Karakatsanis JA for the Court of Appeal held that appellant’s various claims did not implicate purely academic judgments, so she considered the breach of contract and negligent misrepresenation issues, and found them both wanting. In other words, the distinction between Pitt J and the Court of Appeal turned on the characterisation of the issues as purely academic or not. Unlike Pitt J, Karakatsanis JA held that the issues were not purely academic, and thus went on to consider whether there was a breach of contract or a tort. She found that there was no basis in the facts pleaded upon which to find that accommodation was an express or implied term of the contract between the university and Jaffer, and thus dismissed the breach of contract claim. She also found that the professor’s offer did not constitute a misrepresentation and that there was no causal link between the allged misrepresentation and the damages claimed, so she also dismissed the misrepresentation claim. However, she did allow the appeal to the extent of permitting Jaffer to amend the Statement of Claim to plead the breach of contract and negligent misrepresentation issues with greater particularity.

On this approach, the question which would arise in Andrew Croskery’s application is whether the matter is one of purely academic judgment. If it is, then the Court will not lack jurisdiction but it will be particularly slow to hold against the university. If it is not, then the court can go on to consider his substantive claims. I await Mr Justice Treacy’s decision with interest.

Further 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.

Richard Langley, head of litigation and dispute resolution at law firm Bircham Dyson Bell, said Mr Croskery would have an “uphill struggle” to prove that the university had acted irrationally in not increasing his grade. “It involves a very subjective judgement and it is impossible to determine what he would have got with different supervision,” he said. He also warned that, at best, the judge would require the university to reconsider its decision, which it may uphold. …

No 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). I’m very grateful to him for having done so, and I in turn make it available here (pdf) Read the rest of this entry »