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), but now it seems that the issue has arisen rather closer to home. Yesterday’s Irish Times tells the story:

Graduate takes university to court over degree results

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 [2004] 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!

Two recent cases in the European Court of Human Rights demonstrate that there are still large gaps in the protection of freedom of expression in Turkey.

Terrorist speech
In Gözel and Özer v Turkey (43453/04 and 31098/05; 6 July 2010 | judgment (in French); press release (in English)), a Turkish magazine published an article that contained a statement by the central committee of the banned Marxist-Leninist/Turkish Communist Party. Another published an article about the founder of the Marxist movement in Turkey which included a statement by eight people who were in custody for belonging to illegal organisations. The editors of both magazines were convicted of pubishing statements of illegal armed organisations.

The ECHR noted that the editors had been convicted for publishing texts that the domestic courts had characterised as “terrorist organisation statements” without taking into account their context or content, and held that to condemn a text simply on the basis of the identity of the author would entail the automatic exclusion of groups of individuals from the protection afforded by Article 10. It therefore concluded that since the opinions expressed did not constitute hate speech or stir up violence, the Respondent was not entitled to rely on national security to restrict the public’s right to receive information, and that Article 10 had therefore been breached.

In Ireland, the leading Supreme Court decision in this area is the deeply flawed The State (Lynch) v Cooney [1982] IR 337 upholding the infamous section 31(1) of the Broadcasting (Authority) Act, 1960 [(also here), as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here), ultimately repealed in 2001] (discussed on this blog here | here | here). On foot of the powers in that section, the Minister had proscribed the access of paramilitaries to the airwaves, and this extended to preventing an election broadcast by a candidate in a party associated with a paramilitary organisation. That association, effectively the mere identity of the candidate, was sufficient to allow the ban to be upheld. O’Higgins CJ held that the use of the media for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. This must now be questionable in the light of Gözel and Özer.

Academic Freedom
In Sapan v Turkey (44102/04; 6 July 2010 | judgment (in French); press release (in English) | h/t Strasbourg Observers), the applicant published a book on the emergence of stardom as a phenomenon in Turkey. It was based upon his doctoral thesis, and it focussed in part on a well-know pop singer. The Turkish courts held that, since the book addressed subjects related to the singer’s personal life rather than his public persona, it had infringed his personality rights. An interim order that the book be seized was eventually lifted after two years and eight months, but the singer’s damages claim was allowed to proceed.

The ECHR emphasised the importance of academic freedom, and it considered that the book was a serious academic analysis of the social phenomenon of stardom which could not be compared with the tabloid press or gossip columns. It therefore held that there were no relevant or sufficient and reasons to justify the seizure of the book, and that Article 10 had therefore been breached.

In an earlier post, I placed the terms of section 14(1) of the Universities Act, 1997 (also here) in the context of US and ECHR decisions on academic freedom, in particular the decision of the ECHR in Sorguc v Turkey 17089/03, [2009] ECHR 979 (23 June 2009). This is a very significant judgment in the development of this important right. In particular, it re-inforces the argument that, since academic freedom is protected under the ECHR as an aspect of Article 10, it should by analogy be protected under the Irish Constitution as an aspect of the right to freedom of expression in Article 40.6.1(i), or of the right to communicate protected by Article 40.3, or even as an unenumerated right located in Article 40.3.

I’m sorry not to have been able to acknowledge the celebration of AFAF’s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.

Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

This is why, to take the example presented by Rod Thornton in his contribution to the NRinI carnival, research and teaching about terrorism are protected, even as Beshara Doumani’s edited collection Academic Freedom after September 11 (University Of Chicago Press, 1998 | Amazon) demonstrates the increasing antithetical pressures.

Article 13 of the Charter of Fundamental Rights of the European Union provides that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. Read the rest of this entry »

Patents encourage innovation – an inventor who is awarded a patent over an invention can exploit it and profit from it, at least according to the Irish Patents Office. Innovation therefore matters, and Innovation Dublin 2009, a week long festival of public events aimed at promoting and stimulating innovation and creativity in the city, begins today. The festival, co-ordinated by Dublin City Council, is a key project of the Creative Dublin Alliance (press release | Ferdinand | Karlin), a collaborative group made up of Dublin local authorities, universities, state agencies, businesses and the not-for-profit sector, which was launched in Trinity’s Science Gallery earlier this year. According to a TCD Communications Office press release:

As part of Innovation Dublin 2009 Trinity College has planned a range of seminars, showcases, discussions, workshops and exhibitions promoting both Dublin and Trinity College as an energetic, diverse and innovative place to learn, live, work and create. Events within Trinity will range from interactive technology showcases to the analysis of medieval manuscripts; from virtual exhibitions documenting living histories of older Dubliners to a forum on the generation of ideas.

Doubtless, some of this innovation will lead to patents, especially in the universities. In my earlier post on Universities and Patents, I referred to the decision of French J in Federal Court of Australia in University of Western Australia v Gray (No 20) [2008] FCA 498 (17 April 2008) in which UWA failed to assert a patent over anti-cancer technologies developed by the defendant, who had been a member of its academic staff. UWA appealed, and in University of Western Australia v Gray [2009] FCAFC 116 (3 September 2009), the Full Court of the Federal Court upheld the decision of French J (unsurprisingly, the UWA has sought leave to appeal to the High Court of Australia).

It is an important judgment, covering a wide range of issues relating to innovation, universities and patents. Read the rest of this entry »

I suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …

Read the rest of this entry »

Professor Sir Alec Jeffreys, the scientist behind DNA fingerprinting, in a BBC interview to mark the 25th anniversary of that discovery, has spoken of the importance of allowing academics freedom to research. He said that academics should be able to pursue “unfettered, fundamental, curiosity-driven” research of the kind which led to his discovery. It is an important defence not only of academic freedom but also of traditional research methodology in the face of increasingly dirigiste institutional, sectoral and national research strategies.

Equally important – though more newsworthy – is his call, in the same interview, for a change to the UK’s law governing DNA databases. In that interview, he said that “innocent people do not belong on that database”, and he renewed his calls for the UK government to change the law governing the UK’s DNA databases – particularly the practice of keeping the DNA profiles of thousands of people who have neither been charged nor convicted.

In S and Marper v UK 30562/04 [2008] ECHR 1581 (4 December 2008), the applicants complained that their fingerprints, cellular samples and DNA profiles had been retained by the police, pursuant to section 64 (1A) of the Police and Criminal Evidence Act 1984, notwithstanding that proceedings against them had ended with an acquittal or had been discontinued. The European Court of Human Rights upheld their complaints:

125. … the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.

The UK government’s response, after consultation, was to say that, whilst the underlying samples would be destroyed, the DNA profiles derived from them would continue to be stored on the database. In an interview with the Guardian last April, Prof Jeffreys said he was left “almost speechless” by reports of this response. Moreover, in an extraordinary move, police have subsequently been instructed to ignore the ECHR decision until these new guidelines could come into force next year. Inevitably, there have been objections that this response will also be found wanting in the ECHR.

I am sure the Department of Justice is watching this issue very closely, given that they published a scheme for a Criminal Justice (Forensic Sampling and Evidence) Bill in 2007, which also provides for the storing of samples from suspects in a database. Marper has probably taken the wind out of the sails of the detail of that proposal, but whatever the UK government successfully gets away with in the ECHR will provide a map to the Department as it continues its work on that Bill.

As universities grapple with reducing budgets, their autonomy from government comes increasingly under scrutiny, and traditional academic values such as academic freedom come under threat. As a consequence, a recent story in Times Higher Education concerning a recent attempt to define academic freedom in detail, makes for fascinating reading (with added links):

What is freedom? Choosing your v-c

By Rebecca Attwood

Proposal is key part of plan for European ‘Magna Charta’ on scholars’ rights.

Academics would be given the right to appoint their own vice-chancellors under plans for a Europe-wide definition of academic freedom. The proposals have been tabled by Terence Karran, a senior academic in the Centre for Educational Research and Development at the University of Lincoln …

One of the cornerstones of the proposals is the need for academic self-governance. Setting out his plans in the journal Higher Education Policy, Dr Karran says: “To guarantee academic freedom, academic staff must … be able to determine who shall serve as rector. … Where possible, the rector should be appointed from within the university by a democratic process with the support of the majority of academic staff. … Where the appointment is external … academic staff should have the major role in determining (it).”

So far as I know, very few universities in fact choose their Rector (President, Provost, Vice Chancellor, head honcho, great leader) in this way; I think that the only one in Ireland that does is TCD, where I work. The Irish Times recently reported that discussions on “whether the college has the traditional election among academics or whether there will be a more modern search and selection process” are “already concentrating minds at Trinity”. Against that backdrop, I find it interesting that something very like TCD’s “traditional” process is being seen as part of a radical modern proposal to safeguard academic freedom.

It is an important proposal, but there is more to Karran’s piece than this; rather, it is a comprehensive vision of academic freedom. In Ireland, it is secured by section 14 of the Universities Act, 1997 (also here); the Magna Charta Universitatum was founded by the University of Bologna and the European University Association (EUA) and opened for signature by universities in 1988 on the occasion of the 900th anniversary of the University of Bologna; and section 4 of Recommendation 1762 (2006) concerning Academic freedom and university autonomy (reaffirmed last month) the Parliamentary Assembly of the Council of Europe provides:

4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:

4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;

4.2. the institutional autonomy of universities should be a manifestation of an independent commitment to the traditional and still essential cultural and social mission of the university, in terms of intellectually beneficial policy, good governance and efficient management;

4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation;

4.4. high costs and losses, however, could also ensue if universities moved towards the isolation of an “ivory tower” and did not react to the changing needs of societies that they should serve and help educate and develop; universities need to be close enough to society to be able to contribute to solving fundamental problems, yet sufficiently detached to maintain a critical distance and to take a longer-term view.

Building on earlier work, Karran now proposes a working definition of academic freedom for the European Union states which could form the basis for a European Magna Charta Libertatis Academicae; his proposals cover not only the protections for teaching, research and tenure, but also extend to academic self-governance, and are drafted in such detail as to determine boundaries and accompanying duties. He concludes:

… the European Union already has a Magna Charta Universitatum, [and] establishing a Magna Charta Libertatis Academicae would constitute a desirable next step. Such a document would protect the professional rights of staff, and raise vocational standards, while providing enhanced protection for students from abuses of academic freedom. … More important than this, however, is the recognition by academics that the protection of academic freedom is something in which they should become actively involved. There is a tendency, given both the ever-growing pressures to teach more students and write more articles, for university staff to ignore the process whereby, via legislation or legerdemain, academic freedom is being slowly but irrevocably eroded. Academic freedom brings rights and responsibilities — a major one of which is to ensure that such rights are there to be used and enjoyed by future generations of scholars. Society at large will only sanction the granting of particular freedoms to a specific professional group if it is persuaded that these freedoms produce net benefits. Hence it is incumbent on today’s academics to voice, with passion and persuasion, the reasons for the continuance of academic freedom. Neglecting such a responsibility will surely impoverish academics, academia and the free society in which they operate.

One of my favourite blogs is Erin O’Connor’s Critical Mass, a blog dedicated to commentary on the state of academe in general and American higher education in particular. She is invariably interesting and unfailingly provocative, if not always right; and her discussions of academic freedom in all its guises have helped to clarify what I think about such matters. Last week, she blogged about a new report from the American Council of Trustees and Alumni (ACTA, where she is a Research Fellow) on Protecting the Free Exchange of Ideas. How Trustees Can Advance Intellectual Diversity on Campus (pdf); its abstract:

This report features ten best practices, gleaned from colleges and universities across the country, for promoting the free exchange of ideas in and out of the classroom. Since intellectual diversity is at the core of any true university education, the report commends institutions that have taken action, urges them to keep at it, and exhorts other boards to play their proper leadership role–working, of course, with administrators, faculty, alumni, and donors–in guaranteeing and enriching the intellectual environment on campus.

The ten principles discussed in detail in the report are

1. Survey the campus climate.
2. Incorporate intellectual diversity into institutional statements and policies.
3. Hire administrators who are committed to intellectual diversity.
4. Incorporate intellectual diversity into the university’s strategic planning.
5. Vet (and amend, if necessary) student grievance guidelines.
6. Eliminate speech codes and other policies that restrict freedom of expression.
7. Encourage visiting scholar programs and guest lecture series.
8. Utilize orientation programs for discussion of intellectual diversity.
9. Include statements on course syllabi indicating a commitment to the free exchange of ideas.
10. Encourage the president to take a stand for intellectual diversity.

As usual with her posts, this got me thinking about academic freedom. As with all other rights, it is quite easy to take it for granted right up until someone wants to take it away or infringe it in some way. And as universities are faced with reform, consolidation, alliances and cutbacks, their core mission will increasingly come under threat. So, for example, the here’s the Guardian has run a campaign called FREE-D, speaking up for free debate in universities. Read the rest of this entry »