Student challenges to degree classification, and examiners’ academic freedom – redux

St Cross Building, Oxford, which houses the Faculty of Law, University of Oxford, via their websiteNo 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) (see also oxcheps (.doc); and it seems that the applicant has written a book about the case). On the substance of the applicant’s claim, Gray J held that his Claim Form and Particulars of Claim did not disclose reasonable grounds for bringing the claim, and he held that the claim had no realistic prospect of success (update: has commented below about possible grounds of appeal against Gray J’s decision). However, Gray J went on to hold (links and emphasis added) that

23. … there is a second formidable difficulty in the way of the Claimant’s appeal. The root of the Claimant’s complaint against the University relates to the criticisms made of his thesis by the two examiners which constituted their reason for recommending that the thesis be referred back to the Candidate for further re-submission. It is quite apparent from reading through the examiners’ written reasons that their recommendation was based upon their opinion, as academics in the field, of the academic quality of the Claimant’s thesis. … questions of academic judgment are generally treated by the courts as being non-justiciable and unsuitable for adjudication in the courts. In Clark v University of Lincolnshire & Humberside [2000] 1 WLR 1988, [2000] EWCA Civ 129 (14 April 2000) Sedley LJ expressed the proposition

The arrangement between a fee-paying student and [the University] is … a contract. … Unlike other contracts, however, disputes suitable for adjudication under its procedures may be unsuitable for adjudication in the courts. This is because there are issues of academic or pastoral judgment which the University is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. …

[Gray J also discussed R v Judicial Committee ex parte Vijayatunga [1990] 2 QB 444, and R v Cranfield University ex parte Bashir [1999] ELR 317, [1999] EWCA Civ 995 (16 March 1999)].

24. In the light of those authorities it appears to me that the validity of the reasons which led the examiners to make the recommendation which they did in relation to the Claimant’s thesis is a matter of academic judgment with which it would be inappropriate for the court to interfere. By parity of reasoning it would be equally inappropriate for the court to permit to be questioned in these proceedings the validity of the reasons which led the Senior Proctor and after him Professor Hepple to dismiss the Claimant’s appeals in so far as they related to the validity of the examiners’ reasons for recommending re-submission of the Claimant’s thesis.

This is a strong statement of the principle of judicial deference to matters of purely academic judgment. As a headline in today’s Belfast Telegraph puts it, Suing college should be ‘last resort’. Perhaps such considerations underlie the decision in Quinn v Honourable Society of King’s Inns [2004] IEHC 220 (15 June 2004). Smyth J held that the applicant was not entitled to invoke the public law remedy of judicial review for a private law right arising out of contract, but – as Gray J did – Smyth J also rejected the applicant’s substantive submissions as well. He therefore concluded that:

… this is a case in which a student agreed that an Entrance Examination to a professional law school would be conducted in accordance with known rules, regulations and procedures which the law school in my judgment properly and fairly adhered to. The fact that no appeal mechanism, as such, was provided for, did not form part of the contract, does not, especially in the light of the facts as I find them to be, give rise to an entitlement to the reliefs permitted to be claimed on the grounds advanced.

I don’t agree with every element of Smyth J’s judgment, but it does seem to me to be suffused (perhaps over-suffused) with a great deal of deference to the King’s Inns’ examiners, and can thus be understood as reflecting the policy expressly articulated by Gray J. It will be interesting to see if Treacy J accords the same deference in Andrew Croskery’s challenge to the 2:2 degree he was awarded by QUB.

Update (24 September 2010): 11 King’s Bench Walk‘s Education Law Blog points out:

Established case law indicates that the Courts will not get involved in disputes over marking/academic outcomes … However, it would appear that the present claim relates to a preliminary issue: should the University have provided the Claimant with an opportunity to appeal internally against the mark that he received for the degree. … There seems to be some merit in this point: although the Courts will not interfere in the final decision on marking, they will be keen to ensure that students (and former students) have a proper opportunity of challenging marking decisions.

This raises one of the controversial aspects of the decision of Quinn, since Smyth J held that “the absence of an appeal mechanism as such is not ultra vires or unreasonable”. It will be interesting to see if Treacy J’s decision reaches this point.