Category: Grading and Marking

Cross words about copyright and today’s Irish Times simplex crossword

Copyright CrosswordMy dad’s voice comes from the other room, asking “document granting exclusive right to publish?”, adding that “it’s in nine letters”. It turns out that this is the clue for nineteen down in today’s today’s Irish Times simplex crossword. It also turns out that the answer is “copyright”. I had spent at least a quarter of an hour assuring him that the answer couldn’t possibly be “copyright”, because copyright automatically vests if the work is original, and no additional grant of copyright, or document granting an exclusive right to publish, is necessary. As the Patents Office explains “the act of creating a work also creates the copyright, which then subsists in the physical expression of the work”. To the extent that there is anywhere a document granting a right to publish, the closest is an imprimatur, but that didn’t fit. And somebody who holds a copyright in a work can license its use to someone else, and can even licence its exclusive use to someone else, but “licence” didn’t fit either (and anyway, licences are permissions to do lots of things, like drive a car, use a television, or keep a dog; they are not confined to publications or copyrights; and they don’t have to be written documents). When the letters from the interlocking clues gave C_P_R_G_T, I had to concede that the answer was indeed “copyright”, but I continued to insist that the combination of clue and answer is just plain wrong.

When Dad is doing crosswords, we often have debates about the accuracy of crosswords clues and answers, and dictionaries and online searches are deployed to dispute the rigour of a clue or the precision of an answer. It’s all part of the fun of doing crosswords. But, in my view, this combination of clue and answer goes well beyond the bounds of friendly disagreement. It is quite simply false to say that a “copyright” is a “document granting exclusive right to publish”. A quick online search told me that “document granting exclusive right to publish” is used pretty regularly as a crossword clue with “copyright” as the answer. So, it’s wrong a lot. But that makes things worse. Lots of crossword setters use this clue, and lots and lots of unsuspecting crossword solvers are being misled as a consequence. This is a very great shame.

Or maybe I’m just looking for an excuse not to get back to the exam scripts which are not being corrected as I type.

Is a lost First worth £5m?

University of Bradford building, via the university's websiteAfter 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.

Re Croskery [2010] NIQB 129

Sepia image of the Royal Courts of Justice in Belfast, via the NI Courts Service websiteOn 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) [see UKSC blogpost on The Right to Education and the Supreme Court], 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.

Leave is refused in QUB graduate’s judicial review of his degree result

QUB crest, via WikipediaIt’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

Grading and marking, updates

Graded Paper, viaFirst, 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):

Saturday grading, by PhD Comics, via their website

Making the grade

QUB logo, via the QUB blogVia the incomparable 9th level Ireland blog, I (rather belatedly) learn that Andrew Croskery, a graduate of Queen’s University Belfast who has taken judicial review proceedings to challenge his degree results (on which I have previously blogged: 1, 2, 3, 4; and there is also an excellent post Jason Smith), might have got a result during the week. According to the BBC, QUB has agreed to review his grade. It seems that he was only 0.5% off obtaining a 2:1 in his degree, and in his judicial review proceedings, he claimed that if he had received better supervision he would have achieved that 2:1. On Tuesday, the High Court granted a three-week adjournment to allow QUB to review his degree classification on the alleged grounds of inadequate supervision and procedural irregularities. QUB told the Court that it made the proposal without prejudice in a bid to ease his concerns. Moreover, the Belfast Telegraph reported that if he is still unhappy with the outcome, he would now be able to appeal his results. As Education Law Blog points out

This appears to be a successful outcome for the student, as the provision of a review is about as much as he could have expected to achieve by way of his legal proceedings. Whether his degree result will actually be improved remains to be seen.

This change of tack on the part of QUB is surprising. According to the the Belfast Telegraph [with added links]:

Queen’s graduate’s courtroom challenge to awarding of 2:2 degree ‘opens a can of worms’

A landmark legal case being taken by a graduate seeking to overturn his degree classification could open up a “can of worms” for all academical institutions, it has been warned. … the University and College Union, which represents more than 120,000 academics and staff across the UK, has said this case could end up setting a “dangerous legal precedent” which could potentially threaten academic freedom.

Professor Bob Osborne, from the University of Ulster’s School of Criminology, Politics and Social Policy, said he was surprised that Queen’s had changed its stance.

I am very surprised that any university is prepared to re-open the classification of a degree after someone has graduated — unless due process has not taken place … If it is confirmed, it does open a huge can of worms. However it may be a defensive position that the university thinks it is better to get rid of the problem rather than having to go before the court. It is unusual unless a student has convinced the university that there has been some malpractice which has led to them being disadvantaged. Maybe they have now uncovered some new evidence.

Jonathan Bell, chairman of the Committee for Employment and Learning, said:

The consequences of any decision in this case are going to be major and I have no doubt that is in the minds of the people as they conduct themselves. There will be a lot of interest to see the outcome. What we at the Employment and Learning Committee will be asking is ‘what can we learn from this? The system has changed a lot culturally since I was at Queen’s in the late 80s when there were no fees and you got a grant. There has been a psychological shift where people are paying for a service therefore they want a good service. And, if there is something legitimate that they think is wrong with the service, they have a right to ask for a review. However I think that courts, in all situations, should be used as a last resort.

Grievance poses academy ‘threat’

Queen's University Belfast, via wikipediaFurther 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. …

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) (more…)