Category: Litigation

The limits of judicial deference to academic judgment

Statute of Dr Martin Luther King Jr at UT Austin, via flickr

Statue of
Dr Martin Luther King Jr
University of Texas at Austin
In my first post yesterday, I took certain comments of Kennedy J in the recent US Supreme Court decision in Fisher v University of Texas __ US __ (23 June 2016) as the context for an analysis of the nature of judicial deference to academic judgment. In this post, I want to look at the limits to such deference. Once those limits have been reached, substantive claims are entertained, even if they often fail (see M Davies “Challenges to ‘academic immunity’ – the beginning of a new era?” (2004) 16 Education & the Law 75).

This is true at both public and private law; and, whilst the public law analysis has dominated the cases (S Hedley “Students as Litigants: A Public Law or a Private Law Issue?” (2015) 14 Hibernian Law Journal 1 [hereafter: Hedley]), the line between these two procedures isn’t always clear. On the one hand, in Green v Master and Fellows of St Peter’s College Cambridge (The Times, 10 February 1896; cited in Hedley, 1; jpg) Wills J held that it was “obvious that the relation between an undergraduate and his college was not a contractual one”. Hence, in Jaffer v York University 2010 ONCA 654 (7 October 2010) [26], [28] (blogged here | here) Karakatsanis JA held that judicial review is the proper procedure when seeking to reverse an internal academic decision (approving Gauthier v Saint-Germain 2010 ONCA 309 (CanLII) (3 May 2010) [46] (Rouleau jca). She further held that, where a private claim was “simply an indirect attempt to appeal an academic decision”, the “appropriate remedy would be judicial review”. By contrast, in Quinn v Honourable Society of King’s Inns [2004] IEHC 220 (15 June 2004), Smyth J declined to give the applicant leave to challenge an exam grade at public law by way of judicial review, on the grounds that the applicant was not entitled to invoke the public law remedy of judicial review for a private law right arising out of contract, though he also rejected the applicant’s substantive public law submissions as well. Moreover, in Jaffer, Karakatsanis JA went on to consider the claim in tort and breach of contract.

One important set of limits at public law arises where rights – under the constitution, the European Convention of Human Rights (ECHR), or the EU Treaties – are engaged (see, eg, T Kaye “Academic judgment, the university Visitor and the Human Rights Act 1998” (1999) 11 Education & the Law 165). The argument that rights under the ECHR were engaged failed in Patel v University of Bradford Senate [1978] 1 WLR 1488, [1978] 3 All ER 841 (ChD, Megarry VC) aff’d [1979] 1 WLR 1066, [1979] 2 All ER 582 (CA; .doc); (Application 8844/80 (1982) 4 EHRR 256 ECmnHR). The argument that rights under the EU Treaties were engaged also failed in a long-running case (which effectively terminated in Kelly v UCD [2013] IEHC 23 (29 January 2013) after a long and winding trip through the courts, including an application to the CJEU in C-104/10 Kelly (21 July 2011)) in which the plaintiff unsuccessfully alleged that he had not been offered a place on a Masters programme by virtue of discrimination on grounds of gender.

The leading case on this issue is probably Re Croskery [2010] NIQB 129 (8 December 2010) [16] (Treacy J) (blogged here; see also here | here | here | here | here), where the argument that rights under the ECHR were engaged also failed. Treacy J not only afforded deference to the university’s academic decisions, he also 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 the right to a fair trial (.doc) guaranteed by Article 6 ECHR.

Similarly, in Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) the US Supreme Court held that there is no constitutional requirement of a hearing before the exercise of academic judgment. As Rhenquist J put it: “Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information, and is not readily adapted to the procedural tools of judicial or administrative decisionmaking” (435 US 78, 90).

The limitation upon judicial deference to academic judgment by constitutional rights is very well illustrated by the Fisher litigation, where the plaintiff argued that the reliance by the University of Texas at Austin upon diversity as an element of its admissions policy violated the Equal Protection Clause of the Fourteenth Amendment. (more…)

The nature of judicial deference to academic judgment

Statute of Barbara Jordan, at UT Austin, via flickr (element)

Statue of
Barbara Jordan
University of Texas at Austin
The US Supreme Court, though depleted at present to eight Justices after the death of Antonin Scalia, can still muster majorities in controversial cases.

One of the most controversial issues regularly before the Court (up there with abortion and guns) is affirmative action, especially in college admissions. At the end of last week, in Fisher v University of Texas __ US __ (23 June 2016) the Court held that a race-conscious admissions program in use at the time of petitioner’s application was lawful under the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. In the course of his judgment for the majority, Kennedy J stressed that, in the case of “an academic judgment … some, but not complete, judicial deference is proper”.

In this post and the next, I want to leave aside the (relatively narrow, but – in my view – sensible and precise) holding on the affirmative action issues, and focus instead on the issue judicial deference to academic judgment. In this post, I will consider the nature of such deference. In the next post, I will consider its limits.

In Fisher, Kennedy J held that, once “a university gives ‘a reasoned, principled explanation’ for its decision, deference must be given ‘to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals’,” (citing an earlier stage in the Fisher litigation: Fisher v University of Texas at Austin 570 US __ (24 June 2013); the earlier decision was referred to in the sequel as Fisher I, and the sequel under consideration here is being referred to as Fisher II). This is entirely consistent with earlier US Supreme Court authority. In Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) 90 Rhenquist J held that academic decisions are “not readily adapted to the procedural tools of judicial or administrative decisionmaking”; and in University of Michigan v Ewing 474 US 214 (1985) 225 Stevens J held that “considerations of profound importance counsel restrained judicial review of the substance of academic decisions”.

This judicial deference is afforded whether the academic judgment in question is challenged at public or private law (see, generally, S Hedley “Students as Litigants: A Public Law or a Private Law Issue?” (2015) 14 Hibernian Law Journal 1; (more…)

Judicial review and the exclusive jurisdiction of University Visitors

Memorial to Sir Andrew Porter MR in QUBInstitutions such as cathedrals and colleges are often overseen by Visitors. The recent decision of Horner J in In re CS [2015] NIQB 36 (30 April 2015) has reaffirmed many basic principles relating to the jurisdiction of University Visitors.

In Ireland, section 19 of the Universities Act, 1997 (also here) provides for Visitors for Irish universities. Hence, for example, in Trinity, the Visitors hear internal appeals against decisions of the Board and other bodies in College. If there is no such decision, the Visitors have no jurisdiction on this ground (Kelly v TCD [2007] IESC 61 (14 December 2007)). And, if they have jurisdiction, the hearing is not a review but a full appeal where they will look afresh at the matters in dispute and form their own views (R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1, [1993] 2 All ER 876).

The exclusive jurisdiction of Visitors, rather than the courts, to make such internal determinations has been established by an unvarying line of authority from Philips v Bury (1694) Shower PC 35, (1694) 1 ER 24, [1694] EngR 11 (1 January 1694) (pdf) and Bracken v Visitors of the College of William & Mary 3 Call (7 Va) 573 (1790) [noted Bridge 20 Wm & Mary L Rev 415 (1979)], to Thomas v University of Bradford [1987] AC 795 (HL) (.doc) and R v Visitor of the University of Hull, ex p Page [1993] AC 682, [1992] UKHL 12 (03 December 1992). They are not bound to adopt any particular form of procedure, and their decisions are final (R (Varma) v HRH Duke Of Kent [2004] EWHC 1705 (Admin) (16 July 2004)).

In 2004, Part 2 of the Higher Education Act 2004 transferred the jurisdiction of Visitors over the grievances of students in England and Wales to the Office of the Independent Adjudicator (OIA). However, this does not apply in Northern Ireland, and a case involving the Visitor to Queens University Belfast (QUB) has recently had occasion to determine the nature of the Visitors’ jurisdiction.

In the UK, section 104 of the Sexual Offences Act 2003 permits a court to make a Sexual Offences Prevention Order (SOPO) for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant in respect of whom the SOPO is made. In In re CS [2015] NIQB 36 (30 April 2015), the applicant had been convicted of five counts relating to indecent images of children and was made subject to a 5-year SOPO. QUB therefore withdrew him from the university for the duration of the SOPO, after which period he could apply to QUB for re-admission. He sought judicial review of the university’s decision, on the grounds that the passing of the Human Rights Act 1998 effected a sea change in the power of the courts to review decisions of the Visitors. A similar argument as to the effect of the Convention on university decisions, in the context of an academic rather than a disciplinary decision, had failed in In re Croskery [2010] NIQB 129 (noted here)), and it was unsurprising that the claim in CS also failed. It did so for two reasons. First, the challenge was premature, as all of the internal remedies had not been exhausted (compare Kelly v TCD (above)). Second, Horner J reaffirmed the exclusive jurisdiction of Visitors in such circumstances, subject to four exceptions, by which judicial review could be available when Visitors exceed jurisdiction, abuse powers, breach the principles of natural justice, or fail to protect the rights a party enjoys under the European Convention of Human Rights. And none of these exceptions – in particular, breach of the ECHR – was made out.

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The dubious second Employment Control Framework is revised

HEA logo, via the HEA websiteIn March, I blogged about the dubious legality of the second Employment Control Framework, which the outgoing government had introduced to control employment in the third level sector. It was misguided and controversial (eg, Liam Delaney here, and here | Dermot Frost | Bernie Goldbach | Aidan Kane | Stephen Kinsella | Rob Kitchen | James McInerney | Donncha O’Connell | Stefano Sanvito | Ferdinand von Prondzynski, passim, but esp here, here, and here). After some discord and delay, that framework has now, it seems, been greatly revised to resolve many of the contentious issues (see Revised ECF 2011-2014 June 2011 (pdf)).

Tom Boland, Chief Executive of the Higher Education Authority, said that the revised Framework “provides reasonable flexibility to the higher education institutions to manage their staffing requirements”; and the public response has been largely positive. For example, in today’s Irish Independent Katherine Donnelly writes that Ministers softened their approach after an outcry from colleges about ‘Soviet-style’ controls, which greeted the original proposals published earlier this year. Again, in today’s Irish Times, Sean Flynn points out that the revised framework removes the onus on colleges to notify the Higher Education Authority of appointments which are funded from external sources, and gives colleges additional flexibility on promotional posts. And, in today’s Irish Examiner, Niall Murray reports that Mike Jennings, general secretary of the Irish Federation of University Teachers accorded the revision a cautious welcome. Similarly, Ned Costello, Chief Executive of the Irish Universities Association, said that “the revisions acknowledge that the response to the national financial crisis must be balanced by according universities the flexibility to manage their resources to best effect”. Moreover, über-critic Ferdinand von Prondzynski concluded:

The new revised framework is still not entirely unproblematical, but most of the objectionable aspects of the original have now been removed. This is a welcome development for the higher education system.

This is all well and good, but whilst the new framework addresses many substantive concerns, my doubts about its legality remain. Although it seems likely that the necessary ministerial consents were obtained this time around, I am not convinced that the still-expansive framework is justified by the provisions of the Universities Act, 1997. Nevertheless, since the sector is prepared to live with the new framework, its legal dubieties are likely to go unchallenged.

Abramova and Croskery – updates

Headington Hill Hall

Headington Hill Hall
The last home of the Oxford Institute of Legal Practice
Burnett J’s judgment in Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) (18 March 2011) – about which I blogged last week – is now available on BAILII. The [update: now defunct] Oxford Institute for Legal Practice successfully defended this case. On the other side of the line is Mike Austen who received £30,000 from the University of Wolverhampton in an out-of-court settlement in 2002. More and more students are now taking such cases. The Scotsman on the weekend reported recent Scottish examples of the phenomenon. Extract, (with added links):

Students sue universities for higher grades

By Fiona MacLeod, Education Correspondent

GROWING numbers of students in Scotland are taking legal action against their universities for failing to provide adequate support for degree courses. Six students across the country have taken out cases after receiving lower grades than they expected, according to the legal firm Ross Harper.

A spokesman for the firm said it was dealing with four cases of former students seeking legal action against their university, and added that a further two had settled through the institution’s own grievance procedure. The spokesman said that students now see themselves more as consumers of services and were more likely to complain when they believed university courses were sub-standard.
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Abramova: judicial deference and the litigious student

Headington Hill Hall

Headington Hill Hall
The last home of the Oxford Institute of Legal Practice
After Andrew Croskery and Tony Chinedu Wogu comes Maria Abramova (Above the Law | BBC | Cherwell | Legal Week | Mirror | Oxford Mail | Oxford Times | The Lawyer | PA). In Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) (18 March 2011) (pdf), the plaintiff sued the [update: now defunct] Oxford Institute of Legal Practice (OxILP) for £100,000 for negligence and breach of contract, but Burnett J dismissed her claim. Her case is the latest example of the increasingly frequent phenomenon of the litigious student, and it raises some very important legal issues.

An important threshold question in such cases is whether the matter can be litigated at all. There is judicial deference to matters of academic freedom, so the courts are very slow to interfere in matters of purely academic judgment, and generally regard such matters as unsuitable for adjudication in the courts (Harelkin v University of Regina 1979 CanLII 18 (SCC), [1979] 2 SCR 561 (30 March 1979); Clark v University of Lincolnshire & Humberside [2000] 1 WLR 1988, [2000] EWCA Civ 129 (14 April 2000); George van Mellaert v Oxford University [2006] EWHC 1565 (QB) (29 June 2006) (pdf) (blogged here); Re Croskery [2010] NIQB 129 (8 December 2010) (blogged here)).

Nevertheless, as Julian Sladdin recently pointed out “… Students rarely think of it like this, but there is a contract between them and their universities”, and this relationship can give rise to obligations both in contract and in tort (Gauthier v Saint-Germain 2010 ONCA 309 (CanLII) (3 May 2010), Jaffer v York University 2010 ONCA 654 (7 October 2010) (blogged here and here)). In such cases, the courts do not lack jurisdiction solely because the claim arises out of a dispute of an academic nature (Young v Bella 2006 SCC 3 (CanLII), [2006] 1 SCR 108 (27 January 2006)).

Hence, breach of a contractual promise to provide a facility or service or procedure can be litigated, but the courts will be slow to cross the line into second-guessing questions of academic judgment.

As to the formation of the contract and its terms, Sladdin argues that “when a university makes an offer, and it is accepted, a contract is formed, incorporating all sorts of documents including the student handbook and regulations”. This may overstate the case, as not every such document will always amount to a contract (see, eg, Tansey v College of Occupational Therapists Ltd [1995] 2 ILRM 601, [1986] IEHC 2 (27 August 1986)). So, in a recent US case, Keefe v New York Law School (17 November 2009) York J held that general statements of policy in a school’s bulletins, circulars, catalogues, handbooks and website are not sufficient to create a contract between a student and law school. In his view, only specific promises that are material to the student’s relationship with the school can establish the existence of a contract.

Nevertheless, despite questions of judicial deference to academic judgment and difficulties in establishing that every piece of paper is incorporated into the contract between the college and the student, there is still considerable scope within which to found a claim that a contract existed and was breached. And it was in this space that Ambrova sought to make her claim against OxILP.
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The dubious legality of the second Employment Control Framework

moratoriumOn 26 March 2009, the Minister for Finance confirmed that the Government had decided to implement a moratorium on public service recruitment, precluding recruitment, promotion, renewal of fixed-term contracts, or payment of an allowance for the performance of duties at a higher grade. The standard letter sent to the various government departments emphasised that exceptions to this principle would arise only in very limited circumstances and would require the prior sanction of the Minister for Finance. There were additional rules for Education and Health, and these were supplemented for the third level sector by a controversial Employment Control Framework. That framework has now run its course, but news has seeped out over the course of the weekend that, in one of his last acts before leaving office, Brian Lenihan, the outgoing Minister for Finance, last week sanctioned a successor Employment Control Framework. It has been been much derided on Twitter at #ecf11, and it has drawn a chorus of detailed criticism from Des Fitzgerald, Ferdinand von Prondzynski, Colm Kearney, Paul Walsh, Dermot Frost, and Donncha O’Connell. For a bunch of academics, the unanimity is extraordinary. All are agreed that this new Framework is a thoroughly bad idea. I agree too, but I would go further. I think that it is also of dubious legality.

At least two questions arise. First, did the Minister for Finance have the legislative authority to sanction the Framework. Second, even if he did, is the Framework a valid exercise of that authority.
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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.