An intriguing recent court case in Germany has raised important legal questions about the contestability of academic grades. An unnamed master’s student took her case to the Berlin Administrative Court over a disputed grade and lost. But in its decision in October of last year, the court ruled that in principle, students can indeed sue if they believe an examiner was biased. The legal battle became a high profile one after the fact, when it was detailed in a scholarly journal and then reported last month by Der Spiegel.
The topic of the thesis was itself controversial, being about anti-Semitism within Christianity. The dissertation, submitted in 2012, was entitled “Anti-Judaism as a Challenge for Evangelical Theology”, and deals with Martin Luther’s supposed hatred of Jews and his impact on the anti-Semitism of the 20th century.
There were two examiners on the thesis, one at the Moses Mendelssohn Center for European Jewish Studies (MMZ) and the other a professor of theology at the Humboldt University of Berlin. While the former awarded the dissertation the highest possible mark of 1.0, the latter examiner just passed it with a 4.0. In such situations, a third examiner is required. Another theologian was appointed, and in the summer of 2013 awarded the work a marginally better grade of 3.3.
The examiner from the MMZ rated the thesis highly, while the other examiners did not. The issue at stake is whether, for a critical and contentious work of this nature, one could realistically expect objectivity. The student, who does not even study theology, clearly felt that objectivity had been infringed and pursued her complaint in court.
However, the court’s ruling obliged the student to accept the grade of 3.3. Furthermore, it did not approve of the manner in which she had accused the theological examiners. The judgment added that the student would be required to pay costs.
The broader issue here is whether one can or should go to court over academic matters.
The problem is that because universities have considerable discretion in the grades they award, proving unfairness is difficult. Even if, to an outside observer, it seems obvious that there has been unfairness, this may not constitute a legally compelling argument.
Furthermore, courts are by no means infallible, of course.
The doctorate of an American colleague of mine in New Zealand was rejected and he took the university to court but also got nowhere. As another colleague of mine told me at the time: “If they really want to, they can fail anything.” He pointed out that examiners can always find some fault and – particularly in disciplines in the social sciences, or theology – the question could be too subjective to be actionable. My American colleague continued his PhD elsewhere and it not only passed but was highly praised.
There is an old German saying that being in the right and getting justice are two different things. Whether or not the two parted ways in this and similar cases is inevitably difficult to determine, and even harder to prove in court.
It may well be prudent for students to decide to live with the grades they get or – more problematically – to avoid contentious topics. But then that would raise yet more questions for the academy.