Fees will spark rise in student litigation

December 13, 2002

The principle protecting universities from legal scrutiny of their academic judgements faces collapse, a leading lawyer has warned, writes Phil Baty.

Barrister Charles Bear said the "judicial deference" principle, which prevents students turning to the courts to challenge exam results or to question decisions about their tutors, supervisors or assessors, was being eroded.

In a conference paper, Mr Bear, who has acted for Cambridge University, argues that the judicial system illogically perceives universities and their academics as an unaccountable "private club". This principle will collapse when students start to pay higher sums for their courses, he says.

"Academics will have to be much more accountable," he told The THES . "At the moment they can exist in a self-referential world with very few external constraints on what they do and very little control over their contact with students. This will change."

He argues that while case law upholds the deference principle, it is based on illogical foundations. The Court of Appeal recently challenged the deference principle in the case of a PhD student who complained about being deregistered by Cambridge. While the lower court held that the decision was purely academic and not part of its jurisdiction, the Court of Appeal established that a fair judgement on why her research was not worthy of a PhD could not be made without some understanding of what had gone wrong.

Mr Bear says there is a string of "ambulance chaser" lawyers ready to push forward test cases to challenge the principle, and that the pressure would be overwhelming as students paid more for tuition.

Gill Evans of the Council for Academic Freedom and Academic Standards, who has recently qualified as a barrister to offer pro-bono services to students, said that students would be rejoicing at the shifting picture.

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