Legal immunity over marks may wane, expert cautions

'Commodified' academy could see a rise in court challenges by students. Simon Baker reports

January 13, 2011

Legal action by students unhappy with their marks could become more common if higher education is "commodified" with "mechanistic and formulaic" teaching methods.

The warning comes from David Palfreyman, director of the Oxford Centre for Higher Education Policy Studies, who says the current immunity from legal challenge of academic judgement may some day cease to be universally safeguarded.

Writing in the journal Perspectives: Policy and Practice in Higher Education, he says the key factor underlying such immunity is that higher education is a collaborative process with a "complicated, prolonged and unpredictable" interaction between teacher and student.

Although Mr Palfreyman says this reasoning, which sees education as distinct from other professions, is not under "serious challenge", he asks whether judges will increasingly take a different view of vocational courses that "teach for the test".

A reminder of the immunity that academic judgement presently enjoys in the courts came last month when a former Queen's University Belfast student failed in a legal bid to change his degree classification.

Andrew Croskery, who graduated from Queen's last summer with a 2:2 in electrical engineering, argued that with adequate tuition he would have achieved a 2:1.

His application for a judicial review of the university's refusal to reconsider his grade was rejected by the High Court of Justice in Northern Ireland, with a judge saying that assessments of students' work were "plainly a matter of academic specialised judgement".

Mr Palfreyman, bursar of New College, Oxford, points to the scrapping of immunity from litigation for barristers in countries including the UK and New Zealand as evidence that the policy landscape can change over time.

He asks: "Will immunity for academics continue...or is such immunity (now unique amongst all professional groups) anachronistic in the context of higher education in the 21st century being (sadly) commodified, commercialised, corporatised and consumerised?"

The debate is set to intensify in light of the rise in the undergraduate tuition fee cap to £9,000 in England.

A key issue will be the ongoing development of student charters and whether they will increase the scrutiny of the work of universities and academics, and give students easier recourse to legal action.

In a study published last October, academics at the University of Wales concluded that a "judiciously constructed document" could increase student satisfaction, in part because agreements could be used to dampen expectations.

Ruth Gaffney-Rhys and Joanna Jones of the Newport Business School, who surveyed 170 students at the university, said their findings supported previous research showing that many students miscalculate the amount of personal study required to obtain a degree.

"The introduction of formal student agreements can potentially increase the levels of student satisfaction because it is an opportunity to influence student expectations," they say. However, they add, such a strategy will not work if agreements place "extensive obligations" on students but not institutions.

The authors also say formal agreements could lead to a rise in complaints and litigation, as they will draw benchmark standards to students' attention.

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