Opinion: Very in curia practices

In a climate of higher fees and rising unemployment, student litigation is likely to increase. Adam Brett offers his evaluation of what universities must do to stay out of court

June 3, 2011

If winter was a time of discontent for students, summer could be a period of uproar – and even litigation – as degrees are awarded.

It is a feature of the current downturn that young people seem to be suffering the most in a challenging job market. Graduates without good degrees face some of the bleakest employment prospects in years.

Added to this, many students – and parents – increasingly view themselves as paying customers, with associated rights.

This combination of factors is creating a new dynamic: a cohort with a sense of entitlement under significant financial pressure.

With so much at stake, students are showing a growing willingness to appeal degree classifications all the way to the law courts and regulators in order to improve their employment prospects and – perhaps – win some sort of financial settlement to sustain themselves until the job market improves.

The reality is that the prospects for success in these cases are not spectacular. So far, the courts have resisted the invitation to wade into such affairs. Only last December, the High Court of Northern Ireland became the latest to deliver a decision which, on any objective reading, should discourage students from pursuing appeals to the point of litigation.

The case concerned Andrew Croskery, a former student of Queen’s University Belfast, who made the headlines nationwide when he attempted to challenge his degree classification through judicial review proceedings.

His attempt ultimately failed, as did a similar claim in Scotland, but the cases highlight a number of risks for even the most professionally administered universities.

Nowadays, even the threat of litigation and its consequences in terms of cost, diversion of resources and reputational damage should cause concern. Further, we are seeing the likes of the Office of the Independent Adjudicator taking a fairly tough stance on imposing financial penalties.

For example, in 2009 the OIA recommended that a student be awarded compensation totalling £45,000 after it was deemed that her university had caused her long-term financial damage by suspending her.

It recommended that she be awarded £14,000 towards legal costs, £6,000 for the stress and inconvenience caused by suspension without warning, £15,000 for the loss of the opportunity to seek work for a period of two years (while the university processes were completed), and £10,000 in recognition of the fact that the university’s extensive delays were likely to have damaged her career: all of this for a single student.

So, how can such damaging and costly situations be avoided? The answer, as far as universities are concerned, is to ensure that there are processes in place to reduce the prospects of litigation – and to make sure that all staff rigorously follow them.

There are a number of clear “pressure points” that universities should consider to defend themselves against such claims. The areas most likely to cause problems are: student discipline (including suspension or expulsion); student complaints; marking procedures; and grading appeals.

To reduce their exposure to litigation, universities must develop clear processes to handle these matters and – equally importantly – communicate them extensively to all members of staff. The latter point may seem obvious, but a surprisingly large number of complaints identify failures in the process that should have been easily avoided.

Finally, it is essential that administrators act quickly. Delaying or failing to call a meeting because “something came up” may be seen as both unfair and a breach of natural justice.

With tuition fees set to increase and the economy still showing signs of ill health, more litigation seems almost inevitable in the coming year. However, by taking some relatively simple steps, universities can make themselves a much harder target.

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