Scholarly view transformed to legal tussle

May 30, 1997

THIS YEAR, for some academics, the relative quiet of the examination hall will be a prelude to more than the worry of mountainous stacks of scripts. It will prefigure society's other black-gown forum - the law court. Litigation by students seeking to have the courts second-guess examination gradings is on the increase.

For decades many professionals, including surgeons and lawyers, have been dragged as defendants into law courts by dissatisfied customers. The experience has not yet become a recognised occupational hazard for lecturers. But academic judgement is a justiciable issue, and increasingly lawyers are being brought into the educational arena's domestic hearings.

One firm of solicitors, Eversheds, which has a leading education practice, has wide experience of such disputes. It has observed that, apart from growth in trial work, there has been an increase in "semi-formal complaint'' with students instructing lawyers to pursue grievances against institutions, and to represent them at hearings. Several cases of university students challenging their gradings have reached the courts. These have been successful where courts have found procedural irregularities in the way an examinations board has operated, rather than where judges have disagreed with an academic's evaluation of a script. But US courts are well-used to reassessing academic judgement with the assistance of expert witnesses, and lawyers in the UK are now dealing with the same issues.

If cases of medical negligence are anything to go by, the courts have had great difficulty judging the conduct of specialists in esoteric field. As and when the courts have to judge the quality of academic opinion, the issues could be still more taxing. In medicine you can usually demonstrate conclusively that there are good and bad ways of doing things. But when you turn from medicine to economics, history, theology, or sociology, you can see that good theories and basic assumptions are not so conclusively demonstrable. And if the courts are struggling to make fair judgments in medical cases, they may get involved in some awfully fraught wrangles over nebulous scholarly matters.

When courts in other jurisdictions have occasionally succumbed to re-evaluating student work with the help of experts, the mission has usually created more problems than it has solved. For example, in one case a US court said an academic decision was "arbitrary and capricious", having heard evidence from both sides about the grades awarded to exam papers. But in court the experts attributed widely disparate marks to the same work - the grades ranged from 57 to 94 per cent.

Two factors are implicated in the steady rise in legal actions involving educational issues. The first is society becoming more rights-conscious and litigious. This is the age of the charter and a profusion of legal advice columns in the media. Charters have been issued by the Department for Education and by universities to assist in the competition to recruit good students. The second factor is the personal financial stake in education. Many students now work long hours to fund their studies, or are supported by parents who make great financial sacrifices. It has been estimated that the average cost of a degree to a student today is more than Pounds 10,000. According to a recent survey by Barclays Bank, the average debt of finalists in 1996 was up 32 per cent on the previous year. Another recent piece of research by the Policy Studies Institute (based on interviews with 1,971 students at 73 institutions) found that the average student received Pounds 3,615 income in the 1995/96 academic year and spent Pounds 5,091. The shortfall in money was funded by student loans, commercial credit, savings and delayed payment of bills.

The study also found that half of all the students questioned had a job, working ten hours a week. Mature students, in a worse position than seven years ago, were finding it difficult to make ends meet. Student dissatisfaction with course quality or exam results, is therefore more clearly foreseeable than it was 20 years ago.

During the past 20 years the volume of litigation against doctors and health authorities has grown significantly. There are now about 20,000 claims outstanding against the NHS, and the cost of medical insurance for doctors has soared. "Defensive medicine'' has burgeoned, practitioners resorting to procedures that leave them least open to legal attack.

The immunity from court action enjoyed by lecturers and examiners stems largely from social axiom, but student indulgence of lecturers is not what it was. If educational litigation grows as fast as medical litigation, we may well see educators taking out legal insurance and practising "defensive" grading and lecturing.

Gary Slapper is director of the LLB degree, Staffordshire University. This is an extract from an article in the next issue of Education and the Law.

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