Durham University has failed in its attempt to quash allegations of race discrimination brought by student Dapo Ogundipe, after a county court ruled last week that Mr Ogundipe had a "reasonable" chance of success.
Durham applied to Newcastle County Court to have the case summarily dismissed on the grounds that Mr Ogundipe, a Nigerian former economics masters student at the university, had little prospect of success with his claim for damages and compensation. Mr Ogundipe alleged that he was discriminated against after he failed three out of six exam papers in 1999.
Key to Mr Ogundipe's claim is that he suffered a number of personal problems before and during his exams, including the terminal illness of his father, which affected his performance and which he brought to the attention of his course director. But the mitigating circumstances were not brought to the attention of the exam board, which failed him.
He says that he was treated less favourably than a white student whose circumstances were brought to the attention of the exam board, and who passed. He also says he suffered a number of race-related problems before his exams that affected his performance.
In three of six papers, in which a pass mark of 50 per cent was required, he got 40, 46 and 48 per cent, passing the other three papers.
The university set up grievance procedures to hear Mr Ogundipe's allegations of race harassment and discrimination by members of staff, but rejected them at all stages of the process, including a hearing by the university's visitor, the bishop of Durham. As The THES reported in May last year, the bishop said that while Mr Ogundipe did not suffer from prejudice or discrimination, the university had been insensitive to race issues, and called for equal-opportunities training.
The university also set up an academic appeal, which was allowed. It agreed that some personal circumstances that could have adversely affected Mr Ogundipe's performance were not brought to the attention of the board of examiners and the case was referred back to the board for reconsideration.
Mr Ogundipe was concerned that the board that would reconsider his exams included members of staff against whom he had made allegations of race harassment, and asked for an independent re-mark of his failed modules. This request was rejected.
In its application for summary judgment against Mr Ogundipe, the university argued that there was nothing to suggest that his exam results would have been any different had the exam board been aware of Mr Ogundipe's personal circumstances.
But Justice Loomba said: "The court will have to determine at the trial why the personal mitigating circumstances were not brought to the board's attention and what the possible outcome could have been if that had been doneI I am not satisfied that the claimant does not have a real prospect of success."
With regard to the alleged incidents of racial harassment before the exams, the university said that even if Mr Ogundipe could establish that they occurred, and if inferences of discrimination could be drawn, he would not be able to establish that they had affected his preparation for the exams, because such an issue could not be measured. The university also argued that the courts should not interfere in pastoral matters.
The judge disagreed and said the claim should proceed.
A spokesman for the university said: "Only two of Mr Ogundipe's claims against the university remain and they no longer include the claim that there was discrimination in the marking of his exam papers.
"The university will continue to contest these remaining issues. They relate to matters that allegedly occurred during the course of his study and to certain personal circumstances that, he alleges, the board of examiners failed to take into account."