Re-writing the student contract

Smita Jamdar

One of the more depressing aspects of a working lifetime spent advising on higher education has been the rise and rise of the concept of the student contract. Not, I hasten to add, because I don’t believe that students should have legally enforceable rights and expectations. They clearly should and do. No, my depression stems from the fact that the language of traditional contractual analysis, and specifically the overlay that results from the legal status of students as consumers, sets the student contract firmly in transactional territory. What’s particularly sad is that this is very far from where either institutions or students would like the relationship to be.

It is all too easy to start to see the student and the institution as opposing sides of a legal battlefield, with students fighting bravely for their rights armed only with a KIS and broken promises, whilst institutions shelter behind broad disclaimers and vaguely worded regulations. This isn’t what the student/institution relationship should be about.  Yet it is the perception that the legal language around the interpretation of the relationship will lead to if left unchecked. Not only is that undesirable, but the relationship doesn’t easily fit into that mould anyway. There’s far too much uncertainty around what forms part of the contract and what is merely aspirational, and precisely where the dividing lines between respective responsibilities and rights are.

So is there anything institutions can do to try to resist this seemingly inexorable push towards an overtly consumerist contractual model? Even though it is where the law seems to have ended up, is there anything to stop institutions promoting a better shared understanding of the realities of the student/institution relationship, one which is more collaborative than oppositional?

There is a theory of contractual analysis that could help here: relational theory, which promotes an approach to contractual interpretation that is based on co-operation, commitment and trust. It recognises that some relationships are long term with a shared common goal. The success of these relationships requires co-operative behaviour and needs a built-in flexibility to make adjustments over time. A relational approach to a contract discourages opportunistic behaviour where one party exploits their perceived contractual rights at the expense of the overall relationship.

This seems to me to fit the student relationship much better. Think of all the situations where it would be so much easier if one could point to a shared obligation to put things right. Fallings out with supervisors, complaints about the quality of lectures or course materials, delays that both parties have contributed to, courses that cannot run in exactly the same form as advertised, placements that don’t proceed quite as planned, or other genuine mistakes that might otherwise be seized upon as an opportunity to score a point or make a fast buck. Currently these are all things that lawyers blithely identify as breaches of contract to which financial or other remedies should accrue.  But the relationship deserves something much more subtle and nuanced than that.

Changing the language that institutions use to define their relationship with students won’t change the law, but might do something even more important which is to change expectations and behaviour on the part of student and institution alike. In turn this might reduce complaints or at the very least make finding a solution, rather than a scapegoat, the focus of a complaints procedure.

Contracts at their heart are about shared understanding and consensus. Isn’t it time that the language and concepts applied to the student contract reflected an approach to the relationship that better meets the interests of those involved?

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
DD: 0800 763 1332
M:  07909 925946
F: 0800 763 1732
International DD: +44 870 763 1332
E: smita.jamdar@sghmartineau.com
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