Disciplinary Dilemmas

Let me start with a confession. I was once summoned before my College authorities to be reprimanded for misconduct. My crime? Holding a party in my room that went on after 11pm without prior written permission. In vain I tried to argue that playing Pictionary with 7 friends did not satisfy any definition of “party” to which I could subscribe. To no avail. Complaints had been made, there had been late night merriment, and I was guilty.
Like many aspects of modern life, student discipline seems to have become much more complicated since then. Some of the complexity is necessary and welcome. Due process, natural justice, and proportionate penalties are all to be lauded as indispensable to fairness (and notable by their absence in the kangaroo court that penalised me – not that I’m bitter or anything!). However, less welcome are trends that suggest that the very right of institutions to discipline their students are beginning to be called into question.
As a starting point, the introduction of higher fees in HE and fees of any kind in FE has re-focussed the debate on the perception of students as “consumers” rather than members of an academic and in some cases, residential community. What other consumer relationship enables a supplier to fine, reprimand or subject to community service a customer who has transgressed the supplier’s expected standards of conduct or behaviour? It was not entirely surprising then that the OFT included discipline in its investigation into allegedly unfair practices in HE, considering sanctions relating to misconduct, particularly those that permitted institutions to withhold services already paid for, as amounting to a breach of the consumer protection rules. It appears that their position on this may have softened somewhat since their investigation was launched in August last year, but they have yet to publish their final conclusions on the point.
What is unlikely to soften is the willingness of students to challenge disciplinary outcomes that delay or prevent completion of their studies, or that in some other way (through mention in references perhaps) impact on their employability. This is especially so where the procedure followed to discipline them is less than optimal, as it regrettably remains in some institutions. A student excluded in his or her final year will be potentially liable for substantial tuition fees irrespective of whether he or she completes her programme of study and this may prompt more to challenge the very basis of the disciplinary case or the process followed to prosecute the case.
There are already types of misconduct that are harder for institutions to prosecute internally than was once the case:
  • At one stage, the OIA expressed the view that “allegations of criminal offences [on campus] should be investigated by the appropriate authorities and not by the university”. It is not clear whether this remains their position, but misconduct that is also a criminal offence is a difficult area for many institutions.
  • Misconduct off campus is an area where the right for institutions to take action runs a high risk of legal challenge, but where paradoxically the demands on them to take action, typically from disgruntled local residents, are ever increasing.  
  • R (on the application of Kaur) v ILEX (EWCA Civ 1168), suggested that in the case of disrepute charges, senior managers and governors of institutions are not able to reach an objective and detached appraisal of guilt: the result is that either outsiders need to be brought in to judge such cases, or the charge should not be brought at all.
  • The recent case of disciplinary action against the “Sussex five” seemingly foundered, temporarily at least, on allegations of bias, and questions were raised about the propriety of institutions investigating through internal processes students who were challenging institutional strategy and direction.
Maintaining good order in the institutional community is an important part of delivering a high quality experience for all. Defining what an appropriate level of good order is will be important for each institution. The right to discipline students should not be taken for granted, as these gradual erosions may be beginning to show. All the more important, then, that when institutions do act they do so properly, with due regard to due process, fairness and proportionality.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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E: smita.jamdar@sghmartineau.com
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