Testing the boundaries of expert academic judgement

It is a truth (almost) universally acknowledged that academic judgement should be immune from judicial scrutiny.  The objections have traditionally been twofold: the first, philosophical and the second, pragmatic. The philosophical objection is that challenging decisions on marks and degree classifications is an infringement of the autonomy of academic staff in relation to academic decisions, and hence of academic freedom. The pragmatic is the risk of thousands of student claims that are essentially appeals against exam grades clogging up the courts.

It is, however, fair to say that the protection given to academic judgement is anomalous and no other professional judgement enjoys similar judicial deference.  Further, the protection is not limitless: for example, the process by which an academic judgement is arrived at is not caught by the exemption from judicial scrutiny and so a student who can show that there have been flaws in that process, perhaps bias on the part of examiners of a Phd or an irregularity in the assessment process, may be entitled to a remedy from the courts.

Recent reports that the University of Oxford is facing a claim from a former student who argues that allegedly defective teaching caused him to fail to secure a first class degree got me thinking about the ways that the doctrine risks being further eroded:

  • Students are increasingly asked to make the link between a good degree and earnings potential. The consequences of failing to get that good degree will more readily be seen as a financial loss and thus more students may have a motive to pursue legal action. However, the precise extent of any such loss remains difficult to quantify and is by its nature speculative.
  • The focus on teaching quality is likely to mean more students make a link between the quality of the teaching they received and the degree they secured. Even the name “Teaching Excellence Framework” creates the impression that teaching is the sole factor that dictates student outcomes.  The inclusion of rates of employment of graduates as a measure of teaching excellence reinforces the idea that there is a direct line from being taught badly to getting a bad degree and so failing to secure that big money job of your dreams.  The link between TEF and increased fees is also arguably significant: students are being told they are paying more because the teaching they receive will be better and, impliedly, will get them that better degree and that dream job.
  • The emphasis on students’ consumer rights creates two associated risks. First, the need to set out clearly what a student can expect in terms of the delivery of a course makes it easier for students to identify what “bad” looks like. Secondly, an overly transactional interpretation of the relationship may lead to the wholly flawed perception that a good degree is primarily a consequence of the volume, nature and quality of the tuition provided, rather than requiring significant self-directed study and effort too.
  • The new remedy in the Consumer Rights Act of a “right to a repeat performance” arguably gives a better route of redress than damages where the teaching and delivery of a course can be shown to have fallen short of the standards promised by the university. It may not be possible to assess what loss a student suffers when they get a 2:2 instead of a 2:1, but it may well be possible to tell a university it needs to deliver aspects of its teaching and assessment again.

Individually, none of these factors would necessarily pose too much of a risk that the courts would stray into areas traditionally seen as matters of academic judgment, but cumulatively they may well result in courts coming under greater pressure to do so. We can thus expect to see the boundaries of “expert academic judgement” being tested with increasing frequency in the future.

Smita Jamdar 
Partner and Head of Education
T: 0121 214 0332
E:
smita.jamdar@shma.co.uk
W: www.shma.co.uk

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