The Student Experience:
What’s the Deal?
HEPI, London, 6/5/09
The Student Experience: Where’s
the Contract?
• David Palfreyman, MA MBA LLB FRSA,
Director, OxCHEPS, New College,
University of Oxford
Background Material:
• Farrington & Palfreyman, The Law of Higher Education
(2006, Oxford University Press Legal Practitioner
Series).
• As updated online at the Law Updates page of the
OxCHEPS website (www.oxcheps.new.ox.ac.uk).
• As supported by the HE Law Casebook at the OxCHEPS
website.
• As supplemented by UCELNET.
• See also the entry for ‘universities and higher education’
(pp 1214/15) in The New Oxford Companion to Law
(2008, Oxford University Press); and various articles in
Education and the Law (Routledge/Taylor&Francis).
The Student-University Contract to
Educate and Consumerism
• F&P: ch 13, ‘The Student-HEI Legal
Relationship’; ch 14, ‘The Student as
Consumer?’ (note the ‘?’!); ch 15, ‘The
Role of Judicial Review in the Statutory
HEIs’; ch 26, ‘Risk Assessment and
Management’; and ch 27, ‘Dispute
Management: Mediation and Litigation’ –
re ADR, note the OxCHEPS HE Mediation
Service as detailed at the OxCHEPS
website.
BUT FIRST…
• From ch 1 of The Oxford Tutorial (2008, second edition –
as also online at the Papers page of the OxCHEPS
website):
• What is higher about ‘higher education’ – as opposed to
HE as ‘skills and competencies’ tertiary education? (pp
10-12)
• What is ‘Liberal Education’ – as opposed to vocational
education? (pp 13-20)
• What do students say they want – as opposed to what
they actually get, and why do they get so little at some
universities as the ‘kash & kudos’ of research crowds out
commitment to and resources for u/g teaching? (pp 3942)…AND CONTINUED
Just What is ‘Quality’ in HE?
• Problems of definition and measurement! (Greatrix, 05)
• Who achieves, maintains, and enhances quality teaching
in HE? –
• An external policing agency/regulator? (OIA now de
facto, albeit very reluctantly and certainly not de jure?)
• The HEI’s internal management hierarchy? (Corrupted?)
• A professional body relating to a degree? (Outdated?)
• The professional integrity of academics within each HEI,
and via the external examiner system nationally?
(Diverted? Ignored? Degraded? Despised?)
• The demands of students/parents as empowered
consumers? (But HEIs’ ‘Get Out of Goal Free’ card?)
• Competition via public and private providers? (Too little?)
Back to the Law…
• The essence of the student-university legal
relationship is:
• clearly contractual (the contract-to-educate as in
Clark, CA, 2000; Moran, 1994; C19 cases; and
common law in USA/Canada/etc – see ch 29)
• and is a B2C contract (hence role for OFT, and
the range of consumer protection legislation)
• and can give rise to torts (academic malpractice
or educational negligence – Hedley-Byrne,
1964; Phelps, HL, 2002; Young v Bella, CSC,
2006, at C$840K!; but, oddly (?), not in USA…)
The Contract/Agreement?
• Not explicit/comprehensive; implied terms; finding the
large print let alone the small-print – OxCHEPS Model?
• Contract law issues: misrepresentation and breach;
causation and remoteness; remedies and damages.
• Award of Rycotewood ‘disappointment damages’?
• Complexity of ‘fitness to practise’!
• Access to the Court only via/after OIA?
• Use of mediation anywhere along the line?
• Or, in public law/administrative law terms, go via judicial
review re process/procedures?
• Or, invoking statute, try for discrimination (especially
DDA), and chuck in a claim under the HRA/ECHR!
• Also, in the broader context, DPA, H&S, L&T – and tort.
Consumer Law
• S13, SGSA 1982 – ‘with reasonable care
and skill’ (cf s14, SGA 1979 re idea of
‘satisfactory quality’ as more strict liability)
• UCTA 1977 re limitation of liability
• UTCCR 1999 re unfair terms (the grey list)
• TDA 1968 re false descriptions
• CPA 1987 re hidden charges
• DSR 2000 re distance communication
‘Get Out of Goal Free’?
• F&P, para 13.33: ‘A special feature of the law of higher
education is the immunity from judicial scrutiny of expert
academic judgement (but not relating to the
misapplication of HEI processes and procedures) – an
immunity to be found for similar public policy reasons in
all common law countries…[see ch 29] and also in civil
code countries…[see ch 30]’; and ‘Likewise, the OIA is
not permitted to handle student complaints over purely
academic matters.’ (s12(2), HEA 2004 re ‘matters of
academic judgement’). Link to concept of academic
freedom and university autonomy – ch 16 of F&P?
CONTINUED…
Expert Academic Judgement
• F&P, para 13.33, fn 126, quoting Sedley, LJ, in Clark (CA, 2000 – at
OxCHEPS HE Law Casebook): ‘There are issues of academic or
pastoral judgement which the university is equipped to consider in
breadth and depth, but on which any judgement of the courts would
be jejune and inappropriate.’ (See also cases involving London Met,
HEFCE, and the U’y of Plymouth…)
• But note confusion in Hansard (12/2/2004, cols 94/95): such
immunity will not protect ‘a lecturer who plainly was not giving good
lectures or was not qualified to give the lectures in question’ – and
also note s14, SGSA 1982 re ‘with reasonable care and skill’ along
with the Bolam test re professional competence.
• And hence consider the continuing validity of such immunity in the
context of C21 HE as, seemingly and increasingly, a skill and
competencies, vocational training, ‘get a better job’, (higher) feecharging (even profit-making), instrumentalist, commodified, B2C
consumer service…
THANK YOU!
• (Please note that, in the event of any
complaints over the quality of this
presentation, I shall invoke the linked
concepts of academic freedom and judicial
deference to the exercise of expert
academic judgement – while also pointing
out that HEPI is not paying me a bean
anyway, so just what do you expect by
way of effort?!)