Are the courts prepared to rule on academic judgement?
The courts have been reluctant to interfere with academic judgement as illustrated by Lord Justice Sedley in Clark v University of Lincolnshire and…
To date the courts have been reluctant to interfere with academic judgement as illustrated by Lord Justice Sedley in Clark v University of Lincolnshire and Humberside who stated “any judgement of the courts would be jejune and inappropriate”. The universities, through their formal complaint policies, have limited students complaints and appeals to procedural errors or breaches of natural justice. Further, the Office of the Independent Adjudicator for Higher Education (OIA) is prevented by statute to hear complaints concerning academic judgement issues.
It seems that the current position is shifting as the courts have recently become prone to hear students’ claims which revolve around academic judgement. This may be explained by the fact that the university-student relationship has developed into a customer and service provider relationship.
In R (Gopikrishna) v OIA, the student failed her exams and the university decided to terminate her course on the basis she had insufficient prospects of successfully completing her study. The OIA upheld the decision. The student argued in the Administrative Court that the university had not taken into account her mitigating circumstances and did not follow their rules by omitting to consult with her personal tutor. The court stated that these failings of procedure took the matter out of the academic judgment arena and invalidated the OIA’s decision.
In R (Cardao-Pito) v OIA, the student argued that he failed to pass an assessment due to harassment from his tutor. The court highlighted that marking was a matter of academic judgement. However, it also recognised that the alleged harassment hindering on the student’s capacity and resulted in the failure to attain the required mark - and so this point was not a matter of academic judgement.
In R (Mustafa) v OIA, the court held that plagiarism was not ‘always’ related to academic judgement.
In Abramova v Oxford Institute of Legal Practice, the court asserted that they may be inclined to consider cases for negligent teaching supported by expert evidence. However, the claimant in this instance was unsuccessful.
It appears that the German courts have a similar position as in England and Wales. The Berlin Administrative Court stated that, in principle, students can indeed bring legal actions to contest academic judgement if they believe that the examiner was biased. Nonetheless, as universities have wide discretionary powers in the award of grades, evidencing unfairness would be extremely difficult to prove.
In conclusion, the courts seem to be willing to examine claims which border academic judgement. We will watch the developments and report further.