In-house or in court? Legal challenges to university decisions

Abstract

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.

This article is based on a paper given at the 51 ^st Education Law Association Annual Conference at Memphis, Tennessee, USA, November 2005.

Notes

1. For example, in the UK Glynn v. Keele University [1971] 1 WLR 487, in the US, Dixon v. Alabama State Board of Education 294 F.Ed 150 (5^th Cir. 1961) and in Australia Bray v. The University of Melbourne [2001] VSC 391.

2. See Varnham, S. (2002) Copping Out or Copying? Do Cheats Prosper? An Exploration of the Legal Issues Relating to Students Challenging Academic Decisions. Australia and New Zealand Journal of Law and Education, 7(1), 21–37.

3. Griffith University v. Tang [2005] 213 ALR 724 at 767 per Kirby J.

4. n 3 at 767 per Kirby J.

5. 435 U.S. 78, 98 S.Ct.948, 55 Ed. 2d 124 (1978); and 474 U.S. 214, 106 S.Ct 507, 88 L.Ed.2d (1985) respectively. For further discussion of the US view see Ford, D.L. & Strope, J.L. Jr (1996) ‘Judicial Responses to Adverse Academic Decisions Affection Postsecondary Students since ‘Horowitz’ and ‘Ewing’’, 110 Ed. Law Rep. 517, at p. 531, and Schweitzer, T.A ‘“Academic Challenge” cases: should judicial review extend to academic evaluations of students?’ The American University Law Review, 41, 267.

6. 76 N.Y. 2d 241, 556 N.E. 2d 1104, 557 N.Y.S. 2d 297 (1990).

7. [2001] QSC 086.

8. [1969] 2 QB 538 at 554.

9. n 7 at [42].

10. [2001] QCA 393.

11. n 10.

12. In the UK, the role of the Visitor in student complaints and appeals has recently been removed by legislation (See Reddy, M. [2004] The Office of the Independent Adjudicator for Higher Education: Preparing for the Statutory Scheme, Education Law Journal; and Hoye, W.P. & Palfeyman, D. (2004) Plato vs Socrates: the devolving relationship between higher education institutions and their students, Education and the Law, 16(2–3), 97–113 at 95. New Zealand universities also no longer have a Visitor and the statutory responsibility for investigation of student complaints now rests with the Ombudsman. The situation in Australia is more complicated. In some states (Queensland, Victoria and South Australia) there is no provision in the university statutes for there to be a Visitor while in others (New South Wales and Tasmania), the Governor is the Visitor of the University but has ceremonial functions only. In Western Australia, the Governor is the Visitor but has authority to do all things that pertain to the office of the Visitor. And in all states, the Ombudsmen have some jurisdiction regarding university decisions. See also Astor, H. (2005) Improving Dispute Resolution in Australian Universities: Options for the Future, Journal of Higher Education Policy and Management, 27(1), 49–65; and Stuhmcke, A. (2001). Grievance Handling in Australian Universities: The case of the University Ombudsman and the Dean of Students, Journal of Higher Education Policy and Management, 23(2), 181–189.

13. [1984] 1 NZLR 129.

14. n 13 at 134.

15. n 13 at 135.

16. [1992] 3 WLR 1112.

17. Lamb v. Massey University Unreported Judgment of Wild J, High Court of New Zealand, Palmerston North Registry, 19 October 2004, CIV 2003 454 336 & 337.

18. This Act applies to the actions of public authorities and as such is the equivalent of Art 6(1) of the European Convention of Human Rights, given effect to in domestic UK law by the Human Rights Act 1998 (UK). For a comprehensive discussion of the role of the Human Rights Act 1998 (UK), particularly Art 6(1) see Davies, M. (2004) Challenges to ‘academic immunity’ – the beginning of a new era? Education and the Law, 16(2–3), 75–96, at 78–86; Kaye, T. 1999) Academic Judgement, the University Visitor and the Human Rights Act 1998 Education and the Law, 11(3): 165–186 and Arthur, M. (2001) The Human Rights Act and higher education, Education and the Law, 13(4), 285–301.

19. The student's allegation of breach of contract by the college also failed, see below.

20. R v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651; R v. Board of Governors of Sheffield Hallam University and others, ex parte Rowlett [1995] ELR 267; Thirunayagam v. London Guildhall University, Unreported Judgment, Hirst LJ, Court of Appeal, 14 March 1997.

21. [2001] EWCA Civ 534.

22. The court allowed the appeal in that it quashed the Board's decisions but as the student was now engaged in substantially different research the court felt that an order of mandamus would be inappropriate and would serve no useful purpose.

23. [2001] EWCA Civ 534, at para 41.

24. (2003) MBQB 198, 176 Man.R. (2d) 127.

25. The internal university body which reports to the Faculty Council on whether a student is entitled to be promoted from one year to the next.

26. Houston v. University of Saskatchewan (1994) 117 Sask. R. 291; Mikkelsen v. University of Saskatchewan [2000] S.J. No. 115 (Sask. Q.B.); Kane v. University of British Colombia (1980)110 D.L.R. (3d) 311 (S.C.C.).

27. n 24 at para 47.

28. [1994] E.L.R. 380.

29. Later also shown in Simjanoski & Ors v. La Trobe University & Ors [2004] VSCA 125.

30. [1999] ELR 404.

31. See n 30 above. In New Zealand the equivalent argument would be framed as a breach of s 27(1) of the New Zealand Bill of Rights Act 1990. This was argued (unsuccessfully on the facts) by the student in Lamb v. Massey University, n 17 above.

32. [2004] VSC 180 (27 May 2004) in the Supreme Court of Victoria; and [2004] VSCA 125 (23 July 2004) in the Supreme Court of Victoria, Court of Appeal.

33. The questions of whether she would be entitled to a remedy under the common law or pursuant to the powers of the Supreme Court of Queensland, or otherwise, did not arise because she had relied solely on the statutory procedures and sought only the statutory remedies provided by the Review Act.

34. As required by section 7 Judicial Review Act 1991 (Qld).

35. Judicial Review Act 1991 (Qld) section 20. It is this expression in this section of the Act ‘which provides the battleground for this litigation’: n 3 at 736 per Gummow, Callinan and Heydon JJ.

36. Judicial Review Act 1991 (Qld) section 4.

37. Tang v. Griffith University [2003] QSC 22.

38. Tang v. Griffith University [2003] QCA 571.

39. Gleeson CJ, Gummow, Callinan and Heydon JJ ( Kirby J dissenting).

40. Griffith University v. Tang (2005) 213 ALR 724.

41. Moodie, G ‘Little Room for Review’, The Australian, 9 March 2005, 28.

42. Griffith University Act 1998 (Qld) ss 5–11.

43. n 3 at 744 per Gummow, Callinan and Heydon JJ.

44. n 3 at 746 per Gummow, Callinan and Heydon JJ.

45. n 3 at 746 per Gummow, Callinan and Heydon JJ.

46. (1982) 43 ALR 25.

47. (1996) 68 FCR 87.

48. Refer Clark v. University of Lincolnshire & Humberside [2000] EWCA Civ 129 below which held thatrights in private law and public law may be coexistent.

49. There is no mystery in the litigation strategy of the University. By seeking an order to dismiss the application it forestalled any examination by the courts of Tang's complaints.

50. Although Kirby J outlines Tang's complaints about the decisions, it is still unclear exactly why and how the Board came to hear the allegations of academic misconduct made against her. Who were the academics who made the initial complaint? To whom had she presented the allegedly false or improperly obtained data? Had she submitted her PhD thesis for examination? Had she presented her work in progress at a research seminar? Had she submitted her work to her PhD supervisor? Had her supervisor instructed her of the appropriate ethical and scientific standards required for laboratory work? Many questions remain unanswered even after lengthy litigation.

51. n 3 at 749 per Kirby J.

52. n 3 at 752 per Kirby J.

53. Although, because the student did not apply for common law judicial review it may be that, in the view of commentator Rochford, the High Court has simply confirmed ‘that the statutory reform of administrative law in Australia has not necessarily introduced statutory administrative remedies to universities’, Rochford, F. (2005) Claims against a university: the role of administrative review in Australia and the UK, Education and the Law, 17(1–2), 23–31.

54. Most notably, the removal of advocates’ immunity by the House of Lords in the case of Arthur J.S. Hall & Co (a firm) v. Simons; Barratt v. Ansell & others (trading as Woolf Seddon (a firm)); Harris v. Scholfield Roberts & Hill (a firm) and another [2000] 3 All ER 673, [2000] 3 WLR 543. For a comprehensive discussion see Davies, M. (2004) Challenges to ‘academic immunity’—the beginning of a new era? Education and the Law, 16(2–3).

55. Administrative Decisions (Judicial Review) Act 1977 (Cth).

56. Queensland, Parliamentary Debates, Legislative Assembly, 26 November 1991, 3137 (Hon. D.M.Wells, Attorney-General).

57. Wade, H.W.R. (1969) Judicial Control of Universities 85 LQR 468.

58. Moran v. University College Salford (No.2) [1994] ELR 187, CA; Sammy v. Birkbeck College, The Times, 3 November 1964.

59. Unreported Judgment of the High Court of New Zealand, Wellington Registry, Ellis J, 13 November 1997, CP312/96.

60. [2000] EWCA Civ 129.

61. see Kos, J.S. (1999) View from the Bottom of the Cliff: Enforcement of Legal Rights between Student and University, Australia and New Zealand Journal of Law and Education, 4(2), 18–37.

62. Clark v. University of Lincolnshire and Humberside [2000] EWCA Civ 129, at paras 31–33.

63. [2004] FCA 1275; [2004] FMCA 536.

64. n 17.

65. 2004 WL 2536807 (Miss.2004).

66. Oxford County Court, 26^th March 2002, OX004741/OX 004342, His Honour Judge Charles Harris Q.C.

67. See Palfreyman, D. (2003) Phelps … Clark … and now Rycotewood? Disappointment damages for breach of contract to educate, Education and the Law, 15(4): 237–247. Palfreyman quotes the words of Lord Bingham to this effect in Wade v. Monroe [1991] 4 All ER 937.

68. As, for example, in Jarvis v. Swan Tours [1973] 1 All ER 71 (CA) and Jackson v. Horizon Holidays [1975] 3 All ER 92 (CA).

69. Following Ruxley Electronics and Construction Ltd v. Forsyth [1995] 3 All ER 268 and Farley v. Skinner [2001] 4 All ER 801 where the House of Lords awarded damages to compensate buyers for their ‘disappointed expectations’ regarding commercial purchases.

70. See The University of Southern Mississippi v. Williams n 61.

71. Davies, M. (2004) Challenges to ‘academic immunity’ – the beginning of a new era? Education and the Law, 16(2–3), 75–96, at 1–2.

72. n 70.