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The Student Experience: What’s the Deal?

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:.

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The Student Experience: What’s the Deal?

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  1. The Student Experience:What’s the Deal? HEPI, London, 6/5/09

  2. The Student Experience: Where’s the Contract? • David Palfreyman, MA MBA LLB FRSA, Director, OxCHEPS, New College, University of Oxford

  3. 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 OxCHEPSwebsite (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).

  4. 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.

  5. 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 39-42)…AND CONTINUED

  6. 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?)

  7. 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…)

  8. 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 ‘disappointmentdamages’? • 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.

  9. 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

  10. ‘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…

  11. 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) fee-charging (even profit-making), instrumentalist, commodified, B2C consumer service…

  12. 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?!)

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