The Student Experience: What

1
The Student ExperienceWhats the Deal?

• HEPI, London, 6/5/09

2
The Student Experience Wheres 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
  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/TaylorFrancis).

4
The Student-University Contract to Educate and
Consumerism

• FP 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.

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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

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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 HEIs 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  (Outdated?)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?)

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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
  C840K! but, oddly (?), not in USA)

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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, HS, LT and
  tort.

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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

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Get Out of Goal Free?

• FP, 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
  countriessee ch 29 and also in civil code
  countriessee 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 FP? CONTINUED

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Expert Academic Judgement

• FP, 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 Uy 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

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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?!)