Students' Rights - The Missing Link in Higher Education

There is something that is missing in the educational ecosystem.

Very little attention given to students' interests in the laws or the regulations that describe the rights of the student. This is surprising because education is about students more than any other 'player' in the system, say the academics, the administrators or the regulators of the education system. The laws that we now have are about the setting up of institutions, how many students in the class, the licensing of teachers, the governance of institutions, but nothing about the rights of students. What should they expect when they become a student? how should this expectation be realised? what rights do they have when the expectations are not achieved. There is a general understanding of what these expectations are, but they are not explicit in any of the laws governing education in this country. Outcome-based education, the applied theory in our HE system, requires the outcomes of education to be specified, but whether these outcomes have manifested in the student is not a student decision but part of the assessment system of which he/she is a subject. The examiners measure the outcomes through processes of their creation, but it remains vague if the student has any role in deciding this critical question.

If education is meant to change the student in some way or increase his quantum of knowledge, these are not part of the promises made to the student in the terms of the agreement between the student and the institution. The hype of the sale - 'world-class education', 'cutting edge knowledge' 'high employability program' are all trade puffs that have no litigation value. Courts will reject outright any claim from a student that his education was not world-class. Such phrases are regarded by the law as unactionable inducements, even if they have been relied on by a student when he chose that institution or a particular program. The arid definition of higher education in our legislation is that it is a course of study that on completion entitles the learner who registered for the course to a certificate, diploma or degree. Those are the tangibles he takes away on completion of his 'course of study.' The courts, afraid to intrude into the processes of academia have done little to add flesh to the bare bones of student's rights in education. If processes are followed, the judge will bow deeply to the teacher and depart. No court has ventured to decide what it means to be educated or whether a person going through the process has been educated. Even in jurisdictions where they have ventured into that terrain, they have made no attempt to examine that question but merely deferred to the wisdom of the teacher and his processes to decide it.

If students have little clue about their expectations, they are equally ignorant about the loss of some of their most important rights or in the diminution of their status when they 'become a student'. If the courts have been reluctant to decide on the meaning of education they have with great alacrity decided that the student's role is to study and not disturb the peace or bring disrepute to their institution. If the university decides that participating in a demonstration brings disrepute to the university, it is the university's right to decide the disrepute had occurred. The courts will bow out of that decision too.

Now, if you are a foreign student studying in this country under the relevant visa issued by the gatekeepers to this land, your status is even further diminished. You can be picked up on suspicion and detained without the normal safeguards that are accorded to the student who is a citizen.

We will dedicate a few posts in this Blog to examine the nature of the student's position and rights and whether these need to be reexamined in any reform of higher education. We shall consider in those Blogs;

• The traditional position of students in the university;
• The changing profile of students in HE;
• The contractual rights;
• The rights as a consumer of regulated service and
• The Statutory position of students.

Of Gandhi, Education and the Right to Information

The following is contributed by my friend, Murali Achan.

On the 2^nd of October 2014, as India welcomed Gandhi Jayanti, hundreds of girls from the village of Bhim, Rajasthan gathered outside their secondary school, in protest. Their demand was simply to be given the schooling that they were promised. For a period of seven years prior to the protest, the girls had to endure a shameful deficit in teachers in their school – 700 pupils were assigned only 3 teachers. Needless to say teaching and consequently learning was impossible. When asked why on Gandhi Jayanti? Their response was that Gandhiji taught them that they should demand their rights. The significance of the day was obviously not lost to them, as it often is in most of India.

As news of the protest spread, lockouts and strikes began to sprout in schools throughout Rajasthan. The pathetic state of education in Rajasthan was laid bare for all to see.  In a panic response, the State of Rajasthan assigned, wait for it, all of 4 more teachers to the school in Bhim.

But that, of course, is not the end of the story.

The courage displayed by the girls from Bhim and other children of Rajasthan became the catalyst for a broader campaign, known as Shiksha Ka Sawaal (SKS), to improve the state of schools and public education in Rajasthan. The SKS campaign strategy was to mobilize students and parents throughout Rajasthan to file applications (commonly known as “RTIs”) under the Right to Information Act 2005, demanding information from their schools. Six simple questions were posed in the RTIs:  “How many pupils are enrolled and how many are actually attending the school? What is the number of teaching positions compared with the number of students, and how many of those positions are vacant? Does the school have facilities for drinking water? Is there a playground with a boundary wall? Are there separate and functional toilets for boys and girls? Do the school management committee and the school development committee actually function?”

Thousands of RTIs were filed under the campaign. The answers to the questions further exposed the malaise in the education system in Rajasthan.

Although I am unable to report with certainty that the campaign had solved all of the problems faced by students in Rajasthan, some encouraging outcomes have however resulted from it. The Rajasthan government has announced that every school is required to have a monthly meeting between parents and teachers to deliberate on school issues. A dialogue between the media, school, teachers, parents and the education minister, along with education secretaries is to be held bimonthly.  A helpline is also set up to take all education-related complaints and a mechanism to address them was put in place. The government has also undertaken to build a boundary wall around the playgrounds in the schools.

The SKS campaign demonstrates how simple requests for information, with the backing of the law, can be an effective tool to agitate for progressive changes both in terms of initiating new policies and properly implementing existing ones. The benefits derived from free access to information cannot be understated. Citizen empowerment: information provides citizens with the means of participating effectively in matters of governance and hold the government accountable for their decisions. Expert scrutiny: information affords the opportunity for specialists from disciplines relevant to the information to scrutinize government policies and propose effective means of realising the objectives of those policies. Cultural change: access to information can, in the long term, foster a change from the “government knows best” culture that pervades many countries, including ours, to one that views its citizens as participants in the formulation and implementation of policies. These are but a few of the many advantages of a system in which the right to information is entrenched in the law.

In Malaysia too, many questions can be asked of the government and public universities. Here are a few of them. What is the basis of discrimination by which university seats are allotted? What are the objectives of these discriminatory policies and have those objectives been achieved? Who decides on the allotment? By what means is the quality of teachers in universities assessed? Are discriminatory policies present in the promotion of teachers? If so, what is the basis of the discrimination?

At present, there is no specific legislation in Malaysia that gives a general right to the public to access information from public authorities. The good news, however, is that the Prime Minister has recently announced the government’s plan to present a Freedom of Information Bill to Parliament in the near future. The question, however, is whether the Bill will contain progressive provisions that will in substance have citizen empowerment as its objective or will it be mere pretense; a toothless piece of legislation of limited scope and application that achieves nothing save for a tick on the PH manifesto checklist.

Whatever the motive of the government, the Prime Minister did say that there will be public engagement on the bill before it is finally presented to Parliament. This is a welcome move because it affords an opportunity for advocates for transparency and good governance to air their views on the kind of provisions they would like to see in the bill.  In this regard, advocates will be well advised to consider the Indian Right to Information Act, 2005 (“RTI Act”) as a possible model for a similar Act in Malaysia.

The preamble of  RTI Act sets out its objective: “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto”. “Public authorities” are broadly defined to include any body owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate Government. Under this definition public schools are public authorities on whom RTIs may be served. Every public authority is required to designate officer/s as Public Information Officers of the units under its control. It is the duty of the Public Information Officer to receive and attend to RTIs.  I would add here that one of the positive outcomes of the SKS campaign was that the school principals were held to be Public Information Officers. An applicant for information need not give any reason for requesting it. The Act, remarkably, also provides that if an applicant is sensorily disabled, he shall be provided assistance to enable access to the information. It also provides “notwithstanding anything contained in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information if the public interest in disclosure outweighs the harm to the protected interests”. The Act also establishes information commissions at both the Central and State levels. The commissions among other things receives complaints in cases where the right to information is refused by public information officers. The commissions are also empowered to penalise public information officers who with mala fide denies requests for information or knowingly gives incorrect, incomplete or misleading information or destroys information which was the subject of the request or obstructs in any manner the furnishing of information.

The RTI Act in form and substance is truly a remarkable piece of legislation.  It would be a marvelous step forward for Malaysia to follow in the footsteps of India, at least, in terms of the legislative framework by which information is accessed by the public.

The International Student in Malaysia

The recent unfortunate demise of an international student in the custody of the Immigration Department created only the slightest ripple in the higher education domain. The deceased student’s university posted a notice of his death, a few students demonstrated outside the Nigerian Embassy, but that was about all that happened in a sector that has more than 100,000 international students. Unless I missed them, there were no expressions of concern from our universities and colleges or from student or staff bodies or from the many associations of universities and colleges.

Deaths in custody are not frequent occurrences, but even one death, when set against a background of regular student complaints of harassment by the authorities should cause enough concern among institutions to initiate some firmer actions to deal with the matter. If the existing system for the centralized management of international students is not functioning efficiently to prevent the wrongful detention of students, it is time to jettison it for one where there is an obligation on detention centers to contact the institution where the subject student is registered. Information on the centralized system is meant to be available to all enforcement agencies to help them verify the status of international students. That information should be enough to avoid improper detentions of students. If the system is not functioning to its purposes or worse still is not being relied upon by the enforcement agencies, these factors must be addressed by those who created the system and are responsible for its management.

UNESCO statistics show that annually, there are over 5 million students circulating the globe looking for a place to learn outside their own countries. Malaysia which is at number 10 in the UNESCO list of countries drawing incoming students, brought in more than 120,000 foreign students in 2016. Associations representing local educational institutions urge the government to grow the number of inbound students because of their contribution to the economy. Each student, they assert, contributes at least RM50,000 a year to the local economy, more than the average tourist and a great deal more than the foreign worker who sends out a part of his earning. A Government Report published in 2009 entitled, Strengthening Private Education in Malaysia also focuses on the economic value of the student in private institutions.

The value of international students lies not simply in the money they bring into this country or that they support the development of our education sector. International students add value to our social and cultural systems. They link us with distant communities, transform our classrooms and make international citizens of our students. The international student must leave this country not only with his scroll but with the memory of being amongst a friendly and kind people. It will be a terrible loss to this country and its people if they stop coming here because they fear for their safety.

The Demise of Orhions E. Thomas - a Student Who Came to Malaysia For His Studies

There is something deeply sad about a student dying in the foreign land that he had traveled to study. Journeys such as his are meant to end with his return to his homeland carrying the parchments of his qualifications. The journey is often made with great sacrifice by parents, but with the expectation that when the student returns with his new qualifications there will be a restoration for the family and new hope for those who are born after him. It is a story that we are very familiar with in this country, either as the journeying student or as the providing parent - the story of placing all hope on one and waiting. The immense sadness in learning that death in a foreign land has taken with it all hope is simply indescribable.

The death of Nigerian student Orhions Thomas from the Limkokwing University would have been a tragedy however his death had occurred, but to learn that it happened in the custody of the Immigration Department raises such anger that it even subordinates the tragedy.

Malaysians are no less racist than others, especially when it comes to people from Africa. Black is not a favored color with us. Our enforcement officers carry our prejudices. 20 years ago, there were two groups of students from the same college living in the same block of apartments, off Old Klang Road. One group was from Denmark and the other from Zanzibar. Regulalry, when the two groups walked down the road to the point where the college buses waited for them, the police would come by and pick up the Zanzibaris for questioning. The fact they were World Bank-sponsored scholars and Muslims made no difference. The Danish students were never molested. Apart from being racists, we also cringe to Europeans in a serious way. When the college protested, it was told that as they are Africans, they have to accept such actions by the police. The practices and the attitudes on which they are based continues unabated 20 years later and with more than 100, 000 foreign students coming to this country for their education. Our prejudices continue

The detention of students simply because they may have violated some immigration regulations is simply outrageous. You cannot criminalize carelessness. The arrest and detention of foreign students are not a once in a while occurrence. It is dangerous walking our streets if you are a student, even if you have a Student Visa Pass issued by the Immigration Department. Every college and university has a tale to tell about the privations foreign students are subjected to. This country invites students from around the world. We promise them a safe place, far from wars and other forms of brutalities. There are strict rules to filter the real students from those coming in for work and other reasons. If with all those regulations, we still lack the confidence in treating everyone fairly, we may as well close our borders completely. It is far worse to invite them, promising them safety and have them die in such circumstances than to not allow anyone coming in at all. The shame of it all.

Higher Education – Access and Equity

Building capacity alone will not address equity and access issues that confront a significant part of our population.

Institutions and regulatory agents must be more proactive in their roles to bring people with limited access and reach to higher education into educational institutions. Malaysian regulatory services, and indeed the public are still steeped in outdated, elitist notions of entitlement and eligibility to higher education. These notions are inherent in our social structures that are intensely hierarchical, almost like caste systems. Even now, in this so-called enlightened age, people are heard to say that not everyone needs to be educated, or in debates on language, that not everyone needs to learn English. These notions are also partly inherited from our colonial past. The British education system was until recent times very elitist. But even the colonialists have changed. The Dearing Report of the United Kingdom, published only 20 years ago in 1997, recognized that universities cannot hide any longer behind axioms like ‘education for its own sake’ and must take action to make higher education serve the interests of the individual and the nation.

Higher education policies in Malaysia do not give sufficient attention to this issue. Quality and standards and the reputation of universities are their main arguments to keep learners out. This must not continue. Regulators must look at new strategies to include a broader range of learners into post-secondary and higher education. And, if their skills are not adequate for higher education, to introduce measures that will bring those skills to par. Keeping people out is not a strategy to widen access nor to improve quality in education. The real measure of success of higher education institutions must be based on how they created strategies to improve access. Poverty, differentials in earning and the casting of status based on education, all social ills will be removed by broadening access. How to do this? The following policy changes will help;

Preparatory programs to bridge learners into higher education. The bridging course that played an important role in preparing those without formal entry qualification into higher education was outlawed by the Ministry of Education policies. Yet, such courses have been recognized the world over as a means to mitigate access issues;

To add to secondary education syllabus, a non-examinable preparatory course to tune students to think about education beyond the school;

Language, soft skills and Learning to Learn Courses to be run parallelly with substantive programs in colleges and universities;

Reexamination of the duration and content of part-time programs in all fields to encourage adult working employees into part-time higher education;

Permit secondary schools to conduct preparatory courses from private higher educational institutions or part of such courses in the school to mitigate the cost of travel, accommodation, etc.

Rethinking strategies for distance education that will allow universities and colleges to conduct part of their programs in the distance education mode, including in secondary schools with support of schoolteachers.

The irony is that this country is no stranger to improving access to education. It has already implemented successful strategies to improve access and equity in higher education. The special secondary schools, the Matriculation programs, the MARA colleges, and UiTM are all the products of a successful strategy to mitigate access issues. These steps are, however, not inclusive and for that reason remain ostracized from our perceptions of fairness and equity. 

None of these institutions or their underlying policies have to be sacrificed to introduce strategies of inclusiveness within the general educational institutions in the country. Both public and private sector institutions can be conscripted through encouragements and incentives to make space and create pathways to those left out of higher education. Recent strategies by public universities to recruit high fee students into normal programs and through part-time courses show that they have the capacity. What is sadly absent is a commitment from them to their most profound obligation – to improve access to those who are excluded. This must change.

Franchised Degree Programs - Pitfalls to Watch

The franchised degree is one of the most transformative concepts to have emerged in higher education. Its formulation as a legitimate mode of delivery of a university degree took place in the last decades of the 20th Century fostered by the rising demand for higher education in Asia and the problem of surplus capacity in UK and US universities. It changed the very nature of university education and the idea of the university by separating the educational program from the university offering it and making the program portable and delivered in places remote from the university. Starting with undergraduate degrees, the concept expanded to include postgraduate degrees right up to the doctoral level.

In the franchise concept, a local private college teaches the full three or four years of a degree program from a university, often a foreign one. They are described as '3+0' or '4+0' degrees to distinguish them from '2+1' or '3+1' Twinning programs. The full franchised course is delivered by the local college but the degree is awarded by the university. The university franchises the program to the local college under a written agreement that stipulates quality and other issues concerning the delivery of the program in the local college. The models of arrangement may vary from one university to another but generally, they would deal with the duration of the franchise, the selection of staff to teach the courses in the program, the required resources to teach the program and the management of student assessments are. In some arrangements, the university may also undertake to teach parts of the course in the local college assigning faculty from the university or another institution. Franchise agreements might also confer full assessment rights to the local college with supervision by the university or alternatively, the university may reserve those rights or part of those rights to itself.

Students in a franchised course are registered as students of the university and are subject to the rules and regulations of the university. Students must, therefore, pay special attention to the university's graduation requirements, its disciplinary rules and procedures. Local colleges may not explain this fact adequately to their students, relying instead on students reading the college's published regulations. The students must also note that they are at the same time bound by the college's regulations and local laws governing the conduct of students in local institutions (Private Higher Educational Institutions Act 1996). There may be conflicts and inconsistencies between the two sets of regulations and it is advisable that students are made aware of this. Ideally, a franchise agreement would deal with the duality of regulations affecting the students and make provisions in the franchise agreement to minimize or remove conflicts and inconsistencies. In any case, local laws cannot be overridden by the university's regulations or by the terms of the agreement between the college and the university.

The franchise agreement determines the mutual rights of the university and the local college. Important provisions on the duration of the franchise, the university's rights to terminate the agreement before the full term and the rights of students upon the occurrence of these events are all written into the franchise agreement. These terms have an impact on the students registered in the program but students are generally not informed of these terms. There have been instances when student rights have been seriously prejudiced by the early termination agreement of these agreements. Regrettably, there is very little in the regulatory laws of education that deal with such situations, leaving students with no alternative but to accept the solutions handed to them by the college.

Franchised programs must be approved by the Ministry of Education through the same procedures that apply to other programs delivered through a private higher educational institution. The admission requirements for the program will be determined when the program is approved by the Ministry of Education. Other conditions may also be imposed in order to make the franchised program conform to local regulations. The franchised program is also subject to all the quality assurance provisions under Malaysian laws. Typically, approval is only given if the program meets the standards for Provisional Accreditation as determined by the Malaysian Qualifications Agency or MQA.

The innovations in the franchise concept contributed significantly to the development of higher education in this country. It raised the status of private colleges to degree-teaching institutions and raised the status of teachers to university lecturers. Its continued presence adds a valuable dimension to Malaysian higher education by enhancing its international character. In this role, it stands at the same level as the foreign branch campuses that operate in this country

Reform and its Proponents

The New Government's promise to reform education took off in earnest this year with a flurry of activities centered around a number of committees that were formed to look into this and that in education. In higher education, the focus appears to be on the harmonization of the public and private sectors of higher education. The plurality of views on this issue come from different directions. From the top, the proposals are about autonomy, academic freedom and the freeing of universities from government control. From the other end, the concerns are more pedestrian, more practical, if you like. Issues like teaching permit, the speeding of bureaucratic processes and lesser control of the academic processes have been raised by representatives of the private sector. Surprisingly, I have not heard of any discussions on the harmonization of language policies across the sectors.

The opinions and 'findings' so far published only tinker with the issues. Any real proposal to harmonize the two sectors must examine the reasons for the division of the higher education sector and more importantly the root policies that forced that division. There is a serious misunderstanding underlying current discussions which is that the private sector was created by and for the well-to-do in our society and has no place for the poor. This is an inaccurate way to describe the origins of the private sector which evolved to meet the needs of a large section of our population that could not find its way into public sector institutions.

The main issue in higher education, which has always been controversial and constituted a large chunk of the political fodder for the racial polemics of this country is ACCESS to higher education. Any move towards harmonization must first deal with that very, very important issue. With over 800 post-school institutions in the country, we can no longer hide behind capacity issues. A fair and progressive approach to providing educational opportunities to all will ensure harmonization. Without a fair policy on access, nothing will really be harmonized, let alone reformed.