Educational Malpractice

Educational malpractice, which is an offshoot of professional malpractice is a concept that has not taken root in the domain of education. What it involves is an assertion of professional negligence or the failure to provide services to a standard that can reasonably be expected. It assumes that the actors in the domain of education, like their professional counterparts elsewhere, must function to known or accepted standards and a deviation from those standards would impose liability on them if damages result from such deviations. Courts in all jurisdictions have been slow or reluctant to find teachers, officials, regulatory authorities, or institutions liable. This has been the position especially in cases where the allegations have been about unsatisfactory education or education that was alleged not to satisfy the expectations of students or their parents. Judges refuse to attempt to be educators. They abjure any knowledge or skills in education which they say is the province of teachers and institutions. Another reason they have often alluded to is the very nature of education. Unlike other professional services education relies on the active participation of the client-student over whose make-up and conduct are largely outside the institution’s control.

But the situation is changing. With more regulatory control and the statutory prescription of standards on institutions and teachers such as the minimum standards set by the Malaysian Qualifications Agency (MQA), courts now have more purchase on how education is programmed through curricula and even about how teaching is conducted or has to be conducted. Such published objective criteria may allay the reluctance of the courts, which means that education providers may have a new regulatory force to deal with. In 2012, the High Court in Terengganu had cause to thoroughly examine educational plagiarism and concluded with the opinion that if the student is guilty of plagiarism in her thesis, the thesis supervisor must also bear part of the responsibility for the student’s action.

Educational malpractice suits may equally be brought by staff against institutions and vice-versa. The earlier post describes a situation that could well have resulted in an action by the staff against the institution.

WHO STANDS UP FOR THE ACADEMIC WHO STANDS UP TO PROTECT STANDARDS?

 A recent decision of the High Court on a matter on appeal from the Sessions Court highlights the unhappy position of the lone academic who stands up to defend academic standards in the face of faculty or departmental opposition.

The two decisions are used only for their facts. As this piece is not written as a case review, there is no intention to analyse the decisions. Neither will there be any reference made to the case name, case reference or names of the party or the university involved. (As far as can be ascertained, the High Court decision has not been reported in any of the law reports.)

The isolation and helplessness of a faculty member attempting to enforce academic standards in a university or college was one of the matters that were brought to the attention of the 2019 reform committee tasked to study the governance of higher education providers and to harmonize the Universities and University Colleges Act 1971 (Act 30) with other legislation on higher education. That committee’s view was that such issues are best handled by the office of a higher education Ombudsman. One of the reform recommendations of the committee was the setting up of a Higher Education Ombudsman.

The office of an Ombudsman had it been established would have provided an alternative remedy to the travails of the academic involved in this particular case and saved her the heartache and the costs of a lawsuit. In the circumstances, as there was no Ombudsman to turn to, the academic had to end up as the plaintiff in a lawsuit.

The plaintiff in the case is a professor with more than 30 years’ experience in academia. In June 2015, the plaintiff and a colleague were appointed by their head of department to review the work of three students who were in the final year of their undergraduate programme. The students’ works had been previously graded by their supervisors. Plaintiff and her co reviewer were to assess the work of the students against the grades awarded. After a viva where they interviewed the students, they found the work of the students unsatisfactory and not deserving the marks allocated by the supervisors. Having come to this conclusion they gave the three students a further two weeks to bring their work to a satisfactory level. The plaintiff and her colleague then wrote a report of their conclusions to the Department. What transpired after this led to a serious conflict between the plaintiff and her colleagues in the department that finally led to litigation between her and a colleague.

Instead of making the corrections as advised by the plaintiff, the students lodged a complaint with the Dean of the faculty that the plaintiff had been ‘unprofessional’ during the viva. Without informing the plaintiff or her colleague, the department proceeded to set up another committee to review the marks given to the three students. 

The facts also show that the plaintiff and her colleague wrote to the HOD to find out the marks that had been awarded by the new committee to the students involved. Not receiving any response on the matter, the plaintiff and her colleague raised the matter at a regular meeting of the department. Sharp words and allegations were exchanged between the plaintiff and the department leaders. There is however nothing in the facts of the sessions court judgment that shows any attempt by anyone attending the meeting to justify the course of action taken by the second committee or the marks that were awarded at the end of the second review. The plaintiff was asked to ‘move on’, obviously indicating that she could expect no further satisfaction on the matter.

The allegations against the plaintiff are serious enough to be not accepted without further investigation by the department. Appointing a second committee to review the works of the students tantamount to at least a tacit acceptance of the students’ allegations. Why else was there a need for a second assessment? If the allegations were reasonably considered by the Dean or other authority, it would have required a response from the plaintiff and her colleague who carried out the first review. Not seeking their view is not simply an act of discourtesy to them as colleagues, but an interference with their role and rights as academics, including academic freedom.

Academic staff must have sufficient autonomy over assessment procedures that involve their scrutiny. However, placing this within the concept of academic freedom does not make it simply a privilege of the academic. The integrity of assessment goes to the heart of a university’s credentialing process. Universities have a pact with society that the output of students will match society’s expectations of a highly educated person. If assessment by a staff is challenged in the way it way it was done in this case, the integrity of the process is undermined and any credentialing by the university becomes highly flawed. When there is an alteration made to the decision of an examiner, the staff involved must have been given the opportunity to reply to the challenge before a departmental decision is taken to alter it. But there is more. To accept the allegations made by the students has two other consequences. First, it would send a message to students in the faculty, if not the whole university, that assessment of their work can be altered by lodging a complaint rather than complying with the examiner’s decision. Secondly, allegations such as those made by the students would seriously harm the reputation of the staff involved unless due process through a hearing is accorded to the academic involved.

These larger and vital issues that were at stake found no place in the judicial decisions. Rather, the judges found the plaintiff’s insistence in having the processes observed unusual. The courts failed to recognize that the plaintiff’s sense of grievance was fully justified because, by going behind her back on revising her assessment, the university had acted in a manner that destroyed the relationship of trust and confidence that is inherent in an academic’s contract with the university. The action of all those involved at the departmental level to institute a second marking was an affront to her integrity that fully justified the plaintiff’s continued insistence in having the matter reviewed. In the process the courts may also have unwittingly approbated questionable academic practices. On the question of plagiarism that was alleged in one of the students’ work, the academic who was asked to review the paper simply stated that he found the paper to be free of plagiarism and the student ‘had used a different method of writing’. This lackadaisical approach to a serious ethical issue in higher education by a group of academic staff is worrying because it points to the possibility of serious flaws in our higher education system.

As to the unprofessional conduct that was alleged, the judge in the sessions court explained that this was based on the plaintiff giving only two weeks given to the students to make the corrections. It appears that the students were preparing to return home and that there were public holidays that fell within the two weeks. If such reasons are judicially seen as sufficient to constitute academic conduct that is unprofessional, it would seem that attempts to reform higher education has to embrace a much wider audience than just academia.

The need for a higher education Ombudsman has become even more urgent.

 

Disrupting School - Every Man's Foul Sport

The interference with the management of schools continues apace with those transgressing the sacred space showing no respect or understanding of the policies or objectives of the educational system.

The latest incursion objecting to simple decorations in a school in Puchong for the Chinese New Year celebration shows how out of touch these warriors of spurious causes are with the great efforts that have gone into building our educational system.

One of the main thrusts of educational policies has been, from the time of independence, to promote an educational system that that is ‘acceptable to all the people of the Federation as a whole which will satisfy their needs and promote their cultural, social, economic and political development as a nation’. (Report of the Education Committee 1956.)

Large sums of money were expended in developing a national curriculum for schools. Even more money was spent on developing a Blueprint for Education to chart the development of schools for the next, at least 10 years. Nowhere in these documents is there a concern that a celebration of the festivals of the people of this country would pollute the minds of the young or lead them away for the religious path that is ordained by parents of the children who attend the schools.

The Education Blueprint 2013-2025, which is the most significant review of education after the 1956 Report declares unity as one of the five aspirations of reform.

The Blueprint’s vision of unity is expressed in terms that go beyond just bringing people together. Diversity is the education itself. And it is an enriching education that is built on diversity.

“As students spend over a quarter of their time in school from the ages of 7 to 17, schools are in a key position to foster unity. Through interacting with individuals from a range of socioeconomic, religious, and ethnic backgrounds, students learn to understand, accept, and embrace differences. This creates a shared set of experiences and aspirations to build Malaysia’s future on. The Ministry aspires to create a system where students have opportunities to build these shared experiences and aspirations that form the foundation for unity.” (Education Blueprint 2013-2025)

Puerile protests about simple matters as celebratory decorations in schools offend these policies and do great harm to the educational process. They have no knowledge of policies on education or the important role schools play in developing the young.

Our schools are being made the battleground for every rabid idea in society about the purpose of schools. There seems to be no end to the way our schools are abused. It also appears that there are too many people who have no gainful ways to spend their time are camping outside the schools to disturb the purpose of schools with their tedious complaints about how schools threaten everything from God to the way food is eaten in school canteens.

More Control Over Public Universities?

The last post, Religion and Education – Policies out of Sync, criticized the Ministry of Education’s intervention into university affairs by ‘approving religious proselytization in schools and educational institutions. The thrust of that post was that such actions by the ministry interfered with the autonomous position of universities. The autonomy of universities is an ancient tradition that been recognized by the Malaysian courts in many of their decisions.

Now, another controversy. One which questions that very aspect of the university.

The university is Universiti Malaysia Perlis (UniMAP).

The controversy springs from a Multiple Choice Question (MCP) paper issued in its Ethnic Relations course. The irony in the controversy will become apparent in due course.

The question in issue read:
"Zakir Naik is one of the icons of the Islamic world, he is very active in spreading true Islam and following the Quran and Sunnah of Rasulullah SAW. He is able to reason and to answer every question that is asked to him. However, in Malaysia, he is no longer allowed to deliver his preaching. In your opinion, as a Malaysian, why does this happen?"

The question provides several answers and more than one combination of answers can be chosen.

The options were: 

(1) Malaysians do not bother; 

(2) Sensitive Malaysians feel threaten for no reason; 

(3) Malaysians who are normally submissive without any reason;

(4) Malaysians are ignorant about their own religion.

There are many things that one can say about the paper.

Firstly, a grammar check on the language used in the question would have removed some very glaring errors.

Next, it is doubtful such a question will help build better ethnic relations in the country, which is the much-publicized objective of ethnic-relations courses.

Thirdly, the question, although only one of many in an MCP paper picks on a subject that has been the cause of religious dissension in the country. And is part of a larger controversy that has caused much religious distress in the country.

But what is really worrying is far removed from religious or ethnic issues.

The question and the suggested answers reveal a serious failure and deficiency in the academic standards and quality of instruction in the university.

The question cannot be answered.

The student has to assume the validity of the assertions in the question - that X is an Islamic icon; that X spreads the word of Islam following the Koran and the Sunna; that X is able to reason and to answer every question that is asked of him. These are contentious issues, some, probably also incapable of proof. The question provides no aid to verify the assertions.

There is also the inherent ambiguity in the assertion in the question - he is 'no longer allowed to deliver his preaching'.

The other problem is that the answers do not logically follow from the question and are themselves loaded with unproven assertions.

Clearly, the university owes the public it serves some very clear answers about its academic processes and how staff are selected to teach. They also owe the students who took the exam an explanation and if needed a cancellation of the exam.

Their failure to do so would move the public debate to how much freedom universities are to be accorded.

Religion and Education - Policies out of Sync

The education ministry’s recent circular permitting and supporting a religious group to carry out preaching activities in educational institutions once again shows that the ministry is not a reliable agency to deal with national education. Policies are made on the run.

They are not supported with authoritative advice or with findings from research, especially in areas such as religion in education.

There is no consultation with parents.

Or teachers.

Or the public.

They flout the very principles of education they are supposed to defend. Policies have become the whims and fancies of those who have the power to make rules. They appear not to realize the lifelong impact their policies have on children and the harm they will do them and the future of this country if policies are not carefully made.

Education is not the personal fief of the minister or any of its officials, whatever their rank. Their first duty is to observe and comply with the laws that created their office and their functions. The laws have established two national councils to consider and advise on policies on education. The Minister and the ministry have a legal duty to process policies such as this through those councils. Instead, they proceed as authoritarians as if they have a personal right over such issues as the proselytization of religion in educational institutions.

National unity, equality of access to education, the equal treatment of all citizens are some of the objectives of national education. How are these objectives served by the ministry’s circular on religious proselytism in educational institutions? 

If religion is an important part of education (there is a body of research that supports this), then why are the other religions not taught and preached. If the education ministry is only concerned with one section of the students, who are expected to care for the others?

The ministry cannot blow hot and cold on these policies and not expect

to lose their credibility as stewards of national education.

Culture of Silence

What has been amazing and simultaneously troubling is that there is complete silence from academics about what they have gone through in their lives and careers. There is almost no protest by those who have been denied legitimate positions in academics. Even those who have been at the receiving end have not come out in the open.

Silence among those who perpetrated havoc on others is understandable. One does not, of course, expect them to talk. But the others? The apparent oath of silence is akin to what we come across among cricketers who refrain from letting out what happens in the dressing room. The match-fixing and betting that is undoubtedly prevalent in cricketing circles and involves some of the players.
Educational institutions -- those that are administered by the state governments as also the central universities -- are being subjected to political interference that is steadily increasing.

The various kinds of fixing that happen in the Indian academic realm will put a cricketer to shame in terms of the sheer ingenuity and cussedness that is employed in academics. The cricketers may have strong and compelling reasons to guard their turf and maintain a convention by constantly increasing the size of the carpet under which their shenanigans get swept. But does it behove academics, whose coffers are almost always funded by public funds to keep a tight lid on how misuse, manipulation, and corruption prevail in this so-called noble profession. Not to mention sexual exploitation of women colleagues, research scholars and postgraduate students.

From The Closed Nature of Indian Universities by M. A. Kalam published in www. TheIndiaForum Nov 1 2019

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.