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.
Sunday, 17 January 2021
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.
Friday, 10 January 2020
Wednesday, 1 January 2020
"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?"
Saturday, 28 December 2019
Monday, 18 November 2019
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
Saturday, 10 August 2019
- 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.