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.