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Criticizing the image of the student as consumer: examining legal trends and administrative responses in the US and UK1

2006; Taylor & Francis; Volume: 18; Issue: 2-3 Linguagem: Inglês

10.1080/09539960600919779

1469-5774

Timothy S. Kaye, Robert R. Bickel, Tim Birtwistle,

Legal Issues in Education

Abstract There is widespread concern that higher education is being compromised by being turned into a 'commodity' to be 'consumed'. This article represents an initial attempt to explore the trends in both the UK and US, and considers how the law has responded to them. It argues, however, that there is an important distinction to be drawn between 'commodification' and 'consumerism'. Education has always been a commodity to be bought and sold; the true danger lies in the move to a 'rights-based' culture where students (and politicians) see education merely as something to be 'consumed' rather than as an activity in which to participate. Whilst the law seems thus far to have been something of a bulwark against this movement, it remains an open question as to whether this will continue to be the case if HEIs do not themselves act more proactively in challenging this damaging view of higher education. Notes 1. An earlier version of this paper was presented in February 2005 at the Twenty-sixth National Conference on Law and Higher Education in Clearwater, Florida, USA. 2. Oxford English dictionary (Oxford, Clarendon Press, 1933); Webster's new twentieth century dictionary of the English language (William Collins, 1977). 3. Palfreyman, D. (2002) The oxford tutorial: sacred cow or pedagogical gem?, in: D. Palfreyman (Ed.) The Oxford tutorial (Oxford, Oxford Centre for Higher Education Policy Studies). 4. Education based on the incurring of debt is similarly criticized as socially unacceptable and less than sufficient to pay for the cost of the student's education in the UK higher education system. See Palfreyman, op. cit., Note 1, pp. 14–15. 5. See also Ryan, A. (2002) A liberal education: and that includes the sciences, in: D. Palfreyman (Ed.) The Oxford tutorial (op. cit., Note 1). 6. Palfreyman, D. & Warner, D. (1998) Higher education and the law: a guide for managers (Buckingham, The Society for Research into Higher Education), p. 4. 7. See, e.g., Moran v. University College Salford (No 2) (1994) ELR 187; R. v. Manchester Metropolitan University ex parte Nolan (1994) ELR 380 (QBD); R. v. University Funding Council ex parte Institute of Dental Surgery (1994) 1 All ER 651; Thirunayam v. London Guildhall University (unreported) Court of Appeal, 14 March 1997; Madekwe v. London Guildhall University (1998) ELR. 149; Svojanovsky v. London Guildhall University (unreported) Court of Appeal, 20th May 1998; R. v. University of Nottingham ex parte K (1998) ELR 184 (CA); Pospischil v. University of Bristol (unreported) Court of Appeal, 24 July 2001; Ahilathrunayagam v. Chair and Members of the Board of Governors of London Guildhall University (unreported) Court of Appeal, 8 March 2001. 8. (2002) 'Degree dividends biggest in Britain', Times Higher Education Supplement, 1 November. 9. See, e.g., Farrington, D. (1994) The law of higher education (London, Butterworths), p. 5. 10. See also Kaye, T. (2000) 'Education, education, education': commodity for sale or property right?, in: F. Meisel & P. Cook (Eds) Property and protection (Oxford, Hart Publishing). 11. For example, Bologna (Italy)—founded 1088; Oxford (UK)—founded by 1096; Sorbonne (Paris, France)—founded in 1150; Cambridge (UK)—founded in 1209; Montpellier (France)—founded in 1220; Coimbra (Portugal)—founded in 1290. 12. Charlemagne was known by many names, depending on the language used. The word 'Charlemagne' was used by subsequent generations of Frankish-speaking peoples to mean 'Charles the Great'. In German this was rendered as Karl der Grosse and, in Latin, as Carolus Magnus, from which the adjectival form 'Carolingian' derives. 13. Alcuin encouraged the use of what became known as 'Carolingian minuscule', a small style of handwriting that became the basis of our modern lower-case letters. 14. The works of many of the mathematicians of ancient Greece are known to us largely because, under Alcuin's influence, they were copied into the Carolingian minuscule script in the ninth century. It is these copies rather than the originals which have survived to the present day. 15. Petrarch studied at two of the universities mentioned in Note 2 above, namely Montpellier and Bologna. Though known chiefly as a poet and philosopher, the object of his studies at Bologna was actually law. 16. Students at Thomas Aquinas College in Santa Paula, California still follow a programme based on the trivium and quadrivium even to this day. 17. The study of music or harmony was considered to involve the study of 'number in time' or 'number in motion'. 18. Blackstone, W. Commentaries on the laws of England (Oxford, Clarendon Press), 1765–1769. 19. 'The lost tools of learning', presented in Oxford in 1947. 20. Kaufman, M. (2004) Education law, policy and practice (New York, Aspen). 21. (1954) 347 US 483, 74 S.Ct. 686. 22. Kaufman, M. (2005) Education law, policy and practice: cases and materials (Cambridge, MA, Aspen Publishers, 2005), 22–23. 23. Officially known as the Joint Declaration of the European Ministers of Education Convened in Bologna on 19 June 1999. 24. The 'A' stands for 'Advanced', to distinguish these qualifications from the 'Ordinary' or 'O levels' which used to be awarded at 16-years (but which have now been replaced by the General Certificates in Secondary Education, or GCSEs). 25. Ofsted (2003) Curriculum 2000: implementation (London, Ofsted), p. 5. 26. Quoted in The Guardian, 21 March 2003. 27. A small number of students take five or even six A levels, but those who do are almost always at private, independent schools. For this reason, the top universities will normally take account only of a student's best three results (excluding general studies). 28. Describing the nationality of someone from the UK is tricky. Under the British Nationality Act 1981, people born in the UK and of relevant parentage are British citizens (and not 'subjects', as some people still erroneously believe). This status is reflected in the passports of UK nationals. However, British anti-discrimination laws recognize the categories of English, Scottish, Welsh and Northern Irish as 'national origins' and each group boasts its own 'national' teams in various sports including association football (soccer). Even more confusingly, in the sport of rugby union, there is a team representing the non-existent 'nation' of Ireland, and which comprises players drawn from both the Republic and Northern Ireland, even though legally this means that the players are drawn from two different countries. 29. Op. cit., Note 17. 30. The reason for the apparently strange terminology in the UK is that the 'public schools' were originally so-called because they admitted pupils from any background—so long, of course, as the fees were paid—rather than restricting entry only to those from specific religious denominations. The existence of both the 'public' schools and the church schools significantly predates the creation of the universal publicly-funded state school system, which did not begin to get established until the passage of the Elementary Education Act in 1870. 31. See en.wikipedia.org/wiki/Classical_education. 32. Durkheim, E. (1933) The division of labor in society, trans. G. Simpson (New York, Free Press). 33. Western countries dominated the United Nations in 1948. 34. This is an entirely different body from the European Union, and its membership is much broader. It currently has 46 Member States. For further information see the Council's web site at http://www.coe.int. 35. Although this usually necessitated taking a case to the European Court on Human Rights rather than seeking a remedy in national courts. 36. The Protocol was actually drawn up and signed in 1952 but came into force with the rest of the Convention in 1953. 37. (1968) 1 EHRR 252. 38. Human Rights Act 1998. 39. R (Douglas) v. North Tyneside Metropolitan Borough Council (2003) EWCA Civ. 1847, (2004) 1 All ER 709, (2004) 1 WLR 2363, (2004) ELR 117. 40. The other is Somalia, which has no functioning Government capable of doing so. 41. (1923) 262 US 390. 42. (1925) 268 US 510. 43. Wisconsin v. Yoder (1972) 406 US 205, upholding the right of Amish parents to terminate the public schooling of their children following their completion of the eighth grade. 44. The Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (formerly the Education for All Handicapped Children Act of 1975). 45. 'Education as a human right', paper presented at the World Conference on the Right to and Rights in Education, Amsterdam, 2004. 46. 294 F.2d 150 (5th Cir., 1961). 47. 294 F.2d 150 (5th Cir., 1961) at p. 156. 48. Ali v. Head Teacher and Governors of Lord Grey School (2004) EWCA Civ 382, (2004) QB 1231, (2004) 2 WLR 1442, (2004) 4 All ER 628, (2004) ELR 169. 49. R. v. East Sussex County Council ex parte Tandy (1998) ELR 251 (HL), a case in which the local education authority actually sought—unsuccessfully—to reduce this to a maximum of three hours' tuition per week. 50. Ali v. Head Teacher and Governors of Lord Grey School, supra, Note 38. 51. For a fuller discussion of property rights in the context of education law, see Kaye, op. cit., Note 8. 52. Quoted by Palfreyman & Warner, op. cit., Note 4, p. 6. 53. The Law of Higher Education (London, Butterworths, 1994) p. 355. 54. This was precisely what was demanded by the claimant in the following cases: Thirunayam v. London Guildhall University (unreported) Court of Appeal, 14 March 1997; Madekwe v. London Guildhall University (1998) E.L.R. 149; Svojanovsky v. London Guildhall University (unreported) Court of Appeal, 20 May 1998; Ahilathrunayagam v. Chair and Members of the Board of Governors of London Guildhall University (unreported) Court of Appeal, 8 March 2001. 55. Harris, N. (1993) Law and education: regulation, consumerism and the education system (London, Sweet & Maxwell). 56. Atiyah, P. S. (1988) Essays on contract (Oxford, Oxford University Press), p. 14. 57. Quoted by Farrington, op. cit. Note 7, p. 327. 58. In practice, most developed countries do not yet have quite 50% of their school-leaving population going on to higher education. But many of their Governments have publicly stated that it is an objective of public policy to achieve that figure, a policy known in the UK as 'widening participation'. See, e.g., Higher Education Funding Council for England (2002) Successful student diversity: case studies of practice in learning and teaching and widening participation Good practice guidance for senior managers and practitioners No. 48 (Bristol, HEFCE). 59. See www.wto.org/english/tratop_e/serv_e/1-scdef_e.htm for GATS scope and definition. 60. See http://unstats.un.org/unsd/cr/family2.asp?Cl=9. 61. See infra., Part 2. 62. See infra., Part 3. Students studying at universities established in or after 1992 can bring an action to court. 63. 25 Cal. App.3d 1 (1972). 64. Citing, inter alia, Carr v. St Johns University, 231 N.Y.S.2d 410 (1962); University of Miami v. Militana, 184 So.2d 701 (Fla. App., 1966); Searle v. University of California, 23 Cal. App.3d 448 (Cal. App., 1972); and see Wickstrom v. North Idaho College, 725 P.2d 155 (Idaho, 1986). Zumbrun and Wickstrom have been frequently cited by other courts for the basic principle that catalogs, bulletins, and regulations of the institution are incorporated into the 'educational contract' relationship. See, e.g., Johnson v. Schmitz, 119 F.Supp. 90 (D. Conn., 2000). 65. 529 F.2d 448 (5th Cir., 1976). 66. The due process issue in misconduct cases is discussed in detail, infra. 67. 713 So.2d 967 (5th Cir., 1997). Plaintiffs sued Forest, when it was placed on probation by its regional accrediting commission, and later closed because of financial and accreditation issues related to its Huntsville, Alabama programme. Various institutional documents relied upon by plaintiffs when they enrolled stated that the Huntsville programme was designed to meet all requirements of the Alabama State licensing board, and that students should expect to be eligible for licensure. Despite disclaimer language in one institutional brochure stating that the institution could modify its programme, the Court held that summary judgment should be denied where the students presented material evidence of the institution's representation of accreditation. 68. 464 F. Supp. 784 (D. Mon., 1979). In Peretti, the Federal Trial Court held that students at a state postsecondary vocational school, who had completed approximately three-fourths of the school's programme in aviation technology, would be entitled to damages from the State for breach of contract, where the State cancelled the programme for lack of funding and offered no viable way for the students to complete their training. In at least one other case, a breach of contract claim was upheld when students at a newly established State medical school were informed, following their admission, that appropriations for the school had been withdrawn, and that the programme would not, in fact, open. In Eden v. Board of Trustees of the State University of New York, 374 N.Y.S.2d 686 (App. Div., 1975); on appeal, 426 N.Y.S.2d 197 (1980), the Court held that the State incurred a contractual obligation to enroll the student claimants in its newly established School of Podiatric Medicine for the academic year 1975–1976, and that the State acted arbitrarily and capriciously in failing to conduct the programme for the 1975–1976 academic year. The Court's decision was based on the finding that expenditures for the first year had already been made, and that the students who enrolled had no viable opportunity to seek admission to another programme. On appeal, the Court of Claims declined to award damages against the State. 69. 835 F.2d 1486 (1st Cir., 1987). 70. (2004) US Dist. LEXIS 7409. 71. 119 F. Supp. 2d 90 (D. Conn., 2000). The Court was also willing to consider a plaintiff's claims as being based on breach of fiduciary duty and negligence. 72. See, e.g., Haberle v. University of Alabama at Birmingham 803 So.2d 1536 (11th Cir., 1986). 73. 506 F.Supp. 1 (D. Ohio, 1981), affirmed 708 F.2d 726 (6th Cir., 1982). 74. (1985) 474 US 214. 75. (1978) 435 US 78. 76. In Horowitz, the Court had observed that, where a medical student had been 'fully informed of the faculty's dissatisfaction with her clinical progress' and 'the ultimate decision to dismiss (her) was careful and deliberate' any entitlement to fundamental fairness was satisfied. 77. Regents of the University of Michigan v. Ewing (1985) 474 US 214 at p. 215 (Note 2). 78. Regents of the University of Michigan v. Ewing (1985) 474 US 214, at p. 224, citing Youngberg v. Romeo 457 US 307 at p. 323. 79. Such decisions, the Court reasoned—citing Keyishian v. Board of Regents 385 US, at 603; Sweezy v. New Hampshire (1957) 354 US 234, 250 and University of California Regents v. Bakke, (1978) 438 US 265, 312—invoke both collegial and institutional academic freedom. 80. 219 F.3d 1179 (10th Cir., 2000). 81. 219 F.3d 1179 (10th Cir., 2000) at p. 1184. 82. 219 F.3d 1179 (10th Cir., 2000) at p. 1184. 83. Citing also Hill v. Trustees of Indiana Univ., 537 F.2d 248 (7th Cir. 1976); see also Haberle v. University of Alabama at Birmingham, 803 F.2d 1536 (11th Cir., 1986). In Haberle, a Ph.D. candidate at UAB was academically dismissed following his failure (on two occasions) of the oral portion of a comprehensive examination, administered in the third year of his matriculation. He filed a grievance with the Deans of the Colleges overseeing his candidacy, and they appointed two impartial reviewers, who approved the graduate committee's supervision of Haberle's academic programme. Citing Horowitz, the Circuit Court held that the opportunity afforded Haberle to discuss his candidacy with the Deans, retake the comprehensive examination, and obtain a review of his situation by his graduate committee and an ad hoc faculty panel satisfied the substantive due process concerns addressed by the Supreme Court. The circuit court reaffirmed that they would not override an academic decision of a graduate faculty committee unless it was such a substantial departure from accepted academic norms as to demonstrate that the committee did not exercise professional judgment. 84. See also Hines v. Rinker, 667 699 (8th Cir., 1981), summarily rejecting a medical student's claim that the University of South Dakota School of Medicine acted arbitrarily when it refused to change certain of his failing grades to 'incomplete'. The Court held that, where the school had legitimate policies relating to grades, and the circumstances under which a grade of incomplete could be awarded, the Court would not interfere with the decision to dismiss plaintiff when he failed examinations, failed to present patient work-ups, and failed to submit chart audits on time. The Court stated that 'respect for the discretion of those best qualified to make such judgments dictates that the Medical School and not the Federal Court should determine the qualifications of appellant to continue his medical studies'. In accord, Schuler v. University of Minnesota, 788 F.2d 510 (8th Cir., 1986), upholding dismissal based on student's failing grades, and rejecting her argument that she had a right to challenge the structure of an oral examination—where she was on notice of her failure and the department's informal consideration of her grievance in two meetings (at which she was present) satisfied constitutional due process requirements in academic matters. 85. 2000 US Dist. LEXIS 14067 (S.D.N.Y., 2000). 86. The Court held that the University's professional judgment about Ward's academic performance is not open to question simply because of a general allegation from the student that the faculty member serving as her area preceptor had a personal bias and wanted her to be dismissed from the programme. How a particular faculty member's assessment of a student would be received, and the weight it would be accorded, is an aspect of the evaluation process committed to the University's discretion. 87. 1996 US App. LEXIS 31321 (4th Cir., 1996). 88. 168 F.3d 241 (5th Cir., 1999). 89. Both aspects of Wheeler's performance were evaluated as the worst, or among the worst, that the reviewers had ever seen. Some academic staff also observed that Wheeler had fallen asleep in class and exhibited other unsatisfactory classroom performance. 90. 168 F.3d 241 (5th Cir., 1999) at p. 250 (Note 28). 91. 840 F.2d 1371 (7th Cir., 1988). 92. The claim was remanded on its merits. 93. The Court suggests that such a claim should be dismissed, on grounds of qualified immunity, where the official acts in good faith, and exercises professional judgment. Vacated and remanded on the question of the adequacy of the Notice of Appeal, (1988) 488 US 920. Appeal dismissed as to all individuals other than Plaintiff Akins; original decision reinstated as to Plaintiff Akins in Akins v. Board of Governors, 867 F.2d 972 (7th Cir., 1988). 94. In the UK, such a person would be known as an 'invigilator'. 95. 188 F.3d 633 (5th Cir., 1999). 96. Schaer v. Brandeis University 735 N.E.2d 373 (Mass., 2000). 97. 731 F.2d 529 (8th Cir., 1984). 98. Three students were suspended; one was given the option of resigning in lieu of expulsion; and one was placed on probation. 99. The committee is made up of the Dean of Students, two faculty members, and three students. Four votes are necessary for expulsion. 100. Citing Horowitz, which might well be less than solid authority for the Appellate Court's conclusion. Horowitz was dismissed for her lack of clinical skills and competencies, not academic misconduct. 101. 666 F.2d 761 (2nd Cir., 1981). 102. (1979) 442 US 397. 103. Davis is the seminal decision on this issue in disability law and education law, and established the basic rule that a university is not required to waive the fundamental curriculum requirements of a medical degree programme as a means of accommodating the disability of an applicant who asserts that s/he is 'otherwise qualified' for admission to the programme. 104. 666 F.2d 761 (2nd Cir., 1981) at p. 775. The operative terminology would be different under the Americans with Disabilities Act, but the analytical approach would be the same, and Davis would remain intact on the issues of fundamental curriculum requirements and fitness to practise. 105. (1978) 435 US 78. 106. 666 F.2d 761 (2nd Cir., 1981) at p. 776. 107. This judgment may, indeed, include an evaluation of the applicant's academic and experience-related qualifications, compared to other applicants, in a selective admissions process. 108. 666 F.2d 761 (2nd Cir., 1981) at p. 777. The Court explained that NYU's concerns would legitimately include the safety of Doe herself, other students, physicians and patients, as well as the potential civil liability of the University for negligently exposing such persons to unreasonable risks in a medical environment. 109. 666 F.2d 761 (2nd Cir., 1981) at p. 777. 110. 659 F. Supp. 662 (W. D. Tenn., 1987). 111. Affirmed in part, reversed in part, Doherty v. Southern College of Optometry, 862 F.2d 570 (6th Cir., 1988), certiorari denied, 493 US 810. On appeal, the 6th Circuit also held in favour of the College on Doherty's claim that the College's modification of clinical proficiency requirements breached its contractual obligation to him regarding requirements for graduation from the programme. Doherty remains important for its interpretation of Davis to hold that a college is not required to waive what it determines, in its professional judgment, to be an essential function subsumed by clinical study and practice—even if the function plays a limited role in the practice area in question, and might not be characteristic of all practices. See also Alexander v. Choate (1985) 469 US 287, qualifying Davis by suggesting that 'reasonable accommodation' principles do apply to the institution's academic programme. 112. 388 F.3d 656 (8th Cir., 2004). 113. See further Birtwistle, T. & Askew, M. (1999) The Teaching and Higher Education Act 1998—impact on the student contract, Education and the Law, 11, p. 89. 114. See Farrington, D. (1998) The law of higher education (2nd edn.) (London, Butterworths), p. 307. 115. See, e.g., Moran v. University College Salford (No. 2) (1994) ELR 187. 116. Higher Education Act 2004, Part 3. 117. (2000) 3 All ER 752, CA: 'it is now accepted that a student starts in a contractual relationship with a university …" As quoted in Halsbury's Laws of England, 15(2), para. 838. 118. (1994) ELR 187 at 194. 119. (2000) 3 All ER 194 at p. 212. 120. Samuels, A. (1973) The student and the law, Journal of the Society of Public Teachers of Law, 12, 252–265. 121. (2001) EWCA Civ 641. 122. For a fuller account of the case law emanating from the distinctions between the types of universities, see Kaye, T. (1999) Academic judgement, the university Visitor and the Human Rights Act 1998, Education and the Law, 11, p. 165. 123. All publicly-funded institutions receive some private funding, typically in the form of sponsorships or endowments. But only one, the University of Warwick (which has many American donors), comes close to receiving half its income from private sources. 124. Bodies such as the Royal College of Art and the Royal College of Music also have a Charter, but they are not universities. 125. Thorne v. University of London (1966) 2 QB 237 (CA). 126. (1985) 3 All ER 156. 127. See Farrington, op. cit., Note 7, para. 7.21. 128. Thomas v. University of Bradford (1987) 1 All ER 834 (HL); R. v. Lord President of the Privy Council ex parte Page (1992) 3 WLR 1112 (HL). 129. Oxford and Cambridge Act 1571. 130. R. v. Manchester Metropolitan University ex parte Nolan (1994) ELR 380 (QBD); R. v. University of Cambridge ex parte Evans (1998) ELR 515 (QBD). 131. This section draws heavily from Kaye, op. cit., Note 108. 132. (1994) ELR 380 (QBD). 133. (1994) ELR 380 at pp. 388–399. 134. (1994) 1 All ER 651 at pp. 669–670. 135. (1969) 2 QB 538. 136. SI 1999 No. 2083, giving effect to the European Council Directive 93/13/EEC (as amended). 137. Kaye, op. cit., Note 108, 178–179. 138. R (on application of Varma) v. HRH The Duke of Kent (2004) EWHC 1705 (ADMIN), (2004) All ER (D) 293 (Jul) para. 26. 139. Higher Education Act 2004, Part 2. 140. Higher Education Act 2004 (Commencement No. 1 and Transitional Provisions) Order 2004, SI No. 2781. 141. Curtis, P. (2004) Ombudsman reveals secret world of student complaints, The Guardian, 25 November. 142. Section 12(1)(a). Other provisions deal with contracts formed between two businesses and with contracts involving the sale of goods or hire-purchase, which are obviously not relevant to the student–university relationship. 143. Regulations 3(1), 4(1). 144. Regulation 6(2). 145. Regulation 8. The rest of the contract continues to bind the parties if it is capable of continuing in existence without the offending term. 146. Regulation 5(1). 147. Phelps v. London Borough of Hillingdon (2000) 3 WLR 776. See also Birtwistle, T. (2002) Liability for educational malpractice, Education Law Journal, 3, p. 95. 148. Unreported, 2003. 149. See, for example, University of East Anglia v. Hanuman (unreported) 17th August 1999, where the Court of Appeal quashed the award of a sum against a student which a county court had made without foundation. 150. Section 13(3). 151. Section 13(6). 152. Section 14. 153. In fact, Anglia Polytechnic University: see OFT (1998) Unfair contract terms, Bulletin No. 5 (London, OFT), p. 20. 154. OFT (1998) Unfair contract terms, Bulletin No. 6 (London, OFT), paras. 1.14–1.15. 155. The regular OFT Unfair contract terms Bulletins may be downloaded from the OFT web site at www.oft.gov.uk/News/Publications/Leaflet+Ordering.htm. 156. ESIB, Brussels, 18 November 2001. 157. Thomas v. University of Bradford (1966) 2 QB 237 per Lord Diplock at p. 243. 158. See, e.g., R. v. Manchester Metropolitan University ex parte Nolan (1994) ELR 380 (QBD); Carboni v. Meldrum 1996 US App. LEXIS 31321 (4th Cir., 1996).