Deech, R --- "The student contract" [2009] LegEdDig 41; (2009) 17(3) Legal Education Digest 39

• The student contract

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The student contract

R Deech

43 (1) The Law Teacher, 2009, pp3–13

We have heard much in recent times about the true function of higher education – to prepare students for the real world of industry, or of commerce; to supply the nation with the economic manpower that it needs; to foster research and development. All of these things are true, but there is one overriding purpose and that is to teach, to hand on the lessons learned in earlier generations and the wisdom of the faculty to a new generation. To prepare them for citizenship, to give them ambition, to help them develop a purpose in life, a sense of their place in society, the ability to contribute to the betterment of all our conditions by the use of the law with which they are involved; intelligibility and articulacy; a sense of responsibility and awareness of the value received in higher education and an awakening and stretching of the mind; the chance to discover what they love in higher education, and I use the word advisedly, for to pursue a course because it will earn you a living or because your parents want you to, is more likely to end in failure and frustration than the pursuit of a topic that is compatible, for on that topic you may spend the rest of your life. And you can readily see that much of the unease expressed by today’s students comes from a misunderstanding of the purposes of higher education. We teachers hold the remedy in our hands by remembering and insisting on its true purposes: education not training, knowledge not skills, teaching not rote learning. You have all, I am sure, like me encountered former students who greet you with a recollection of something you once said or an observation made during teaching; but I have never yet met a student who remembered me, or anybody else, for their research or administrative gifts, valuable though they may be in other contexts.

I would therefore like to look at the student contract in the context of university development today, and put it to you that the current interest in the student contract is a symptom of changes taking place in the relationship between the university and the student. The student contract, existing or in contemplation, reflects the public understanding of the availability and function of higher education, of the personal relationship between each student and his or her lecturer, between parents and universities, teaching staff and universities, and between employers, government and higher education providers. The benefit of the device of the contract is that it may be used to express the values and aspirations of the parties in a form which had never crystallised before; it may express their respective rights and responsibilities in relation to the studying and teaching experience, and give clarity in a competitive market enabling comparisons to be made about the university offer and the hopes of the student. The less favourable view of the contract is that it represents the increasing commercialisation of higher education in the sense that students, their parents or the government are paying considerable sums for it and see it as a benefit that is bought.

There was a time when the university was described as one’s alma mater, responsible for raising certain young people to adulthood and civic responsibility. Today the student sometimes seems to want only a good degree result as a passport to the next step in life. On the part of the university, it still wants success for its students: the lecturers have chosen them, have invested effort in them, and the success of the students in future life is the success of their teachers. Consequently, complaints tend to relate to the paper qualifications that the student will receive on leaving, for that is the one focus.

Sometimes students assert that, having paid for the course, there is a legitimate expectation of a good result, and maybe that is what corporations demand when they invest in university research. Universities cannot help but reflect a society where there is a culture of complaint and litigation, an emphasis on confrontational demands, and resolution by conciliation or alternative dispute resolution. Diversity is a major issue because of the presence of so many international and ethnic minority students. The University and College Union (UCU) has forfeited respect as a professional body by promoting an academic boycott. Hence, as elsewhere in society, a document setting out rights and duties seems logical.

Any law student will know that it is clear that there has always been a contract, albeit informal and sometimes unwritten, between the student and the university, going back several centuries. Therefore what is new now is that universities feel the need to gather together in one formal and public document the implicit and explicit terms that already exist, and some new ones, so that the attention of the student is drawn to them, and they sign up to an express arrangement that is intended to have full legal consequences and to be legally binding on both sides.

Current British university contracts range in length from three pages to 10, and other relevant documentation may run to hundreds of pages, that is, the examination regulations, student union rules and accommodation terms, etc. About nine British universities (Oxford, Chester, Christ Church Canterbury, Kent, Bristol, Robert Gordon, Aberdeen, Arts and Napier) now have a formal contract, 17 are considering it, more than half of all British universities are not considering it, and about 20 (including Newcastle and St George’s) have a more informal broad declaration of expectations, sometimes called a ‘Charter’. Already the issue of a standard contract for all British universities has been lost, because they are going their different ways and students cannot argue that the same level of provision is to be expected at each university.

So far, the idea of a new formal contract in one document is not popular with British students. Some students think that the new contracts have been designed to give more legal protection to the university against claims that the students might make against it for failure of provisions. Some students say that their claims relating to, for example, poor teaching, will be defeated by the university’s assertion that the student did not take up all that was on offer to help him or her and that therefore the student did not fulfil his or her side of the bargain by full participation. Students say that there was no consultation about the drafting of the contract, so that the resulting terms favour the university, not the students, by placing heavier and more specific responsibilities on the students than on the university. Students particularly dislike detailed contract terms about attendance at lectures and the handing in of coursework (terms that were implicitly dominant in universities 50 or more years ago.) They say that this inflexibility does not allow for the pressures on the modern student, who has to pay higher fees, and who may have to work to earn money and who may have childcare responsibilities, and thus finds university schedules almost impossible to comply with. Recent findings showed that 38 per cent of students who have jobs miss lectures, and 21 per cent of them fail to hand in coursework on time. Hence the increased reliance on the handout and the Powerpoint slides, so readily transmissible. Nevertheless, the first set of proposals to emerge from the new National Students Forum in October 2008 called for universities to publish the contact hours and assessment styles that students can expect on their courses. In general the students in this project wanted more information, and they wanted it in a formal style. It could therefore be asserted that, unsurprisingly, students are not averse to contracts containing their rights, if not their duties.

Students complain that contracts are one-sided. The contracts are not, in my view, as one sided as they seem, for students acquire the right to complain if they do not get the promised facilities and, as has been said, they do not see themselves as bound to attend all the lectures if the schedule is unreasonable in their view.

There is a general background and context of English legal principles which will apply to any contract, written or unwritten, and which serve to put a different interpretation and effect on the words that students sign up to. For example, a child under 18 is not bound by a contract unless it is for his or her benefit. Students are deemed to be consumers for the purposes of the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999, and some terms of the student contract might be unlawful and unenforceable under these laws. The 1999 Regulations focus on terms that are not individually negotiated or where there is an imbalance between the parties, which will fit the university-student situation. This means that there is an element of uncertainty about some parts of the student contract, because one will not know whether it is ‘unfair’ until there has been a declaration by a court, or possibly the Office of Fair Trade, and the courts might imply some terms or flesh out others. Everyone is subject to the law of tort, and the universities’ duty of care is of an unknown extent and not likely to be embedded in the contract. It is likely that there is a duty of care to provide tuition to generally acceptable standards, to ensure that placements and years abroad are adequately safeguarded, that welfare issues are attended to, for example, obvious distress or mental ill health, steps taken to avoid sports injuries and ensure that health and safety regulations are observed. Universities need insurance to protect against health and safety claims; indeed universities need general extensive insurance cover to protect against all sorts of legal claims. Insurance brings with it its own complexities in that insurers may seek to determine the university’s behaviour where there is a student claim against it, or may interfere too much, from a natural justice point of view, in a panel hearing about a student.

There are many other general laws which universities and students are subject to and I can touch on only a limited number. I wonder whether universities realise quite how much legislation affects that relationship. Universities were singled out for freedom of speech guarantees after a number of incidents in the 1980s where right wing speakers were heckled and jostled on campus visits. My experience at the Office of the Independent Adjudicator for Higher Education (OIA) gave me the impression that universities may not realise that the scope of freedom of speech within the law has been narrowed in recent years by for example the Terrorism Acts of 2000 and 2006, the Racial and Religious Hatred Act 2006 and the Protection from Harassment Act 1997, so that it is now a sensitive job to pick out an avenue for free speech between left and right. Universities and students have special relationships in relation to discrimination. The requirements made of university are complex and proactive and present a sensitive area of dissatisfaction and the need for interpretation.

Other Acts inadvertently have significant effect on the student-university relationship: the Protection from Eviction Act 1977 as it affects the student room; the Data Protection Act 1998 (DPA) and the Freedom of Information Act 2000 (FOIA). The consequences of the enforcement of the last two on universities can hardly have been considered when they were passed. The DPA enables students to obtain from the university copies of the documentation relating to them personally, including references and the comments of examiners on their scripts. Under the same law students’ and alumni consent must be obtained before the university processes and obtains sensitive personal data. The provisions of the DPA have ended the practice of publishing complete lists of degree results in Oxford (quite unnecessarily in my view, as it is not personal information) and have rendered written references next to otiose as well as legally sensitive. The FOIA has opened up university records and files to students and brought to light much general and statistical information about examination and general policy that informs the student’s view of whether he or she has been fairly treated.

From this very limited survey of some of the general laws that affect universities, it can be seen that quite apart from any student contract and its terms, there is an ever increasing burden on universities of compliance with the law, and the disclosure enactments help students to get the information they need to file a claim.

Judges may revisit a decision by a body within the university to check whether it is unreasonable or unfair or outside its powers. This means that the universities must operate all their powers and procedures according to the principles of natural justice (some of the gateposts are always on the move), which are unlikely to be well known to university staff. Universities, understandably, are sometimes not fully aware of the requirements of public law and anti-discrimination law, and their expenditure on legal advice and litigation is considerable.

I would conclude that the contract is useful as a general indication that the relationship between students and universities is a special and complicated one and above all one where each side must make a contribution. The contract that spells out the contribution to be expected from students is useful to dispel the notion that university education can be ‘delivered’ in a passive one-sided fashion. It is also uniquely a contract with no fixed outcome, because the quality of the experience in the end is determined not only by the facilities and teaching offered by the university but also by the aptitude and hard work of the student. In this it is like a contract between a doctor and a patient, because no matter how well the doctor performs his services, the patient may not get better. It is like the analogy I frequently resort to, the contract between the member and the sports club: there is no guarantee that the member will become fit and lean even if he or she uses the facilities properly and even less so if no effort is made by the member. The formal written student contract may be blamed for entrenching a more commercial attitude, although it is more likely to be the result of the attitude that already exists. There is no avoiding an increase of legalism because, as my brief exploration of all the other laws that apply to the situation will have shown, there already exists a wealth of detailed law applying to the student-university relationship in any case, arising simply from the application and effect of the general law of the land.

My conclusion is that education may be one of a class of some major events in life which do not readily lend themselves to incorporation and control in a contract drawn up by individuals. This is because the situations are too emotional in origin, or because their progress is towards an unknown and unquantifiable outcome; or because there is an imbalance of power between the two sides which can be corrected only by state intervention; or because the issue is too important for the nation as a whole to be left to the wishes of the individual parties.

The formal written contract for education puts much power in the hands of the university, and to impose it when making an offer of higher education may be an occasion involving emotion and difficult choices by a very young person, sometimes under the age of majority. There is no guaranteed learning outcome and the personal chemistry between any student and lecturer may be variable. The contract is useful but it is not the answer to all the questions. It is unlikely that a university wishes to see the contract terms enforced by law; it is much more likely that mediation or some form of settlement is the preferable outcome. The contract is also not necessarily protective or fair towards a young person, possibly from a family with no experience of higher education and maybe with no older person to give advice at the crucial moment. That is why the jurisdiction of the OIA and other similar ombudsman-type schemes in higher education is preferable. The OIA may determine what is fair and reasonable in all the circumstances; give a remedy that is tailored to the needs of the student (not just damages, as arise from breach of contract), but possibly the opportunity to re-take an examination or repeat a year, to have an appeal re-heard or to rejoin a course. This is surely of more value than contract remedies to the student, because it is intended to give him or her an opportunity to prove himself or herself. The specialised jurisdiction of the OIA is more valuable to the university, giving it the opportunity to provide the promised teaching or correct procedural errors and retake decisions, which is better than requiring the payment of a sum of money with no corrective action.

Instead of, or in addition to holding universities answerable (for their public funding) to Parliament and the public interest, the contract focuses on consumer choice, price and competition. Enforcing individual contracts is a way of holding universities accountable for the way in which education and educational services are made available but it does not add to accountability for decisions about what type of education is being provided. Overall, the emphasis on the new formal contract may lead to more micro-management, box-ticking, checking and inspection but not necessarily to greater quality or public benefit.