A sociology undergraduate student at the University of Leeds has reached an undisclosed commercial settlement with the university after complaining that her coursework was wrongly failed because it did not blame Israel for the crimes of Hamas against Palestinians.
The student, Ms Greyman, said that she spoke with a number of lecturers who approved the subject and parameters of her case study and that she was shocked when she received a fail grade for her work. The student went through an internal appeal process with the university before pursuing a legal claim for compensation in the County Court.
In her particulars of claim, the student said the university was in breach of contract, negligent, and that its actions amounted to discrimination and victimisation. In particular, she stated that the university’s staff failed to use reasonable skill and care, in breach of contract and its duty of care with:
The student believed that she was being discriminated against because of an anti-Israel bias, which amounted to a discrimination against protected characteristics linked to her nationality, ethnicity and/or her religion, contrary to the Equality Act 2010. In addition, she alleged indirect discrimination as an anti-Israel bias would, in her view, put Jewish students at a particular disadvantage. Finally, the student said she was victimised contrary to the Equality Act 2010 on the basis that the anti-Israel bias prevented her from receiving her degree.
Religion or belief is one of the nine protected characteristics covered by the Equality Act 2010. This means that any discrimination, including harassment and victimisation on grounds of religion or belief is prohibited. Religion and belief have broad definitions. Religion includes any religion and reference to a religion, including to a lack of religion, and belief means any religious or philosophical belief, or lack of belief.
The university denied the claims of discrimination and victimisation and said that the coursework ‘was marked down for a lack of academic rigour, depth and attention to detail’.
The university denied that its marking was carried out with insufficient skill and care and instead said that the markers exercised academic judgment which is non-justiciable.
It is true that the courts have been reluctant to interfere with academic judgment. Perhaps most famously, Lord Justice Sedley said ‘any judgment of the courts would be jejune and inappropriate’ in the case of Clark v University of Lincolnshire and Humberside. Similarly, the Office of the Independent Adjudicator for Higher Education (OIA) is prevented by statute from hearing a complaint ‘to the extent it relates to matters of academic judgment’.
However, it seems that the courts are starting to become slightly more comfortable dabbling in this area. For example, in R (Gopikrishna) v OIA the judge suggested that the OIA can hear issues concerned with academic judgment where there is a suggestion of ‘procedural unfairness, bias, impropriety or the kind of administrative irrationality or perversity which the court can and does consider’. This indicates that there is a move away from a blanket refusal to engage with this subject.
There are many possible reasons for this. Some commentators suggest that it is because the relationship between a university and its students, in particular, is becoming increasingly like a customer and service provider relationship. Therefore, it is possible that we will see courts starting to distinguish between areas of cases which are purely academic judgment, and those which pertain to other things that the court might consider to be under its jurisdiction.
With recent figures showing that the OIA received a record number of complaints in the last year, as well as high-profile crowd-funded legal claims against universities, this case is just another example of the increasingly litigious climate in which higher education institutions now operate.