It’s the Effort that Counts – Isn’t It?

Apparently, it’s not the effort that counts when it comes to education and student achievement. A recent Supreme court decision highlighted this in finding that Universities are under no obligation to confer degrees on students merely because they put in a good effort and ‘worked hard’. See: Alskeini v Queensland University of Technology.[1]

Background:

A PHD students’ candidature was terminated by the Queensland University of Technology following his final semester in September 2019. The student contended that the University had ‘ignored all [his] hard efforts’ over the course of his PHD studies by only reporting on the negative points.[2]  

The student, in commencing his PHD, was awarded a sponsorship by the University on the condition that, where he failed to complete the degree, all sums would be repaid. The University also supported the grant of a visa permitting the student to remain in Australia for the duration of his studies. Upon the termination of his candidature, the student would become liable for the significant expenses accrued over the course of his studies.

The student commenced proceedings against the University with respect to the termination of his PHD candidature, seeking compensation and reinstatement. The court, at first instance dismissed the claim, finding no reasonable basis on which judicial review was appropriate. 

The Appeal & Decision:

The dismissal was appealed with the student broadening his claim, asserting an entitlement to judicial review pursuant to common law principles, and suggesting the existence of a contractual relationship, which the University had breached in terminating his candidature and ‘ignored all [his] hard efforts’.

On appeal, the original decision was affirmed with the court rejecting the appellants claim to judicial review under common law. The Judicial Review Act was referenced in operating to render common law writs obsolete and as such the appellant could not be successful on this point.

The court however, did find in favour of the appellant with respect to the contractual nature of his relationship with the University.

Are University Decisions amenable to Judicial Review?

The short answer here is no, ordinarily, University decisions pertaining to students and their enrollment, or academic standing do not fall within the scope of judicial review.

Specifically in this case, the decision to terminate, was not authorized by an enactment, nor was it administrative in nature and as such could not be subject to judicial review.[3]

It’s the Effort that CountsAre Universities considered contractually bound to Students?

Essentially yes, but not in the conventional sense. The relationship between a University and its students is novel in nature and can include contractual elements. In some instances, however, it will be characterized, as a ‘consensual relationship’ based upon the presence of mutuality.[4] This kind of relationship will not confer any legal rights or obligations on either party.

Courts, in determining the nature of the relationship may consider the existence of benefits flowing from a student’s enrollment as indicative of a contractual relationship.

In this case, the appellants’ submission regarding the contractual nature of the relationship was accepted with reference to his sponsorship, bursary provisions and visa support flowing from the commencement of his PHD candidature.[5]

Notwithstanding this, the Court affirmed the Universities conduct in terminating the appellants candidature due to his failure to meet the academic standard. Universities are not obliged, by contractual agreement or otherwise, to confer degrees upon students merely on the basis of ‘effort’.

Can Courts overturn, challenge or invalidate University decisions on student academic achievement?

Courts have unequivocally answered this question in the negative.[6]

University decisions involving the exercise of academic judgement remain outside the scope of judicial intervention. Justice Kirby noted the superior breadth and depth of knowledge, personnel and experience held by Universities in their exercise of academic judgement in characterizing any judicial intervention as entirely inappropriate.

The appeal was dismissed with costs.

Takeaway:

Whilst Universities endeavour to support students where they can, they are first and foremost educational institutions. As such, Universities are not required to confer academic achievements, grades or degrees merely because of a student’s good intentions, hard work or effort.

Notwithstanding the above, Universities are expected to act in good faith with respect to students, affording them procedural fairness and natural justice where appropriate.[7] 

What about Schools?

Whilst schools are, similar to Universities, established as educational institutions, their role is a more holistic and comprehensive one with respect to the rights and entitlements afforded to students.  Namely, the nature of the relationship between students and schools is undisputedly contractual by virtue of the implementation of enrolment contracts and the presumed duty of care conferred on school staff with respect to students. The duty of care owed by teachers, as opposed to lecturers necessitates a greater level of intervention and consideration where reasonably appropriate even within the scope of student achievement.

Need Help? 

Navigating the multifaceted landscape of school duties and obligations owed to students, their application and their exceptions can be complex and challenging.

If you or someone you know is seeking clarification in this regard our Schools & Education team would be happy to assist.

For more information on School-related topics, feel free to visit our website.

This article was written by Alistair Macpherson and Brittany Everett


[1] [2020] QCA 285.

[2] Alskeini v Queensland University of Technology [2020] QCA 285, [1].

[3] Alskeini v Queensland University of Technology [2020] QCA 285, [5],[8]; Griffith University v Tang (2005) 221 CLR 99, [96].

[4] Griffith University v Tang (2005) 221 CLR 99, [91].

[5] Clark v University of Lincolnshire and Humberside [2000] WLR 1988, [12].

[6] Griffith University v Tang (2005) 221 CLR 99; Re Polten and Governing Council of the University of Toronto (1975) 59 DLR (3d) 197, [206], Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988.

[7] R v University of Cambridge; Ex parte Persaud [2001] EWCA Civ 534 at [41]; Re Paine (1981) 131 DLR (3d) 325 at 331-333 per Weatherston JA.

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