Posts tagged student grievance

Tips for students looking for advice on misconduct allegations

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Increasingly, students are calling lawyers when their degrees are in jeopardy. 

On a fairly regular basis, students at every educational institution are accused of academic or non-academic misconduct.  This includes cheating on exams, copy-and-pasting on essays without attribution, harassing another student, and so on.  Often, the professor or other staff member who notices or hears of it will let it go without a big fuss, but occasionally (and this varies by institution) a formal dispute resolution mechanism will be triggered, which involves potentially disastrous results for the student.

For example, the Office of the University Counsel at the University of British Columbia (UBC) shows comprehensive annual reports that detail the cases that went before UBC’s disciplinary committee.  In 2010/2011, 39 students were brought before the committee; only one student among them appears to not have been disciplined in some way or another.  In 2009/2010, 61 were accused and 58 were disciplined.  Many of the penalties were letters of reprimand, zeroes in a course, assignment or exam, or suspensions from UBC.

Each of those penalties can mean something different depending on the student, and they are there for a reason: if do something wrong, then you accept the consequences.  The president of each university has the legal authority (BC Laws) to impose disciplinary measures on students for academic and non-academic misconduct.  But the right safeguards have to be in place to ensure the punishment fits the crime, and so students are entitled to procedural fairness, which includes, generally and to varying degrees:

  • the right to be heard – this means the student must be able to participate meaningfully in the disciplinary process, to know what they are accused of, why and by whom, and to have a reasonable opportunity to respond to those accusations and address any supporting evidence; and
  • the right to be judged impartially – this means the student must be heard without bias, otherwise the right to be heard has no value.  As a result of this, many universities have multiple member panels composed of professors from various different faculties to reduce the likelihood of bias dictating the outcome.

Because of the implications of disciplinary measures on a student’s future, the legal requirements of procedural fairness in this area include the right to an appeal, which for universities means the right for the student to have the disciplinary committee’s decision reviewed by another committee of the university senate or the senate itself.  Also, there is a right to be represented or assisted by legal counsel, which few students can actually afford but which can be incredibly important depending on the circumstances.

These procedures don’t only have to be procedurally fair, they have to be substantially fair too.  The process is meaningless if the outcome is completely illogical or disconnected from the facts and arguments presented. 

These rules are reviewed in this recent decision (CanLII) from a court in Newfoundland involving Memorial University and this one (CanLII) from a couple of years ago involving UBC.  Students and universities regularly go through these procedures and wind up in court, where more often than not the judge defers considerably to the university.  Getting to that point costs the university a lot, so neither party really ends up happy in the end, which makes it essential for everyone involved to devote their resources to resolving these issues early on.

Universities, for their part, know this is simply a fact of doing business.  Students break codes of conduct all the time, so the right process has to be there and the issue has to be confronted.  The average student, however, will likely never have to know much about this part of the university experience, and if they do get a letter or email with the bad news there is a strong temptation to deny it’s a problem, to procrastinate in dealing with it or to think they can handle it on their own.

Big mistake. 

Instead, here are some general suggestions on how a student should approach the issue:

  1. Understand as soon as possible what is going on and prioritize it.  If a professor or anyone else has accused you of doing something wrong, try to speak to them.  Ask for a meeting – soon.  Review any correspondence you have received and think seriously about how to respond, especially if the professor or the university seems to be unaware of a key piece of information.  Be active and do not let it sit.  Confront it and make sure you do whatever needs to be done in the right time.  Look over your university calendar to see what the allegation means and how the process is supposed to unfold.
  2. Connect with a student advocacy office.  Most universities have relatively helpful advocacy centres generally maintained by student societies where students accused of misconduct can be assisted by a student advocate, who is often a law student.  For example, have a look at the AMS Advocacy Office site at UBC.  
  3. Try to understand where the university is coming from.  One of the hallmarks of maturity is putting your feet in someone else’s shoes.  Most people do not go through life looking for a fight.  Most university employees, including professors, believe in education; they want good students to get good grades and then to get good jobs and lead happy lives.  On the flip side, they want bad judgment to meet bad consequences; to show students that rules have meaning; and to prove to themselves, their superiors and their colleagues that they have integrity and are tough but fair.

If you found the advocacy office unhelpful or think you need further advice, it may be appropriate to call a lawyer with experience in the area.  Keep the following points in mind:

  • You get what you pay for.  University advocacy services are free, but lawyers are not.  They are professionals outside the university with years of legal training and experience.  It cost them a lot to get there, and their services have a value determined by the marketplace.  You can surf legal or university websites all you want, but an hour with an expert can give you infinitely more.  Also, older lawyers generally cost more than younger lawyers.  You have to do your own cost/benefit analysis.
  • Understand how lawyers work.  Most lawyers charge by the hour for their services.  This includes telephone conversations, meetings, doing research – any time they spend working for you will wind up on a bill.  Multiply that time by their hourly rate (which you should ask for in advance) and you end up with the amount you will have to pay, plus taxes and disbursements.  They need certain personal information from you, like your name, telephone number and address, and will usually insist on a retainer payment before spending much time. 
  • Try to make their job as simple as possible.  To cut down on lawyer fees, make sure you are as organized as possible and can clearly explain what you want from them.  Be prepared for meetings or scheduled telephone conversations by organizing documents or writing out what you want to say or ask in advance.  Always leave messages if you call them, and try to respond as promptly and exhaustively as possible to everything being discussed.
  • Listen to the caveats and disclaimers.  If meet a lawyer at a party, run through your circumstances over a beer, and then ask whether or not you are in the right, you can almost be sure that you shouldn’t bank on the answer.  That’s like asking a doctor for a diagnosis while sky-diving.  Legal services, like medical services, need to be comprehensive and delivered in the right setting to have any significant value.  Cutting corners will not get you far and shouldn’t help you sleep better at night.  A good lawyer will toss in enough caveats and disclaimers to avoid sounding awkward (e.g. “this is information, not advice”, “I can’t really give you an opinion without looking at the documents”, etc.) – pay attention to those.

Hiring a lawyer does not mean they can work magic or change the past, but it does mean you will have someone in your corner with expertise when it comes to your rights and obligations as a student.

Ontario court declines to characterize student grievance with U of O as contractual dispute

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Should the courts have the authority to resolve academic disputes between students and their universities?

On the one hand, everyone deserves to have their dispute heard by a competent adjudicator, particularly students who feel they have been wronged by their educational institutions.  If the courts don’t have the power to intervene in academic affairs when a true injustice has occurred, then what is the point of the court system and how else can a student expect to get a fair shake when dealing with a large organization like  a university?  On the other hand, if judges were expected to devote court resources to every student who didn’t the grade they felt they were entitled to on a mid-term, they would never see the light of day.  And it would prevent other, perhaps more important disputes from being addressed urgently.

It costs a lot to run a court system, but judicial efficiency is only part of the picture.  If students were told to take it to court every time they had a beef with a professor, then that wouldn’t do much good for the vast majority of students who wouldn’t have the time or the money to see it through.  The same would go for university resources, which would be overstretched.  On top of this, judges might find themselves having to make a decision about some complex area of study that they slept through or had absolutely no interest in during their own university days.

For these and other reasons, courts have repeatedly drawn a fine across what the types of disputes arising from university affairs they devote their attention to, and instead have encouraged universities to devise a system of internal procedures for allowing students to be heard without needing to march down to the courthouse.  The basic rules are set out in this post, but I will summarize them as follows: anything related to purely internal matters, like a claim about an academic issue (e.g. the decision of a PhD panel), must be reviewed by internal university bodies first, and only if there is a significant unfairness in those proceedings will the courts take a look and perhaps impose a different decision.  Claims about a university breaking its contract with a student, about a university’s negligence causing harm to a student – those items will get the full attention of the courts, as if the contract or tort was set in any other context.  In those cases, the thinking goes, the university has less specialized knowledge and is acting more like any other party in a common dispute.

The Ontario Superior Court of Justice released a judgment last month in Karam v. University of Ottawa (CanLII) that briefly touches on many of these issues.  The student in this case was hoping to graduate with a Bachelor of Commerce and a specialization in accounting, which requires that he get a certain grade point average in accounting courses.  The dispute turned on whether a particular course did or did not qualify as an accounting course.  The student, in one corner, felt that it was, in fact, an accounting course, and his grade in the course entitled him to the specialization in accounting.  The university, in the other corner, felt that the course did not make the cut, and despite the student’s grade the specialization was not deserved.

The student took the matter to the University of Ottawa Senate Appeals Committee, which is empowered to review and deal with these sorts of decisions, and it found in favour of the university.  The student sought judicial review (Wikipedia) of the decision; a “judicial review” is a type of lawsuit that invites a court to review the decision of a government agency or administrative tribunal with variable levels of scrutiny, which range depending on how much deference the agency or tribunal is entitled to.  In particular, the student claimed this was a decision about whether the university had honoured their contract, which should attract a high level of scrutiny by the courts and relatively little deference, while the university claimed this was about a basic academic issue (i.e. when to award a certain degree), and little scrutiny and much deference should be applied.

The student failed:

The applicant submits that his entitlement to be awarded a degree with accounting specialization is substantially a contractual issue, thus attracting a correctness standard of review.  We disagree.  We accept the respondent’s argument that a substantive decision of a university body on an academic matter (in this case, entitlement to be awarded a degree), if it is open to review at all, is to be accorded very significant deference.  The standard of review is reasonableness.

In our opinion, the record before this Court amply demonstrates the reasonableness of the respondent’s decision that the applicable university regulations justify the original decision of the business school, upheld by the appeals committee, that the ADM 4311 course was not an accounting specialization course and was not eligible for inclusion in the minimum grade point average calculation.  Even if the applicant was correct in his position that the degree requirements, or explanatory information on the university website, was unclear or contained an element of ambiguity on this issue, it was for the Appeals Committee to rule on the applicant’s entitlement to be awarded the specialized degree, provided that its decision was reasonable.  As noted, we are of the view that the committee’s decision was reasonable.Jud

Judgments like Karam are important for students and universities to consider when deciding on how to deal with a grievance that does not appear to have been settled with the decision of an internal university body.

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