UUK has launched work from its taskforce on Sexual Harassment and Assault, and the new guidance on a code of practice for disciplinary processes may be needed and welcomed with the changes in legislation over the last twenty years. Just as interesting is the explicit mention in the materials of students as ‘customers’ and the duty of care of universities towards their students. And whilst student campaigners might welcome the work there are potential unintended consequences when it comes to student behaviour, protest and discipline.
When it was launched Rachel Fenton, Associate Professor of Law at University of West of England, made critical remarks about the new guidance, specifically focussed on sexual offences. A major concern she has is for the ability of ‘university administrators’ to be competent to conduct unbiased decisions. This goes to the centre of the concern about the wider application of disciplinary procedures and that universities can and do make ‘life changing’ decisions such as expelling or sending down students for a range of offences. One of the ‘charges’ which universities should consider, according to the new guidance, is damaging the university’s reputation and disrupting the functions of the university. These are wide ranging charges and could touch on such campaigns as rent strikes, occupations, disinvestment and research activities associated with animal experiments and weapons development, boycotting NSS, etc. The question is whether such campaigns (which may not be formal policies of a students union) would be quasi-judicial, what would constitute reputation and to what degree had there been damage.
A university may claim it has the right to make such quasi judicial decisions which goes beyond prima facie criminal offences. Universities have a history of laying claim to such powers and goes to the heart of the relationship between students and the institution. The contractual relationship on enrolment is still the crucial relationship notwithstanding the question of fees. The new guidance mentions students as consumers (because of the fees) and therefore a duty of care, but the contractual relationship regarding teaching and learning is of ‘apprentice to master’ (Roffe v Aston).
A number of universities have an interesting relationship to contracts vis a vis the ‘academic’ contract and the ‘accommodation’ contract and conflate the two for progressing debts to the university. A response to this creative approach to contract law has been from universities that ‘it’s not illegal, it’s just unlawful’. Students sign up to the general regulations and policies of the university on enrolment. The new guidance suggests that students should be aware of the university’s policies on procedures on enrolment. That’s a tough call and should require a specific session or sessions in the first week of term- but it could be an opportunity for universities to focus on what it means to be a member of a community (and perhaps moving very slightly closer to the north american model of the transitional ‘first year experience’).
It should be remembered that the original guidance which is now superseded by UUK suggested a code of good practice known as the Zellick guidance which came into being because of the failure of a university to follow principles of natural justice rather than to protect and support the victims of sexual harassment. In the famous (or infamous) case of Kings College London and a student facing allegations of rape who requested the police be involved, the university refused to involve the police and to handle the case internally. The student refused an internal disciplinary process and handed himself over to the police who investigated, he was prosecuted and found not guilty. Meanwhile, the university had made promises prior to any procedures taking place that the student would be sent down. The result of the furore as the accused student made the case public by insisting on criminal prosecution was the Zellick inquiry and the guidance that followed that, put simply, ‘criminal matters should be handling by the police’.
As universities maintain ‘discipline and order’ on campus (and also further afield on field trips, BUCS fixtures, and Erasmus exchanges) there should be the concern raised by Rachel Fenton: how good are the university managers in handling disciplinary processes for the victims and the accused? If we make the assumption that university managers can make life changing decisions (expelling) which are equivalent to the lower level sanctions, but not that much lower, of magistrates (community service, probation, social and psychological reports, fines) then can we expect the same levels of training and support that magistrates get?
A magistrate will normally have 12 months of training, sit on the bench as a ‘junior’ with two experienced magistrates; will be appointed a mentor, have away day training sessions, self study and multicultural awareness programmes and undergo regular appraisal. My experience of disciplinary hearings has included cases of one senior academic who has barely read the procedure accompanied by an administrative support with no experience of procedures. I have also experienced thoughtful and perceptive panels too. Is it fortunate which panel you face? And none of this touches on the ethical standards and judgements remit of professional practice panels. The notion of mitigation and spent offences may not apply in these cases and non-criminal behaviour outside the university can also be ‘punished’ by exclusion.
Finally, an historical point but perhaps significant about the ‘university mind’ and student order. In 1828 Robert Peel created both the police force as we know it (the Peelers) but also the university police, known later as the Bulldogs. The Bulldogs were bona fide police officers but staff of the (only two) universities and carried warrant cards with the powers to arrest students within 4 miles of any university premises. (No wonder Endeavour Morse had problems with Oxford colleges in the 1960’s; the police needed the permission of the Master of College to enter their premises). And when were the Bulldogs and their powers abolished? In 2003.