Wednesday, 6 August 2014

On regulating student behaviour

Mike Ratcliffe has been posting some wonderful photos on twitter, from Freiburg University’s 1497 student regulations.

Thanks to Mike Ratcliffe for letting me use this image
I’ll leave you to look at the other pictures themselves in Mike’s Twitter feed, but here’s some of the text of the regulations:

No one shall have the right to open locked doors and windows in the house of wisdom
Dice, cards and sticks for casting lots and all games of chance are forbidden. Disregard of this rule will be punished with the loss of wine for a week. Chess, however, is allowed
So clearly Freiburg in 1497 had a problem with people sneaking into locked rooms, and gambling. If in doubt, rule it out. Or get them to play chess instead.

Universities are steeped in this tradition.  The ancient universities had Papal Bulls and Royal Charters which gave them legal autonomy from the towns and cities in which they were located. This gave the university meaningful legal power over its students.  Universities were corporations, in the same way that medieval towns and cities were corporations with charters.

And as Spiderman’s Uncle Ben says, "with great power comes great responsibility": not only could universities discipline their students, they were responsible for their students’ behaviour and therefore had a positive duty to intervene.

But the presence of a rule does little to enforce it. Consider this from the Rule of St Benedict (the regulations for another medieval corporate body with responsibility for its own members):
This order of Matins is to be kept on Sundays in both the summer and winter seasons– unless by chance they get up late (which should not happen) and some abridgement of the readings or responsories has to be made. But great care should be taken that this does not happen, but if it does, the person whose carelessness it has occurred must make adequate satisfaction to God in the oratory.
The legacy of these kinds of rules is still to be found in universities today. There’s all sorts of apocryphal stories about Oxbridge students demanding free beer at exams, and the like, but more modern foundations also have student disciplinary regulations, with clauses like:
Any act or omission, whether occurring on University premises or elsewhere, which improperly interferes with the functioning or activities of the University or of those who work or study in the University, or otherwise improperly damages the University or its reputation, shall constitute misconduct under these Regulations, including but not limited to the following:
d.      Violent, indecent, disorderly, threatening, intimidating or offensive behaviour or language;
(These are taken from a UK university’s student regulations, but as it’s to make a general point I’m not saying which one.)

When you think about it, this isn’t really that far removed from Freiburg’s wish to prohibit the unlocking of doors and windows.  But Freiburg had the legal power to do something about it.

The Office of Fair Trading’s reports – in the last throes of its existence before the Competition and Markets Authority (SMA) took over its functions, had a fair amount to say about this. Let’s pull together two of the strands.

First, who has the power?  The OFT thought that
Generally undergraduate students can be considered vulnerable and in a relatively weak position compared to the university. Some are likely to have limited experience of contracts …
(This comes from the OFT’s February 2014 report on Universities' terms and conditions - OFT 1522. I can't find a working web link, I'm afraid)

And yet to allow a student to enrol, universities often seek to bind them to an entire regulatory framework: that is, when they sign on to study they are agreeing to be bound by regulations which cover a broad range of matters.

Secondly, what service is being provided?  Again, from the OFT February 2014 report:
We have concluded that use of and reliance upon contract terms that allow the university to withhold graduation or progression or otherwise to exclude students from tuition for non-payment of ancillary services, in a blanket fashion and regardless of the circumstances, is open to challenge as potentially unfair under the Unfair Terms in Consumer Contracts Regulations 1999 ('UTCCRs') and/or may be unreasonable under the Unfair Contract Terms Act 1977 ('UCTA').
This is beginning to sound threatening. To unpack it a little, the OFT thought that the bundle of services which a university provides for its students (for instance halls of residence, libraries, IT as well as tuition) cannot automatically be considered as one whole package, in the way that university regulations often seek to, at least in abstract.

Now, let’s be clear. The OFT wasn’t saying that universities cannot have disciplinary codes. Nor were they saying that it wasn’t ok to have library fines and the like.

What they were saying was that universities need to sort out their contractual relationship with students. That means a university understanding clearly what is covered by its educational offer; and having a clear contract for that (which students can understand and which they can access if they want to). And understanding what other (ancillary, to use the OFT’s word) services it provides, and recognising that these are a separate contractual matter from a student’s registration at the university.

This sounds like a more consumer oriented approach, which will sit badly with the culture of higher education and the classroom. But it has the virtue of relating to today’s legal framework, not that of 15th century Freiburg. Perhaps it’s time for universities to review their student contracts and the framework within which they sit.

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