Wednesday, 20 February 2013

Judicial Deference to Academic Judgement

I am naturally all in favour of caps being doffed to academics. But should the preferences of my ego be translated into judicial review doctrine? Two recent decisions from either side of the Atlantic demonstrate the favoured judicial approaches to review of academic decisions and some of the potential pitfalls. 

In Kwao v. University of Keele, [2013] EWHC 56 (Admin), H.H.J. Graham Wood Q.C. dismissed an application for review of a decision to award a master's degree instead of a doctorate. Notably, the judge refused to entertain the claim that the decision was irrational:
  1. It seems to me that this is a sound principle and one which must inevitably defeat the Claimant's argument of irrationality in the decision not to award him a doctorate. This court could not possibly undertake the evaluation required to determine whether the Claimant's pre-examination work and progress was of such a quality that the examiners departed from an acceptable norm and ventured into the realm of unreasonableness. Were it otherwise, the courts would be called upon to use their valuable resources to substitute academic, pastoral, or religious decisions with their own, probably, ill-informed, if not hastily formed, judgment. For this reason, I agree with counsel for the Defendant, that the primary issue of irrationality is not justiciable.
This is of one with the typical English approach to deference in administrative law, which is to remove grounds of review from consideration entirely. Given the need to defer to administrators, something akin to bad faith would have to be shown in order to justify intervention.

As a matter of principle, I would prefer to say that such decisions are justiciable but extremely unlikely to be struck down: ample evidence will generally exist to fend off claims of irrationality; there is no need for reviewing courts to take the nuclear option and mark off whole areas of decision-making from judicial intervention. An appropriately deferential approach will lead to the same conclusion. On the substance, accordingly, the result seems correct.

The decision of the Federal Court of Canada in Wheeldon v. Canada (Attorney General), [2013] FC 144 raises different concerns. Here the applicant challenged as flawed the Social Sciences and Humanities Research Council's process for awarding postdoctoral fellowships. No feedback was given to the applicant apart from numbered scores under three categories. In particular, the basis for arriving at the numbered scores was neither revealed nor explained.

Phelan J. dismissed the application:
[24]           To the extent that there is any issue of reasonableness of the decision not to provide comments or reasonableness of the mark given and denial of an award, the decision of the SSHRC is entitled to considerable deference by this Court...
[26]           The same principles are applicable to the SSHRC decision. There is a rationale for the process, there is a knowledgeable body making a highly discretionary decision to which the Applicant has no right to a specific result and there is a clear result.
[27]           This is not a situation in which a court would be justified to intervene. It is a matter about which the decision making body has far greater expertise.
The question to pose here is whether an administrative body dispensing public funds should benefit from the same degree of deference as universities making decisions on their internal affairs. 

It is not self-evident that the deference appropriately accorded to universities within the domain of their expertise should apply automatically to SSHRC's decision as to the type of process it deems most suitable to dispensing funds. It seems to me that SSHRC's decision should be subject to more rigorous scrutiny. In the end, however, the result again may be the same: given the volume of applications SSHRC receives, perhaps thorough feedback is simply impossible. Nonetheless, some reflection on the distinction between internal academic judgement and the design of award processes would not go amiss.

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