There has been a student contract of sorts around since the late 19th century, but not until the mid-1960’s did it slowly begin to assume the importance it has today. My first article on the topic was published exactly 25 years ago.
This followed on from “Universities and the Law” (Conference of University Administrators/Conference of University Secretaries, Frank Mattison and myself as editors) published in 1990, the first such text since James Williams’s comprehensive “The Law of the Universities” published in 1910. James said ‘there is probably an implied contract that a university… supplies efficient tuition’ although there was very little authority to back him up as the secretive Visitors were firmly in control. ‘Efficient tuition’ over 100 years ago probably at least meant that professors gave the lectures for which the students paid, which is a topic of current interest: do you get what you pay for? But this position only became clear in 2000 in a case against a predecessor of the University of Lincoln wherein it was determined that the university [U]-student [S] relationship is contractual, based on acceptance of an offer to enrol.(Clark v University of Lincolnshire and Humberside  1 WLR 1988 (CA))
This contract has some specific features. U dictates the terms and conditions; the applicant, potential S, has to “take it or leave it”: legally this is described as a contrat d’adhésion. On accepting the offer to enrol and therefore entering into a contract, the S then agrees to a diverse range of sometimes obscure rules and regulations based on equally obscure governing instruments. With the advent of easier access to these documents via the Internet, pressure grew for a clear statement of terms to which both U and S should explicitly agree, before S actually “signed on the dotted line.” Rules and regulations would have to be in a comprehensible form, readily accessible online: S would be invited to read them – however tedious that might seem – and click to accept them, a bit like the way an online shopper expects to agree to the “T&C” before paying. A draft statement of terms first suggested in 1994 was published in Farrington and Palfreyman, The Law of Higher Education (OUP) in 2012 (pp 443-447).
HERA and beyond
This is fine as far as it goes. But with a post-HERA change in the status of S to a consumer of services, the emphasis has shifted from S simply being aware of – and accepting – that there are rules/regulations, to having some legally-enforceable right to defined benefits from U, set out in a contractual document building on the statement of terms. The benefit to S is that there is a clear expectation of what will be received in return for the eventual payment of fees. Generally, on the part of U, the contract would include what is common practice: published syllabus and learning outcomes for each course/module, defined contact hours “X” lectures, “Y” seminars, practical classes, tutorials, etc., named staff or at least details of their academic status, assessment turn-around times, examination methods, reading lists, etc.
Here, the benefit to U is that S acknowledges the level of commitment expected, agrees to respect deadlines for assessed work, understands academic integrity (plagiarism, other unethical practices), assigns copyright in written work, and so on. However, in the real world, U has to have some flexibility; even in a programme where particular subjects are required for professional recognition, there is room for incremental improvement or shifts in emphasis, the recognition the academic freedom of staff within the overall syllabus – so the contract has to allow for reasonable changes.
There are examples of such detailed contracts, for example that of University A which is written in highly legalistic language mainly stressing U’s rights; University B, by contrast admits that its “rules and regulations are complex and we do not expect you to know them all in detail. However, you need to know that they exist and their relevance to you as a student.”
No need for complexity
We might ask why the rules need to be legalistic and complex. When preparing a “complaints” report for what is now QAA in 1992, I visited a university where only the Registrar could understand the rules. Giving evidence in court, I found my university’s rules difficult to explain to the judge. Simplicity equals efficiency.
Crucially, unlike other consumer contracts (except where the terms and conditions [T&C] permit changes such as with utilities, mobile phones, etc.) U might wish to retain power to change the terms without consultation with the consumers. This is where trouble can occur. If, for example, U can without notice substitute a teaching assistant for a professor who is on leave, or spending the majority of time on projects to enhance U’s research performance, then S is not receiving what was expected: the 1910 implied “efficient” contract would be breached. The validity of any clauses permitting substitution would then be subject to question under unfair contract terms law, and understandably lead to protests by the whole student cohort. U might have advertised a particular expertise to attract students to a course, and then failed to inform the students that this was no longer available. Suitable mechanisms should be in place to address these issues and compensate students appropriately. University A in my sample does this clearly, University B less so.
Otherwise S should be clear about the T&C of any other contractual commitment they may enter into, such as accommodation, use of the IT facilities, sports facilities and so on. S should know the extent of disciplinary authority asserted by U, the procedures and possible penalties for breach of U’s “rulebook.” Until a student is actually involved in a quasi-judicial process, it may not be clear what is involved. S enforces the contract using an internal complaints procedure, and ultimately S may take a case to the OIAHE; U enforces the complaints procedure according to its rules.
Universities should adopt a version of the published statement of terms and revisit their associated rules and regulations to ensure that they are necessary, relevant and comprehensible. And they should negotiate easily understood contractual documents with existing students and make them subject to express approval by incoming students. Taking these two steps should assist universities to offer a good service to their “consumers” and avoid or at least attenuate the risks of litigation or adverse judgement by independent adjudicators.