External examining should no longer exempt universities from proper scrutiny

Originally published on wonkhe

It’s been good this past week to see issues around external examining debated on Wonkhe – but missing from the debate has been external examining’s role in protecting (or failing to protect) students’ interests.

One of my favourite ways to wind up HEFCE when it was dabbling in the “student interest” (around 2012-13) was to suggest that its ‘secret list of universities facing collapse’ would have to be made public if the body was truly operating in the student interest. Of course, they never released it because, as the great and the good know best, the only way to protect the student interest is if everything is kept secret.

The ‘we know best’ attitude is frequently invoked by elders trying to evade scrutiny in ancient sectors – Parliament, the BBC, the law – until the position looks so unjustifiable in the twenty-first century that a scandal can easily engulf them.

We operate in a mysterious world, where basic rights, redress or natural justice are still missing where elsewhere they have become established. This systematic letting down of students is justified by the need to protect sacred cows such as ‘academic freedom’ and ‘academic judgment’. Such concepts are woven into the mythical romance of higher education, yet they increasingly look like straw men. Or even justifications for bullying the indebted and powerless out of getting what they’ve paid for.

It is bad enough that it has taken the Competition and Markets Authority’s intervention to expose just how weak sector-owned regulation was in ensuring students were not mis-sold on their open day. But sadly in their search for a comparable product, the CMA’s guidance lazily picked the easy consumer products – buildings and course content – rather than the more subtle failures in service. The CMA missed a core aspect of that service: the development of and maintenance of academic standards, against which student work is assessed, degree classifications issued, and life chances enhanced or restricted.

Given that the marking and grading process has such a huge impact on whether a student will ever pay back their fees, the passenger on the Clapham Omnibus might reasonably assume that if marking is not being done effectively or with due care or attention, a student might be able to exert a challenge. Yet we know they can’t. Because of ‘academic judgment’. Because ‘reasons’. Literally because ‘we know best’.

Back in 2010, David Palfreyman described immunity from judicial scrutiny on the basis of academic judgment as UK higher education’s “get out of jail free card”. Palfreyman argued that similar magical defences of expertise in other sectors have rightly disappeared, particularly where service users can demonstrate that the supplier of the service has failed in their contractual duty to perform a promised service with reasonable skill and care.

Given that educational outcomes are co-produced, it is, of course, reasonable for universities to argue that judgments have to be able to be made, lest every failing student vexatiously blame poor teaching or unfair marking. But surely the defence disappears if the assessment was carried out without reasonable skill and care, and the system designed to assure and maintain those academic standards in that assessment was poor or failing? If that was the case, surely students would be able to sue?

There is sufficient evidence to be concerned that this is indeed the case. UCU has shown that teaching staff are having to do more marking and assessment outside of reasonable working hours. If assessment and feedback have not been palmed off onto postgraduate research students, then it’s probably being done hurriedly against a deadline set by a pro vice chancellor that needs to eek out an extra point or two on the NSS.

And when it comes to external examining, HEFCE’s recent review found that “empirical research provides clear evidence of the inconsistency and unreliability of higher education assessors… academics … have little knowledge of the difficulties and complexities of reliable marking”, and “they … lack experience of providers across the sector”, “receive limited support for the task from their own institutions”, and 10% had experienced pressure ‘not to rock the boat’.

Dismissing complaints on the basis of higher education staff’s seemingly magical capacity for academic judgment maintains the sector’s outward stance of ‘we know best’, while simultaneously admitting in reports, initiatives, and training pilots that actually, we don’t know best at all. That lawyers, surgeons, plumbers and social workers long ago lost this flimsy defence, but academics retain it in the plain sight of systemic failure, is quite astonishing.

Katie Akerman is correct when she points out that there are “three fundamental flaws” with the external examining system. What she misses is that it’s probably only this wispy justification that keeps the bulk of student complaints out of court altogether.

So that’s the real test for the new Office for Students. Of course, it matters whether its board has a student on it – I wouldn’t do the job I do if I didn’t fundamentally believe that students are capable of discharging governance duties in HE with more than reasonable skill and care. But regardless of its title and governance, when it concludes like others before it that the secret list must remain secret and that academic judgment is sacrosanct, it will confirm again that it is not an office for students, but for the interests of universities.

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