Oversight of Quasi-Judicial Processes – Senates and Boards
Universities exercise statutory power. The exercise of that power comes with obligations which may be enforced by the courts. Some of the decisions that universities make with respect to student and faculty conduct pursuant to academic integrity policies or student codes of conduct, are quasi-judicial (they act like a court or a judge) in nature and the law requires that they must be made in a procedurally fair and reasonable way. This makes absolute sense when you understand that the decisions being made have implications for academic careers and for student lives and futures.
How Do Universities Do This Work Now?
Most universities have committees of Senate (or their academic governing body) who serve as quasi-judicial bodies. These committees are often composed of academic staff and students, many of whom do not have legal training. The committees may or may not have access to legal advice. In a variety of contexts, I have seen and heard that faculty and students who serve on these bodies lack support and training. See, for example, findings we made in the context of a governance review for UBC at page 27 :
Many identify training as a primary issue. We were told by many that appeals committee members struggle with their roles … As with all governance training, the need for training is continuous as new members join and leave governing bodies. Some committee members feel unprepared and some who have participated question whether their colleagues understand what they are doing. Success may depend on having a Chair with specialized knowledge such as a legal background. We heard from some that appeals work is such a technical and challenging area that it requires specialized knowledge and expertise, and that the university should be looking to third parties to adjudicate these matters.
A failure to meet the standards of procedural fairness means the affected person can apply to the court for judicial review (a request that the court review what happened and determine if the process and the decision meet the applicable standards for fairness and reasonableness).
What Can We Learn from a Recent Case involving the University of Saskatchewan (“UofS”)?
The UofS, its University Secretary and Chief Governance Officer and its Responsible Conduct of Research Hearing Board were all recently named in an application for judicial review and the court found that the university’s “decision does not meet the requirements of a reasonable review” (para 3). A review of the case helps us to understand how challenging it can be for universities to fulfil their legal obligations and reminds us that Boards and Senates need to pay attention to how these matters are handled.
The Background
As is the case for many universities, the UofS is granted statutory power to govern its own research (including making and enforcing policies and standards). UofS has a University Council (the equivalent of most universities’ senates or general faculties councils). The Council has (like most senates) the statutory authority to establish committees, delegate authority, and make bylaws. The University Council approved a Responsible Conduct of Research Policy which, among other things, identified plagiarism and misrepresentation in a funding application as breaches of the duty to conduct research responsibly. This Policy provided that a Hearing Board (established by the University Council pursuant to its statutory power) would conduct hearings into alleged breaches of the Policy. The Policy commits the Hearing Board to acting with procedural fairness. The matter may be appealed. The University Secretary is charged to determine if there are valid grounds for appeal. In this case, Dr. McIlduff was found by the Hearing Board to have breached the Policy, and the University Secretary denied Dr. McIlduff’s appeal.
Decisions Must be both Procedurally Fair and Reasonable
The court noted that the standards of procedural fairness have evolved. The nature of procedural fairness also depends on the “nature of the decision and the process used to make it” (para 50).
In addition to running a procedurally fair process, university decisions must also be reasonable, and courts will review them for reasonableness. The courts will determine reasonableness by looking at whether the decision is justified, transparent and intelligible. There must be a rationality and an internal coherence to the decision. There must be a “chain of analysis” (para 65 citing SEIU West v. Saskatchewan Health Authority). In plain language, the decision must hang together, make sense, and flow logically. And in considering whether the decision is reasonable, the courts must pay deference to the expertise of the university Hearing Board.
The University’s Decision Was Procedurally Fair but Unreasonable
In this case, Dr. McIlduff alleged that the University did not fulfil its obligations of procedural fairness. The Hearing Board allegedly failed to consider all relevant evidence, didn’t allow her to respond to new evidence when it was presented in rebuttal or allow her to present evidence about the complainant. The court noted that the Hearing Board had authority over its own processes including deciding what evidence to admit. The court found no breach of procedural fairness.
The court found, however, that the Hearing Board decision was unreasonable and it “fell short” and “failed to meet the hallmark requirements of justification and transparency” (para 68). Based on what the court said, we can glean that the Hearing Board didn’t make appropriate factual determinations based on the evidence and information, and it failed to present “through an internally coherent and rational chain of analysis, whether the factual determinations so found establish the essential elements in the definition of the breach”. In the case, the Hearing Board was required to assess the definitions of plagiarism and misrepresentation in the Policy, make findings as to what happened, and then decide whether what happened was plagiarism and/or whether it was misrepresentation. There can be no vagueness about this exercise. When it decided to consider both allegations together, find that the Dr. McIlduff did not exercise “sufficient care in her paper and her funding application” and conclude that this was a “breach of the RCR Policy in the form of plagiarism and misrepresentation” (para. 36), the Hearing Board failed to be transparent in its application of the policy and failed to justify its conclusions. The court also noted that the University Secretary failed to apply a reasonableness assessment to the Hearing Board decision (para.39) when considering the appeal.
What Should The Senate and Board be doing?
University Senates and Boards should understand that doing quasi-judicial work well is very difficult and requires considerable expertise and judgment as well as excellent writing skills. Whether or not a decision is taken to court for review, failing to deal fairly with students and staff is damaging to the university’s relationships with these key constituents. If these matters do proceed to court, they are also costly and create reputational risk. In addition to the cost of the time, the legal fees for the representation of the university, and the stress caused to those involved in the process, the court ordered the university to pay Dr. McIduff’s legal costs. There are no financial damages payable by the university in the context of this type of legal action. The remedy is that there will be a new hearing of the matter within the university and by a differently composed hearing board all of which represents more cost in time and resources for the university and for those involved in the process.
For all these reasons, although Senate typically has the responsibility to oversee these quasi-judicial processes, both Board and Senate should be interested in ensuring that they are run well.
To run quasi-judicial processes well, universities need knowledgeable and well-trained members of hearings bodies. In the UBC review cited above, we recommended that the university move away from treating the quasi-judicial bodies as committees of Senate (where there are democratic processes for selection and limited terms leading to frequent turnover). We recommended a move to a skills-based composition using a roster of trained panel members. Staff who support these hearing bodies should have appropriate training and access to legal advice. We acknowledged that this meant that students would likely not be participants on these panels but we see a role for students on a Senate committee that oversees the quasi-judicial bodies and monitors trends, timelines and outcomes to ensure that the university is able to see if there are troubling patterns in the handling of appeals, and perhaps to support the development of tools for students engaged in the appeal processes (many of whom also struggle) (see pp. 27 to 30 of the Review – link above). We felt that improved processes and fairness would be more beneficial to student participants than having inexperienced panel members serving. Senate should be ensuring effectively run processes, and the Board should be satisfied that Senate is paying sufficient attention to these matters (perhaps part of Senate’s annual report to the Board?) such that universities can ensure fair processes, preserve internal relationships, and minimize the risk of potentially embarrassing and costly litigation.