Real interaction between student and lecturer will die when freshers are legally bound to study, says Frank Furedi
We all know about defensive medicine. For a while now, some doctors have avoided performing certain medical procedures that they believe are in their patients' best interests to avoid being sued. The proliferation of litigation has altered the way health professionals engage with those they care for. And since they can no longer acknowledge an error of judgment, they have an incentive to cover up their mistakes. Sadly, it is not only the health profession that is afflicted by the scourge of litigation avoidance.
Defensive education has become institutionalised in British universities. In recent years, litigation has reared its ugly head on campus. In one highly publicised case in 2002, Wolverhampton University paid £30,000 to a law undergraduate who demanded compensation for breach of contract. Fortunately, the number of aggrieved students and parents demanding compensation is still relatively small. But you do not need very many cases to frighten the bureaucrats who run higher education.
"Overreaction" and "panic" describe how universities have responded to the threat of litigation. This week it was announced that Oxford University is to introduce legally binding contracts requiring students to attend lectures. Those arriving next September will have to sign a document that states they must "pursue such studies as are required of you by... any person assigned by the college to teach you".J Michael Beloff QC, president of Trinity College and the author of this contract, believes that the university has to come to terms with the modern age since "we live in a more litigious society".J The new policy adopted by Oxford merely formalises the practice of litigation avoidance that dominates campus life. For some time, undergraduates have been regarded as customers rather than as fellow students of an academic discipline. The academic relationship between student and lecturer is founded on an informal and spontaneous process of interaction. It needs to be open-ended and flexible, and it needs to yield to new experience. A contract transforms a relationship into a transaction and then no one has an incentive to give and take or to assist one another.
Worse still, the very attempt to formalise human relations feeds mistrust. It disposes people to regard one another and those in "authority" with suspicion. When students are bound to their institution by a contract, their relationship to higher education changes irrevocably. Making claims can become a sensible substitute for dialogue. Experience suggests that Oxford's new policy will not contain the rising tide of litigation. On the contrary, these formal procedures will incite its customers to inflate their sense of grievance.
But we do not need to wait to see what the impact of Oxford's adoption of defensive education will be. There is already evidence that litigation avoidance is having a destructive influence on campus life. Many lecturers have been told to regard their course outline as if it were a contract.
Some are worried about saying the wrong things to the wrong people. The act of offending a student may serve as a prelude to being sued.
Defensive education is not simply about the delivery of lectures and coursework. Increasingly it exerts a powerful influence on the way the process of examination is conducted. Grades have always been contested. But there is a difference between an informal dispute about marks and a threat to take legal action. That is why many academics feel that they are under pressure not to press a point too strongly unless they believe their case is watertight. The threat of a student appealing - and not just to the institutional procedures - frequently forces academics on the defensive.
The distortions forced on university life by the threat of litigation undermine good practice. One of the most unfortunate consequences of defensive education is that it erodes the ability to deal effectively with cheating. In some universities, academics have been discouraged from charging students with plagiarism because the institution might be sued. It is difficult to avoid the conclusion that, on occasion, administrators would prefer teachers to pretend that cheating did not exist rather than risk a legal wrangle.
Probably the most immediate consequence of defensive education is the ever-expanding paper trail that plagues our lives. Many of us now take notes of informal conversations and build up our files in case we need material as evidence.
Litigation avoidance leads to an absurd waste of time and money. Most important, it leads to a waste of our emotional and intellectual resources. Instead of focusing our energy on cultivating creative and stimulating relationships, we are now distracted by the demands of the God of Process. Defensive teaching is bad for academic life and deprives students of the challenging and intense intellectual experience that comes with an informal relationship.
Frank Furedi is professor of sociology at Kent University.