Trademarking the obvious in Higher Education

You might be sued for using some pretty common HE phrases

Slate has an amusing piece on universities and colleges which have trademarked seemingly everyday Higher Education phrases such as “student life” and “fast-track MBA”.

According to the piece various institutions have been granted federal trademark registrations on the phrases, presumably to stop other people from using them in any context remotely related to education. At least in the USA. The key terms to avoid:

  • first-year experience has been trademarked by the University of South Carolina

  • fast-track MBA has been trademarked by Eastern University

  • be the difference has been trademarked by Marquette University

  • cure violence has been trademarked by the University of Illinois

  • student life has been trademarked by Washington University in St. Louis

  • students with diabetes has been trademarked by the University of South Florida

  • one course at a time has been trademarked by Cornell College

  • touched by a nurse has been trademarked by the University of Colorado

  • we’re conquering cancer has been trademarked by the University of Texas

  • working toward a world without cancer has been trademarked by the University of Kansas Hospital

  • imagination beyond measure has been trademarked by the University of Virginia

  • tomorrow starts here has been trademarked by East Carolina University

Don't even think of copying this strapline

Don’t even think of copying this strapline

And it does seem that some are not afraid to go after those who use their trademarked property:

The University of Alabama has made legal threats against a cake shop; East Carolina University sued Cisco; West Virginia University sued a company selling blue-and-gold shirts (they said “Let’s Go Drink Some Beers!”—which WVU claimed was too close to their trademarked “Let’s Go Mountaineers!”).

Bizarre. Some of these are such everyday phrases it is difficult to imagine not using them on a regular basis. Although it is a struggle to imagine a context in which “touched by a nurse” might be deployed to positive effect. It couldn’t happen in the UK, could it? (It probably has.)

Universities unable to regulate guns on campus

More crimes about guns

A post here a couple of years ago noted the challenges US universities were facing in trying to address guns on campus. More recently there was news in a survey on US students’ views on carrying concealed weapons which highlighted what seemed to be quite a large proportion of students who did not object to concealed carry.

Now Inside Higher Ed reports that a Florida appeals court has rejected the right of public universities to regulate guns on campus.

Someone who posted a pic on Facebook to offer a nuanced view on this topic

The court has determined that universities, except in limited circumstances, lack the legal right to regulate gun possession on campus:

The ruling came in a case involving a rule at the University of North Florida banning students from keeping guns in their cars. But the appeals court went beyond that rule (which it rejected) to speak more generally to the right of public colleges and universities to limit gun possession on campus, as local news media indicated they do. Under Florida’s Constitution, the appeals court found, only the Legislature can make such restrictions, so most rules imposed by public colleges and universities would be invalid.

Sadly they're talking about real ones

sadly they’re talking about real ones

The university had argued that a specific exemption in Florida law giving school districts the right to regulate guns in their facilities applied to public universities as well. The appeals court rejected that argument, saying that lawmakers specify different types of educational institutions in their regulations, so that references to school districts cannot be assumed to go beyond elementary and secondary education.

As noted in the report this leaves universities “powerless” to deal with guns on campus and the decision “defies common sense.” This puts it mildly. In order to maintain a safe and secure environment for students, staff and the public, surely they have to have the power to govern the presence of weapons on campus.

Guns on (US) Campuses

Should we be pleased? Students Oppose Concealed-Carry Gun Policy on Campuses

The Chronicle of Higher Education has a report on a new survey which suggests most students are against the idea of people being allowed to carry concealed guns on campus.

As state legislatures continue to debate whether to allow people to carry concealed firearms on college campuses, a survey shows that most students oppose the idea.

The survey, conducted by Ball State University, found that 78 percent of students at 15 Midwestern colleges were against the carrying of handguns on campuses and would not obtain a permit to do so if it were allowed.

welcome on campus?

welcome on campus?

A similar majority, nearly four in five students, said they would not feel safe if students, faculty members, and visitors were allowed to carry guns.

Bringing student voices into the debate over guns on campuses was part of what drove Jagdish Khubchandani, a professor of community health education at Ball State, to conduct the survey. “Most of our laws on campus in regards to guns do not really consider student perspectives,” he said. Now “the students have spoken.”

Most of the 1,649 undergraduates surveyed thought that allowing concealed weapons would increase the rate of suicide and homicide on campuses. Those who supported concealed carry, Mr. Khubchandani said, were far more likely to be male, to own a gun, to have been the victim of a crime, and to binge-drink.

Sixteen percent of respondents reported owning at least one gun, while half admitted that they didn’t know whether their university had a policy concerning firearms on the campus.

I’ve been reflecting on this for a few days now and I’m still finding it really quite difficult to process. I accept, reluctantly, that there are entirely different traditions in the USA and Europe about gun ownership and control which mean that the terms of the debate are different. However, we are talking about university campuses here. Places dedicated to education, knowledge creation, research and dissemination. Institutions where disputes are resolved through rational argument and debate rather than violence. And yet in this US survey, the students have spoken and barely 80% of students think carrying handguns is a bad idea. Only 80%! And 16% already have a gun themselves. I just find it very difficult to understand why the scale of objection is not larger given that we are talking about higher education. What is it that enables some students to reconcile a university environment with the ownership of a firearm?

The Office of Fair Trading targets universities

The OFT is investigating universities’ terms and conditions.

The Office of Fair Trading, apparently at the request of the National Union of Students, has started an investigation into whether some of the sanctions imposed by universities on students, which may prevent them from progressing or graduating if they owe the university money, are unfair in relation to consumer protection legislation:

The OFT has opened an investigation under the Enterprise Act 2002 considering the terms and conditions used by some universities to prevent students from graduating or enrolling onto the next academic year or using university facilities if they owe monies to the university which relate to non-academic debts such as for accommodation or childcare, or if they engage in conduct (unrelated to academic performance) of which the university disapproves. It is considering whether such contract terms and/or practices breach the Unfair Terms in Consumer Contracts Regulations 1999, the Consumer Protection from Unfair Trading Regulations 2008 and certain other consumer protection legislation.

index

As reported in the Independent the NUS is quite keen on this:

The NUS vice president for Welfare Colum McGuire said: “This has been on our radar for a while and we’ve been hoping to get some action taken. We’re really excited for the full investigation.” McQuire continued: “This came to our attention from students and unions across the country.”

It will be interesting to see how this plays out. It will be particularly important that the OFT gets a clear view on the issue of “non-academic debts” some of which, whilst they may not be explicitly academic in nature, are nevertheless inextricably linked to a student’s whole university experience. The OFT will also want to learn more about the ways in which conduct “unrelated to academic performance” can sometimes have a profound and negative impact on university life and is therefore not merely a matter of disapproval.

Writing in Outlaw.com, Pinsent Masons’ legal blog, Nicola Buchanan is pretty sure that the OFT will find universities’ actions wanting and that we will need to look at alternative approaches:

The OFT will publish initial findings in October and are likely to find the withholding of degrees for non-academic debt unfair. Universities should start planning now, and should take a leaf out of commercial organisations’ books if they are to find new and effective ways to recover non-academic debt.

So we will see where the investigation goes. The cautionary note in all of this though is really “be careful what you wish for” as the alternatives to the current set up may be far less pleasant for all concerned as Gary Attle has observed in Fusion, the Mills and Reeve blog:

We do wonder whether there may be another law at work here, namely the law of unintended consequences. What will be the consequences if universities, as academic communities, are constrained in using self-help measures in appropriate situations to manage their financial responsibilities. Will it be in the interests of students if universities are forced to resort instead to other credit control measures and debt collection procedures like commercial businesses and landlords?

Surely no-one wants to end up here?

Faking it: China’s Diploma Mills

Report Reveals 100 Fake Universities (and wild chickens).

A blog post last year noted the case of a non-existent university in the USA. Now there is an interesting report on China’s Diploma Mills which has shown up a large number of fake institutions in the country:

As China’s notoriously difficult college entrance exam, the feared “gaokao,” continues to be mired in controversy, some Chinese may be tempted to skip higher learning and just obtain a diploma from one of Beijing’s several fake universities. Human resources managers looking to hire from China, be warned: If you see a school like Capital University of Finance and Economics, Beijing Economic and Trade Institute or Beijing Foreign Trade Institute while reading over a resume, they’re fake.

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In China, these illegitimate schools are called “universities of wild chickens,” and refer to institutions that have deceptive names that are similar to real, well-known universities, the main difference being that the fake ones have no licensing that allows them to even accept students, let alone reward degrees. Still, that does not stop those students who scored poorly on their gaokaos from turning to these kinds of institutions to get a fake diploma.

Disappointing really and not good news for students. “Universities of wild chickens” does sound like a very appropriate name for these outfits though.

The Imperfect University: Free Information?

Freedom of Information costs. But does anyone really benefit?

TIU

“You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.”

These are the words Tony Blair addresses to himself in his memoirs while reflecting on his government’s introduction of the Freedom of Information Act as noted in this BBC report.

Last year Times Higher Education ran a story suggesting that the average cost of FoI compliance equals £121 per request:

A study into the costs of answering Freedom of Information enquiries suggests that less than £10 million was spent across the sector last year.

When the House of Commons Justice Committee called for evidence on the effectiveness of the FoI Act, 23 universities submitted evidence, of which 18 complained about the cost burden, among other concerns.

But Jisc, the UK’s expert body on information and digital technology in higher education, tracked 36 requests in seven institutions and found that the average cost, including staff time, of answering an FoI request was £121.

According to Universities UK, higher education institutions received on average 10.1 requests a month in 2011. This equates to an average annual cost of £14,665, which across the sector’s 155 institutions adds up to £2.3 million a year.

I have to say this looks to be something of an underestimate. I asked my colleague in the University’s Governance team which deals with FoI for data for the past couple of years. The data and some examples of requests is set out below. Before we get there though you might wish to refresh your memory with a glance at the ICO guidance – it is 10 page (yes, 10 pages) definition document of what is expected to be published by universities and colleges and covers everything from staff expenses to tender procedures to CCTV locations.

logoDuring the period from 1st January 2011 to December 2012, the University of Nottingham responded to 370 Freedom of Information requests. In 24% of cases, requests resulted in non-disclosure either because the University applied an exemption successfully, defended a position of ‘over the appropriate time limit’ or the information was not held. 27% of requests received a partial disclosure of information. 49% of requests resulted in the requester being entitled to all of the information requested. Whilst we remain ‘purpose blind’ it is self-evident that the majority of requesters continue to be looking for material for journalistic purposes.

Of the 182 (49%) of requests with full responses requests were themed as follows:

Statistics  88
Supplier and contract details  35
Financial figures  25
Policies 21
Communication 2; a total of 7 emails and 1
letter were disclosed
University structure 6
Role profiles 2
Recruitment timeline 1
Research grants 1
Vice-Chancellor’s external roles 1

Supplier and contract details
We receive a large number of requests asking for details of contract agreements in place. In the main these are from competitors. Whilst these requests are an inconvenience there is no applicable exemption to this information as the ICO have made it clear that they do not consider such information commercially sensitive. The data is readily to
hand therefore significant management time is not accrued.
Financial figures
The majority of requests under this category concern library fines, IT costs, legal fees and expenses. We have received individual requests on a small number of issues including costs of artwork, car parking fees, accommodation fees and funding. This information was not considered commercially sensitive and was therefore released to the requestors.
Applied Exemptions
The most common exemption applied, particularly under partially disclosed requests, is personal data. In the main these requests concerned statistics which were so detailed and/or sensitive that disclosing the information would risk unreasonable identification of individuals.

The following exemptions have been applied, either to whole requests or partially:

Commercial interests 10
Personal Data 62
Information already published 18
Information not held 13
Legal professional privilege 1
National security 4
Intended for future publication 2
Vexatious 4

Some of those specific requests over this two year period:

  • Statistics for disciplinary actions taken against students 2010 – present
  • Statistics for Welsh domicile students
  • Student parking fines
  • University investments
  • Server Hardware Maintenance and Software Licensing Contracts
  • the number of UG Taught and PG programmes 12/13 and 11/12 that did not enrol any students
  • Number of students employed in University catering and library departments
  • Amount paid out in hardship funds over last 3 years
  • University Employee Statistics
  • FOI

  • Statistics for research staff recruitment
  • Information and statistics on student bursaries
  • Information on Microscopes Tender
  • Internet traffic
  • Statistics on parking fines issued
  • Statistics for Physics applicants
  • Information and figures relating to Common Purpose
  • Payments from the Pharmaceutical Industry
  • Statistics on changing employment patterns in the public sector
  • Information on admissions cycle for A100 Medicine Course
  • Information on English classes, student figures and fee income
  • Information on research sabbaticals
  • Information on PhD qualifications of staff
  • Information relating to the University’s parking contract
  • Statistics for students failing first year exams
  • Statistics on student housing
  • Information and statistics on student bursaries
  • Information relating to clinical trials
  • Information on Mobile Phone Contracts

Is it worth it? I am dubious. Essentially we spend a great deal of time and effort and public money responding to this stuff and I struggle to see the benefit for anyone, including the requestors. This list also doesn’t include my personal favourite of all dumb FOI requests received (it was before 2011): a request for data on reported hauntings in university buildings. Not quite as bad as the Leicester City Council zombie attack readiness request but still pretty daft. And no matter how silly or pointless such requests may be we have to treat them all equally seriously.

Back to Blair. He claims that FoI is not used, for the most part, by “the people”, but by journalists. His view is that “For political leaders, it’s like saying to someone who is hitting you over the head with a stick, ‘Hey, try this instead’, and handing them a mallet.” It sometimes feels a bit like that in universities too.

(With thanks to Sam Potter for providing the University of Nottingham material included here.)

Speaking with difficulty

New advice from the Charity Commission sows some confusion.

The Charity Commission has recently published some new guidance which is intended to help trustees protect their charities against “abuse by extremists.” This guide/toolkit though seems to offer a particular challenge to universities which are subject to legislation on external speakers dating back to 1986 which was designed for a quite different purpose.

Let’s start with the new guidance from the Commission on “Protecting your charity against abuse by extremists”:

The guide, which is available on the regulator’s website from today [Tuesday 22 January 2013], explains trustees’ duty to prevent their charity being used to promote extremist views or terrorist ideology.

The toolkit also suggests steps trustees can take to minimise risks associated with particular activities, such as organising public events and debates and circulating information.

It is aimed in particular at charities that host regular events involving external speakers, and those with educational purposes that distribute material and information. Examples include charitable think tanks and debating societies, students’ unions, schools, colleges and universities and religious charities.

OK, so far so general. But when we get to the detail of the guidance it becomes clear that the Commission things get a bit interesting. Whilst any illegal views or action is, of course, unacceptable, charities are required to consider whether allowing a particular speaker to present their views may be inconsistent with public benefit as this extract from Chapter 5, Section E of the guidance indicates:

Under charity law, charities must comply with the public benefit requirement. Views or activities which are violent or which encourage violence cannot be for the public benefit because they are illegal. In addition, there are other extreme views and activities, particularly activities which seek to radicalise or use radicalising materials which may be inappropriate for a charity to host or promote. Such views may not be in furtherance of the charity’s purposes, or may breach the rules on political activities. Other extreme views may help to create an environment conducive to terrorism. In addition, promoting views which are harmful to social cohesion, such as denigrating those of a particular faith or promoting segregation on religious or racial grounds, or which seek to radicalise by making claims to which violence is subsequently presented as the only solution may well be inconsistent with the public benefit requirement even though such views might fall well below the criminal threshold. All these pose unacceptable risks to a charity.

Ed act

But if we look now at The Education (No. 2) Act 1986 there is a very direct requirement on universities to ensure and promote freedom of speech. This dates from a time when Conservative ministers were being prevented from speaking on university campuses by the actions of well-organised groups of students and the government was therefore keen to ensure they were protected and enabled to present their views. The Act provides that:

(1)Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
(2)The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—
(a)the beliefs or views of that individual or of any member of that body; or
(b)the policy or objectives of that body.

So there is a positive duty to ensure that speakers are not prevented from speaking because of their views or beliefs or the policies of the organisation.

In addition, universities have to have in place a code of practice which sets all of this and there are further specific obligations:

A duty on every individual and body of persons concerned in the government of the institution to take such steps as are reasonably practicable (including, where appropriate, the initiation of disciplinary measures) to secure that the requirements of the code of practice are observed.

A duty to ensure that the use of any university premises is not denied to any individual or body of persons on the grounds of their beliefs, views, policies or objectives.

Whilst it is clear that the 1986 Act does not extend to speakers who break other laws or incite violence, nevertheless it does appear to require universities to adopt a rather different position to that set out in the Charity Commission’s guidance. Whilst this legislation and the Commission’s guidance are separated by over quarter of a century of change in HE and are intended to address very different challenges, the apparent conflict between them is, I fear, going to cause some real problems for universities before too long.

How to take over the world

A handy guide to global domination

KPMG have produced a useful guide to universities looking to expand their international activities. Its Guiding Principles for Global Expansion offers some sensible advice for universities looking to develop their global operations and highlights a range of motivations for doing so:

Higher education institutions around the world are responding to the increasingly compelling drivers for the continued globalisation of their market, but, when planning transnational expansion, institutions do not always take the critical steps necessary to either maximize the opportunities or to manage the associated risks, according to ‘Extending the Campus,’ a new report from KPMG International.

The professional services firm asserts that transnational growth is driven by a host of factors:

  • Emerging markets with a growing middle-class aiming to enhance their economic development by attracting foreign institutions as well as investing in their own local education capabilities.
  • Institutions in mature markets, especially those impacted by austerity measures, responding to pressure on domestic enrolment and revenues by pursuing growth outside their immediate geographies.
  • A drive for global brand enhancement (and protection) to attract the highest calibre academics and researchers.
  • Increased demand by employers and students for global skills and experience. OECD data shows that growth in the number of students opting for an international higher education was at an annual rate of seven percent between 2000 and 2010.
  • Increasing global collaboration on research activities.

An essential part of the answer is, of course, to hire some capable advisors if you’re in this game.

The full report is available here. it does contain some sensible advice and any university looking to establish a significant international footprint will undoubtedly look to follow this path in some form or other as those in the case studies in the report have done. One of the key points stressed in the report is that international partnership activity is a long game and the timescales for engagement need to go way beyond the life of the next strategic plan. It’s a well-made argument.

David Willetts on internationalisation via sharing university statutes

An interesting idea?

At the recent HEFCE Annual Conference the Universities Minister, David Willetts, delivered a wide-ranging speech which included a couple of interesting points on internationalisation:

Since becoming universities minister, I have worked hard with UUK’s excellent international office and of course the British Council in forging partnerships with other countries: with China, India, Brazil, Saudi Arabia and – in the past fortnight alone – Turkey, the Kurdistan region of Iraq, Malaysia and Indonesia. This week in London, I have already met my Chinese counterpart, and today I am meeting he science minister from India. There is a lot going on. In Turkey, for instance, I witnessed the real potential for a “system-to-system” offer – with students able to study in either country, sharing of educational technologies, academic exchanges and degree validation. The Science Without Borders initiative with Brazil is path breaking.

In Indonesia, I agreed a joint communiqué on education to develop our links with Indonesian universities – promoting two-way student mobility, institutional leadership and knowledge transfer. The likes of Nottingham University already have solid connections to Indonesian institutions. There’s room for more productive associations – in Malaysia, for example, which has more overseas British campuses than any other country.

My department is working with UUK, UKTI, the British Council and others to support our excellent universities – and private companies working in the education sector – to seize these opportunities. It means attracting overseas students here. It means more overseas campuses. But it has to go further and be a full offer from the range of players that make up British higher education today – from architects and trainers of administrators through to external examiners and shared post graduate study. We are still only scratching the surface. This is one of Britain’s great growth industries of the future. The deep respect for our universities across the world is a reminder of what we have achieved here and what more we can do in the future.

All very positive but does remain rather at odds with the Government’s visa policy. One point which was made by the Minister, which does not appear in the published speech, I found rather interesting (and not a little bizarre). Referring to one of his visits, possibly to Kurdistan, Willetts reported that he had been approached by an academic who was seeking to establish a new university. As a starting point, the Professor had downloaded the charter and statutes of Lancaster University and was using them as a blueprint for setting up a regulatory framework for the new institution. The Minister was clearly taken with this idea and thought that it might be a good thing to take copies of a university governance template on future international missions.

I’ve not looked at the Lancaster statutes but if they are anything like those of other universities of a similar vintage and even if the charter, statutes and ordinances had been modernised in the past few years they are unlikely to offer the ideal model for a new university. The Willetts idea is, I am sure, well-intended but statutes and ordinances will be the product of a series of negotations, local and national (in the case of the Model Statute relating to academic terms and conditions), and will have been modified and adapted over many years. There are some good examples out there but statutes don’t lend themselves to being copied in quite the way suggested. Nevertheless, having a Registrar and Secretary or similar on international missions who is able to advise on governance may well be a useful idea.

The Imperfect University: Do we need a level playing field?

On the issue of a “level playing field” for universities

For the next, slightly briefer, piece in the Imperfect University series, I thought it might be interesting to pick on a topical issue which nevertheless has wider relevance and also serves to highlight some of the imperfections inherent in higher education. Following the White Paper, Putting students at the heart of the system, published in June 2011, there has been a lot of talk about importance of a “level playing field” for the universities and the expected new for-profit entrants to higher education provision in the UK (or, to be precise, England, given that the other nations in the UK have different, and increasingly divergent, arrangements for higher education and therefore their own playing fields with which to concern themselves).

The demands for a level playing field seem to come from all quarters, with established players insisting that new entrants should be subject to all the same controls and constraints that already apply to them and the for-profit wannabees insisting that they need more of a break given the decades of advantage enjoyed by recipients of public funding.

The fact that we are already in the sporting arena for our metaphors is in itself interesting (is this just a game then or is it more serious than that?) but if we set that matter aside and confine ourselves to the consideration of playing fields what can we conclude?

Different pitches, different teams

Steve Egan, Deputy Chief Executive at HEFCE, at a recent AHUA (Association of Heads of University Administration) event, was rather dismissive of the idea of a single level playing field, preferring to imagine number of different playing fields. However, it was not clear if these were side by side or one on top of each other or indeed whether they were marked up for the same game or which teams were playing on each.

Pinsent Masons, in a draft response to the BIS technical consultation (dated 14 October 2011, circulated by email on 18 October) observe that charitable universities and non-charitable for-profits have fundamentally different aims. They are two quite different teams – hens versus foxes is what Pinsents suggest – which means we are unlikely to get either a good match or a fair result.

The paper rightly points out that this is a key issue when considering what we mean by a University:

…the problem with the BIS proposals, as it seems to us, is that alternative providers will be given access to public funds when they have no corresponding obligations in relation to public benefit and the long term interests of the sector.

Our alternative proposal is that in order to access public funds, whether directly through grants or indirectly through access to the student loan system, HE providers must have charitable status.

There are plenty of ways for for-profit providers to compete, with many of the advantages which come from their lack of regulation but, as Pinsent Masons put it:

fundamentally, public money should not be subsidising the private benefit of the owners and shareholders of for profit HEIs.

So, it looks like the playing field is already sloping in favour of the for-profits.

International matches

This is a key issue internationally too as we find in The Road to Academic Excellence: The Making of World-Class Research Universities. This recent report from the World Bank makes specific reference to this thorny issue. Examining the very different positions of publicly funded and private universities, the report cites a range of examples from East Asia to Chile:

The case studies, which analyze a number of positive and less favorable governance situations, show that an appropriate regulatory framework, strong and inspiring leadership, and adequate management significantly influence the ability of research universities to prosper. Indian Institutes of Technology, for example, would not have operated as effectively as they do if they had been constrained by the same financial and adminis- trative regulations that all other public tertiary education institutions must adhere to in India. They have also, by and large, been protected from political interference for the selection of vice chancellors and the recruitment of academics.

The comparison between the University of Malaya and the National University of Singapore illustrates in a striking way the differences in leadership and management approaches and their direct impact on the respective performance of the two institutions. Similarly, the University of Chile’s status as a public entity prevents it from competing on a level playing field with the Pontifical Catholic University of Chile. Paradoxically, the latter is not subject to the same rules concerning administrative, procurement, and financial control as the former, even though the Pontifical Catholic University of Chile receives budget contributions from the state as other public universities do. The University of Chile is also handicapped by excessive decentralization, which undermines the power of the rector, and by not having a board with outside stakeholders that can help the university to respond better to the needs of society.

As private universities, Pohang University of Science and Technology and Monterrey Institute of Technology have enjoyed much more autonomy and flexibility than public universities in Korea and Mexico, respectively. And as just discussed, the Pontifical Catholic University of Chile has certainly benefited from its status as a private institution by enjoying the best of two worlds—the agility and independence of a nonpublic university, while obtaining public subsidies on a regular basis.

The key dimensions of autonomy brought out by the case studies include the ability to mobilize significant additional funding from a variety of nonpublic sources; to provide attractive remuneration packages for top academics; and to boost the international nature of the institution in terms of program content, language of instruction, and focus of the research. (p332)

The playing field therefore looks rather uneven in Chile too.

Keeping it fair

So perhaps the way to keep the playing field level is with the conditions that attach to public funding. Whilst these often feel excessive to those of us working in universities, there is, nevertheless, a strong argument for at least some accountability for the use of taxpayers’ money (although there does needs to be a balance here too – more of this later in the series). David Willetts, speaking at the HEFCE annual conference on 18 April 2012, argued that there is already a level playing field (no, really) and that therefore we should all stop worrying about the precise legal status of the new entrants to higher education. It is difficult not to be concerned about this though.

Nicola Hart in another Pinsent Masons flyer circulated on 23 March 2012 entitled ‘HE reforms – on or off?’ makes the accountability argument more forcefully:

The HE reforms are going full steam ahead. There is a market. For-profit providers are full competitive players in the sector, and seem pretty content with the current (no bill, no extra regulation, no charity law obligations) state of affairs. With these competitive pressures rapidly increasing, encouraged by government, nobody can afford to be complacent and assume that the sector (or their part of it) will remain unchanged. Universities need to continue to think strategically about how they position themselves in a climate that’s becoming less predictable and where change will be driven by policy, not big set-piece legislation. The for-profit providers have been noticeably effective in their lobbying efforts with government. Universities should also think hard about what they want to achieve and what lobbying they need to do to get policy decisions working in their favour. The main missing ingredient is a coherent system of regulation to match the fundamental changes the sector is going through. The leverage of state funding delivered via HEFCE is about to disappear. For-profit providers are playing on the same field as universities but with different (fewer and less onerous) rules and obligations. We think this is important and something which government will need to square – where there is public funding, in whatever form, there needs to be (at least) appropriate public accountability and regulation.

For the for-profit entrants, they will need to subject themselves to the same requirements as others if they wish to access public funding (as Hart suggests). The alternative is to enjoy the freedom to act which comes without such regulatory constraint. So, not exactly a completely level playing field and indeed the rules are a little different for both teams but there would at least be a chance of a decent match.

And if we change ends at half time then we can at least argue that the unevenness of the ground doesn’t matter (although no doubt there would always be some complaints: “they had the wind behind them in the first half and it’s now changed direction” or “we had the sun in our eyes” etc).

Then all we have to worry about is the referee. Or perhaps finding a new metaphor.

The Imperfect University: Reviewing Higher Education in Scotland

Report of the Review of Higher Education Governance in Scotland 

As we have seen in the previous post in this series on regulation, governments, although they will often talk the language of freedom and autonomy, cannot help but get themselves involved in the regulation of higher education. However, Scotland is different and higher education in Scotland is different. And it is unsurprising that the Scottish Government, with control over higher education policy, will wish to continue to follow an alternative path to England. But it looks like it may be unable to stop itself pursuing further regulation of universities. Hence the Report of the Review of Higher Education Governance in Scotland which has been produced by a Committee chaired by the Principal of Robert Gordon University (who has also blogged on this topic). It is a bold report which seems intended to reinforce the differences with England and to require greater accountability. But if you are looking at this from a university perspective, it seems to be a rather directive set of recommendations which, if enacted, would be a significant constraint on institutional autonomy. So we will have to wait and see if the Scottish Government can resist the invitation to get involved in more regulation of universities.

It is not entirely clear what problems these recommendations are intended to solve or how they will advance excellence in teaching and research at Scotland’s HE institutions. Moreover, the evidence base considered (as listed in the Bibliography) seems rather narrow: whilst the articles in the London Review of Books by Hotson and Collini represent interesting contributions to the higher education debate on changes in England, it is perhaps surprising that they are referenced as source material here. The other point of note is that the Committee was a small one with what appears to be very limited input from the universities.

Some of the recommendations are fairly innocuous but some of them seem quite remarkable and far reaching even in the Scottish context where there is much less conceptual and regulatory distance between government and universities. The full list of the recommendations can be found in the Report of the Review of Higher Education Governance in Scotland.

The cornerstone of the proposed reform is a new all-embracing statute:

The panel therefore recommends that the Scottish Parliament enact a statute for Scotland’s higher education sector setting out the key principles of governance and management and serving as the legal basis for the continued establishment of all recognised higher education institutions.

The new statute should be drafted as a measure that will rationalise and simplify the regulatory framework of higher education governance; it might provide for:

  • the conditions applying to the establishment of new universities;
  • the key structures of university governance and management;
  • the role and composition of governing bodies and academic boards;
  • the role and appointment of university principals;
  • the drawing up of a code of good governance for Scottish higher education;
  • the status of student associations;
  • the principles of academic freedom and institutional autonomy.

However, the statute should continue to embrace diversity of mission and of operation, and should reinforce the principles of university autonomy and of academic freedom

The details of each of these are set out in the recommendations but this is a really striking proposition – essentially it is an attempt to impose some order and coherence on Scottish HEIs but for what purpose is far from clear other than wanting things to be a bit neater and to regulate new entrants. Moreover, by setting out statutory requirements in each of these areas this would seem fundamentally to challenge the espoused principle of university autonomy and also constrain diversity of institutional mission.

Let’s look at the specifics of some of these recommendations:

2.4 Academic Freedom and Institutional Autonomy

A definition of academic freedom should be incorporated in the statute governing higher education, based on the definition contained in Ireland’s Universities Act 1997, and applying to all ‘relevant persons’ as under the existing 2005 Act.

Scottish universities and higher education institutions should adopt a similar approach and that each institution should adopt through appropriate internal processes, and present to the SFC, a statement on its implementation of the statutory protection of academic freedom.

Is there a problem with academic freedom in Scotland? It really isn’t clear why, given the statutory protections which already exist, you would want to extend this much further unless it is to include it as a requirement for all academic staff, whether or not they are in universities (although how they would be defined if not is unclear), and to ensure that any new universities were mandated to build in such guarantees. But to impose such requirements on universities, regardless of how well-intentioned, does represent a challenge to their autonomy notwithstanding the fact that the funding council already has a responsibility to have regard to academic freedom.

2.5 The Role of Governance

Governing bodies should be required to demonstrate that their deliberations and decisions appropriately observe the four objectives the panel has set out for university governance, and they should regularly review their own performance against these.

The fundamental principle of a collaborative approach wherever appropriate should be enshrined in the Scottish university system through making the fostering of collaboration between universities a task for the Scottish Funding Council.


Three of the four objectives set out here seem entirely reasonable being concerned with stewardship for the long term, ensuring mission delivery and making proper use of public funds but the fourth – “ensuring stakeholder participation and accounting to the wider society for institutional performance” – seems, although worthy, somewhat at odds with institutional autonomy. Similarly, enshrining collaboration through funding arrangements may limit universities’ freedom to act independently and, although it will often be entirely reasonable for them to collaborate, surely this should be through choice or incentivisation rather than compulsion.

2.9 The Relationship with Further Education

All Scottish universities should not only include responsibilities to their region, alongside their national and international objectives, in their mission statements, but also seek ways to engage proactively, for the benefit of students and the Scottish education system as a whole, with further education institutions and any new governance structures that may be put in place.

Of course all universities will wish to address their regional responsibilities but to regulate this and insist on some form of activity with FE seems, once again, somewhat challenging to institutional freedom to pursue their agreed mission.

3.1 Appointment and Role of Principals

The heads of Scottish higher education institutions should be described as the ‘chief officer’, and that the job title should continue to be ‘Principal’.

There should be widened participation in the process for appointing Principals, and core to this approach should be the reform of the way in which of appointment panels are set up and operate.

The appraisal of Principals should involve external governing body members, staff and students.

3.2 Remuneration of Principals and Senior Management

Further percentage increases beyond those awarded to staff in general should not take place until existing processes have been reviewed and, if appropriate, amended.

Universities should ensure that any payments that may be perceived as bonuses are either abolished or at least transparently awarded and brought into line with the scale of ‘contribution payments’ available to on-scale staff.

Remuneration committees should include staff and student members. The work of the committee should be transparent, and in particular, the basis upon which pay is calculated should be published. While the Framework Agreement, determining pay scales for university staff up to the grade of professor, is a UK matter, the Scottish Government should investigate whether it might be extended north of the border to include all staff including Principals. There should be a standard format for reporting senior officer pay, and the SFC should publish these figures annually.

The SFC should investigate how the principles of the Hutton Report are being or should be applied to universities in Scotland.

Whilst it is not, arguably, terribly important what the Principal is described as it is not at all clear why the Irish approach has been proposed here nor why it is any of the government’s business what universities call their chief executives. More importantly though why should the appointment of Principals and their appraisal and remuneration be the subject of additional legislation? And doesn’t this again reduce institutional autonomy given the safeguards already in place in university charters, statutes and other statutory instruments?

Presumably this is all a response to a perception that Principals are overpaid and the wider societal concern about senior staff pay and bonuses. And there is a view here that all of this is necessary to secure staff engagement and to deliver institutional success. But once again should it not be a matter for the university and its governing body to determine?

4. Role, Composition and Appointment of Governing Bodies

Meetings of governing bodies should normally be held in public unless the matters under consideration are deemed to be of a confidential or commercially sensitive nature; these exceptional matters should be established through clear guidelines.

4.1 Chairing of Governing Bodies

The chair of the governing body should be elected, thus reflecting the democratic ideal of Scottish higher education (recommended by a majority, one member dissenting).

The chair should receive some form of reasonable remuneration (recommended by a majority, one member dissenting).

Again, the issue of autonomy and the constraint on the ability of the governing body to determine its own operation. The proposals around the election of the chair of the governing body are among the most surprising in the report (which is not short of surprises). The argument is that “the democratic ideal” of Scottish HE, which seems to be exemplified by the election of Rectors at the ancient universities, is to take precedence in the arrangements for appointing a chair of governors. Whilst some institutions may welcome this, it is questionable whether this is really the best way to deliver the leadership of the governing body which universities require. And the transaction costs and uncertainties would be significant. Remuneration decisions should, again, be matters for institutions themselves.

4.2 Membership of Governing Bodies

Positions on governing bodies for lay or external members should be advertised externally and all appointments should be handled by the nominations committee of the governing body. Each governing body should be so constituted that the lay or external members have a majority of the total membership.

There should be a minimum of two students on the governing body, nominated by the students’ association/union, one of whom should be the President of the Students’ Association and at least one of whom should be a woman. There should be at least two directly elected staff members. In addition, there should be one member nominated by academic and related unions and one by administrative, technical or support staff unions. The existing system of academic board representatives (called ‘Senate assessors’ in some universities) should also be continued. Governing bodies should also have up to two alumni representatives.

The existing practice in some universities of having ‘Chancellor’s assessors’ should be discontinued.

Each governing body should be required to ensure (over a specified transition period) that at least 40 per cent of the membership is female. Each governing body should also ensure that the membership reflects the principles of equality and diversity more generally, reflecting the diversity of the wider society.

Governing bodies should be required to draw up and make public a skills and values matrix for the membership of the governing body, which would inform the recruitment of independent members of the governing body. The membership of the governing body should be regularly evaluated against this matrix.

Expenses available to those who sit on the governing body should include any wages lost as a result of attending meetings.

Senior managers other than the Principal should not be governing body members and should not be in attendance at governing body meetings, except for specific agenda items at which their individual participation is considered necessary, and for those agenda items only.

4.4 Training

All universities should be required to ensure that governors – including external governors, staff governors and student governors – are fully briefed and trained, and their knowledge should be refreshed regularly in appropriate programmes. Each governing body should be required to report annually on the details of training made available to and availed of by governors.

5.1 Composition of the Academic Board and Appointment of Members

In line with existing legislation applying to the ancient universities, the academic board should be the final arbiter on academic matters.

Apart from the Principal and the heads of School (or equivalent) who should attend ex officio, all other members should be elected by the constituency that they represent, and elected members should form a majority of the total membership. In establishing the membership of the academic board, due regard should be given to the principles of equality, and the need for the body to be representative. This includes a requirement to ensure that there is significant (rather than token) student representation. Overall, academic boards should not normally have more than 120 members.

All terribly prescriptive. Whilst it is hard to argue with any individual item, these really should all be matters for institutions themselves to determine.

(And 120 members is probably not the ideal number for effective decision making at Academic Board level.)

7.3 Avoiding Bureaucratisation

The Scottish Funding Council should undertake a review of the bureaucratic and administrative demands currently made of higher education institutions from all government and public agency sources, with a view to rationalising these and thereby promoting more transparent and efficient regulation and governance.

7.4 Code of Good Governance

The Scottish Funding Council should commission the drafting of a Code of Good Governance for higher education institutions.

Given the prescriptive and far-reaching nature of most of the recommendations, a Code of Good Governance would seem to be an unwelcome addition – and it will look a bit more like a rule book than a guide. However, step one in the review of bureaucratic and administrative demands recommended here would usefully be to consider most of the proposals preceding this one in the document!

So, a pretty extraordinary document. The responses from the Scottish universities so far seems to have been rather muted. The Times has recently reported on some more vocal opposition and concern about “meddling” in university affairs:

Last night, Liz Smith, the Scottish Conservative education spokeswoman said it appeared there was “widespread and growing” concern about key proposals in the Von Prondzynski review.

She said: “There are two main fears, firstly, that universities are being pushed into radical reform when there is no evidence to suggest that there is a serious problem with the existing structures of university governance and, secondly, that some of the proposed reforms are more about the Scottish government’s desire to diminish the autonomy of universities in favour of increasing the power of ministers.

“On both counts, I think the universities are absolutely right to be concerned.”

Kim Catcheside has published a column on the report in the Guardian Professional, in which she notes that:

Behind the scenes, universities may be concerned about the possibility of political interference but are cautious about speaking out. Mary Senior from the University and College Union told The Scotsman: “It is fair the Scottish government expects certain standards to follow this generous settlement, but it must be very careful not to be overly prescriptive or directive about the learning, research and teaching that goes on in universities.”

Quite an indication there in the comments from UCU of how far reaching these proposals are. Will this report enhance the quality of Scottish higher education? We will see. It will certainly exacerbate the already marked differences between English and Scottish university operations, funding and governance. It is undoubtedly a stimulating document and reflective of many of the challenges facing universities but it is difficult to disagree with the concluding comment made by Liz Smith in the Times piece above:

“The Scottish government is going down a dangerous road of reform which is both interventionist and bureaucratic and which threatens the independence of our most successful academic institutions.”

ICO: private email accounts are subject to FOI

New regulatory joy from the Information Commissioner’s Office

The Information Commissioner’s Office (ICO) has published some exciting new guidance making it clear that information held in private email accounts is subject to the Freedom of Information Act:

Information Commissioner, Christopher Graham said:

“It should not come as a surprise to public authorities to have the clarification that information held in private email accounts can be subject to Freedom of Information law if it relates to official business. This has always been the case – the Act covers all recorded information in any form.

“It came to light in September that this is a somewhat misunderstood aspect of the law and that further clarification was needed. That’s why we’ve issued new guidance today with two key aims – first, to give public authorities an authoritative steer on the factors that should be considered before deciding whether a search of private email accounts is necessary when responding to a request under the Act. Second, to set out the procedures that should generally be in place to respond to requests. Clearly, the need to search private email accounts should be a rare occurrence; therefore, we do not expect this advice to increase the burden on public authorities.”

Key points set out in the guidance include:

Where a public authority has decided that a relevant individual’s email account may include official information which falls within the scope of the request and is not held elsewhere, it will need to ask that individual to search their account.

Where people are asked to check private email accounts, there should be a record of the action taken. The public authority needs to be able to demonstrate, if required, that appropriate searches have taken place.

It is accepted that, in certain circumstances, it may be necessary to use private email for public authority business. There should be a policy which clearly states that in these cases an authority email address should be copied in to ensure the completeness of the authority’s records.

I hope that’s clear for everyone. Happy new year!

WikiLeaks for Higher Education

Because you can never have too many distractions…

The Chronicle of Higher Education has a report on the launch of “UniLeaks”:

WikiLeaks, scourge of governments worldwide, now has a copycat for academe. And the new group is itching to publish your university’s deepest secrets.

Its Web site, UniLeaks, debuted this month with a pair of open letters to university leaders in Australia and Britain. The Australian activists who run UniLeaks are pushing for openness in the face of what they see as the corporatization of higher education. They complain of unprofitable courses abolished, employees made less secure, and students reduced “to mere customers or clients of the university.”

But are there any more open public authorities than universities? In the UK there are many ways for staff or students to voice their concerns within institutions without fear. There is also the Freedom of Information Act which makes it possible to get just about anything you want. And the fact that, by their very nature, universities are very open organisations.

At a time of significant financial challenge though what universities really don’t need is to spend more time and money engaged in pointless diversionary activity (FOI compliance costs enough as it is thank you) – responding to this kind of thing merely adds to the burden.

Universities ‘must be vigilant’ on campus extremism

Promoting academic freedom and tackling extremism

A new report from UUK is concerned with issues around freedom of speech, academic freedom and extreme views on campus. It’s a good report (but I was on the working group so perhaps biased) and received some straightforward coverage from the BBC News:

The updated guidance from Universities UK sets out the legal duties universities have to protect freedom of speech and also to promote equality and security.

Professor Malcolm Grant, chairman of the review panel, said: “The survey findings confirm how seriously universities take their responsibilities in relation to the safety and security of their staff and students, alongside their obligations to protect and promote free speech and academic freedom.

“Universities are open institutions where academic freedom and freedom of speech are fundamental to their functioning.

“Views expressed within universities, whether by staff, students or visitors, may sometimes appear to be extreme or even offensive. However, unless views can be expressed they cannot also be challenged.

“But all freedoms have limits imposed by law and these considerations are vital to ensure the safety and well being of students, staff and the wider community.

“Universities must continue to ensure that potentially aberrant behaviour is challenged and communicated to the police where appropriate.”

But he added that it was not the job of universities to impede the freedom of speech “through additional censorship, surveillance or invasion of privacy”.

The coverage of the report, which can be downloaded as a PDF, is broad:

The report starts by examining the meaning of academic freedom and freedom of speech: concepts which are often invoked but rarely defined. It then explores the contemporary context in which universities are operating, both in terms of the diversity of current student populations, and the wider national environment. It summarises the relevant law, and describes the Government’s security strategy and other security initiatives and structures. It then reviews the various ways in which universities from across the UK have addressed these challenges and sought to reconcile differing priorities, drawing on an on-line survey conducted by Universities UK of all its members in 2010.

But the Guardian carries a somewhat critical view from Lord Carlile:

The government’s counterterrorism watchdog believes Britain’s universities are reluctant to deal with radicalisation on campus and says a report by vice-chancellors that rejects demands to ban controversial speakers is “weak”.

Lord Carlile, who is in charge of overseeing the government’s counterterrorism strategy, Prevent, urges ministers to develop a “new narrative” for combating extremism, supporting moderate Muslim theologians against al-Qaida. “You have to meet like with like,” he says.

He is scathing about the conclusion reached by Universities UK, representing 133 universities – and says their report contains a “glaring omission”. He told the Guardian: “[There] is a total failure to deal with how to identify and handle individuals who might be suspected of radicalising or being radicalised whilst within the university.”

But this is not a “weak” report and universities are far from complacent on this issue – institutions take their responsibilities in relation to the safety and security of their staff and students extremely seriously, alongside their obligations to protect and promote free speech and academic freedom. We can do with a bit less of the “new narrative” and a bit more support of the good work that is undertaken.

Pakistan’s politicians in fake university degree scandal

Fake university degree suggestions in Pakistan

The Daily Telegraph has reported that Pakistan’s Supreme Court has asked the Elections Commission to examine the degree certificates of almost all the country’s 1,100 elected officials:

The investigation has also reopened a question about whether President Asif Ali Zardari ever graduated, as he claims, from a London business school. Local journalists have pored over reams of documents and dedicated thousands of column inches to the issue, much to the anger of politicians.

Former military ruler Pervez Musharraf introduced the law in 2002, requiring all candidates to hold a bachelor’s degree. He claimed it would raise the calibre of politicians but critics said it was undemocratic in a country where 50 per cent of the population is illiterate. They suggested the real motive was to sideline opponents. The law has since been struck down but that has not stopped the Supreme Court last week asking for a review of parliamentarians elected when it was still in force. A spokesman for the Higher Education Commission said officials had already identified 35 members of parliament who had not filed their university degrees along with their nomination papers, while the diplomas of 138 members were illegible. At least one sent a friend to sit his exams.

The law is questionable but the consequences are clearly rather significant. Perhaps the most striking comment was this:

“A degree is a degree,” said Nawab Aslam Raisani, the chief minister of Balochistan when asked about the issue by reporters. “Whether fake or genuine, it’s a degree. It makes no difference.”

Indeed. Wonder what the Innovation, Universities and Skills Select Committee would have made of that line when they discussed comparability of degree standards in 2009.