A court in the United States decided this summer that a university was responsible, in part, for the death of a student at a fraternity party; a student society of the residential, invitation-only kind common in American universities. The university had not organised the party and did not own the house. What mattered to the court was that it had recognised the fraternity, set rules for it, banned the initiation ritual or “hazing” that caused the student’s death and could have withdrawn its recognition at any time. Having that much control, the court reasoned, brings some responsibility for what could be foreseen. A commentary this week asked what an English court would have made of the same facts, and found a more awkward problem underneath. English law has never really said what a university is in relation to its students. A court asked what a university owes its students first has to decide what kind of relationship it is looking at, and there is no settled answer to that.
The old answer was that a university stood in for a parent. That was dropped decades ago, and rightly, because students are adults. The newer answer is that the student has a contract. That is true, but the contract says what will be taught and what it costs, and almost nothing about what happens when a student is harmed, is in trouble, or is accused of something. The real relationship sits somewhere between the two. A university teaches and marks. It sets rules of conduct and enforces them. It houses some of its students and knows a great deal about most of them. The law has not yet found a name for that. Senior teams, in my experience, do not meet this as a legal question until it becomes one. It may arrive as a series of small decisions that nobody has perhaps thought to connect.
The duty an institution writes for itself
Whether a student who discloses something is sent first to counselling or is funnelled through conduct procedures. Whether the personal tutor who was told is expected to act or only to listen. Whether a complaint that arrives eighteen months late is opened or gently explained away. Whether a disciplinary timetable bends to the person or the person to it. Each of these is decided somewhere in every institution, usually by a procedure written years ago with a different case in mind. Put together, they say what the university thinks it owes a student in difficulty. Nobody writes that down as such. It is simply done, and the people doing it have rarely been told that it adds up to anything.
There is a reason this matters more in England than it might elsewhere. The one English case to find a duty of this kind was brought against a music and drama college over the way it handled complaints of sexual assault. The court did not invent a new obligation. It looked at the college’s own published policies, found that students had relied on them and held the college to what it had said it would do. The cautious reading is this: whilst the law says nothing about the relationship, what binds a university is largely what the university has written for itself. What it owes its students, in practice, what its procedures promise, and whether those promises are kept on the day.
If that is right, it is uncomfortable, and not mainly because of the courts. Procedures are written to demonstrate that a process exists. They are approved in that spirit, often late in a long meeting. They are rarely written as a description of what the university is to its students, and rarer still are they read that way by the people who approve them. A body that has signed off a harassment procedure has, on this reading, signed off a statement of the relationship, and would probably be surprised to hear it put like that. The gap between the two readings is the gap between a document that exists and a promise that is understood.
What fairness looks like afterwards
The student ombudsman published guidance this week on handling harassment and misconduct, and its central point is simple. Fairness in these cases is not the fairness of an ordinary complaint. Nothing can be put back as it was. What the institution can decide is what happens next, and the guidance is specific about it. Take a disclosure at face value, which is not the same as assuming guilt in any investigation. Make sure the people who support the student are not the people who later decide the case. Let the pace be set by the student’s welfare rather than the procedure’s timetable. Do not dismiss a report because time has passed. Its plainest line is that a process badly handled can itself do harm. Any institution can apply that test now, without waiting for a court.
None of this is an argument for a general duty of care. English courts have declined to impose one, and no university could sensibly promise to protect adults from every harm they might come to. Universities are not schools, and the court that found a duty said as much. The point here is narrower, and concerns where the answer comes from rather than how much is owed. Whilst the law is silent, the answer comes from the university itself, and a university that has never read its own procedures as a statement of what it owes its students has, in effect, left the question to whoever handles the next difficult case.
Those who have led institutions will probably recognise that what a university really thinks it owes comes out under pressure, not in the policy. It comes out in the first meeting after a disclosure. Whether the person who took the call is the one who will decide. In determining whether the word used in the room is “student” or “complainant”. Those moments are, I think, where the relationship is actually defined, and they are seldom seen by anyone senior enough to change them. The procedure records that a meeting took place. It does not record what the student learned about the university in it.
Three questions may be worth a senior team’s attention. Could it say, without reaching for a procedure, what the university owes a student in difficulty, and would the procedure, read afterwards, agree? Does anyone read the conduct and complaints policies as a description of a relationship, rather than as proof that a process exists? And is the university’s sense of what it owes something it has ever put into words, or something it may only find out it held when a case obliges it to look?