What I’m reading: on Higher Education, comparative health law, and Brexit

It’s been a while since I wrote about what I’m reading.  I was going to write separate blogs about each category of reading. But then I remembered: this blog is about my blended life.

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S Collini, Speaking of Universities (Verso, 2017).

I’d read some of Stefan Collini’s 2012 book before. His 2017 collection is a development of those ideas. I don’t dislike his style –  journalistic, punchy, pugnacious. It takes a bit of chutzpah to begin an academic piece with the chapter title ‘Handwringing for Beginners’, even when that’s a response to a critical review.

I’m particularly reading this with the purpose of reflecting on two things: equality and diversity in (legal) education; and what counts as ‘teaching excellence’. On the latter in particular, Collini has quite a lot to say, mostly indirectly (though not entirely: I enjoyed the riff on ‘excellence’ meaning both ‘good of its kind’ and ‘better than others’ on pp 42ff). One of his themes is that the very essence of the value of a university is that it cannot be measured in the ways in which contemporary western societies currently seek to capture ‘value’. A consumer-led notion of value, called ‘student satisfaction’, avoids the ‘difficult judgements about some human activities being more valuable than others’ (p 37). Education isn’t like a hotel experience (‘did you find the fluffy towels fluffy enough?’ (p 106)). Just asking consumer-students if teaching is excellent misses the point:

‘User dissatisfaction may sometimes be an important sign that genuine education is happening.’ (p 40)

‘The paradox of real learning is that you don’t get what you ‘want’ – and you certainly can’t buy it. I can bustle about and provide a group of students with the temporary satisfaction of their present wants, but in that case they would be right to come back years later and complain that I had not really made any effort to educate them. The really vital aspects of the experience of studying something … are bafflement and effort.’ (p 107)

‘A university education is what some analysts have called a ‘post-experience good’: a full understanding of the benefits cannot be had in advance.’ (p 139)

‘… good quality undergraduate education cannot be sustained in a void. … for the contagion of minds that is involved in good teaching to work, the teacher needs to be the product of a whole cultural and intellectual tradition, needs to understand the nature and status of the knowledge they are seeking to communicate, needs to be informed by a certain kind of professional ethos … and so on … universities have to be functioning healthily across the range of activities that constitute them if they are to successfully fulfil the task of undergraduate education at all.’ (p 216)

‘… [university] education relativizes and constantly calls into question the information which training simply transmits.’ (p 235)

Much as I want to agree with Collini – and I certainly agree with the observations above – this particular argument does worry me too. I know that sometimes students do have a bad experience; sometimes those who teach them in universities do not measure up to even the bare minimum of what would be expected by any reasonable outsider. Staff who don’t update their reading lists, who are late for class, who fail to do marking in time, who are unpleasant, sexist, racist – I have seen all of these over the 30+ years in which I have been engaged in HE. So I wouldn’t be for throwing out all attempts to set expectations of academic staff. I think there should be accountability when those expectations are not met. After all, even in the current way of funding universities, this is still public money that pays our salaries. But, as Collini puts it, ‘any genuine evidence [of teaching excellence] can only ever be a matter of judgement, not measurement’ (p 165). Academics are good at judgement: at articulating the reasons they reach the value positions they reach. Let us do this, not the ‘metrics’.

What this all means for equality and diversity is much more difficult. The massification of HE – one of Collini’s key themes – means that HE is now accessible to a more diverse body of students. But it also means that many of our students don’t share the cultural (and pedagogical) values that (in Collini’s words) ‘constitute’ a university. How far do we ‘educate’ students who don’t share those values into understanding and embracing them? How far to we meet them half way by seeking to understand the alternative values that drive them?

What it all means for equality and diversity is even more difficult in the other book I’ve been reading recently:

F Furedi, What’s Happened to the University? A Sociological Exploration of its Infantalisation (Routledge 2017)

I admit I am finding this book quite challenging. Its main thesis is that universities – along with the rest of society – have over-medicalised discomfort. Put very briefly, Furedi’s position is that 21st century students are encouraged to think of challenge, discomfort and difficulty as stress-inducing things from which they are entitled to protection, rather than inherent in the nature of higher education. Along with the culture of identity politics, ‘protest about discomfort’ becomes interwoven with ‘narrative about political oppression’ (p 48).

The implications for ‘teaching excellence’ are less directly articulated by Furedi than by Collini, but they are implicit.

‘In the UK, what’s referred to as ‘the student experience’ is deemed to be of fundamental importance … Universities are rated according to the quality of the student experience they provide. Ensuring that undergraduates have a problem-free and pleasant life is the precondition for gaining high ranking in the university league tables.’ (p 46)

Again, some of this resonates. I recall very well the robust interactions I had with our disability support unit about whether a student was entitled to more time to complete the assessment in a module that I used to lead. The assessment questions were given out at the beginning of the year. Students were encouraged to work on them throughout the semester. There was a system of ‘feedforward’ on their work in progress. We then told them, with 48 hours notice, which of the three questions they should hand in, to be marked. This particular student was accustomed to a blanket 25% extra time in examinations. My position was that giving 25% extra time in this assessment was not a ‘reasonable adjustment’ in the terms of the Equality Act.* The student claimed that my position caused her ‘stress and anxiety’.

But the thing is, students do suffer mental ill-health. And the more diverse the student body, the more difficult it is for those of us who comfortably inhabit the world of Higher Education to claim that we should not adjust for those who do not do so. It’s about power too. That’s what equality and diversity agendas require: the acknowledgement of difference, and the adjustment of notions of ‘the norm’ that operate institutionally and structurally to perpetuate (dis)advantage.

Comparative health law

I’m working away with David Orentlicher to get together our line up (of some 50 contributors) to the OUP Research Handbook on Comparative Health Law. Thinking about the research design (pairs of ‘American’ and ‘European’ authors, each agree what the ‘issues’ are in their particular topic of health law, write a piece together that articulates those issues (eg as a ‘problem question/scenario), then each explain and analyse how their jurisdiction(s) respond), and about whether one can ever really do comparative law has me returning to a theme of my academic life. So I’ve re-read some old favourites; and got up to speed with some new literature on comparative law generally. The 132pp Legrand piece in the 2017 American Journal of Comparative Law defeated all but a light scan, but I had a lovely email correspondence with Peer Zumbansen about his, and the other responses in the special issue. In particular, the responses got me thinking about how comparative legal method must involve a deep respect for the other, as well as a habit of critical reflection to try to see beyond those invisible intellectual habits that define what we think ‘count(s)’ as our particular (sub) discipline(s).

In terms of comparative health law, I’ve particularly enjoyed reading a trio of John Harrington’s publications, which draw out questions of the temporal, and, implicitly, spatial/jurisdictional, in medical/health law. When we take into account time (and, implicitly, space or place) as a dimension of medical/health law ‘we are thus required to take seriously its rhetorical form, meaning that legal reasoning establishes only provisional or contingent truths’ (2012: 495) This immediately sets us apart from ‘foundationalist’ (or others might call ‘positivist’) approaches to law and legal reasoning, according to which ‘the right’ legal answers can be deduced logically from relevant legal texts. Harrington draws on Mariana Valverde’s Chronotopes of Law (2015). His argument is that medical law ‘is marked out by a distinctive ensemble of chronotopes’ (2015, 362). Hence ‘the work of the critical scholar will involve investigating the cultural and social contexts in which these figures and forms gain plausibility’ (2015, 362).  And so ‘historicization remains an important task [for sociolegal scholars] given the tendency to abstraction and a-contextuality in liberal law more generally and in medical law, under the influence of bioethics, specifically’ (2015, 362-3).

Reading this is making me think (a) comparative health law is never feasible; and (b) the design of our comparative health law handbook will get us closer to feasibility than other designs would.

K Armstrong Brexit Time (CUP 2017)

I was lucky to read much of this in advance of publication. But it’s great to see it together in a physical book (I’m still a sucker for physical books). Armstrong’s theme of time has infused pretty much all of his scholarship, but it works particularly well for this account.

Michael Dougan’s Brexit edited collection is on order.

Most of my “Brexit and health” reading comes from links in Twitter though.

And there’s the ongoing interest in EU Health Law more generally: Andre den Exter has just generously sent me a copy of his edited collection on the subject. EU health law and policy without the UK will be, I imagine, quite a bit different to the way it is with the UK. That’s something the (just-landed) Jean Monnet Network, led by Katherine Fierlbeck, will be investigating over the next three years.

To summarise: the themes of my current reading

  • comfort/discomfort
  • time

Blending different types of reading brings out resonances and dissonances which I don’t think I’d get to enjoy if I stuck to just one project at a time, or compartmentalised the things I’m interested in.

*More on this to come: I’m collaborating with several others on a journal article on the topic.

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