‘Boards of Appeal often take wrong decisions after a student’s appeal’

Van Berkel is scheduled to defend his second dissertation, entitled ‘Juridisch correct examineren’ (legally sound examinations), at Tilburg University this month at the age of 71. In the 1980s, Van Berkel obtained his first PhD in educational psychology.

Assessment and examination can be looked at from an educator’s point of view, but also from a legal point of view. Van Berkel aims to combine these perspectives to ensure assessments can be both sound and fair.

Three in ten appeals

Students who disagree with the grade they receive or decisions made by their lecturers can go to the Examinations Board, and if that result is unsatisfactory, they may ask the Board of Appeal for Examinations at their institution to review their case. The final option is to go to the national Appeals Tribunal for Higher Education (CBHO).

As it stands, about three out of every ten students win their case at this tribunal. “The schools need to sit up and take notice”, says Van Berkel. “Too often, the Boards of Appeal make the wrong decision. With that in mind, it’s safe to say that students should lodge appeals much more often. But appeals procedures take time and require a lot of effort.”

During his research, Van Berkel discovered that Boards of Appeal fail to look critically at their decisions. Doors remained firmly closed to him, particularly at universities of applied sciences. Decisions made by the Boards are not centrally registered at these institutions and are generally not accessible to the public. This means that members do not read each other’s decisions. “Because why would we?” some of them asked me.

Even when Van Berkel requested to see some of their decisions for the purpose of his research, many boards refused. Van Berkel scorned: “One of them even turned to the Executive Board to ask whether outsiders were allowed to read the decisions!” That’s like a court asking the Provincial Council for permission to publish their verdicts. Boards really should be more aware of the meaning of the word ‘independent’.”

The PhD candidate draws a few conclusions in his dissertation: students have the wrong expectations when they appeal their cases, appellate bodies should listen to their hearts more often, and Boards of Appeal should be more aware of each other’s decisions.

So what do students expect? “Usually they just want a second opinion,” says Van Berkel. “Communication is key in these situations, because students are likely to think that their case was not fairly judged.” Examination Boards are obligated to attempt to reach an amicable settlement, or a compromise, and for good reason.

But Examination Boards, Boards of Appeal and the CBHO mainly focus on the rules and not on the content of individual cases. They tend to lose sight of the fact that students are not experienced plaintiffs and that these procedures are far from easy for them.

Van Berkel says that he was sometimes shocked by what he discovered. One student was diagnosed with cancer and had obtained all but one credit needed for continuing his studies: 59 out of 60. After eight resits, he still had not obtained that one point. He was duly expelled. Even the court of education, CBHO, handed down a decision in favour of the institution. “The decision may hold up in a legal sense, but it’s still flawed. Sometimes you have to ask, why does a certain rule even exist? And does it serve its purpose?”

Another case was brought by a student who had to go to the toilet about an hour into an exam. The invigilator walked him to the toilets. When the student returned he was given a notice, and later that day he was informed that his exam would not be graded, as the rules state that toilet breaks are only allowed after 90 minutes. The student was not informed of this rule and he appealed the decision. The Board of Appeal ruled in favour of the institution.

One final example: a second-year student decided to get a head start and take a third-year course. The time and date of the exam conflicted with an exam that was part of his second-year programme. He decided to participate in the resit for the third-year course, but this request was denied. “The resit was only open to students who sat the first exam”, explains Van Berkel. “This rule ensures that students do not postpone their exams and get behind on their studies. But the rule had the opposite effect for this student. In this case, what’s the harm in showing some heart and letting the student participate in the resit?”

If it was up to Van Berkel, a central registry for Boards of Appeal decisions would be set up as quickly as possible. This would help members consider the merits of each case, and students would also be able to get a clearer idea of whether their appeal will be successful. Henk van Berkel hopes that this will bring us one step closer to legally sound examinations.