• Home
• About
• Login
• Register
• Search
• Current
• Archives
• Announcements
• Pre-2013 Index

Home > Vol 22, No 1 (2016) > Thirlaway

Challenges in teaching political aspects of public law: a consideration of the impact of lecturer bias and a suggested approach

Vicky Thirlaway [1]

Cite as Thirlaway, V., "Challenges in teaching political aspects of public law: a consideration of the impact of lecturer bias and a suggested approach", (2016) 22(1) EJoCLI.

Abstract

This article considers some of the difficulties faced by lecturers striving to engage undergraduate students with the study of public law, in particular, the need to focus attention on the legal aspects of topic areas that are essentially political in nature. The article briefly considers some of the literature addressing the impact (or lack of it) of lecturer bias on student learning, and outlines a case study used as a way to create a space for critical thinking about the operation of legal rules.

1. Introduction

Teaching public law to first year undergraduate students creates a number of challenges. At Sheffield Hallam, in common with most if not all institutions, the syllabus begins with an introduction to the evolution of the constitution, and the doctrines which are said to underpin it. Students who have previously studied politics, or some history courses, tend to find the subject fairly straightforward but for many others these concepts are unfamiliar. For a student new to the subject a concept as slippery and uncertain as, say, the rule of law can be both daunting and disorientating. It is not just complexity that can alienate the student. Many of our undergraduate students struggle to see the point of public law, see little or no connection between the syllabus and their future career aspirations, and furthermore are profoundly disinterested. Success in public law cannot be achieved simply by understanding and applying legal rules: it is arguably an inherently socio-legal topic which makes sense only when contextualised. Engagement with public law requires engagement with political history and philosophy, and also with current affairs and political processes.. Statistics tell us that the 18-24 year old age bracket represents the demographic with the most dramatic decline in voting behaviour: from 76% in 1964 to 38% in 2005. [2] There were significant increases in the subsequent elections (55% in 2010 and closer to 60% in 2015). Despite this, the challenge of engaging the substantial number of students with little political interest or awareness remains.

The material that we cover on our syllabus requires us to address issues that have a political as well as a legal aspect: access to justice, membership of the European Union, police accountability, devolution and the Human Rights Act. These issues, it is argued, require us to challenge our student's preconceptions and find ways of demonstrating the relevance of learning about issues that feel remote from their lived experiences. (This issue is not confined to public law. DiMatteo has commented on the utility of incorporating stories into the teaching of contract law to "carry the student along".) [3] Anecdotally many lecturers bemoan the 'small-c' conservatism they encounter in their classrooms when discussing the importance of human rights issues. I have certainly found that classroom polls conducted in the first session looking at the Human Rights Act have consistently revealed a startling antipathy to the Act and a generalised acceptance of the view that it is a charter for criminals and illegal immigrants. Similarly, students reared in an era of relentless self-exposure on social media do not appear particularly exercised about potential incursions on their privacy conducted on behalf of the state. [4]

There is a generalised perception expressed by the media both in the UK and the US that the majority of academics (from every discipline) take a different view, and would identify as left-leaning [5]. In the US, concern about the left-wing bias in universities has resulted in campaigning organisations such as Students for Academic Freedom and Campus Reform committed to challenging the perceived consensus [6]. This piece will review some of the literature addressing the issue of bias in the classroom, and suggest some ways of dealing with charged and/or polarising issues of public law without hindering student engagement and attainment.

2. The politics of the lecturer

The existence of a liberal academy intent on exerting undue influence over young minds is an idea that has considerable traction in the US. Indeed, there is some research that does support the assertion that academics, in the humanities and social sciences at least, are more likely to identify with broadly left-leaning politics. A survey of 1,000 U.S. academics found that 54% would be categorised as left-wing, and only 27% as conservative. [7] These findings echo earlier research conducted in the 70's which found that academics were considerably more likely to identify with liberal policies than other professionals, and within universities this tendency was most marked in the field of social sciences, followed by humanities and law. [8] Although there is less research on the topic in the UK context, some conservative academics do assert that they operate within a predominantly left-wing space. [9]  This assumption is refuted by Lazere who asserts that it results from a " ceaseless assault in recent decades by conservative polemicists against political correctness among academic leftists" [10] which deliberately evades the reality that the greater bias is in fact conservatism which is not even perceived as such. Instead, Lazere argues, this conservative position is accepted as normal.

If we accept, however, that there may be some truth in the perception that legal academics tend to be located somewhere to the left of centre in their political outlook (and particularly in the array of public law disciplines), the question is whether or not it matters if that attitude is communicated in the classroom, or whether we should be seeking to maintain an appearance of neutrality. The issue was the subject of a lively debate in the pages of the Law Teacher between 2007 and 2008. Cownie has argued that it is disingenuous to suggest that teaching can ever be value-free, and is critical of what she describes as a long-standing acceptance of legal positivism resulting in the presentation of legal study to students as a technical exercise. [11] Burridge and Webb have called for law schools to commit to "reconnect values with the core purpose of legal education". [12]This approach has been criticised by Bradney who argues that a liberal legal education should strive for neutrality and should not seek to impose a set of values on students (or staff). [13] The difficulty for academics who seek to actively promote a particular moral or political stance is that, despite concerns, there is empirical evidence to suggest that they are likely to have little measurable success in so doing. Hastie has concluded that there is little evidence that university education has much of an impact on the political views of graduates. [14]

Kelley-Woessner and Woessner have conducted a number of studies in the states which all lead to the conclusion that rumours of our influence are greatly exaggerated: parental values and socio-economic background are the key determinants of a graduate's political viewpoint. [15] Their findings do, however, suggest something more worrying for the left-leaning public law lecturer. Our biases may have no impact on changing our students' minds, but they may deter students from engaging with our teaching. Their 2006 study indicated that were students perceive that the views of a lecturer coincide with their own, they are motivated to work harder, but where they perceive that the lecturer has an opposite view, they are less motivated. [16]

This is, of course, a most problematic issue if we return to the premise that our students arrive in our classrooms (anecdotally) somewhat disinclined to engage with the whole business of public law, and with a predominantly 'small-c' conservative outlook on key topics such as human rights and the use of state power. As Twining has reminded us "most learning about law takes place outside the classroom." [17] Part of our job, I would argue, is to unpack the baggage our students arrive with, and attempt to help them to determine which elements of their views are evidence based, and which are drawn from unreliable sources.

Miller, discussing the challenge of teaching terrorism in post 9/11 America, notes that invariably his students begin with the belief that the majority of terrorist attacks in the U.S. are attributable to middle-eastern extremists, and suggests that "one of the first things teachers should do is dispel the myths that pervade public beliefs" . [18] Similar points can be made about the Human Rights Act in the UK. Wagner describes the "monstering" of human rights in the media, particularly the tabloid press, which may well explain the negative and inaccurate understanding of the Act which so many students have. [19] How do we ensure that we are robust in challenging our students when they are wrong, without risking alienation or disengagement as a result of a perception of bias?

Of course it is axiomatic that all teachers, of whatever subject, have a primary duty to challenge and correct inaccuracy, but the stakes are a little higher when dealing with topics that carry a political charge as often the issues are more emotive; it is easy to create an environment where a student (particularly a first year undergraduate) can feel disempowered from expressing an opinion contrary to that expressed by a tutor.

Lazere (in the teaching of economics) has no qualms about stating his position clearly, and is confident that in inviting students to argue against him in their term assignment he can ensure inclusivity and fairness. Deardorff has been more circumspect, suggesting that the perception of students is crucial, stating that "we must be understood as caring more about the larger endeavor of seeking truth than our own personal ideologies and intellectual ''hobbyhorses.'' [20] She goes on to say that tutors should seek to ensure an atmosphere of trust in the classroom, where debate and dissent is both permissible and encouraged. This seems to be an obviously laudable goal that could be achieved by a variety of means. Of course, many tutors are naturally skilled at fostering such an atmosphere, but there are perhaps some specific activities or techniques that we can use to challenge student perceptions about the context in which public law operates without alienating them from the learning environment.

3. Conclusion

Much has been said about the value of clinical activity in legal education, an ideal which has steadily gained traction in UK law schools over the last decade or so, to the extent that some element that could be termed "clinical" can be found in most if not all undergraduate curriculum. There is considerable evidence to suggest that embedding concepts in a "real world" paradigm enhances student learning. [21] Burridge and Webb suggest that a constructivist approach, and the promotion of group work, are a vehicle for delivering the kind of values they argue should be central in legal education. [22] Public law is not often used as a vehicle for clinical learning, and is often taught in a fairly traditional way with a focus on the transmission of content, [23] but there is no reason why students should not be encouraged to work through problems and scenarios from public law contexts that enable them to consider political and social issues from a fresh perspective and encourage them to ask questions about their own assumptions.

Over the last three years, I have steadily attempted to build more of these opportunities into the first-year public law module in the hope of engaging students more actively in the learning process and stimulating debate. One example, which may be of interest, takes place in the part of the syllabus dealing with police powers and has been very useful in creating discussion of issues pertaining to the rule of law and the need for due process. The session is based upon the widely reported trial of the murderer Christopher Halliwell, which took place in 2012. The facts are lengthy, but a summary can be given here. Sian O'Callaghan was reported missing in March 2011. Halliwell was quickly identified as a person of interest and placed under surveillance after CCTV footage showed his taxi-cab in the area where she was last scene. A few days later, the police surveillance team became concerned that Halliwell may be contemplating suicide and a decision was taken to make an arrest. At that point, the police, led by Senior Investigating Officer Detective Inspector Fulcher, believed that Sian may still have been alive. Following the arrest, DI Fulcher's conduct breached many core components of the Police and Criminal Evidence Act to an extent later described by the Crown Court Judge as "irretrievable" [24]. During that time period, however, Halliwell allegedly confessed to DI Fulcher that he was responsible for a second murder, that of Rebecca Godden-Edwards, and led the police to the site of her body. Halliwell faced trial on two indictments, but the judge accepted a defence application to exclude the evidence obtained by Fulcher which, in the circumstances, amounted to a termination ruling in respect of the indictment concerning Rebecca Godden-Edwards. A further application that the prosecution in respect of Sian O'Callaghan was rejected and Halliwell was, in due course, convicted and sentenced and is currently serving a life sentence. [25]

Prior to the session, students are provided with a number of documents they were asked to read. These included an anonymised extract from the ruling given by Her Honour Judge Cox in the Crown Court setting out the factual background to the application in respect of Fulcher's evidence, and relevant sections of the Police and Criminal Evidence Act [26]and associated Codes of Practice [27]. They are also encouraged to supplement this with self-directed research about the relevant law via recommended textbooks. [28] In both years, engagement with both the preparation and the additional research has been very high, as students are gripped by the facts of the case. During the session, the students are asked to take the role of the Crown Court judge and asked to decide whether or not to grant the application to exclude. The session allows us to demonstrate to students the importance of the rule of law, and shows that discussion of what this should mean lives and breathes beyond the dusty confines of academic debate. It does also challenge as, inevitably, all the students find themselves having to agree that the evidence should be excluded and that as a result, and the defendant cannot be convicted in respect of a murder he almost certainly did commit.

On several occasions, students have been quite angry at having to reach this conclusion, which cuts against a very natural desire to see justice done for the victim and a preconception that perhaps the ends achieved by the police can and did justify the means. The worked example, however, helps to provide a vehicle for a meaningful debate about the need for safeguards and allows the students to think about whether the court needs to hold a firm line to avoid the risk of a hard case resulting in bad law. In this case it is probably clear that the police officer involved had the best of intentions, and this fact can lead to a broader discussion of how miscarriages of justice can (and largely do) result not from deliberate corruption as much as from confirmation bias. This (to some degree) 'experiential' learning exercise has offered a far subtler means of interrogating student views than a more traditional classroom discussion.

The hope that we can seek to use public law teaching as a means of influencing the opinions of our students is, the studies indicate, little more than wishful thinking. Our teaching alone probably cannot change our students' minds on issues we are more passionate about; at least not often to a degree of our liking. As such, we should be mindful of the need to create an inclusive classroom which motivates and engages the full spectrum of opinion. Perhaps the answer is in considering more immersive exercises, sometimes not so common in the discipline of public law, which force students to debate from within a problem rather than simply about it and around it. The hope may be that in so doing, they may find they have changed their opinions on their own.

BIBLIOGRAPHY

Bradney, A Elite values in twenty-first century, United Kingdom law schools (2008) The Law Teacher 42:3 pp291-301

Burridge, R and Webb, J On liberal neutrality, the value of experience and the loneliness of the long‐distance academic: Further reflections on the values of a common law legal education (2008) The Law Teacher 42:3 p340

Cownie, F (Re)Evaluating Values: A response to Burridge and Webb (2008) The Law Teacher 42.3 302-311

Deacon, A Perspectives on Welfare (2002) Buckingham: Open University Press

Deardorff, M.D The professor, pluralism and pedagogy: A reflection Journal of Political Science Education (2013) 9:366-373

DiMatteo, L Contract Stories: Importance of the contextual approach to law (2008) Washington Law Review 88, 1287

Gross, N Why are Professors liberal and why do Conservatives care? (2013) Harvard: Harvard University Press, Harvard.

Hastie, B Cold Hearts and Bleeding Hearts: Disciplinary Differences in University Students' Sociopolitical Orientations (2007) The Journal of Social Psychology, 147:3, 211-241

Kelly-Woessner, A, and Woessner, M My Professor is a Partisan Hack: How Perceptions of a Professor's Political Views Affect Student Course Evaluations. (2006) PS: Political Science and Politics 39(3): 495-501

Kelly-Woessner, A, and Woessner, M ''Conflict in the Classroom: Considering the Effects of Partisan Difference on Political Education.'' (2008) Journal of Political Science Education 4(3): 265-285

Lazere, D Why higher education should have a leftist bias (2013) Buckingham: Palgrave Macmillan

Livingstone, S Taking risky opportunities in youthful content creation: teenagers' use of social networking sites for intimacy, privacy and self-expression (2008) New Media and Society 10 (3) 393-411

Miller, G, D Teaching about terrorism: lessons learned at SWOTT (2009) PS: Political Science and Politics 42(4) p744

Rust, C (ed.) Improving Student Learning (Oxford: Oxford Centre for Staff and Learning Development, 2002) 314-324

Trigwell, K., & Prosser, M. (1996). Changing approaches to teaching: A relational perspective. Studies in Higher Education, 21, 275-284.

Twining, W, Response to Professionalism in Legal Education, International Journal of the Legal Profession (2011) Vol.18, No's 1-2, March- July

Wagner, A The Monstering of Human Rights (2014) available at https://adam1cor.files.wordpress.com/2014/09/the-monstering-of-human-rights-adam-wagner-2014.pdf