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LEGALLY SPEAKING

The myriad legal issues that lurk below the surface of student life

The exercise of legal rights and responsibilities can be just as much a part of a student’s academic experience as studying and classwork.

By BRENT DAVIS | June 28, 2016

On Saturday, May 7 the university I work at had an open house for future students and their parents. Faculties and departments opened their doors and scheduled workshops on university life both in and out of the classroom.

Such an event is likely no place for the university’s in-house lawyers, but it got me thinking that it might surprise university students just how large a role the law and legal principles can play in their university life. The exercise of legal rights and responsibilities can be just as much a part of a student’s academic experience as studying and classwork.

I should be clear at the outset so I don’t get myself into any trouble. I’m not going to provide any legal advice on the situations and conundrums raised below – I have only a limited amount of professional liability insurance.  However, I will say that each situation is subject to its own unique circumstances, the applicable policies of the particular institution, and the laws of the home jurisdiction. There, I’m covered.

A contractual relationship

One of the first legal matters students engage with at their new university is the contract to admit and educate them. By no means is a university’s relationship with its students purely contractual, but in considering this contract, the complexity of university life begins to come into focus.

Although the university-student contract must satisfy the general requirements of contract law, it is not appropriate to strictly apply commercial contract principles to the university-student relationship. For one thing, the terms of the contract will not be found all in one place. Handbooks, catalogues and policies will form part of the contract. These documents can change without notice and some terms, defined by academic norms of the particular institution, may not necessarily be written down at all. Moreover, individual students may engage with different components of the contract – appealing a grade or taking a leave – depending on their own experiences.

Even prospective students may have legal issues to raise with the university before they are admitted. Consider the situation of a program administrator scheduling admission interviews during a religious holiday. A student may request, and be entitled to, certain accommodations. Or what if a student has recently suffered an injury and can’t attend the interview day – is she also entitled to accommodation? Does the kind of injury matter? Situations like this are why your university counsel is losing sleep at night.

Student accommodation can give rise to many legal issues. Students (and their parents) may be surprised to learn that the tenancy law that would be applicable to independent, off-campus student housing may not necessarily apply to the university residence. Another key issue is a student’s right to privacy in their residence room. Consider, for example, the effect of a university official inspecting a student’s room to check plumbing or wiring and discovering illegal substances or weapons. Situations like this are why your … you get the idea.

Student discipline

Legal principles play an important role in the case of student discipline. While the courts have continued to extend deference to the decisions made by university tribunals, they have recognized the power imbalance between the university and individual students by requiring that discipline decisions be made in accordance with natural justice. This requires that a university maintain a tribunal process which provides students with notice of the charge and evidence against them, conducts organized hearings and to generally conduct the discipline process with transparency and fairness.

As a natural function of being part of an academic community, students may test the limits of their rights to free speech or right to associate in groups and be recognized by the university. The exercise by students of their rights under the Canadian Charter of Rights and Freedoms can lead to some interesting times on campus. When the exercise of these rights causes intimidation or disruption, questions can arise about where the limits should be drawn. Except in a few cases, the courts have been reluctant to impose strict Charter obligations on universities and have left it to the administration to locate the appropriate limits.

More and more students, as part of their course work or to gain research experience, are part of teams that create valuable intellectual property. Most universities will have very clear policies about faculty and staff ownership of such intellectual property. Some projects funded by industry may also have very detailed agreements about management of intellectual property. Unfortunately, how students fit into these projects may not always be addressed by policy or contract.

Even more troubling, a student’s expectation of how their work will be managed may be quite different from what the contract says. There is no more efficient way to grind a research project to a halt than to have faculty, industry and students disagree on how the results are to be managed.

It is very likely that none of these questions were swirling in the minds of future students enjoying the campus on open house day. And that’s as it should be.

ABOUT BRENT DAVIS
Brent Davis
Brent Davis, JD, LLM, is corporate counsel at McMaster University.
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