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Speculative

It’s a legal matter, from now on…

Posted on May 22, 2012 by

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Canada is generally a much less litigious place than the United States, and that has been reflected in the ways in which the law has come into play in U.S. postsecondary education. Recently, however, we’ve seen some precedents laid down in the Canadian context; in this post I’ll be looking at two of these, and examining some of their possible implications.

The first decision, from the Ontario Court of Appeal, involves not a complaint about degree outcomes but about universities’ responsibility to provide students with what they are promised, such that they can earn a degree. Judith Knelman reports that “the decision, in Gauthier c.Saint-Germain, Boudreau et L’Université d’Ottawa, […] spells out the circumstances in which a student may sue a university for damages.”

The decision involved two different cases, only one of which I’m highlighting here — that of a doctoral student, Manon Gauthier, who sued the University of Ottawa for negligence and breach of contract. Gauthier “claims she was told by her supervisor that she would get a $50,000 admission scholarship and a teaching assistantship [and] that she’d have her doctorate in education in four years.” After eight years and two supervisors (and no PhD), Gauthier “took legal action, alleging misrepresentation, sexual harassment and incompetence.”

The decision is significant because “until recently, courts have not interfered in disputes between universities and students where academic standing is at the heart of the suit” (Toronto Star). New pressure comes from the rising cost of education, which encourages students and families to take on a more consumerist perspective in their dealings with universities. Harriet Lewis, general counsel at York U, commented that “the relationship between and a university and its students is frequently viewed by students to be more of a commercial relationship than in the past: tuition is paid and a degree is expected.” Yet as we know, payment of tuition does not guarantee a degree (which by this logic becomes a “product”).

This raises the issue of the marketing of education, and of doctoral programs in particular. Who is responsible for recruiting new students and providing them with accurate information about matters of academic and financial planning? How much are students expected to find out themselves? What happens when a student is told something false and makes decisions based on this? The Gauthier case shows the need for a clear differentiation between academic factors that are the student’s responsibility, and those over which the university has control. In other words, we must tease apart the workings of “success” (or rather, “failure”) and determine what each party should be contributing to it.  We have never resolved the question of “responsibility” in educational outcomes, but lawsuits could force the issue.

How might litigiousness change the way doctoral education works? Will universities try harder to ensure that expectations and responsibilities are made clear? Issues with doctoral supervision are rampant, and often intense; in what other ways will universities now be opened up to legal action by students who have not received their due?

The second result I want to discuss, Pridgen vs. the University of Calgary, involved a case by U of C students (and brothers) Keith and Steven Pridgen. The Pridgen brothers posted comments about their professor on a Facebook group called “I no longer fear Hell, I took a course with Aruna Mitra.” She complained, and the university, arguing that the students’ public accusations of Mitra’s incompetence were without merit, found them (and eight others) guilty of non-academic misconduct under the university Code of Conduct. After attempts to appeal through the university failed, the Pridgens took their complaint to the Court of Queen’s Bench, then to the Alberta Court of Appeal which upheld the ruling that the Charter applies to their case. Their success has been described as a “victory for campus free speech”, having established that the universities are not “Charter-free zones”.

This decision, of course, has larger implications. For example, it’s a windfall for those pushing at the free speech issue from other angles. Lawyer John Carpay, who also stood as a candidate for Alberta’s Wild Rose Party, wrote a celebratory op-ed on this topic for the National Post and is working on other free-speech cases such as one at the University of Calgary involving “censorship of pro-life viewpoints.”

Here Canada can take a cue from the the U.S., where straw-person “freedom of speech” positions are used to argue that radically conservative, often fundamentalist perspectives should have more visible representation on campus — including, for example, assertions that evolution and global warming are “just theories.” This kind of positioning is often accompanied by the accusation of universities’ (and specifically, faculty members’) “left-wing bias.” It’s all free speech, but of course speech isn’t free from political implications.

Court ruling aside, I still think it’s depressing to see students commenting publicly on their professors in this way; everyone has felt frustration with a teacher or prof, but sharing insults online betrays a lack of basic respect. Students regularly complain about their grades; some will even hate their professors, and yes, profs and TAs have moments of incivility about students as well. Sure, you’re free to say what you want; but such actions also communicate bad faith and a lack of judgement, whether or not the university tries to impose its own punishment. In the Pridgen case, it seems legal proceedings have been used as validation that the right to free speech is more important than taking responsibility for what’s been said.

When university members begin to litigate over matters of fair and professional conduct, universities find themselves exposed to yet another logic different from that of academe. The law requires us to engage in a specific kind of debate, and to take definite positions where before there were none. Just as important, the fear of legal action inspires pre-emptive caution. Perhaps this is the first change we should look for, and the one that could be most pervasive.

Melonie Fullick

About Melonie Fullick

Melonie Fullick is a PhD candidate at York University. The topic of her dissertation is Canadian post-secondary education policy and its effects on the institutional environment in universities.

Comments

2 Responses to “It’s a legal matter, from now on…”

  1. M-H says:

    There are two different things in this discussion, I think. For PhD students, as you point out, the calibre of supervision is crucial, and hasn’t usually (until now at least) been monitored by institutions – which does open them up to a significant degree of risk. As for undergraduates, when students claim that they’ve paid fees and thus should get a degree, I’m in the habit of pointing out that what they’ve ‘purchased’ is the right to take the degree, to work or not to work, and to pass or fail. Staff members will vary in quality, but they are not entirely responsible for student learning, which takes place in a rich and complex environment at modern universities. I like your point about the lack of respect shown by the Pridgen brothers’ action.

    You might also find this discussion interesting, written from the legal end about an Australian secondary school case: http://skepticlawyer.com.au/2012/05/17/who-is-responsible-for-learning/

  2. SC says:

    The first case is patently ridiculous. No one can guarantee a scholarship or time to completion; only a rough approximation can be given at best. Any such expectation would only be valid if the student kept his/her side of the bargain which does not appear to be the case here.
    The second case probably has more merit (freedom of expression and whatnot) but by the same token faculty should also be free to criticize their errant/problematic students in public forums. What’s good for one group of stakeholders should be good for another group too, right? Are the students ready for it?

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