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U of C censures students for criticizing prof on Facebook, runs into Charter challenge

Catchfire
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Joined: Apr 16 2003

I heard about this story on The Current last night. This is an interesting case, for two reasons, I think.

First, there is the "free speech" issue which prompted the case:

Quote:
It all started in 2007 when the twin brothers took a course on law and society taught by Aruna Mitra.

Months after the course ended, one of the students in her class started a Facebook page entitled: “I no longer fear Hell, I took a course with Aruna Mitra.” Other students who had the misfortune of enrolling in her class were encouraged to share their criticisms of Mitra on the Facebook wall.

Students complained that Mitra was inept, lacked understanding and was “illogically abrasive.”

According to students, Mitra regularly made statements on a subject matter, then added “don’t quote me on that.” During one class, one student counted her saying “um” 260 times.

Enter Steven and Keith Pridgen. They both posted relatively innocuous comments on the Facebook wall. Steven Pridgen wrote, “Somehow I think she just got lazy and gave everybody a 65. That’s what I got.”

Keith wrote: “Remember when she told us she was a long-term professor? Well actually she was only sessional and picked up our class at the last moment because another prof wasn’t able to do it . . . Lucky us.” Keith then congratulated himself and his classmates “for leaving a Mitra-free legacy for future (law and society) students!”

It was brought up on the radio episode that website RateMyProfessors.com has been allowing these sorts of comments for years, without sanction, simply because users are anonymous. A lot was also made of the tameness of Pridgin's comments (for which he received two years academic probation). This made me think of the precarious nature of (particularly female and non-WASPy) adjunct or sessional instructors, and how vulnerable they can be to this sort of gang-up. I would expect my employer to protect me from this kind of abuse--which would account fro why Prof. Mitra has never commented on this case. The problems seem to issue from the fact that Universities seem to have no idea how to deal with social media (does anyone?)

The second interesting question, which has very broader implications, is something that the students' lawyer, Tim Boyle, introduced into the lower court's reading:

Quote:
That ruling was quashed in October 2010 when Court of Queen’s Bench Justice Jo’Anne Strekaf ruled that “students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving.”

The U of C appealed that ruling, arguing that universities are not subject to the Canadian Charter of Rights and Freedoms. That argument has shocked most Canadians who have heard it.

Most believe that universities are — or at least should be — bastions of free expression and thought. Instead, lawyers acting on the behalf of universities, argued that universities are charter-free zones.

The University's lawyers have said that (unlike this Herald article) they are in no way arguing that Universites shouldn't be bastions of free speech: on the contrary. But their issue remains that the ruling draws no boundaries as to where the Charter applies to institutions of higher learning. The ruling finds that Universities are "quasi-governmental" institutions, and as such are subject to the Charter of Rights and Freedoms, full-stop. That is, the Charter states that only the government is beholden to the Charter, and the court ruled that the University--which is regulated and largely funded by the Government--counts as Government.

This brings up massive questions of autonomy and practice, obviously: if the University is, essentially, an arm of government, can it set its own admission standards? Can it feasibly criticize government policy? Can its studies be seen as separate from government influence? Etc. Other Universities watching this case have now apparently sent their own resources to aid Calgary in its case, which now very much affects them too.

Did anyone else hear this case? Any lawyers/legal dabblers care to comment?


Comments

Unionist
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Joined: Dec 11 2005

The Charter only applies to governmental or quasi-governmental institutions. That much is well known. I can't make a Charter argument about my (private sector) employer infringing on my freedom of assembly when he tells me and my fellow workers to get the hell out if we want to do a union meeting, even if it's on our own time. I may have other arguments available to me, but not the Charter.

But the fact that a court rules that a university is close enough to being a public institution that the Charter has some scope of application, doesn't give "the government" any more powers vis-a-vis universities. That wasn't the issue before the court.

Now, that's my non-lawyer take.

As for the right of students to criticize their teachers - yeah, I bloody well hope so - and the duty of employers to ensure a harassment-free environment for employees - yeah, that too! There's no contradiction between the two, Catchfire. Both are sacred rights and obligations.

 


pookie
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Joined: Dec 13 2005

I have been following this case since it was decided last year.  I am torn about it.  I can see the arguments for why universities should be bound by the Charter in at least some respects.  But I am wary of the argument that the university is performing a "government function" when it delivers post-secondary education.  The autonomy issue also is quite serious - the university could find itself subject to all sorts of Charter challenges in respect of all kinds of decisions if this ruling is permitted to stand. 

The idea that freedom of expression is at risk unless unis are subject to the Charter is, to say the least, far-fetched.  And, of course, freedom of expression is not absolute in any event - it would not necessarily provide a complete defence for these students.  This is a bad case to decide such an important issue, because it generally is acknowledged that the university did not follow standard rules of procedural fairness in how it dealt with conduct.

Finally, I think the students' treatment of this professor reflects profound gendered racism and bullying.  I was extremely nonplussed when Tremonti questioned the uni lawyer about how students could, in effect, get "satisfaction" about subpar profs.  We should be careful to note which profs are more likely to be so classed.

Just to respond to a point in the post immediately above, the issue would not be that the Charter gives the government more power over the schools.  It is that (a) the uni would be subject to Charter challenges from third parties on a host of issues and (b) the government could easily seize upon that as a pretext to EXERT more power over them.


Unionist
Online
Joined: Dec 11 2005

pookie wrote:

Just to respond to a point in the post immediately above, the issue would not be that the Charter gives the government more power over the schools.  It is that (a) the uni would be subject to Charter challenges from third parties on a host of issues and (b) the government could easily seize upon that as a pretext to EXERT more power over them.

Good point. Worth worrying about. Thanks for that.

As for students, whether they're being racist or sexist or whatever, there must be an entirely free atmosphere for criticism, short of the usual considerations (threats, harassment, etc.). Saying that a teacher is lousy is not harassment.

 


Catchfire
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Joined: Apr 16 2003

Thanks Pookie, that really helps clarify the case.

Unionist--there are loads of avenues for students to express criticism, freely, of their students. Repeatedly challenging (i.e. hectoring) a teacher in class (especially when you wouldn't do the same to, say, a white male tenured prof) is not one of them. Publicly shaming a teacher with facebook groups is also not one of them. I don't think I'd go as far as academic probation, but it would be nice to see the administration stand up for its employees--I've seen too many women of colour harrassed in the classroom (in a way that I never have to deal with, and not because I'm more competent) just to let it slide.


Michelle
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Joined: May 10 2001

Worth repeating - great post!

Quote:

Finally, I think the students' treatment of this professor reflects profound gendered racism and bullying.  I was extremely nonplussed when Tremonti questioned the uni lawyer about how students could, in effect, get "satisfaction" about subpar profs.  We should be careful to note which profs are more likely to be so classed.


sanizadeh
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Joined: Dec 3 2007

Catchfire wrote:

Unionist--there are loads of avenues for students to express criticism, freely, of their students. Repeatedly challenging (i.e. hectoring) a teacher in class (especially when you wouldn't do the same to, say, a white male tenured prof) is not one of them. Publicly shaming a teacher with facebook groups is also not one of them. I don't think I'd go as far as academic probation, but it would be nice to see the administration stand up for its employees--I've seen too many women of colour harrassed in the classroom (in a way that I never have to deal with, and not because I'm more competent) just to let it slide.

Nonsense. Check on ratemyprofessors: white male tenured profs are as criticized as any one else. and university student body in Canada is far from white. As a faculty member myself, I believe if I am a lousy professor then the students have every right to shame me in public as long as it does not turn into libel. A posting on facebook should never be considered harassment, period. Just the fact that a public university sends its gang of lawyers to block students freedom of speech, and that some dare to support such fascistic action on a progressive forum, makes my blood boil. If that had happened in my university...


Catchfire
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Joined: Apr 16 2003

Er, the lawyers are not blocking the students' right to free speech--read this thread--they are fighting the application of the Charter, without limit, to Universities qua government. And "free speech" is not an absolute term at any rate--as I said, there are lots of ways for this student (among others) to "freely" express his opinion.

As for your assertion that "white male tenured profs are as criticized as any one else," let me just say that my experience is emphatically different. One might say "the opposite."


sanizadeh
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Joined: Dec 3 2007

Catchfire wrote:

Er, the lawyers are not blocking the students' right to free speech--read this thread--they are fighting the application of the Charter, without limit, to Universities qua government. And "free speech" is not an absolute term at any rate--as I said, there are lots of ways for this student (among others) to "freely" express his opinion.

As for your assertion that "white male tenured profs are as criticized as any one else," let me just say that my experience is emphatically different. One might say "the opposite."

Whether the current laws appropriately accommodate the true value of absolute Freedom of speech is another issue. However your argument about enforcing "ways" for students to express their opinion is similar to those who claim the Occupy movement should be evicted from the streets and forced to use "better ways". Choosing the way of expressing an opinion is part of freedom of speech. While heckling in the class is disruptive to the class and unacceptable, posting on facebook is not illegal and is not harassment, as unionist pointed out.

In this case, it seems nepotism (with her spouse being the department chair and on the disciplinary committee) was probably much more of factor than racism. Otherwise I can't imagine how someone who thinks Magna carta was a treaty between North American Natives and the British government, can be allowed to teach a course in law!

This nepotism is something I have seen a lot more than racism in Academia: A dean hiring her spouse as a program director while he is not even a full time faculty member; another case a dean appointing his relative as associate dean without faculty council approval; and in one case trying to promote a friend to a tenured position without going through tenure process.


Catchfire
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Joined: Apr 16 2003

I haven't said anything about "enforcing" ways to criticize. I pointed out that these students opted not to use the administrative channels open to them to criticize the prof, and instead used bullying classroom tactics and public humiliation to make their "point." Your Occupy analogy is not apt: we occupy because all previous methods of protest have been squashed, ignored or otherwise defanged by the government, elites and media. The new strategy, because of this, is: demand nothing, occupy everything. These students have hardly reached this point. Despite this, I haven't supported the University's handling of the greivance, or the alleged nepotism. I did say that the poor handling of the case by the University is likely due to their and other similar institutions' utter bafflement when it comes to social media.

What I do condemn is the behaviour of these students, whose supposed persecution does not impress me much.


sanizadeh
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Joined: Dec 3 2007

Well then we disagree. I fully support the behaviour of these students, knowing first hand that the students' options for protesting faculty members are even more limited than the occupy movement protestors. I also condemn university's fascistic actions in strongest terms, believe that the aforementioned dean should be investigated and fired if a conflict of interest is found, and the president of the university should resign not just for this incident but several other similar cases at U of C, including cases of wrongful treatment of faculty members too.

 


Unionist
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Joined: Dec 11 2005

Court sides with two Calgary university students in Facebook free-speech case

Quote:

The three judges on the appeals panel all agreed to dismiss the appeal, although each of them wrote their own reasons for arriving at their decision.

Justice Marina Paperny said that the Charter does apply to university discipline. Justice Bruce McDonald ruled that the university’s findings were unreasonable, but that there was no need to involve Charter rights to come to that conclusion. And Justice Brian O’Ferrall sided with the students, citing the university’s failure to consider their civil liberties.

Interesting. I'll post a link as soon as the full decision is available.

ETA: While waiting, here is the text of the 2010 Court of Queen's Bench decision.

 


Catchfire
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Joined: Apr 16 2003

Thanks for the update, Unionist. Interetsing indeed. Paging prof. pookie...


pookie
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Joined: Dec 13 2005

Decision can be found on court website. Hopefully this works.

http://www.albertacourts.ab.ca/jdb/2003-/ca/civil/2012/2012abca0139cor1.pdf

Reports say three sep opinions and only one endorses applying Charter to unis.

On my list for today.


Sven
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Joined: Jul 22 2005

I like this letter from the university to one of the students at the time of disciplining:

Quote:

“I want to state emphatically that you are not being sanctioned for expressing your opinions on this site. You are at liberty to do so,” read the letter sent to Keith Pridgen. “It is important, however, that your views are not based on false premises, conjectures, and unsubstantiated assertions that are injurious to individuals or institutions and their hard-won reputations.”

In other words, "You're free to express your opinion but if, in our opinion, your opinion is based on on false premises, conjectures, and unsubstantiated assertions that are injurious to individuals or institutions and their hard-won reputations, then we will punish you."

Good result from the courts.


Slumberjack
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Joined: Aug 8 2005

It all depends on the nature of the criticism.  The racial angle mentioned is frankly disturbing, but what if it had been Professor Tom Flanagan and his usual nonsense being put forward as educational lectures, and a few Marxist inspired students took to facebook to call him and his material out for what they are?  Would the court have been correct to rule against the students in that case?


Sven
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Joined: Jul 22 2005

Slumberjack wrote:

...what if it had been Professor Tom Flanagan and his usual nonsense being put forward as educational lectures, and a few Marxist inspired students took to facebook to call him and his material out for what they are?  Would the court have been correct to rule against the students in that case?

Of course.

On what possible grounds should students be prohibited from expressing their...opinions?!?

Let me ask you the same question:

Slumberjack wrote:

...what if it had been Professor Tom Flanagan and his usual nonsense being put forward as educational lectures, and a few Marxist inspired students took to facebook to call him and his material out for what they are?  Would the court have been correct to rule against the students in that case?


Slumberjack
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Joined: Aug 8 2005

In that circumstance, the court would have been wrong by my estimation.


Sven
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Joined: Jul 22 2005

Slumberjack wrote:

In that circumstance, the court would have been wrong by my estimation.

On what basis?


Slumberjack
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Joined: Aug 8 2005

On the basis of my bias in favour of the Marxists?  But no not just on that.  Legitimate freedom of speech not founded on a particular hatred of an identifiable group or community would stand out to me.  Facebook dialogue with it's security features constitutes a private discussion among friends.  If institutions can infringe upon discussions among one's intimates, there's no limit as to what it, or the institution of the police might be able to delve into.


Sven
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Joined: Jul 22 2005

Slumberjack wrote:

egitimate freedom of speech not founded on a particular hatred of an identifiable group or community would stand out to me.

So, in the actual Facebook case, what was the "identifiable group or community" that "hatred" was directed at?

It sounds to me like they were ripping on an individaul professor because they thought she was incompetent and lazy.


Sven
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Joined: Jul 22 2005

Catchfire wrote:

I would expect my employer to protect me from this kind of abuse...

But, let's say that, as a professor, you were incompetent and lazy.  Should students be muzzled from calling you out on your incompetence and laziness?

Let's say that it was legitimately debatable whether or not you were incompetent and lazy and several students said that, in their opinion, you are incompetent and lazy.  Should they be muzzled?

What if virtually everyone said you were not incompetent and lazy but several students said that, in their opinion, you are incompetent and lazy.  Should they be muzzled?


Unionist
Online
Joined: Dec 11 2005

Slumberjack wrote:

 The racial angle mentioned is frankly disturbing, ...

Ok, I've read back through the thread and links (not many). Could someone point me to the "racial angle"? Not saying it wasn't there - just saying I couldn't locate it.

 


torontoprofessor
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Joined: Jun 20 2007

I have been the target of vicious, and in one case quite personal, attacks on ratemyprofessors. The nonpersonal attacks (i.e., attacks on my teaching style, on my course evaluation methods, etc.) are all part of a professor's life, but the one personal attack made me feel ill when I first read it. That said, I would consider it bizarre for the university to assert jurisdiction over ratemyprofessors or facebook, and to punish the students involved (in cases where the students can be identified). Similarly, if a student verbally abused me in a grocery store -- "Hey Professor, your course sucked and you can't teach! And you should get some new clothes, and stop burping during lecture!" -- I would consider it bizarre for the university to assert jurisdiction over the grocery store, and to punish the students involved.


Unionist
Online
Joined: Dec 11 2005

Torontoprofessor, if you've read the actual comments by the two students (they're cited in full in the original court decision, maybe the court of appeal as well) - how would you rate them, given the distinction you've drawn between "personal" and "nonpersonal" attacks?

ETA: I'll post the full excerpt from the Court of Appeal here. The two students each made only one post each, and they're quoted below.

Quote:
[7] Steven Pridgen was among the first to post a comment. In response to an early discussion
about grades (and in specific response to two posters who had received 65% on an assignment), he
made the following comment on November 13, 2007:


some how I think she just got lazy and gave everybody a 65....that’s what I got. does
anybody know how to apply to have it remarked?


[8] That was his only post.


[9] Another student soon responded to Steven Pridgen’s query, advising that he should attend
a university office “within 15 days of receiving [his] mark to appeal the grade.” The student further
commented that she would “most definitely” be doing so. In fact, several students did successfully
appeal their grades from the course.


[10] Other students continued to post comments throughout November 2007, many of them
highly critical of Professor Mitra’s qualifications, teaching skills, and assessment practices. She was
variously described as “inept”, “awful”, “illogically abrasive” and “inconsistent.” Perhaps the most
inflammatory post suggested that Professor Mitra should be “drawn and quartered during a special
presentation at Mac Hall.” The Pridgen brothers did not post in response to any of these comments.


[11] No further posts were made until approximately two months later, after the completion of
the LWSO course. On February 1, 2008, a student expressed enthusiasm for her new law class and
observed that Professor Mitra did not appear to be teaching any courses that semester. After an
additional six months, on August 26, 2008, Keith Pridgen offered this apparent response:


Hey fellow LWSO homees ..
So I am quite sure Mitra is NO LONGER TEACHING ANY COURSES WITH THE
U OF C !!!!! Remember when she told us she was a long-term professor? Well
actually she was only sessional and picked up our class at the last moment because
another prof wasn’t able to do it ... lucky us. Well anyways I think we should all
congratulate ourselves for leaving a Mitra-free legacy for future LWSO students!


[12] Keith Pridgen’s comment was based on his understanding of a conversation he had with
Associate Dean Brent regarding student concerns over Professor Mitra’s marking. This was his first
and only post to the wall.

 


Slumberjack
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Joined: Aug 8 2005

Unionist wrote:

Slumberjack wrote:

 The racial angle mentioned is frankly disturbing, ...

Ok, I've read back through the thread and links (not many). Could someone point me to the "racial angle"? Not saying it wasn't there - just saying I couldn't locate it. 

Pookie's post #2 is the reference.


Unionist
Online
Joined: Dec 11 2005

Slumberjack wrote:

Pookie's post #2 is the reference.

Ok, yeah, that's all I saw, but there's no explanation, citation, nor even specification as to which students are being referenced. Hopefully pookie can provide some more detail. Because quite frankly, if the only comments made by the Pridgens were the two posts referenced above in the court decisions, then the notion of the university applying discipline is frightening - irrespective of whether the Charter applies or not.


torontoprofessor
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Joined: Jun 20 2007

 

Unionist, I recognize that there's really a spectrum, and not a sharp boundary, between nonpersonal comments (e.g., "the exam was too long") and personal comments (e.g., "the professor is a jerk and a deeply dishonest person"). Also, it's easy for an educator to take nonpersonal criticism quite personally, since we often do put a lot of effort in designing a course, grading papers, and even designing an exam.

Steven Pridgen's remark strikes me as being on the nonpersonal side of the spectrum: although he voices his suspicion that Mitra "got lazy", this was not a suggestion that she is generally a lazy person, but rather that, in the context of grading this particular course, she did not give students' work due attention. (I must confess to having, at times, failed to give students' work due attention when sitting in front of a pile of 70 papers.) Keith Pridgen's remark is of a factual nature until he writes, "lucky us, etc." This is more personal in tone than SP's remark: but still, it's based on an assessment (perhaps an inaccurate assessment) of the professor's teaching ability and not of the professor's character. So I would rate is as more nonpersonal than personal.

I repeat that, even in an obviously personal case, I would consider it bizarre for the university to assert jurisdiction over facebook -- or over the grocery store, as in my example above.

Maybe I'm wrong -- maybe it's perfectly reasonable for an educational institution to punish students for remarks made, or actions undertaken, beyond its immediate jurisdiction. There's some similarity here to Fanshawe College's suspension of eight students who participated in the riots in London, Ontario, recently. On the one hand, we already have authorities under whose jurisdiction these actions fall. On the other hand, students do implicitly agree to an institution's code of conduct when they sign up: Under Fanshawe's code of conduct, the school can impose academic penalties on students whose off-campus actions could affect the health and safety of others in the community. Thoughts?

 


Sven
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Joined: Jul 22 2005

torontoprofessor wrote:

I repeat that, even in an obviously personal case, I would consider it bizarre for the university to assert jurisdiction over facebook -- or over the grocery store, as in my example above.

And that, I think, is the correct bottom-line conclusion.


Unionist
Online
Joined: Dec 11 2005

Thanks very much for your reply.

torontoprofessor wrote:

I repeat that, even in an obviously personal case, I would consider it bizarre for the university to assert jurisdiction over facebook -- or over the grocery store, as in my example above.

My own experience is with the rules (not written rules - principles developed through arbitral case law) surrounding employment-related discipline in situations of "off-duty conduct". The general rule is that it's none of the employer's business. Then there are the exceptions relating to the nature and consequences of some off-duty conduct that may affect the employer's legitimate business or other interests.

Simple example: A worker sexually harasses a fellow worker, never at the workplace nor during working hours, though not to the point of actionable criminal conduct (e.g. "sexual assault") - or they are even found not guilty after being charged. The employer conducts its own investigation and is satisfied that the harassment has occurred. The employer takes action - separating the two parties at work, or disciplining or dismissing the harasser.

My view? If the allegations are proven, then such action is legitimate and appropriate. A victim of such harassment should not have to face her harasser on a daily basis, just because there's no criminal conviction. And the employer has not only the right, but the duty, to ensure the health and safety of the environment and the employees.

I believe that in this (extreme) example, the same principle would apply in an educational institution, and the only question would be, what remedial measures to take on a case by case basis.

When it comes to "defamation", employees are not free to say whatever they like "off-duty" about their employer. Unless they can show some colour of right (e.g. the criticism is entirely truthful, made in good faith... or the statements are made in the employee's legitimate capacity of trade union rep, etc.), then such "disloyalty" will often be the subject of discipline. And yes, there's obviously a spectrum.

In a university setting - where students are not employees, and they don't owe a "loyalty" obligation to the university or its agents - I think the range of permissible "out-of-class" expression must necessarily be much broader. Unless it offends against the Criminal Code (including the criminal libel provisions), I'd have a hard time imagining what kind of speech should be actionable. If a prof feels defamed, civil action (or criminal charges) may well be the recourse, even supported by the university. But discipline? I'd need some convincing.

ETA:

Sven wrote:
And that, I think, is the correct bottom-line conclusion.

Generally yes, when it comes to expression (i.e. no university "jurisdiction" over Facebook or the grocery store). But I think it's essential to consider the kind of situation I pointed to - namely, individual harassment, stalking, etc. off-campus, which could well have a destructive impact on the ability of the victim to function at school - the university has the right and duty to redress the situation, just as an employer would.

 


Catchfire
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Joined: Apr 16 2003

You know, Unionist, this reminds me of the Avenir cheating case where the university took disciplinary action against a group of students who were using facebook to share answers. I suggested that the University did not have jurisdiction over facebook anymore than they would if the students were sharing answers in the cafeteria or library or at home. I don't think you agreed with me then (nor did many). I don't bring this up to play gotcha or anything (ok, maybe a little), but just to reinforce my point in the OP that much of this messy action stems from the fact that:

Catchfire wrote:
Universities seem to have no idea how to deal with social media (does anyone?)

The other reason I think that this incident got messy is a failure of the employer to protect women of colour who are subject to undue harrassment in the classroom. The "racial angle" is that women of colour instructors have their knowledge and competence and experience questioned, challeneged and outright insulted far, far more often than white men. I don't even have my PhD yet and I've seen my opinion (which was identical) taken over that of a tenure-tracked professor of colour. This is just one of many, many examples. That's what I mean by I expect the employer "to protect" its employees.


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