Posts tagged freedom of expression

New report critical of universities’, student unions’ commitment to free speech

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Modern universities are founded, in part, on the basic principle of academic freedom.   To benefit society our academics must be free to pursue any line of thought or inquiry, no matter how offensive it might seem to politicians, religious groups, business interests or anyone else, and no matter how meshuga it might sound to the average person on the street.  Free expression is a moral imperative and a political necessity.  It is vital to our survival as a democratic civilization.  Nowhere is it’s presence and growth more important than on university campuses.

Free expression at universities does not only mean the unrestrained ability of professors to zig or zag left or right in classes on political theory.  Course time is a small part of it.  Free expression also covers the rest of the community of ideas living and breathing on campuses, from signs at student-organized protests to letters to the editor of student newspapers. 

Like any other principle, it begs the question: what’s the status quo?  How does free expression actually fare at Canadian universities?

The Justice Centre for Constitutional Freedoms released a report last week involving a critical analysis of the state of free speech at Canadian universities.  As a brief bit of background, here is a glimpse of the JCCF’s approach from the group’s website:

The free and democratic society which the Canadian Charter of Rights and Freedoms holds out as our ideal can only be fulfilled by honouring and preserving Canada’s traditions of freedom of speech, freedom of religion, freedom of association, other individual rights, constitutionally limited government, the equality of all citizens before the law, and the rule of law.

 

And yet these core principles of freedom and equality continue to be eroded by governments and by government-funded and government-created entities like Canada’s public universities, and human rights commissions at the federal and provincial levels.

The JCCF is a charity intent on promoting individual liberties, such as free expression, by promoting discourse on the subject and providing pro bono legal representation to Canadians who cannot otherwise afford legal costs associated with defending their rights under the Canadian Charter of Rights and Freedoms (Department of Justice).  The JCCF’s political bent is obvious, but the group doesn’t pretend to be a politically neutral think tank, and reports like these – whether they are from the Fraser Institute or the Canadian Centre for Policy Alternatives – should be respected or dismissed on their own merits.  The same goes for the fact that one of the report’s authors, John Carpay, represents anti-abortion student activists.

 Here are some highlights from the report:

  • The report sets out a “Campus Freedom Index” based on the policies and principles of universities and student unions (what they say) and on the actions and practices of universities and student unions (what they do).  For example, a ”Good” rating on a university’s policies and principles means that the university has a clear and unequivocal commitment to free expression.  A university with strong limits on free expression in its policies and principles, such as restrictions against “disrespectful” or “provocative” speakers or perspectives, get a “Poor” rating.
  • The Index views favourably universities and student unions that share their respective resources, such as student union funding, equally among groups promoting various perspectives on political and social issues.
  • Carleton University is criticized for its approach to anti-abortion student activists (see here).  The University of Calgary is criticized for its approach to the Pridgen brothers (see here).  The University of Ottawa is criticized for how it handled Ann Coulter’s Canadian tour (Globe and Mail).  The best scores went to Simon Fraser University, the University of British Columbia and the University of New Brunswick.

Interestingly, the report denounces universities and student unions for actions or omissions taken against groups trying to advocate what are commonly thought of as left-wing views.  For example, the authors were disappointed by the decision of Dalhousie University to cancel a speaking engagement with British MP George Galloway because the event’s organizers were unable to pay for extra security.

This report should be considered by anyone looking for a primer on free speech on campus.

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Students gone facebook stupid: nursing students reprimanded, then vindicated, for posting placenta picture

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How would you feel if the nurse helping your wife through labour and delivery had just before finishing nursing school posted a photo of herself on Facebook posing and smiling broadly while holding a human placenta?

In yet another example of students going Facebook stupid, four students who posed for photos with a placenta were reportedly (insidehighered) kicked out of their suburban Kansas City nursing program at after one of the photos was posted on Facebook.  The students were attending a lab course at Olathe Medical Center when one asked the nursing instructor for permission to take pictures with the placenta to be shared on Facebook, which is exactly what they did.   The instructor denies the students asked for permission to post the pictures on Facebook.  The posted photo does not identify the woman from whom the placenta came.

Several hours after the photo was posted, the nursing instructor called the student who posted it and asked her to remove it, which she did immediately.  The four students were each expelled from the program the next day (or, more correctly, were kicked out and asked to reapply for the program this summer), and one of them started a lawsuit to force the school to readmit her immediately.  Here is a link to legal documents filed on behalf of the student.  Here is the press release with an explanation from Johnson County Community College, which includes a quote from the plaintiff’s letter of apology admitting she “should never have posted the photograph”.

Her claim went before a federal judge, who ruled (Huffington Post) against the college and noted that “I’m an uptight guy and I’m not offended [by the picture]“.   He focused on the fact that the particular mother was not identifiable, that there was implied consent by the instructor and that the school’s response was overkill, which denied the student due process.

Most of the opinions on these events involve criticism of the school.  Here is an interesting comment from blogger Eric Stoller (insidehighered):

I wonder if students at JCCC are taught how to use social media sites like Facebook in a manner that is respectful, ethical, and appropriate in terms of patient confidentiality. Posting and sharing all aspects of our daily lives via social media has become an accepted norm. As with most disciplines, students are not always inherently aware of what is and is not right. We have to teach them, not overly punish them when they make mistakes.

This story, which has been big in the news south of the border, raises issues about free expression of students and the power of educational authorities to take action against students for non-academic off-campus behavior.  My guess is that judges will eventually frown upon students arguing that schools should stay away from their online profiles, when those profiles are so easily accessible and the material posted there may be inflammatory and linked to the schools.  The Pridgen decision (see posts here and here) involving the University of Calgary is one example of a recent case that universities are looking to in an attempt to figure out what their response should be to Facebook posts by students that involve their educational experience.

There are several lessons, among others, that can be taken away from this story:

  • Privacy Is Dead, and You Killed It:  Students have to treat Facebook as a professional and educational hazard.  No matter who broad or narrow your class of “friends”, students should expect that anything they post anywhere on the internet may eventually be quoted in major news media.  It may also be taken (or mistaken, as the case may be) by an educational institution or employer as a reason to adopt certain measures against you.  Courts, like in the Pridgen decision, show an appreciation for the nature of interaction and communication on social media (i.e. it’s not exactly Oscar Wilde’s greatest hits), but if you do not want to attract attention, do not show your underwear, so to speak, in the public domain.
  • Students Are in for the Long Haul:  Courts understand that actions by educational institutions can severely impair a student’s ability to earn a livelihood, particular when the internet makes any incident – no matter that the context – almost impossible to keep off the radar of potential future employers.
  • Consider the Legal and Non-Legal Sides of Things:  The college may have overreacted and thus violated the student’s rights, but that doesn’t mean 10 years from now a smartphone-carrying mom-to-be in labour googling the names of attending nurses and physicians (I’ve seen it happen!) will be pleased to learn about these sorts of Facebook hijinks.

We – lawyers, academics, everyone! – are still trying to come to grips with the new reality imposed on us and what that means in terms of our rights and obligations.  If you want to stay out of trouble, tread carefully.

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How should school administrators respond to cyberbulling?

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There was an interesting article by Jan Hoffman over the weekend in the New York Times discussing the legal implications of cyberbulling, particularly for schools and parents.  There may be certain variations in the legal tests that apply in the United States and British Columbia but I think the article is important because it explores the sociological phenomenon of cyberbulling and how it is being treated by lawyers and judges. 
 
One issue to consider is whether cyberbulling is more likely to result in litigation than ”traditional” bullying and, if so, why that is the case. As well, cyberbullying raises the common question for schools about the limits of their jurisdiction and whether (or to what extent) schools are responsible for off-campus activities of students.
 
The article is fairly long, and I reproduce below the portion dealing with legal battles arising from cyberbulling.

Tony Orsini, the Ridgewood principal, learned about a devastating Facebook group last November, two months after it started.

“I had a 45-year-old father crying in my office,” Mr. Orsini said. “He kept asking, ‘Why would someone do this to my son?’ ”

A Facebook page had sprung up about the man’s son, who was new in town. The comments included ethnic slurs, snickers about his sexuality and an excruciating nickname. In short order, nearly 50 children piled on, many of them readily identifiable. “Kids deal with meanness all the time and many can handle it,” said Mr. Orsini, 38, a father of two children. “But it never lasts as long as it does now, online.”

The boy could not escape the nickname. At soccer and basketball games around town, opposing players he’d never met would hoot: “Oh, you’re that kid.”

The boy began missing school. He became ill. After weeks, he reluctantly told his parents.

“We don’t always get to address these problems until the damage is done,” Mr. Orsini said.

Because the comments had been made online and off-campus, Mr. Orsini believed that his ability to intervene was limited.

Rulings in a handful of related cases around the country give mixed signals.

A few families have successfully sued schools for failing to protect their children from bullies. But when the Beverly Vista School in Beverly Hills, Calif., disciplined Evan S. Cohen’s eighth-grade daughter for cyberbullying, he took on the school district.

After school one day in May 2008, Mr. Cohen’s daughter, known in court papers as J. C., videotaped friends at a cafe, egging them on as they laughed and made mean-spirited, sexual comments about another eighth-grade girl, C. C., calling her “ugly,” “spoiled,” a “brat” and a “slut.”

J. C. posted the video on YouTube. The next day, the school suspended her for two days.

“What incensed me,” said Mr. Cohen, a music industry lawyer in Los Angeles, “was that these people were going to suspend my daughter for something that happened outside of school.” On behalf of his daughter, he sued.

Last November, Judge Stephen V. Wilson of Federal District Court found that the off-campus video could be linked to the school: J. C. told perhaps 10 students about it; the humiliated C. C. and her mother showed it to school officials; educators watched it and investigated.

But the legal test, he wrote in his 57-page decision, was whether J. C.’s video had caused the school “substantial” disruption. Judge Wilson ruled in favor of the young videographer, because the disruption was only minimal: administrators dealt with the matter quietly and before lunch recess.

This legal test comes from a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, in which a school suspended students for wearing black armbands to protest the Vietnam War.

The court overturned the suspension, but crafted a balance between a school’s authority and a student’s freedom of expression. When a student’s speech interferes substantially with the school’s educational mission, a school can impose discipline.

The district had to pay J. C.’s costs and lawyers’ fees: $107,150.80.

Judge Wilson also threw in an aside that summarizes the conundrum that is adolescent development, acceptable civility and school authority.

The good intentions of the school notwithstanding, he wrote, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”

The lesson Mr. Cohen hopes his daughter learns from the case is about the limits on governmental intrusion. “A girl came to school who was upset by something she saw on the Internet,” Mr. Cohen said in a telephone interview, “and these people had in their mind that they were going to do something about it. The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”

He did chastise his daughter, saying, “That wasn’t a nice thing to do.”

He describes her video as “relentlessly juvenile,” but not an example of cyberbullying, which he said he did not condone. His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”

The J. C. decision has ignited debate. Nancy Willard, an Oregon lawyer who consults with schools, said that the judge could have applied another, rarely cited prong of the Tinker standard: whether the student’s hurtful speech collided with “the rights of other students to be secure.”

The Supreme Court has not yet addressed online student speech. Lower-court judges in some districts have sided with schools that have disciplined students for posting threatening videos about educators from their home computers.

In two recent cases, students were suspended for posting parodies of their principals. Each case reached the Court of Appeals for the Third Circuit. But one three-judge panel sided with a school for disciplining a student whose site suggested the principal was a pedophile; another panel sided with its case’s student, whose site suggested the principal used steroids and smoked marijuana. To resolve the contradictory rulings, both cases were re-argued earlier this month before 14 judges on the Third Circuit, whose jurisdiction includes New Jersey, Delaware, Pennsylvania and the United States Virgin Islands.

Nationwide, principals have responded to students who demean others online in dramatically different ways.

In January, 28 Seattle middle school students who wrote noxious comments on Facebook about one student received suspensions. The school also held assemblies about digital citizenship.

But when the mother of a seventh-grade boy in Fairfax County, Va., who requested anonymity to protect her son’s identity, sent his principal the savage e-mail messages and Facebook jeers that six boys posted about her son, the principal wrote back that although the material was unacceptable, “From a school perspective this is outside the scope of our authority and not something we can monitor or issue consequences for.”

Many principals hesitate to act because school discipline codes or state laws do not define cyberbullying. But Bernard James, an education law scholar at Pepperdine University, said that administrators interpreted statutes too narrowly:

“Educators are empowered to maintain safe schools,” Professor James said. “The timidity of educators in this context of emerging technology is working to the advantage of bullies.”

Whether suspension is appropriate is also under discussion. Elizabeth Englander, a psychology professor at Bridgewater State College in Massachusetts and founder of the Massachusetts Aggression Reduction Center, believes that automatic discipline for cyberbullies is wrong-headed.

“We tend to think that if there’s no discipline, there’s no reaction,” she said. “But discipline should never be the only thing we consider in these cases. There are many things we can do with children first to guide and teach them about behavior and expectations.”

Tony Orsini wanted to help his middle school student who was being teased mercilessly on Facebook. But he believed he had to catch the bullies at school.

He alerted teachers. At lunch, they spotted the three ringleaders as they forced the boy from their table.

“I called them into my office,” Mr. Orsini said, “and talked to them strongly about the lunchroom incident. Then I lied. I said I heard that the cops were looking at a Facebook group they had posted.

“It came down the next day.”

He rubbed his face in his hands. “All we are doing is reacting,” he said. “We can’t seem to get ahead of the curve.”

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