Posts tagged universities

How educational institutions should respond to the riot


A week after the Stanley Cup game seven loss and the riot that followed, Vancouverites are thinking less about how our boys in blue were thumped by the Bruins and more about how our cityscape was bruised by the rioters.  In terms of our pride as a city, the game pulled the rug out from under us, but the riot flat out beat us senseless, prompting the inevitable soul-searching and finger-pointing that happens when any group is shocked by the depravity of some of its members.

The most interesting thing about the past week (and to think, it’s only been a week) was not the violence itself, the response from the police or city officials or the identities of the rioters.  Far and away, it has been the role of social media and, particularly, how the prevalence of cameras (primarily on cellphones) mixed with the unrestrained ability for anyone to reproduce pictures and videos at little or no cost has produced severe, and often legal, consequences for anyone mixed up in the riot.  (Paradoxically, as Kent-Daniel Glowinsky pointed out in yesterday’s Vancouver Sun, in the age of Facebook often the most damning evidence is offered up by the law-breakers themselves, foolishly unaware that they are signing their own criminal confessions.)

The most prominent example of those that have been crucified by social media is Nathan Kotylak (Globe and Mail), the 17 year-old water polo star from Maple Ridge who was caught on camera during the riot trying to blow up a police car.  Kotylak has apologized profusely.  The implications for him and his family have been dire: they have had to leave their home because of threats, and his father – a surgeon – has had his professional reputation tarnished.  Kotylak is just finished grade 12 at Meadowridge High School, though he did not attend his graduation ceremony (the Province).  He was suspended from Canada’s junior water polo squad and it’s unlikely his school has taken any steps in response.

Another student spotlighted by the media is Camille Cacnio (the Ubyssey), a biology student at the University of British Columbia.  She has not gone to the same extent as Kotylak to publicize her apology and regret (though, arguably, the crime she committed was not as obscene and she may simply have not been as appealing to news agencies), but similar issues will be plaguing her, perhaps even more so because of the racial element in much of the online chatter about her.  UBC officials have said pretty definitely that since the riot did not happen at UBC and there was no material connection to UBC, they will not be getting involved.

Employers (Vancouver Sun) have an important decision to make about how to treat employees involved with the riot.  A person who commits a crime should not necessarily be fired from their job unless there is some significant connection between the crime and the job or unless that sort of thing is covered by their employment agreement.  The decision for education institutions is far more complex: should they take any steps against students who participated in the riot?

There are a couple of factors to consider:

  1. Teenagers vs. Adult.  High schools should approach the riot differently than universities should.  Nowadays, a teenagers caught committing a crime during a highly publicized event will likely be getting it from all sides: their family and friends will probably be furious with them and feel the effects themselves; the riot will probably show whenever their name is googled for the next decade or so (unless they happen to do something even more noteworthy, good or bad);  they will have to explain themselves and apologize at interviews, etc. until they are old enough to have their own kids in high school… the list goes on.  University students will probably go through the same, with even greater concern for their professional opportunities, but the chatter will likely affect teenagers in a more acute way because their identities and self-esteem may be more brittle.  High schools are probably best served by using the riot as an educational opportunity, and they should keep in mind that the reactions (or over-reactions, as the case may be) to a crime can be more damaging than the crime itself.  Of course, if they think it’s appropriate to take disciplinary steps against a student, they should keep in mind the legal implications of doing that.
  2. The Campus Connection.  UBC officials hit the nail on the head by emphasizing that offenders are being pursued, students and non-students alike, and since there appears to be no material campus connection there is nothing that the university itself should do.  Educational institutions are not parents.  A student has many identities, and in this case the fact that a rioter also took classes at a certain school may be incidental to what happened.   Schools and universities are concerned, but it’s not their problem any more than it is the problem of other local institutions and businesses.   Students can get arrested or have criminal records, but as long as it is unrelated to their role as a student there is generally no need for the school to intervene.   The question may get more complex if unique facts are involved, such as if university property located downtown (I am thinking of buildings belonging to UBC or Simon Fraser University) was damaged during the riot by students of those universities or if one student hurt another, and so on.

Teachers or professors rioting is a whole other ballgame, and in that case the factors to consider are more employment-related than anything else.

There are many lessons, legal and otherwise, that we can all take from the riot depending on our roles in society and our connection to the city.  Above all, it’s not only about the law.  What will prevent the next riot from happening, and accomplish the most to address the fallout from this one, will come from our internal sense of community or parental obligations and how they should be applied in these and similar circumstances.


Should Canadian universities ban sex between faculty members and undergraduate students?


Yale University’s alumni magazine reported last week that Yale faculty members are prohibited from having sexual relationships with undergraduate students, even those they do not teach or supervise in any way.  The ban was put into the faculty handbook in January:

Undergraduate students are particularly vulnerable to the unequal institutional power inherent in the teacher-student relationship and the potential for coercion, because of their age and relative lack of maturity. Therefore, no teacher (see below) shall have a sexual or amorous relationship with any undergraduate student, regardless of whether the teacher currently exercises or expects to have any pedagogical or supervisory responsibilities over that student.

Violations will lead to disciplinary actions.

There has been a debate surrounding this policy for several decades.  Those in favour of the ban argue that a university has the duty to protect students in loco parentis (i.e. a quasi-parental role), and sexual relationships with faculty members (even those that have no supervisory element) usually end poorly for the student because of the imbalance in power.  The flip side is that students and faculty members are adults, and where there is no conflict of interest it would violate the autonomy of individuals to tell anybody who they can and cannot sleep with.  It seems to boil down to the university’s duties to students versus the rights of students and faculty members.  

There was an interesting article in a couple of years ago, discussing how this ban grew out of court decisions finding schools responsible for on-campus sexual harrasment.

It is a dangerous business telling an employee that he or she cannot engage in sexual relationships with members of a large defined group.  I wonder what would happen if Yale took disciplinary action against a prof who dated (and, for the sake of argument, ended up marrying) someone who happened to be doing an undergraduate degree at Yale in an unrelated area.  Suppose further that the student was older than the prof. 

As the Globe and Mail reported a couple of days ago, Canadian universities have avoided any such ban, which would represent a legal minefield.  A conflict of interest is one thing, they say, but forcing faculty members to stay away from students because of a quasi-parental role is a whole different issue.  Besides, the argument goes, in Canada we already have sexual offence provisions in the Criminal Code, which prohibit sex (and related conduct) with anyone under 16. 

Without any reason to change that tune, it is not reasonable to expect the ban to cross the border.


Naming (and Un-Naming) Buildings Demands Clear University Policies


Nick Taylor-Vaisey has an interesting article in University Affairs this week, discussing the need for universities to have clear guidelines for placing the name of a philanthropist, corporate donor, politician or former educator on a building or program.  There is also a conversation with Vincent Duckworth, a Calgary-based educational consultant, where the issue is addressed further.

Naming is a tricky business.  Donors are often promised (or demand) a building be named after them or a relative of theirs when they make a considerable donation to an academic institution – I, for one, will never forget the long hours of study at the Nahum Gelber Law Library at McGill University.  For students, administrators and other community-members, a name is generally a cumbersome but innocuous addition to a building or program.  And if it helps make ends meet, all the better.

The challenge comes when the name, for whatever reason, is offensive to some or becomes offensive to all.  I actually met Nahum Gelber (a McGill alumnus) and his wife.  They seemed like nice people.  They gave for my benefit.  I thanked them.  But I would feel pretty odd, twenty years from now, giving a nostalgic campus tour to my son, as we pass the Bernard L. Madoff Department of Finance and stop for lunch at the Conrad M. Black Cafeteria (and imagine the dish they would reserve for David Radler).  Donors have many hats.  Crimes are revealed.  If the name of a convicted offender appears prominently on a campus meeting-place, what is a university to do? 

I was once told of a university south of the border that had accepted a generous donation from one of the key participants in the savings and loan scandal in the 1980s.  Once the news came to light, the university spun into action but was left unsure of what to do: the cost to remove the offender’s name from the building was half of what the offender had actually donated! 

Universities need policies and/or agreements with donors to ensure there are clear and mutually shared expectations about how the university will respond to these issues.


Choosing the right forum is half the battle


Gone are the days when getting justice in your dispute meant you had to face the regular court system.  Now, it seems like everybody is a judge of something and quasi-judicial entities abound.  Organizations have internal panels to handle complaints.  Administrative agencies have specialized tribunals to deal with industry-specific issues.  Courts appreciate the wisdom of a less expensive and uniquely-oriented body having first crack at an issue that can only reach a judge on appeal.

In the educational context, the common first move in court by counsel for institutions is to argue the dispute should not be heard by the court; that is, the court should decline to exercise its jurisdiction in this matter because it is more properly dealt with elsewhere.  Where a dispute has already been heard before a specialized tribunal (e.g. a university senate committee), courts will defer largely to that tribunal’s judgment.

Many of the issues that arise within education law involve an apparent overlap in jurisdiction between several adjudicative bodies.  Several recent judgments show courts declining jurisdiction when they determine the core of a dispute to lie within the jurisdiction of another body:

  • In Jaffer v. York University, a student with Down syndrome alleged a tort and breach of contract by the university for its failure to accommodate him.  The Ontario Superior Court of Justice agreed with counsel of the university that the student was effectively making a human rights claim, which should be heard before the provincial human rights tribunal.
  • In Abrams v. Johnson, a teacher brought a defamation claim against principals and school board administrators.  The Alberta Court of Queen’s Bench agreed with the defendants that the claim involved, in essence, an employment dispute.

In both Jaffer and Abrams the claims by the plaintiffs involved elements that were within the jurisdiction of the courts, but upon scrutiny in each case the courts determined that they were more properly dealt with by other bodies. 

To reduce legal fees and proceed quickly, parties to disputes within the world of education must make sure their claims are brought before the right adjudicator.

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