Inside Higher Ed: More legal risk for Canada’s universities

By Doug Lederman, for Inside Higher Ed

October 18, 2010

In what appears to be the first decision of its kind, a Canadian court has ruled that universities can be considered government entities and their actions government actions, at least when it comes to their dealings with students. This is important because it means that the institutions can be held legally liable if they violate the rights of students.

The decision by the Court of Queen’s Bench of Alberta, a trial court in that Canadian province, came in a case involving the sexy issues of Facebook and the treatment of students by institutional codes of conduct.

Twin brothers Keith and Steven Pridgen ran afoul of administrators at the University of Calgary when they posted a single comment each on a Facebook group called “I no longer fear Hell, I took a course with Aruna Mitra”, on which the brothers and other students sharply criticised the instructor in a 2007 “Law and society” course.

After Mitra complained to the dean of Calgary’s Faculty of Communication and Culture, the dean met with the 10 students who had posted comments and ultimately found them all to have committed non-academic misconduct, without considering any evidence from the students themselves. Both Pridgen brothers were placed on probation, and when they appealed, a faculty panel upheld their punishments.

When the university declined to hear a further appeal to Calgary’s Board of Governors, the students sued in 2009, charging among other things that the university had violated their rights under the Charter of Rights and Freedoms, roughly equivalent to the US Bill of Rights.

Most previous decisions by Canadian courts have held that the Charter does not apply to universities, even though they receive sometimes significant public funds. The foremost decision along those lines came in 1990, when the Supreme Court of Canada, in a case known as McKinney v University of Guelph, held that the Charter does not apply to universities concerning their dealings with employees. In that case, the court ruled that a professor, David McKinney, could not cite the Charter to strike down the university’s mandatory retirement programme as illegal age discrimination. (The court was divided, though, with some justices arguing otherwise.)

In her analysis in the Calgary case, Judge Jo’Anne Strekaf said that the Charter can be held to apply to something other than a government agency either if it can be judged to be part of government, or if it engages in actions that are seen as governmental in nature – if it is found to “be implementing a specific governmental policy or program”.

Looking specifically at the University of Calgary and how it is governed, Strekaf said that she was “satisfied that the University of Calgary is not part of the government so as to make all of its actions subject to the Charter”.

But comparing the university’s actions in this instance to a prior ruling that applied the charter to a hospital that carried out necessary medical services, Strekaf concluded that the University of Calgary “is acting as the agent of the provincial government in providing accessible post-secondary education services to students in Alberta pursuant to the provisions of the Post-Secondary Learning Act”, Alberta’s primary higher education law.

While university officials argued to the court that its policies on disciplining students relate to its “legislated power to manage its internal affairs as an autonomous and self-governing organization”, the Alberta judge saw it differently: “In dictating the terms upon which a student may receive an education at a public institution the University is performing a function that is integrally connected to the delivery of post-secondary education as set out by the PSL Act,” she wrote.

Strekaf added: “I am satisfied that the University is not a Charter free zone. The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act...While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.”

The judge’s decision goes on to find that the university did violate the Pridgens’ Charter rights, both in finding their behaviour to be non-academic misconduct and in the fairness of the procedures it used to reach those conclusions. She ordered the university’s finding against the two students quashed.

Implications for Canada’s universities

University of Calgary officials did not respond on Friday to requests for comment on the court’s ruling. A spokesman told the Calgary Herald that institution officials were reviewing the decision to decide whether to appeal it.

Noah Sarna, an associate at a Vancouver law firm who has written a book on Canadian education law and publishes a blog on education law, said in an interview on Sunday that the case was distinctive in that it appeared to represent the first time that a court had allowed a Charter claim against a university over its treatment of students. While the case is not binding on other Canadian courts – its ruling is like that of a federal district court – it could be cited as persuasive by other courts.

“There is now a case on the books where a university is found to have a Charter obligation toward a student and to have failed to satisfy that duty,” Sarna said. He said it was reasonable to think that such a finding may encourage other students to challenge university policies – challenges that have historically been uncommon.

In a column last week in the Calgary Herald, another lawyer, John Carpay, argued that the decision would open the door to legal challenges (and strengthen existing ones) to the free speech and other policies at the University of Calgary, and potentially elsewhere.

“This court ruling makes it clear that when a university tries to use its legitimate disciplinary proceedings for an illegitimate purpose such as censorship, the Charter protects the students’ right to free speech,” Carpay wrote. The university, he said, “receives more than $600 million from taxpayers each year.

“Yet this same university suddenly claims to be ‘private’ when bullying and intimidating its own students for peacefully expressing their views. If the U of C wishes to censor speech it considers offensive, it should become truly private and turn down the hundreds of millions of dollars it receives from Alberta taxpayers for the express purpose of fostering ideas and debate.”

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