Universities across the country are struggling with how to deal with their students' use of social media. I previously covered the Alberta case of Pridgen v. University of Calgary, where the court quashed a decision by the university to discipline students who made critical comments on Facebook about a professor. Key to this decision was the university's actions lacked procedural fairness.
Earlier this year the Alberta Court of Appeal upheld this decision, with three separate decisions. Justices McDonald and O’Ferrall indicated that the Charter analysis undertaken by the Court of Queen’s Bench of Alberta was unnecessary, and upheld the decision on administrative law grounds. Only Justice Paperny made any significant comment on the expression rights of the students:
 The chambers judge in this case considered whether the infringement of the Pridgens’ freedom of expression was justifiable under section 1. She rightly noted that freedom of expression, while vitally important in a democratic society, is not an unqualified right. The University must be able to place reasonable limits on speech on campus in order, for example, to maintain a learning environment where there is respect and dignity for all. Criticism and debate are essential to ensuring the place of universities as centres for discussion.
 In this case, however, the chambers judge concluded that the critical opinions made by the students, although some were not particularly gracious, had utility in encouraging discussion and providing feedback to current and future students. The imposition of discipline in this case went beyond what was necessary to achieve the objective of the Student Misconduct Policy to maintain an appropriate learning environment. The University did not challenge these conclusions on appeal, and, in any event, I agree with the chambers judge that the actions of the dean and the Review Committee in this case went too far to be considered a reasonable limit on the exercise of free expression.
 The chambers judge did not have the benefit of the Supreme Court of Canada’s recent decision in Doré v Barreau du Quebec,2012 SCC 12 (CanLII), 2012 SCC 12. That decision provides guidance on how to determine whether administrative decision makers have properly exercised their statutory discretion in accordance with the Charter, emphasizing that “the protection of Charter guarantees is a fundamental and pervasive obligation, no matter which adjudicative forum is applying it”: . Among other things, the decision in Doré emphasizes the question of proportionality that is at the heart of a section 1 analysis. The question to be asked is whether the administrative decision maker properly balanced its statutory mandate with the Charter right and its fundamental importance.
 Neither the Review Committee nor the Board of Governors undertook any Charter inquiry. No attempt was made to balance the statutory mandate with freedom of expression. That was a result of the University’s position that its statutory mandate precludes the application of the Charter. Notwithstanding that position, the chambers judge was alive to the competing policies that would inform the section 1 analysis. In the context here, those might include the types of issues described above – access to education, fostering an environment of open exchange of ideas, the prevention of incivility, intimidation, disrespect and fear, and the fostering of a safe environment to discuss and debate contemporary issues within and among a diverse student body. The balance to be struck is between the seriousness of the impugned conduct and its effect on the tenor of debate, and the student’s ability to criticize, comment on or refute the quality of education he or she receives. The University’s actions in disciplining the Pridgens did not balance their expressive rights with the University’s statutory objectives; indeed, the University denied the existence of those rights entirely.
The University of Calgary has since acknowledged the need to improve it's non-academic misconduct policies. Most educational institutions are still struggling to develop bright line rules which could foster predictability and transparency.
University of Windsor Decision No. JPH-12/13-10
A University of Windsor discipline panel released a decision this past Thursday examining tweets made by a nursing student while in class towards a professor and another student. The basis for the charges against the student included violations of:
- Senate Bylaw 31
- Student Code of Conduct
- Faculty of Nursing’s Social Media Policy and various Practice Standards set out by the College of Nurses of Ontario (as incorporated into the Faculty of Nursing’s program)
Senate Bylaw 31 states:
2.2 Non-Academic Misconduct
All other actions that demonstrate a lack of integrity as defined as a lack of adherence to this University’s bylaws and policies and that do not fit under the definition of academic misconduct. For purposes of determining subsequent offences, there is no difference between acts of academic and non-academic misconduct.
Appendix A provides examples of misconduct which can include:
29. Breach of the Senate Student Code of Conduct.
30. Breach of the rules of conduct as set out by professional bodies and adopted in substance by the relevant professional program as part of its code of conduct in the program
The Code of Student Conduct states:
The University of Windsor is a community of scholars committed to the motto of: Goodness, Discipline, and Knowledge. As in any community, integrity is the foundation upon which all else is built. Fundamentally, a university is a place where those eager to learn gather to advance knowledge in an open, accepting and friendly manner with a goal to making important contributions to society.
- It is a place where freedom of expression is protected vigorously and uncompromisingly and where civility of expression in word and deed is the code of conduct.
- it is a place where all people are treated fairly without concern to religion, race, colour, national origin, sex, sexual orientation, disability or age.
As such, students are expected to commit to a code of behaviour that stresses respect for the dignity and individuality of all persons, and the rights and property of others. They are expected to practice personal and academic integrity, to take responsibility for their own personal and academic commitments, and to contribute to the University community to gain fair, cooperative and honest inquiry and learning. They are also expected to respect and strive to learn from differences in people, ideas, and opinions, and refrain from and discourage behaviours which threaten the freedom and respect that every individual deserves.
B) Non-Academic Rights and Responsibilities. It is the right of all members of the University community that their person and their property be treated respectfully, free from endangerment or harassment. It is the responsibility of each individual to behave in a manner that ensures this and ensures the protection of societal property. Some examples of behaviours that violate this code follow:
i. Physically, verbally or sexually assaulting or harassing another person or in any way threatening another person.
ii. Knowingly creating a situation that endangers or threatens the health, safety or well-being of any person or that threatens to damage or destroy property.
The Faculty of Nursing Student Handbook has extensive guidelines on social media use:
Use of social media for non-academic purposes is not permitted during any clinical experience.
Students may not access agency computers for the purpose of social networking.
Use of cell phones is not permitted during clinical hours, unless required for an emergency purpose, and when there is no other means of contact available. In this situation, the student will discuss this need with the clinical instructor prior to use.
Unauthorized use of social media, cell phones, or the internet in the clinical setting will result in removal of the student from the clinical area.
Social media behaviours must be consistent with the following CNO Standards and Practice Guidelines: Ethical Framework, Nurse-Client Relationship, Documentation. The failure of any student to conform to these Standards, while using any social media site, may result in dismissal from the program.
The Handbook goes further, and even warns students of potential legal liability:
Guidelines for Personal Networking:
Respect Faculty of Nursing time and resources. You should participate in non-academic social media conversations on your own time. Ensure that your blogging and social networking
activity does not interfere with your academic commitments and engagement in learning.
Maintain confidentiality and privacy. Do not post confidential information about the Faculty of Nursing, its students, faculty or its agencies.
Be aware of liability. Students are responsible for the content that is posted on their own sites, and on those of others.
Avoid using unprofessional online personas. Do not post defamatory, libelous or obscene content. Employers may conduct web searches on candidates before extending offers. Search engines can recall posts and pictures years after publication. Post only pictures that you would be comfortable sharing with the general public.
(Adapted from the Government of Nova Scotia and the University of Michigan. In compliance with Bill 168 and the proposed University of Windsor Code of Civility.)
Analysis in Windsor Decision
The tweets in question by the student were made on March 5th, 2012:
i. “i’d [sic] throw my cellphone at her, by my cellphone is more valuable #worthlessbitch”;
ii. “Not the first time she got an STD”;
iii. “Ofcourse [sic] she’s going to volunteer to spread her legs wide #sluttyhoe”;
iv. “our teacher showed up to class dressed like a fool, and is acting like a child #sosick #typicaldayinnursing”.
Dr. Emir Crowne, Chair of the panel, looked that the fourth tweet first. The costume referred to by the student in this tweet involved role-playing of organic brain disease by the professor for the purposes of demonstration. Although this made the student's tweet even more distasteful, Dr. Crowne referred to the expression rights at para. 128 of the Court of Appeal's decision in Pridgen, and stated,
…The fourth tweet, as we have labelled it, is therefore saved under sub-section 2(b) of the Charter as an exercise of the Respondent’s freedom of expression. The quality of the expression is not for us to judge, but there does appear to be some ‘peppercorn’ of expression that is protectable. Even if the‘peppercorn’ is debatable, the benefit of the doubt must fall to the Respondent.
The other tweets were all directed towards a fellow student in the class, and related to a replica of the syphilis bacterium in an Anatomy and Physiology class, and hip range of motion assessment in a Health Assessment class. Although the panel acknowledged that even a single incident can constitute sexual harassment, harassment was difficult to demonstrate within the contextual limits of a tweet where links to other content or attached photos were absent. These tweets were enough to considered uncivil by the panel, in contravention of Bylaw 31:
10. Taken together, these tweets amount to uncivil conduct. Given the specific context, timing, and a contextual crude equivocations contained within them, they meet the threshold of being “uncivil”. Here we adopt the plain meaning of the word as set out in the Oxford English Dictionary (online) as being “discourteous; impolite”. There is no redeeming ‘peppercorn’ of free speech to be protected here. Furthermore, the power imbalance between a Professor and a student would incline us to permit crude criticism or commentary about the former by the latter, but as between two (2) students, there is little power imbalance (especially on social media).
The panel also explored the policy considerations of disciplinary charges for students on social media and the need to balance it with free speech. The Charter rights of students should not be infringed upon when the have some grain of commentary or criticism, even if they are crude or distasteful, unless they interfere with the ordinary function within the university, affect the integrity of the university program or department as a whole, or affect the integrity of the university as a whole. Discipline on these grounds does not require direct intent, and recklessness, indifference or willful blindness can be sufficient. The panel concluded:
16. Indeed, ‘bright lines’ are never easy to draw. But we felt it necessary to do so in this case, as the University (as an institution) and the students (as a collective body) both have competing interests in the outcome of this decision, aside from the specific facts that are before us.
Although university discipline for non-academic misconduct will always be highly fact-specific, this case helps demonstrate the type of approaches that educational institutions can employ in finding the appropriate balance. More importantly, the written reasons and greater transparency demonstrated here should help avoid many of the procedural fairness issues raised in Pridgen.