On Campus

The Charter right to insult your prof

Landmark ruling involving Facebook criticism confirms university actions are government actions

How universities deal with their students may never be the same after an Alberta judge ruled that at least some of their policies and actions can be subject to Charter review. The case involved a challenge from twin brothers, Keith and Steven Pridgen, who were reprimanded in 2008 under the University of Calgary’s student  code of conduct for creating  a Facebook group that the university says was defamatory towards Aruna Mitra, a former law instructor in the interdisciplinary department of communication and culture.

The students, who were placed on six months probation, took the case to Alberta’s Court of Queen’s Bench in the spring, arguing that the university violated their Charter right to free expression. On Wednesday, Justice Jo’Anne Strekaf agreed with that assertion. “I cannot accept that expression in the form of criticism of one’s professor must be restricted in order to accomplish the objective of maintaining an appropriate learning environment,” she wrote in her 39 page ruling.

At the Judicial review university lawyer, Kevin Barr reiterated U of C’s position that the comments were defamatory. “It is simply outrageous to suggest that the publication of defamatory statements by a student, directed at a professor over the Internet, does not amount to non-academic misconduct by any standard,” he said.

The Facebook group titled “I no longer fear Hell, I took a course with Aruna Mitra,” contained comments from at least 10 other students, one of whom compared Mitra to a shoe. Another comment said that Mitra “got lazy and gave everybody a 65.” Yet another alleged the instructor said that the Magna Carta was signed in 1700 when it was signed in 1215. After Mitra, who had discovered the Facebook page, informed the dean, the brothers were placed on probation. The university lifted the requirement that the students write an apology letter after they refused to do so.

What is precedent setting in the judgement is that Strekaf ruled that the  U of C’s actions regarding discipline constitute government action, and, are therefore subject to Charter review. Universities have long held that their actions cannot attract Charter scrutiny because they are autonomous entities with their own decision making bodies. A 1990 Supreme Court case, involving a challenge to the University of Guelph’s mandatory retirement policy ruled that university decisions are not government decisions.

While Strekaf did not dispute that earlier judgment, at least when dealing with university staff, she added that because educating students constitutes a core government directed mandate, as outlined in Alberta’s Post-Secondary Learning Act, that policies related to dealing with students beyond day-to-day operations are subject to Charter scrutiny. While the U of C argued that its disciplinary policies were a part of independent contracts between students and the university, Strekaf argued that such policies cannot be clearly separated from the mandate of educating students.

She also stated that the students’ actions on Facebook constitute a part of the learning process. “The commentary may assist future students in course selection as well as provide feedback to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course,” Strekaf wrote. Update: Though she did allow that some of the comments made on the page by the Pridgens may have “reflected a lack of maturity.”

The Calgary Herald quoted the students’ lawyer who was clearly excited.  “Henceforth, the university should be a little slow to say the charter doesn’t apply to them,” he said.

The case could have implications for protest groups that have been denied access to university space, including a U of C pro-life club that has in the past been charged with trespassing for holding demonstrations on campus.

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