The University of Calgary must have autonomy in disciplining students for non-academic conduct and the Charter of Rights and Freedoms should not apply, its lawyer argued before the Alberta Court of Appeal on Wednesday.
“It is clear and self-evident that discipline is an internal function of the university,” Peter Linder said in attempting to overturn a lower-court decision that found the school infringed upon the freedom of expression of twin brothers Keith and Steven Pridgen, 22, when it sanctioned them for criticizing their professor on Facebook.
“Private dealings between the university and its students are a fundamental core function of the university. Without it, they couldn’t manage their affairs.”
The university appealed Court of Queen’s Bench Justice Jo’Anne Strekaf’s ruling last year which quashed its decision to place the brothers on probation in 2008 for statements made on the website beginning in November 2007.
The Facebook page was entitled, “I no longer fear Hell, I took a course with Aruna Mitra.”
Tim Boyle, lawyer for the Pridgens, conversely said his clients had a legitimate basis for complaints against the professor, first because she “misrepresented her qualifications” when she took over the class and when she gave harsh marking in the course.
“All 17 students who applied to appeal their grades had their grades increased,” said Boyle, noting the university did not begin the disciplinary process until 10 months after the comments were made.
He said his clients, who were sanctioned for their comments and comments made by other students on the website attributed to them, should be protected by the charter.
Boyle said several students were told to sign a letter of apology to the professor or face sanctions. The Pridgens were among four students who refused to sign and all were reprimanded.
“Not only was their freedom of expression breached, it was breached a second time when they were essentially forced to say things they didn’t believe,” said Boyle. “The university didn’t care; they just wanted them to sign the letter.”
Neither Steven nor Keith Pridgen was present for the hearing as they are in the United States studying and working, respectively, but their father Blake Pridgen and grandfather Ralph MacLean were there.
Blake Pridgen said the family was “extremely proud” of what they did and they haven’t backed down against the university.
Colin Feasby, lawyer for the intervening Canadian Civil Liberties Association, said the case “is being watched closely by students across the country and civil libertarians to protect freedoms of expression.
“We’re not asking for freedoms that don’t exist in society at large,” said Feasby. “In university, the context may be different. There may be some limitations.
“Autonomy should not be used to oppress students. When given autonomy, they must be subject to the charter in the disciplinary process.”
Strekaf said in her precedent-setting ruling released Oct. 13, 2010, that, contrary to the U of C’s position, the Charter of Rights and Freedoms applies to universities in such situations and their rights were infringed.
The case arose from a judicial review of the university’s General Faculties Council review committee findings.
Strekaf rejected the university’s argument that defamatory statements made by a student about a professor must necessarily constitute non-academic misconduct.
Two other interveners — the Governors of the Universities of Alberta and the Association of Colleges of Canada — sided with the U of C in its appeal to the province’s highest court.
“The issue here is whether charter-based rights and freedoms of expression are necessary to scrutinize what universities do,” said Greg Harding, who represents the Governors of the Universities of Alberta. “We are dealing with private activities and private actions of universities.”
Jim Lebo, lawyer for the Association of Colleges of Canada, said there is a conflict between two academic freedoms subject to discipline and subject matters and the autonomy of universities long predates the charter.
“As an astronomer you can’t teach the Earth is flat, but you can stand on a street corner and speak for the Flat Earth Society,” said Lebo. “No one is suggesting human rights don’t apply to students. Students have to be treated fairly.
“But this went beyond that and invoked disciplinary process. (Freedom of expression) doesn’t allow you to say whatever you want in the name of academic freedom. If defamatory to excess, you are subject to discipline.”
Lebo said students have a right to complain about the quality of education and there are channels for that complaint.
Keith Pridgen previously said the court challenge was never about money. “We just wanted to make sure students in the future aren’t afraid to say anything against the university or a professor.”
Strekaf said in her decision she accepted that the objectives of maintaining a learning environment where there is respect and dignity for all and in protecting its reputation as an institution are meritorious and accord with the values of a free and democratic society.
Mitra, who is no longer at the U of C, has never commented about the case.
However, according to the university’s brief presented at trial, she was of the view that it “was set up for the purpose of injuring her reputation and character in a public manner.”
Nevertheless, the judge ruled there was no evidence of any injury to her as she did not testify during the university’s hearings and the only evidence of injury was hearsay.
Appellate justices Marina Paperny, Bruce McDonald and Brian O’Ferrall reserved their decision.