I rarely write about the intersection of education law and human rights, but it's an area of law that I have a lot of interest in given my contention that what happens on university campuses is a bell-weather for what's on the horizon for workplace law. Last night I was alerted to a decision of the University of Windsor's Judicial Panel that's extremely problematic for its human rights implications. Given the subject matter (social media, sexual harassment, and the Charter implications) and my belief that the decision was wrongly decided I thought a wee case comment was in order.
So What's Happening in This Case?
Decision No. JPH-12/13-10 from the University of Windsor's Judicial Panel is a fascinating peek into what's happening on Canadian university campuses. It should be noted that the panel's membership was comprised of Dr. Emir Crowne (a law professor and the panel's chair), Enrique Chacon (International Student Advisor), and Stephanie Saad (the student representative).
Essentially, the case boils down to this: a student goes on Twitter during class and over a two hour span makes four questionable tweets about one of her professors in the nursing program and a another student. A hearing was held as the University of Windsor held that the impugned tweets were violations of Senate By-Law #31, the Faculty of Nursing's social media policy, and various practice standards of the College of Nurses of Ontario.
The language contained in the tweets were: (1) "i'd throw my cellphone at her, by my cellphone is more valuable #worthlessbitch"; (2) "Not the first time she got an STD"; (3) "Ofcourse she's going to volunteer to spread her legs wide #sluttyhoe"; and, (4) "our teacher showed up to class dressed like a fool, and is acting like a child #sosick #typicaldayinnursing". Tweets (1), (2), and (3) were directed at the fellow student, while tweet (4) was directed at the professor. The panel addressed tweets (1), (2), and (3) separately from tweet (4).
Unclear Implications: Does the Charter Apply to Universities in Ontario?
The panel stated that tweet (4) was "crude, insensitive and failed to adequately capture the context of the Professor's conduct" as the professor was "role-playing an individual with organic brain disease". The Judicial Panel found that tweet (4) was protected speech under section 2(b) of the Charter due to the reasoning outlined in the Court of Appeal of Alberta's decision in Pridgen v. University of Calgary ("Pridgen") stating: "[t]he 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."
At best the panel's reasoning is on legally shaky footing as while the decision conforms with the reasoning laid out in Pridgen, it doesn't reference the pertinent case law in Ontario. The most recent Pridgen decision hasn't been tested in Ontario's Courts while the lower court decision in Pridgen was panned in Lobo v. Carleton University and Telfer v. The University of Western Ontario. More troubling is the panel's apparent ignorance of the decision of Ontario's Court of Appeal in Freeman-Maloy v. Marsden which held that the regulation of student conduct wasn't governmental action for the purposes of the Charter; furthermore, the decision in Frederick Zhang v. The University of Western Ontario clearly articulates that the s. 2(b) of the Charter does not apply when there are threats or defamation of character. I'm unclear how one can cherry pick an Alberta decision when there's "good law" on-point from Ontario's Courts.
It appears that the panel was unaware that the University of Windsor Act provides for far greater statutory power and differs significantly from Alberta's Post-Secondary Learning Act which gives the University of Calgary its powers (this is what the debate centres around in Pridgen). Essentially, it boils down to the fact that the University of Windsor arguably has a greater independence and ability to manage its own affairs than the University of Calgary, this is particularly important when one enters the realm of the powers exercised by internal quasi-judicial bodies within universities.
The foregoing being said, it appears that the panel erred in finding tweet (4) to be protected speech, rather there was a basis to finding that the student breached Senate By-Law #31. Whether the tweet was merely "uncivil" or was harassment is debatable, but given that the tweet was not part of a debate, was rooted in Ableist assumptions about how disabled persons act, and relied on stereotypical assumptions it's clear that the panel possessed the jurisdiction to address tweet (4).
Normalizing Misogyny: Trivializing Sexual Violence, Slut Shaming, and Rape Culture
In Ontario, students are entitled, as a human right, to an environment that is: free from harassment, that is safe, and that isn't a poisoned environment. In the instant case, there are intersecting forms of oppression at work here in terms of sex, gender, age, and sex-role stereotypes. When one considers the Ontario Human Rights Commission's comments on sexual harassment and education, one finds that the following are forms of sexual harassment: making sex-related comments about a person's actions; making comments about a person's actions; making comments about something because a person does not fit sex-role stereotypes; and, bullying based on sex or gender. I would suggest all the foregoing forms of sexual harassment are present in this case and largely go unaddressed by the panel.
|Say it with a cake!|
The reasoning of the panel related to tweets (1), (2), and (3) sits at the core of what is problematic with the decision. Starting a paragraph six the decision goes off track and enters some extremely dangerous territory. Consider that: tweet (1) threatens violence ("throw my cellphone") and deploys a highly derogatory term against a female student ("#worthlessbitch"); tweet (2) references and attacks the student's sexual history and implies that she has had multiple sexually transmitted infection ("Not the first time she got an STD"); and, tweet (3) further references the student's sexual history ("Ofcourse she's going to volunteer to spread her legs wide") and deploys yet another derogatory term ("#sluttyhoe").
Curiously, the panel only found that the impugned tweets were "uncivil", rather than harassment or sexual harassment. The panel states that '[n]one of these tweets suggests a course of vexatious comment or conduct. Nor do any of the tweets, taken individually rise to a "serious enough" level to constitute harassment. Indeed, we generally doubt whether a single tweet could ever rise to this level (given the 140 character length), but given the ability to post pictures or link to other sites, we suspect that a scenario could be imagined or arise'. In reaching this decision the panel relies on a problematic earlier decision of the University of Windsor's Judicial Panel, Ontario Human Rights Commission's Policy on Sexual Harassment and Inappropriate Gender Related Comments and Conduct, and the University of Windsor's Human Rights Policy.
It appears that the panel missed a few key developments in Canadian human rights law over the last two decades; particularly, when it comes to what constitutes sexual harassment, what's the test for a single incident triggering the provisions of Ontario's Human Rights Code ("the Code"), and the intersection of social media and human rights.
The panel ignored critical decisions that speak to the nature of harassment and what type of actions constitute sexual harassment. Notably, Janzen v. Platy Enterprises Ltd. goes unreferenced, this is one of the leading decision from the Supreme Court of Canada on sexual harassment. Nor does the panel reference the leading decisions on what constitutes sexual harassment arising from a single incident, consider the following cases: in Romano v. 1577118 Ontario Inc. the Human Rights Tribunal of Ontario found that an employer asking an employee her preferred sexual position constituted a breach of the Code; in Murchie v. JB's Mongolian Grill a breach of the Code was established after a employee had her breast flicked by a co-worker; and, in Haykin v. Roth a breach was found after a real estate agent used the term "hot and wet" in a sexual context to a female client.
Using the reasoning contained in these aforementioned cases it's clear that tweets (1), (2), and (3) clearly constitute sexual harassment and give rise to a poisoned environment. These tweets were highly damaging public facing communications instantly disseminated to a portion of the student population at the University of Windsor that not only threatened violence, but also attacked a student's sexual history/reputation on the basis of utilizing sex-role stereotypes which were sex-related comments.
What the panel has done is essentially declare open season for students to sexually harass other students at the University of Windsor as "uncivil" language will be tolerated to an extent. The panel could have easily sent a strong message that actions that debase member of the campus community on the basis of indelible characteristics and violated human rights norms would not be tolerated, but the panel refused to do this and thereby reinforced the normalization of day-to-day sexual harassment, gender-based patterns of exclusions, and the rape culture that exists at the University of Windsor. My overarching concern here is that through this decision students may be dissuaded from reporting sexual harassment, gender-based violence, or bullying due to the perception that these human rights violations aren't taken seriously by the University of Windsor.
Final Thoughts: the Importance of "Getting it Right" on Human Rights
Human rights law isn't rocket science, but it is a highly complex area of law that doesn't lend itself very well to dabbling. The panel's decision was ill-considered, rooted in an amateurish understanding of human rights and Charter law, and sets a dangerous new low for the University of Windsor's seeming inability to take prevailing human rights norms seriously.
In utterly butchering a case involving a relatively simple breach of a student's human rights the panel has reinforced the perception that the University of Windsor is simply unable to manage anything related to equality, equity, or human rights. Also, I'm concerned that Danielle Istl, the University of Windsor's internal legal counsel for student misconduct, is unaware of the aforementioned legal decisions referenced in this post as it appears none of them were submitted to the panel for consideration. Going forward it may be prudent for the University of Windsor to retain external legal counsel competent in human rights law to prosecute student misconduct cases where a human rights component exists.
In an era where the human damage arising from sexual harassment and bullying is easily seen these types of situations have to be taken extremely seriously and acted upon. Young people commit suicide with alarming regularity over harassment very similar to the tweets in this case and for far too long educational institutions in Canada have taken the archaic Judeo-Christian "sticks and stones" approach. That's all, I leave you with the Amanda Todd video which sums up nicely why we all need to stand up to sexual harassment, gender-based violence, and bullying, see: