The Volokh Conspiracy - Universities, Businesses, Loyalty, and Criticism:

Marquette lawprof Christine Hurt (Conglomerate) writes this, under the title of "Defending Marquette":

I have [a] distinction that could be made between this student and a typical university student. . . .

The Dental School is an operating oral health clinic. The Dental School sees patients from the community on a daily basis. The students see patients in the clinic. The Milwaukee Journal-Sentinel describes the student as being 22 years old, so let's assume that he was in his first semester. According to the course bulletin, the student would have had patient rounds in his first semester as well as an "Introduction to Clinical Practice" in which real patients are treated. (If the students were a second or third year, his patient time would have been even greater.) From an agency standpoint, the student is not only a student, but an agent of the university. The clinic charges fees for its services (it does not accept third-party insurance). The university has an interest in maintaining good public relations with its client base and to continue to have paying clients. Having someone who provides services in its clinic blogging negatively about dental school professors and other students, all of whom provide services in the clinic, is against the interest of the university. I could definitely make the argument that the student is an agent who has breached his duty of loyalty.

That being said, a warning may have sufficed as discipline; I am not sure that having to restart dental school is the proportionate sanction. In addition, I hope that any future professional students know at the outset what the expectations are concerning blogging.

I appreciate Prof. Hurt's argument, which would certainly make sense in a typical business. But would we really want to see it in an academic institution? After all, it would apply to a wide range of criticisms of the university — not just immature sniping but also substantive criticism. In fact, it would apply more to substantive criticism than to immature sniping; if I were a prospective dental patient at the clinic, I'd likely shrug off any childish grousing I hear about, but I might well be much more worried by real criticisms about professors' knowledge, teaching ability, ethics, or what have you.

Moreover, universities provide lots of for-pay services, including continuing education (Continuing Legal Education classes, what at UCLA are called Extension classes, executive education classes, and the like). And of course we have to remember universities' primary service — educating paying undergraduate and graduate students. If a university student publicly criticizes the professors' skills, or even the qualities of his classmates, some prospective students might choose a rival university. And if a university professor does the same, for instance by publicly claiming that affirmative action hiring has damaged the university's quality, that might cause even greater harm to "[t]he university['s] interest in maintaining good public relations with its client base and [in] continu[ing] to have paying clients." Certainly it would cause much greater harm than that caused by the fulminations of some unknown student.

Yet do we really think that it's therefore proper for universities to silence criticism by students, clinical students, or professors, the way other businesses silence criticism by employees or trainees? I don't think so, and I think this relates to the "duty of loyalty." I do feel that I have some moral duty of loyalty to my university, but I don't think that this is the standard duty of loyalty that an employee has to a business.

Rather, universities, university professors, and university students are supposed to have a greater duty of loyalty to the truth; and if we think our university is doing something wrong, we think it's proper — perhaps even morally mandatory — for us to condemn it, even if that means some short-term harm to the university. Such a willingness to tolerate criticism, the theory goes, is ultimately of greater benefit to the institution, and to the academy and society generally. And because universities are supposed to care about the truth and about debate more than about the bottom line, they ought to refrain from silencing their employees the same way that more profit-focused businesses do.

This having been said, I agree that the blogging student's speech was at most a very slight contribution to the search for truth — it's just too vague and nonsubstantive to be of much help. At the same time, though, its obvious lack of substance also makes it not terribly harmful.

And, more importantly, (1) both the dental school's rationale (unprofessional speech may be punished) and Prof. Hurt's rationale (speech that is "disloyal" because it may hurt the university's image may be punished) would authorize the punishment of much more speech than this, and (2) students (and professors) will surely realize this. If Prof. Hurt's theory is adopted, would even a much more thoughtful and substantive critic of the school be willing to come forth? Or would he fear that any criticism might be condemned as "disloyal" and "unprofessional," and lead to expulsion, firing, or what have you? Such a fear, I think, is bad for academic institutions, and will ultimately harm them more than the occasional intemperate criticisms would.

UPDATE: Note that Marquette political science professor John McAdams has written a good deal about this on his blog, and has criticized the Marquette administration for its actions. Should he be subject to discipline on the grounds that his actions are disloyal, and may harm Marquette by lowering its reputation with students, donors, and others (though they may harm a different department of the university than the one for which Prof. John McAdams works)?

	[Eugene Volokh, December 7, 2005 at 4:22pm] Trackbacks Universities, Businesses, Loyalty, and Criticism: Marquette lawprof Christine Hurt (Conglomerate) writes this, under the title of "Defending Marquette": I have [a] distinction that could be made between this student and a typical university student. . . . The Dental School is an operating oral health clinic. The Dental School sees patients from the community on a daily basis. The students see patients in the clinic. The Milwaukee Journal-Sentinel describes the student as being 22 years old, so let's assume that he was in his first semester. According to the course bulletin, the student would have had patient rounds in his first semester as well as an "Introduction to Clinical Practice" in which real patients are treated. (If the students were a second or third year, his patient time would have been even greater.) From an agency standpoint, the student is not only a student, but an agent of the university. The clinic charges fees for its services (it does not accept third-party insurance). The university has an interest in maintaining good public relations with its client base and to continue to have paying clients. Having someone who provides services in its clinic blogging negatively about dental school professors and other students, all of whom provide services in the clinic, is against the interest of the university. I could definitely make the argument that the student is an agent who has breached his duty of loyalty. That being said, a warning may have sufficed as discipline; I am not sure that having to restart dental school is the proportionate sanction. In addition, I hope that any future professional students know at the outset what the expectations are concerning blogging. I appreciate Prof. Hurt's argument, which would certainly make sense in a typical business. But would we really want to see it in an academic institution? After all, it would apply to a wide range of criticisms of the university — not just immature sniping but also substantive criticism. In fact, it would apply more to substantive criticism than to immature sniping; if I were a prospective dental patient at the clinic, I'd likely shrug off any childish grousing I hear about, but I might well be much more worried by real criticisms about professors' knowledge, teaching ability, ethics, or what have you. Moreover, universities provide lots of for-pay services, including continuing education (Continuing Legal Education classes, what at UCLA are called Extension classes, executive education classes, and the like). And of course we have to remember universities' primary service — educating paying undergraduate and graduate students. If a university student publicly criticizes the professors' skills, or even the qualities of his classmates, some prospective students might choose a rival university. And if a university professor does the same, for instance by publicly claiming that affirmative action hiring has damaged the university's quality, that might cause even greater harm to "[t]he university['s] interest in maintaining good public relations with its client base and [in] continu[ing] to have paying clients." Certainly it would cause much greater harm than that caused by the fulminations of some unknown student. Yet do we really think that it's therefore proper for universities to silence criticism by students, clinical students, or professors, the way other businesses silence criticism by employees or trainees? I don't think so, and I think this relates to the "duty of loyalty." I do feel that I have some moral duty of loyalty to my university, but I don't think that this is the standard duty of loyalty that an employee has to a business. Rather, universities, university professors, and university students are supposed to have a greater duty of loyalty to the truth; and if we think our university is doing something wrong, we think it's proper — perhaps even morally mandatory — for us to condemn it, even if that means some short-term harm to the university. Such a willingness to tolerate criticism, the theory goes, is ultimately of greater benefit to the institution, and to the academy and society generally. And because universities are supposed to care about the truth and about debate more than about the bottom line, they ought to refrain from silencing their employees the same way that more profit-focused businesses do. This having been said, I agree that the blogging student's speech was at most a very slight contribution to the search for truth — it's just too vague and nonsubstantive to be of much help. At the same time, though, its obvious lack of substance also makes it not terribly harmful. And, more importantly, (1) both the dental school's rationale (unprofessional speech may be punished) and Prof. Hurt's rationale (speech that is "disloyal" because it may hurt the university's image may be punished) would authorize the punishment of much more speech than this, and (2) students (and professors) will surely realize this. If Prof. Hurt's theory is adopted, would even a much more thoughtful and substantive critic of the school be willing to come forth? Or would he fear that any criticism might be condemned as "disloyal" and "unprofessional," and lead to expulsion, firing, or what have you? Such a fear, I think, is bad for academic institutions, and will ultimately harm them more than the occasional intemperate criticisms would. UPDATE: Note that Marquette political science professor John McAdams has written a good deal about this on his blog, and has criticized the Marquette administration for its actions. Should he be subject to discipline on the grounds that his actions are disloyal, and may harm Marquette by lowering its reputation with students, donors, and others (though they may harm a different department of the university than the one for which Prof. John McAdams works)?