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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)?

Splunge (mail):
All gangs prize omertà.
12.7.2005 6:09pm
WB:
Part of McAdams' tagline for his blog: This site has no official connection with Marquette University. Indeed, when University officials find out about it, they will doubtless want it shut down.
12.7.2005 6:16pm
Steve:
I deal with litigation concerning the duty of loyalty on a daily basis, and I'm having a hard time wrapping my head around the concept that it's somehow different for university professors, although your points are valid. Let's think through this by taking an extreme case - if you were to publicly state, "A legal education at UCLA really sucks these days," is there any doubt that the law school could fire you for cause, for breaching your duty of loyalty? (To make matters worse, you could claim that the quality of education sucks because so many minorities get in.)

So if professors routinely get away with criticizing their universities without facing adverse disciplinary action, can we conclude that in most cases, the criticisms are far milder than the extreme example I have given? Maybe the good professor could give some examples of the type of criticism that is routinely permitted in the academic context, and we can explore this further. After all, even in the business world, I don't think Wal-Mart fires every associate who says that some of the shopping carts have wobbly wheels.
12.7.2005 6:31pm
Anderson (mail) (www):
Looked at McAdams's post. Wow, Marquette sucks. As does the all-too-appropriately-named Denis Lynch. I see he's the co-author of The Mouth: Diagnosis &Treatment. Sure sounds like it.

Because of the discredit he's brought upon the school, I guess HE should be disciplined? Professor Hurt's theory can easily be extended to justify that, or most anything else, which is a bit of a problem for her theory.
12.7.2005 6:32pm
Eugene Volokh (www):
Steve: (1) I suspect that my tenure contract protects me even when I criticize the school. I haven't looked it up, but I'm pretty sure that such criticism is not considered good cause for termination.

(2) My sense is that punishing a professor -- tenured or not -- for criticizing the school would be seen as a pretty grave breach of academic ethics. For instance, a statement that "I think this university doesn't give a fair shake to women faculty, because . . ." or "I think the quality of education here has really suffered because of grade inflation / affirmative action / etc." would be seen as very much within the professor's professional rights (or even obligations).

(3) At a public university, both tenured and untenured professors would have some protection under the First Amendment. The precise scope of this protection is unclear; some cases suggest that it's just the Pickering balancing test (is the value of the speech to listeners and the speaker outweighed by the damage it does to the university's operations?), while others suggest that the rule for university professors is considerably more speech-protective.
12.7.2005 6:44pm
DK:
This is all even more applicable to PhD students, who are generally employees with employment contracts, salaries and no tenure -- faculty have tremendous power to get students thrown out and even blackballed from future jobs.
12.7.2005 6:54pm
Nobody Special:
This just illustrates the obnoxious difference that academia claims without good reason.

Let's face it: students, especially professional students, are consumers and, when they work for the school, employees. They should not be entitled to any sort of deference or protection any more than any other consumer/employee.

The same goes for professors- tenure and academic freedom, let alone the governing power of the academic senate, are crocks.
12.7.2005 6:54pm
Jay Louis (mail):
Here's something to ponder from a later post on Professor McAdams's blog (the post can be found at this link):

We have heard from a lawyer who has several years of experience working on breach-of-contract cases (though not in this exact context). This source suggests:

I'm not sure [the student] wouldn't have a breach of contract claim against the school. Basically, any student's relationship with his school is like any contract that can be terminated only upon just cause. The student's agreed-upon arrangement with Marquette is that he paid tuition and, in exchange, the school agreed to let him study here, reserving only a right to terminate (i.e., suspend or expel) his studies for just cause, as defined by various regulations. If Marquette kicked him out when he hadn't really violated any regulation, it would seem to be in breach of that agreed-upon (contractual) relationship.


Based on the above analysis from the quoted anonymous attorney, it sounds as if the dental student could have a breach of contract claim against Marquette.
12.7.2005 6:55pm
Steve:
Well, if your contract explicitly limits your duty of loyalty, then that answers the question of why tenured professors are different, but not in a way that helps us address the case of the dental student at all.

By the same token, issues which are specific to public universities don't help us much, either. Sure, an employee of a public university may have some First Amendment right to criticize his employer, but it's for the same reason that a civil servant in any branch of government has the right to criticize the government, while a political appointee does not. I don't think a university is different from any other public entity in this regard.

So I think if a public school employee has special rights to criticize, it has nothing to do with the fact that he works for a SCHOOL, and everything to do with the fact that the school is PUBLIC. The argument that an employee of a private school should be free to criticize his employer seems no different from the argument that any employee should be free to criticize his employer. We have already made the moral judgment, throughout the private sector, that the duty of loyalty trumps your general right to say as you please.

But I do find your comment about academic ethics interesting. Obviously, universities think they can do just fine even if professors are going around saying that the quality of education has suffered for such-and-such a reason. Why, then, are we concerned about corporations suffering if their employees were permitted to go around saying that the quality of their products has suffered for such-and-such a reason? Are the universities naively ignoring the harm caused by condoning such statements, are the corporations wrong that such statements have ill effects, or are universities just completely different types of entities for some reason?
12.7.2005 6:59pm
Anderson (mail) (www):
Ah, but suing the school would breach the student's duty of loyalty, according to Prof. Hurt!
12.7.2005 7:00pm
PersonFromPorlock:
Perhaps Marquette would be interested in a new motto: "Mein Ehre Heist Treue."
12.7.2005 7:22pm
Splunge (mail):
Where you go wrong, Steve, is in forgetting that universities market themselves to a considerable degree as educating "by example" -- in particular, educating in free and intelligent discourse by providing a good environment for same. From that perspective, criticizing the university within certain limits is not only not disloyal but even advantageous, a form of self-evident advertisement of its liberality, tolerance, et cetera -- all of which are widely if not universally considered attractive attributes of a university.

Consider an alternative case in private industry: say FooBar, Inc., an internet start-up, advertises itself as a great place to work for headstrong independent-minded open-source programmers, not because they provide great salaries, but because they encourage open and spirited debate about their products, which to these types of employees is a considerable and valuable fringe benefit. Futhermore, suppose they provide space on the company server for employees to keep private blogs, and in those blogs there is a robust debate about proposed products, with plenty of negative comments, not all of which are moderately expressed ("This product sucks! Only Hitler would use it!") Finally, let us suppose that the company does very well in attracting top-quality programmers and arguendo for that reason sells top-quality products that earn it a healthy profit.

You can see I've set up this situation to mimic the nature of the university, or at least the nature of the university as it's seen from within the university.

Now, along comes a summer intern to FooBar, Inc., and he posts on his student blog a scurrilously negative comment about FooBar's employees, or management style, or products. For this, he is fired.

Now, whether or not there is some explicit guarantee of free speech in his contract, or whether or not there is some vague mention loyalty to the firm, is the university -- oops, FooBar, Inc. -- going to have an easy time defending the student's action for breach of contract?

I know which way I'd vote if I was on the jury.

I'm not meaning to teach your your job as a lawyer, of course. But knowing a lot about universities from the inside, I do think you could profitably re-examine what "product" they are really selling, and what truly constitutes defamation of that product.
12.7.2005 7:23pm
Steve:
That's an interesting defense to a breach of loyalty claim, and who knows, I might even end up using it someday.

I do agree that there's something wrong about attracting employees by boasting about what an open environment you offer for the exchange of ideas, and then once they're hired, giving them a list of the ideas that are actually off limits, including the idea that the employer is less than perfect.

Applying this to the case of the dental student, there are plusses and minuses. Certainly, a school attracts students by promising them an open learning environment including free debate. On the other hand, we don't know what the Code of Conduct provision at issue says, and if it flatly says that derogatory statements regarding students and faculty are not permitted, well then, it's harder to argue that dental students have an expectation of being able to criticize their employer.
12.7.2005 7:33pm
DK:
The universities aren't "naively" ignoring the harm -- they are accurately and even cynically recognizing the power relationships involved.

Good professors -- the ones who make a school's reputation -- are highly talented and fiercely individualistic. They are difficult to lead or organize, they can easily move to other universities, and they can harm a university's reputation in subtle (a wink to US News reputational voters) and less-subtle ways (like calling the press or blogging anytime they are subject to political pressure.) They are more like NFL players than like 9-to-5 employees.

In law and economics terms, "duty of loyalty" is just an example of Coase's theorem, as negotiable as any other express or implied contract term. If you are Howard Stern, Shaun Alexander, or a respected professor, your employer may find it cheaper to give you free rein to complain than to employ you at a salary level sufficient to keep you quiet, or to pay the lawyers to beat you into submission.

IMHO, what is really ironic in this situation is that Marquette is harming its own reputation by punishing the student, just turning some minor criticism no one outside of the dental school would have read into an incident with national publicity. All university deans should be required to watch and study Animal House before taking office. Well, at least the ones smart enough to really they are the butt of the joke.
12.7.2005 7:36pm
DK:
Well put Splunge -- my point was the same as yours, but you said it much more concretely and convincingly.
12.7.2005 8:09pm
Perseus:
Rather, universities, university professors, and university students are supposed to have a greater duty of loyalty to the truth.

Prof. Volokh obviously hasn't been hanging around too many postmodernists who would no doubt ask: Whose "truth"?
12.7.2005 8:25pm
Paul M. Secunda (mail) (www):
For those interested, I just posted on the Workplace Prof Blog the labor law ramifications of this case. Check it out at: marquette dental labor
12.7.2005 9:30pm
Dave Hardy (mail) (www):
I wish I were the provost of Marquette. Then I could invite the dean of the dental school in, explain that the duty to interact "in a manner that promotes understanding and trust" goes both ways. Then break his leg with a lead pipe and say I don't expect it to happen again.
12.7.2005 9:33pm
Steve:
Some of the commenters have discussed the business reasons why not every breach of the duty of loyalty results in firing, and those points are perfectly valid. After all, sometimes an individual complains about their employer, and the employer (gasp) changes their practices and becomes more effective as a result. In the real world, firing tends to happen only where (a) the breach is particularly egregious or (b) the employer is particularly hair-triggered.

However, that point has little to do with the legal question of whether a duty of loyalty exists in the first place, which is probably the more interesting question in this context. After all, even those who believe the dental school acted within its legal rights probably agree that it's ridiculous to expel a student because he said he had a shitty professor.
12.7.2005 10:43pm
Paul M. Secunda (mail) (www):
From what I just posted over at Conglomerate:

To Kate and Anonymouse: The duty of loyalty can spring from employment law or some concept of fiduciary duty under corporate law, trust law, or more recently, employee benefits law.

But the employment law duty to loyalty is quite different than the fiduciaries. Under the common law duty of loyalty recognized by most states in this country, the employee, while employed, must work in the best interests of his employer and not be disloyal. So for instance, knowing you are about to leave your current employer to start a new company, you could not solicit co-workers and clients to join your new firm while still employed by the old firm.

On the other hand, the duty of loyalty (sometimes called the exclusive benefit rule or the duty to act with an "eye single" to the beneficiaries) is a concept that a fiduciary must act with the best interest to those he or she owes a fiduciary duty. For instance, under ERISA, a plan administrator must act with an eye single to the plan participants and beneficiaries without considering what's in their self-interest. The doctrine of usurping a corporate opportunity is also connected to this idea.

I'm not sure which one Christine is referring to, but she mentioned to me in an email that an agent of the university did not necessarily need to be an employee, which suggests she has a fiduciary concept in mind. That being said, as I indicated in my post that Christine linked to, I am not aware of a fiduciary duty for students/professors/employees to act in the best interest of the university at all times.

Hope that helps.
12.7.2005 11:05pm
markm (mail):
"Let's face it: students, especially professional students, are consumers and, when they work for the school, employees. They should not be entitled to any sort of deference or protection any more than any other consumer/employee."

Are you seriously suggesting that a business should expect it's customers to show loyalty by not complaining publicly about poor quality or service? And that a business could punish customers for public disloyalty by taking back products that had been paid for? (Without a refund, I assume - I've never heard of any college ever refunding tuition.) What a way to help keep lousy businesses in business...

This student may have also been an employee, but the primary relationship was as a customer. Look at who was paying whom.
12.8.2005 8:41am
DK:
Markm -- In the university's defense, most universities have explicitly draconian refund policies set out in advance in the documents students must sign before registering. In nondisciplinary cases, the refund rates are based on the possibility of replacing you from the waiting list. In disciplinary cases, well, the back of your movie ticket says they can deprive you of viewing the movie without a refund if you break the rules.

Steve -- what is "more interesting" is a matter of point of view and is thus not really something with a right or wrong answer one can debate. You find the duty of loyalty more interesting, but I find the law-and-economic questions more interesting (although they might relate more to what the law should be than what it is -- and I have enjoyed reading your points about what the law is).

Actually, the question I find most interesting here is whether if the employees in Splunge's example are taking lower salaries to come to FooBar than they would to work at EvilStrictAndStodgy inc., do they have any protection against changes in FooBar's policies?
12.8.2005 9:28am
Nobody Special:
No, I was suggesting that students are customers, and have only the recourse against the university that other consumers have: taking their business elsewhere.

It bothers me to no end that students (but especially undergraduates) demand, and receive, advising or decisionmaking roles in the curriculum and management of the modern university.
12.8.2005 10:28am
Aultimer:

EV: And of course we have to remember universities' primary service — educating paying undergraduate and graduate students

That's a sham, most particularly for professional grad programs. The real service universities provide is making students employable by the most desirable employers. If it were about eduction, the best (and justifiably most expensive) schools would admit dim applicants and produce bright graduates rather than admitting only the best applicants.
12.8.2005 11:26am
Mikeyes (mail):
As a non-lawyer but a medical professional, I get a little sleepy-eyed over the distinction of the dental student as an employee or a student but I understand the importance of the issue. What bothers me in this case is that the school has a professional obligation to provide the best education to the student in order that he (in this case) is capable of rendering the safest and most effective medical care he can once he graduates.

If the teacher is incompetent that translates to poor or dangerous care for the patients both here and now and in the future. There is an ethical duty on the part of the dental school to make sure that the education given meets the professional standards for education (which, by the way, are well described by the various governing bodies and in the case of medicine and dentistry universal - if you graduate from one school you have the same skills as taught in all the others.)

This brings up not only the definition of "acedemic ethics" which pertain to any university, but to "professional ethics" which pertain to an entire profession and beyond (meaning the customers/patients.) In this case did the dental student violate a purely local ethic when he made his comments while exposing a less than professional state in the dental school and more specifically the clinic which serves the poorest people in Milwaukee?

I don't know, of course, but it seems to me that there are other issues than just acedemic ethics and workplace loyalty here if the well being of others not related to the university (except as patients) may be at stake.
12.8.2005 12:23pm