University Student Discipline in the Age of Social Media

Photo by Rodion Kutsaev on Unsplash

By Marc-Étienne O’Brien, lawyer and doctoral candidate at Laval University and Toulouse 1 Capitole University

With the advent of social media platforms, an unprecedented number of people have become public content creators. Facebook alone boasts nearly 2.5 billion active monthly users.[1] Other top social media platforms include YouTube, Instagram, Tumblr, Twitter, LinkedIn, Snapchat, Pinterest, Reddit and TikTok. These platforms enable their users to share videos, images, texts or links and to interact with fellow community members through reactions, comments or private messages. From time to time, this new activity is met with a great deal of blowback.

What would have been a more or less well-received offhand comment or joke amongst acquaintances a few decades ago is now often shared online rather than out loud. On the Internet, however, a user has little to no control over the composition of his audience. Some platforms do not offer the option of restricting public content to a certain group of users. Even where access can be restricted, online content can easily be exported beyond the boundaries of its original digital environment and exposed to an unintended audience. This larger and amorphous online audience is less forgiving, in part because it is populated by a small number of bad faith actors, but mostly because it is more diverse in terms of values, frames of references and sensitivities.[2]

After a tsunami devastated part of Japan, Gilbert Gottfried, an American comedian known for his crude humour, quite predictably fired off a series of one liners of the type: “Japan called me. They said, ‘maybe [your] jokes [about the tsunami] are a hit in the U.S., but over here, they’re all sinking.’”[3] His jokes, though destined for people who consider that crude humour is acceptable shortly after a catastrophic event, were also heard by people with different frames of reference. Where Gottfried’s friends and fans might have appreciated his attempt at humour (perhaps for its therapeutic value) and recognized that this is how he processes tragic events, others merely saw him as a jerk. For this reason, the company for which he was a spokesperson let him go.[4]

Gottfried is only one of a growing number of celebrities and media personalities who lost employment because of their online activities. [5] Backlash is not limited to the online activity of people who are used to be in the public eye, however. This is perhaps best illustrated by the infamous case of Justine Sacco. Before boarding a flight to Africa, the public relations manager tweeted to her minuscule following a joke which implied that AIDS was common in Africa and only affected black people. [6] The post, retweeted by a journalist, became viral and Justine Sacco was fired before her plane had even landed.

It thus appears that the greater public role allowed by the new online platforms is being met with scrutiny and demands for accountability. This phenomenon brings unprecedented pressure to bear on the people concerned and those who are associated with them. In order to preserve their interests, professional organizations, employers and schools have often conceded to the demands of those outraged. This has raised much debate as to the properness for such organizations to sanction people for what they do or say on their own time, the implications for the fundamental freedoms of speech, thought and conscience and the risk of cultivating a chilling effect.

Recently, this phenomenon has extended to our universities. This raises the question of whether university-independent student behaviour, understood as all that a student does or says outside of his duties towards his university and outside of his university’s duties towards him and others, should be subjected to university discipline. University-independent behaviour includes most online activities, but also participation in controversial political activities and alleged participation in most minor crimes (e.g., participating in an off-campus riot).

The disciplinary power of universities exists in order to prevent and punish undesirable behaviours such as plagiarism, bullying and sexual harassment or assault. Prevention is achieved through the manipulation of the incentive structures to which students are subjected. Incentives can take the form of declarations of favourable treatment (promises), or of unfavourable treatment (threats).

Promises are to the advantage of their recipients. Where an organization rewards its essay contest with a prize, for instance, every candidate participates because they calculate that the effort they must put into the research and the writing of the essay is worth being considered for the prize. Since they can walk away unharmed from the offer, their participation is voluntary.[7]

Threats, on the other hand, are detrimental to their recipients. If an essay contest were structured according to a threat-based incentive, the candidates would be required to submit an essay, the failure to do so being subject to a penalty. Candidates faced with this threat do not weigh the benefit of participating in the contest (there is no prize) versus the cost of doing so (in terms of time, effort and opportunity), as do the recipients of a promise. Rather, the cost of participating in the contest is weighed against the cost of failing to comply. As such, candidates are forced to choose between compliance and the possibility of punishment,[8] which corresponds to the very definition of coercion.[9] Threats therefore impinge on individual freedom.[10] For this reason, the use of threats, unlike the use of promises, requires a moral justification.

What, then, justifies subjecting university-independent student behaviour to a university’s (threat-based) disciplinary framework? A justification could be found in a duty to ensure the properness of university-independent behaviour.

The University of Toronto’s Statement of Institutional Purpose is rather typical in this regard. [11] First, it establishes that the mission of the University is to “b[e] an internationally significant research university”.[12] Second, it entrenches the University’s commitment to human rights, particularly to freedom of speech, academic freedom and freedom of research, and to the “principles of equal opportunity, equity and justice”.[13] The stated freedoms are declared to be “meaningless unless they entail the right to raise deeply disturbing questions and provocative challenges to the cherished beliefs of society at large and of the university itself”.[14] This Statement reveals no institutional mandate to ensure that students behave appropriately in university-independent activities. To the contrary, the University vows to champion free speech.

Like the University of Toronto, most universities have no broad mandate to police university-independent student behaviour and proclaim to hold dear freedom of speech, thought or inquiry. This being said, such action could still be justified where the university has a legitimate interest in the matter.

In order to preserve their image, universities may wish to distance themselves from students who step outside the Overton window. That is understandable since universities rely on their standing to attract students and researchers. However, this interest can largely be satisfied by publicly disavowing the behaviour in question. This approach satisfies the university’s interests without subjecting students to formal discipline for university-independent behaviour.[15]

Of course, universities are justified in intervening where more pressing university interests such as campus safety and academic integrity are at stake. However, these interests will seldom, if ever, be jeopardized by university-independent behaviour.

It should also be said that the lack of university discipline of university-independent behaviour does not allow for impunity. Those who adopt unacceptable behaviours that are either public (e.g., a tweet) or made public (e.g., by a bystander who recorded the event) are subject to multiple accountability mechanism, both formal and informal. Formal accountability mechanisms include the criminal trial and the civil trial.

The most notable informal accountability mechanism is public shaming, the public process that causes a person to feel a “destructive, negative, and immobilizing emotion associated with embarrassment, pride, and guilt”.[16] Public shaming mechanisms of different stripes have been exploited throughout time, cultures and subcultures. Informal public shaming is best illustrated by the “trial of public opinion”. Public judgment and shaming can come from a community (e.g., a church, teammates, etc.), the legacy media, the new media, social media users, etc. Since “man is by nature a social animal”,[17] as Aristotle pithily observed so long ago, the threat of destroying someone’s reputation and thereby jeopardizing their prospects of future social collaboration is a powerful negative incentive, and a stiff punishment where acted upon.

So, to harken back to the question posed earlier, should universities discipline university-independent student behaviour?

It appears it is not within the mandate of a university to police what a student does or says outside of his duties towards his university, and his university’s duties towards him and others. Further, although universities may legitimately seek to distance themselves from university-independent student behaviours, they can effectively do so by releasing a formal statement of disavowal. In addition, there is no real need for universities to intervene, since unacceptable university-independent behaviour can be disincentivized and punished through existing informal and formal accountability mechanisms, like the trial of public opinion, the civil trial and the criminal trial. For all of these reasons, there is no justification for university discipline of university-independent student behaviour.[18]

Rather, universities should be encouraged to adopt a policy similar to that of the University of Toronto, which states that:

The University takes the position that students have an obligation to make legal and responsible decisions concerning their conduct as, or as if they were, adults. The University has no general responsibility for the moral and social behaviour of its students. In the exercise of its disciplinary authority and responsibility, the University treats students as free to organize their own personal lives, behaviour and associations subject only to the law and [necessary University regulations]. Strict regulation of such activities by the University of Toronto is otherwise neither necessary nor appropriate.

[…] Provisions for non-academic discipline should not […] add unnecessarily to [the civic] responsibilities [of students]. Conduct that constitutes a breach of the Criminal Code or other statute, or that would give rise to a civil claim or action, should ordinarily be dealt with by the appropriate criminal or civil court.[19]

  1.  J. Clement, “Number of monthly active Facebook users worldwide as of 2nd quarter 2019”, Statista, August 9, 2019.
  2. Public participation also entails the risk of being later criticized for words or actions that fell within the Overton window at the relevant time.
  3. Jolie O’Dell. “Gilbert Gottfried Fired Over Japan Jokes on Twitter”, Mashable, March 15, 2011.
  4. Id.
  5. Others include Australian comedian Catherine Deveny who live-tweeted macabre and sexual jokes during an award ceremony (her tweets read: “Rove and Tasma look so cute! I hope she doesn’t die too” and “I so do hope Bindi Irwin gets laid”), CNN senior editor Octavia Nasr who paid tribute to a deceased leader of Hezbollah in a tweet (her tweet read: “Sad to hear of the passing of Sayyed Mohammad Hussein Fadlallah. One of Hezbollah’s giants I respect a lot”), and Canadian sportscaster Damian Goddard who declared his support for traditional marriage on Twitter (his tweet read: “I completely and wholeheartedly[sic] support Todd Reynolds and his support for the traditional and TRUE meaning of marriage.”), to name a few.
  6. Her tweet read: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m White![sic]”, see Louis Chahuneau, “Justine Sacco, histoire d’un lynchage en ligne”, LePoint, February 13, 2018. See also TNN, “IPL Cheeleader Gabriella Pasqualotto Thrown out for blogging on Flirtatious Players”, Times of India, May 12, 2011.
  7. For this reason, the use of promises requires no moral justification.
  8. Compliance will happen where it is perceived as less costly than the envisioned punishment. The cost associated with punishment is composed, first, of the inherent cost of being engaged with the process in terms of stress, expenses, standing and so on and, second, of the multiplication of the expected punishment by the odds of being punished.
  9. Defined as “[t]he action or practice of persuading someone to do something by using force or threats” in “Coercion”, Lexico powered by Oxford.
  10. This is widely acknowledged, most notably by our criminal law, which excuses criminal acts committed under duress or out of necessity. Such acts are considered to be insufficiently voluntary to be morally blameworthy.
  11. University of Toronto, Governing Council, Statement of Institutional Purpose, October 15, 1992. As such, the University “foste[rs] an academic community in which the learning and scholarship of every member may flourish” and “ncourage[es] scholarship in a wide range of disciplines”, id., p. 3.
  12. Id., p. 3-4. See also id., p. 5.
  13. Id., p. 3 and 5.
  14. Id. The “human right to radical, critical teaching and research” is said to be the one “with which the University has a duty above all to be concerned”, id.
  15. This should be used parsimoniously so as not to cause a chilling effect.
  16. Claude-Hélène Mayer and Rian Viviers, “Experiences of Shame by Race and Culture: An Exploratory Study” (2017) 27:4 Journal of Psychology in Africa 362, 362.
  17. Aristotle, Politics.
  18. It should be noted that university-independent student behaviour can be a broader concept than work-independent behaviour. Where one is employed as a school principal, for instance, online activities may raise issues in terms of loyalty (towards the employer), credibility (as a role model) or impartiality (as a decision-maker) and thus be properly subjected to workplace or professional discipline (e.g., Ontario College of Teachers v Sadaka, 2019 ONOCT 60). University-independent student behaviour fails to raise such issues.
  19. University of Toronto, Governing Council, Code of Student Conduct, February 14, 2002, paras 4 and 5.