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This case in Canada was between students who were complaining about a professor and the school who claimed doing so was misconduct. The school lost because the punishment infringed on students' freedom of speech.

By this logic, does freedom of speech protect students from punishment if they were to release details of a test question while complaining about it in a similar manner? What legal right do universities have to mandate confidentiality of such things? (I hope this doesn't sound facetious)

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    Which country's legal system are you asking about? And what sort of "confidentiality mandate" are you considering? – Trevor Wilson Jan 8 '15 at 2:10
  • I'm interested in both Canadian and American legal systems as I've trained in both countries. Especially interested if there are differences. The "confidentiality mandate" in this question deals specifically with test questions, however it reflects my broader ignorance as to what circumstances confidentiality can restrict freedom of speech. – Jim Jan 8 '15 at 2:25
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    I think we might need to know what this hypothetical school policy says before we can say whether it is legal. (Sharing a test question for the purposes of criticism would be legal, I believe, under the fair use exception in copyright law. However, it seems like you are asking what is legal for the school to do, which is a different question that what is legal for the students to do.) – Trevor Wilson Jan 8 '15 at 2:28
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    Disciplining students in the absence of a written policy is probably a bad idea, legally speaking. So I think to answer the question we would need to know exactly what the school's policy says. – Trevor Wilson Jan 8 '15 at 2:31
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    As for your question about the case that you cited, I don't know. But for a school in the US, any policy restricting student speech should: (1) be clear, (2) not discriminate against women or constitutionally protected minority groups, (3) not restrict constitutionally protected speech (e.g. political speech,) and (4) have a rational basis consistent with valid goals of the institution. (This is in order to respect due process rights, equal protection, and free speech.) – Trevor Wilson Jan 8 '15 at 2:57
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From your link:

Where a government-funded or affiliated entity such as a University attempts to limit the freedom of expression of its students it must carefully consider the students’ Charter right to freedom of expression, and ensure that any limitation is reasonable, justified and compliant with the Charter.

It seems like the difference between punishing people for sharing test questions and punishing them for criticizing professors is that one of these is "reasonable and justified," while the other isn't.

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  • Perhaps you can elucidate my misunderstanding. My train of thought goes: Freedom of speech can only be restricted when compliant with the charter but restrictions on freedom of speech are noncompliant with the charter – Jim Jan 8 '15 at 2:32
  • @earthling The question in part comes up as I try to understand Freedom of Speech vs Institutional policy like in the current situation at Dalhousie University. As far as I know bigotry isn't a crime. My interpretation of the spirit of the law would seem to say sanctions are in order in that case, but I just don't know if the letter of the law explicitly protects such individuals. – Jim Jan 8 '15 at 4:06
  • In a nutshell, in what circumstances is an institution allowed to say "you're not allowed to say that"? So far: test questions "yes", negative comments about teachers "no", and bigoted comments "maybe". – Jim Jan 8 '15 at 4:10
  • Do you know what area of stack exchange I might post this to find people inclined in that direction? I didn't see a legal section. I initially considered philosophy but their questions seemed...different. – Jim Jan 8 '15 at 4:32
  • @Jim I don't think there is a Law.SE but you could always propose one. – earthling Jan 8 '15 at 5:07
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In all reality, there is no way to keep people from talking to each other in pretty much any way they want and the boundaries between what is officially "legal" and "illegal" here are so uncertain, that whatever one hundred volume treatise an army of crooks may write on the subject, it will just confuse everything and clarify nothing.

As to the formal question, AFAIK, the freedom of speech act won't help you much if you are doing something utterly ridiculous (like posting the questions you were explicitly asked not to spread on billboards, online or otherwise), and any legal dispute will be resolved based on the circumstances more than on the action itself, if you decide to bring it to that stage. In general, universities can and do enforce written academic policies against obvious violations and within reasonable limits, but, like it is with copyright, speed limits, and other things, it is understood that an attempt to stick to the letter of the law no matter what will make more harm than good, so you can get away with "minor infringements" more often than not.

As a side note, a professor officially complaining about students complaining about her makes me just laugh: if we had all followed the pattern, the courts would have to work day and night for the next few decades. The article carefully avoids telling what exactly the posts were (and, knowing what our students write in the evaluations, I am ready to believe that some of them might be offensive enough to merit a good slap on the face) but going the official way about such stuff just doesn't seem to lead anywhere. If you are dealing with legitimate and civilized criticism, you'll just have to swallow it, though you may prefer to stay at your own opinion, and if you are dealing with morons, you will just waste your time on them and gain next to nothing even if you win. You'd better leave the judgement about the validity of student complaints about you to your colleagues and other students: most of them aren't blind or stupid and know who is worth what.

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