December 07, 2005
Defending Marquette
Posted by Christine Hurt

I go away for a semester, and all kinds of things happen.  I have to read at the VC, in fact, that a student at the Marquette Dental School has disciplined a dental student for unprofessional remarks made on his blog about his fellow dental students, his professors, drinking, and other aspects of dental school life.  Marquette is a private school, but there is still a debate over whether this disciplining bloggers is prudent, wise, consistently applied, or necessary.  One point that is made is that the student of the dental school is held to the School of Dentistry's code of ethics, which I cannot (quickly) find online.  I have another distinction that could be made between this student and a typical university student.  I have not yet seen this rationale proffered (in the media), but I'm giving it away free.

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.

UPDATE:  Eugene Volokh has more and ponders that a general duty of loyalty cannot be construed that broadly, especially in a university setting where even professors are agents but who obviously have freedom to criticize their employers.  In BA, we usually discuss the intersection of loyalty and whistleblowing, but we never have discussed the intersection of academic freedom or first amendment rights and loyalty.  Interesting questions.  As noted in the comments, even the broadest conceptualization of the duty of loyalty can give way to protecting others and one's self.  The dental student's blog has disappeared, but I think there would be a difference between a post that said "I'm surprised at how many of my fellow students drink so heavily, and I'm concerned that their performance in the clinic is impaired" and one that said "I was so wasted last night that I was hungover all day in the clinic."  To complicate matters, there we might say that it was the action that spurred discipline, not the expression.

UPDATE #2:  Paul Secunda compares this case to the NYU graduate students, who were told by the NLRB that they were not "employees" under the NLRA.  Paul points out the inconsistency of treating student workers as agents or employees to hold students to a higher standard but arguing that student workers are not agents/employees when holding the university as nonemployer to a lower standard.

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