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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Comments (7)

1. Posted by Kate Litvak on December 7, 2005 @ 16:24 | Permalink

Christine: please elaborate on the duty-of-loyalty argument. To put it mildly, it sounds wrong to me (any public criticism of a colleague is a duty of loyalty violation?), but I am willing to be persuaded otherwise. If you can think of a legal authority that supports your view, I'd like to hear about it too. (I am not saying it doesn't exist, I just want to know what it is).

By the way, I am pretty sure that the identity of the payor (insurance company, employer, or a patient himself) is completely irrelevant in this context, but I first want to hear about the loyalty thing.

2. Posted by Anonymouse on December 7, 2005 @ 19:10 | Permalink

Ditto on the duty of loyalty question. Whereforth does this duty spring from?

3. Posted by Paul M. Secunda on December 7, 2005 @ 20:11 | Permalink

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.

4. Posted by Kate Litvak on December 7, 2005 @ 20:22 | Permalink

As I recall, the duty that arises from agency law is limited to the scope of the agency. So, it would cover the student's conduct while he was drilling a tooth at a school's clinic, but the rest of his conduct is not covered.

But I am willing to entertain other views if Christine eventually choses to provide them.

5. Posted by nk on December 8, 2005 @ 7:07 | Permalink

It seems to me that the principles here arise from the (outdated and unconconstitutional since the 15th Amendment) master-apprentice relationship. The master owed his apprentice the duty to teach him and provide for his subsistence. The apprentice owed his master his obedience and labor and also to keep his master's trade secrets confidential and not to do anything that would damage the "goodwill" of his master's business. From a more personal perspective, I would say that there has been a duty of respect and deference flowing from students to teachers and schools since the time of Aristotle which began to be eroded in the 60s. People have forgotten that for most of history and even into the 20th century education was a rare privilege and students made many sacrifices in order to obtain it including putting aside their ego and self-indulgence.

6. Posted by joe on January 3, 2006 @ 10:44 | Permalink

Aetna is one of the health care leaders, which offers different plans to individual and family health. aetna and aetna insurance and aetna dental insurance

7. Posted by John McAdams on January 6, 2006 @ 13:30 | Permalink

Although the suspension has been overturned, the student still faces some non-trivial punishments:

Dental School Blogger: Dean Reduces Punishment

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