Dalhousie University has a big, big problem.

Thirteen male Dalhousie dentistry students are, for now, suspended from clinical activities. This suspension is brought on by misogynist, sexual comments made about their colleagues as part of a private Facebook group revealed to the CBC. This story continues to be chaotic and these students’ academic future, even the mechanism of punishment, remains uncertain. The future of their female colleagues also remains unclear. Are they expected to attend clinics or classes with these thirteen young men? Surely not. And therein is the big, big problem that Dalhousie University has. 

A couple of things are clear.

These students believed that they were indulging in a private conversation. Indeed, they took steps to see to it that it was private. Namely, the Facebook group that they started was not public, you had to be a member to take part. It’s not clear who captured screen shots of the conversations and leaked them to the CBC.  Nonetheless, I think the evidence is clear that these young men thought they were indulging in a private, harmless, juvenile conversation. This may not be what, in fact, they were doing. But, it’s what they thought they were doing. It is similar to a private locker room conversation being recorded either by someone in the conversation or by a third party, and then having the recording released to the media. 

Secondly, there has not been a crime. Conversation can be a crime. You can threaten someone, for instance. But, this was intended as a private conversation and in criminal law, intent matters. Even still, private conversations can be crimes if, for instance, they are conspiracies. There was some conversation about drugging and raping women but there is nothing to indicate that these were legitimate plans. They were awful, repugnant jokes but they were not a criminal conspiracy.

Here is the problem that the administration of Dalhousie University is facing. On one hand they owe it to the women affected to provide a safe school environ. On the other hand, what censure of the Dalhousie Thirteen is appropriate for a private conversation that has been made public?

There is no law against being offensive, misogynist, and just generally an ass in your private affairs. And, Dalhousie can’t punish these young men for their private affairs.

Donald Sterling was censured by the N.B.A. when his horrifically offensive attitudes on race became public. They were able to do this because of the covenant of N.B.A. owners. Namely, the owners hold complete collective power over everything and if they want to censure you, they can. This is not the case with Dalhousie.

Members of dentistry profession are to conduct themselves “to the esteem of the profession.” Failure to conduct themselves in accordance with their professional responsibilities can result in discipline from the professional association. But, that’s the professional association, not the university. And, these are students. I don’t think the Nova Scotia Dental Association has any jurisdiction. They could, perhaps, later refuse admission to the Dalhousie Thirteen just as some provincial legal associations have refused to recognize Trinity University graduates. But, that’s another conversation as it’s not between the university and these students.

There is a Dalhousie University Code of Student Conduct. Students are prohibited from behavior that one would reasonably foresee as making another student feel demeaned, intimidated, or harassed. But, this was as a private conversation. Who would reasonably foresee a private conversation demeaning anyone? Once it’s made public, it is horribly demeaning and I can’t imagine any of the women affected want to head into the clinic and share the space with any of the men involved. But, was it a breach of the Code? This was not reasonably foreseeable (the men will argue) because it was a private conversation that was surreptitiously made public by someone with no right to do so.

This is why the university has been so slow to act decisively. It seems to me that Dalhousie administration is in a very difficult place. On one hand there is the security of the female colleagues of these thirteen men. They deserve a rich, safe, secure workplace – or, in this case, school. It’s a shame that these men did not know better. But, apparently they didn’t. It’s a shame that these men are such asses. But, apparently they are. 

On the other hand there is the potentially massive economic loss to these men. It they are expelled and subsequently successfully sue the university there is a lot at stake. How much is the monetary loss associated with denying a dental career? To one? To thirteen? I am certain that this number would be in the millions.

I predict that Dalhousie will propose a solution that protect the female members of the college by providing a safe school environ. The female dentistry students will finish their studies with no further contact with the men in question. And, these thirteen men will be allowed to graduate, thus passing the buck onto the professional association and avoiding a potentially massive lawsuit. 

This is a solution that will not satisfy anybody.