Reverend William Sloane Coffin Jr. once articulated the relationship between the state and citizen as follows, "[t]here are three kinds of patriots: two bad, one good. The bad are the uncritical lovers and the loveless critics. Good patriots carry on a lover's quarrel with their country."
In my experience as a former student union president, I believe these categories speak equally to the kinds of relationships often encountered between student unions and their respective universities and colleges. An engaged relationship with a healthy dialogue between an institution and its student union can strengthen the academic experience and support both organizations' goals. However, as many readers are likely aware, the relationship can experience strain and conflict. At those unenviable junctures, it's helpful to take a step back and reflect on the nature of the relationship. Although there are many facets to the relationship that warrant discussion, this article is intended to address (at a high level) how student unions are constituted, the legal relationship between a student union and its academic institution, and how that legal relationship can be leveraged to accomplish a university's or college's objectives.
SO, WHAT EXACTLY ARE STUDENT UNIONS ANYWAY?
As a preliminary matter, I should raise a taxonomic point. The student associations at your respective institutions may identify themselves, among other names, as student unions, student federations, or student representative councils. While the choice of name and how each styles itself may lend to understanding its internal culture and history, these distinctions have little relevance to the governing relationship each maintains with universities and colleges. Therefore, for brevity's sake, I've adopted the term "student union" to encompass all forms of associations for the purposes of this article.
Importantly, student unions are often distinct legal entities. They can be legal persons which enjoy the power to make contracts, sue, and be sued. There are many paths to creating a legal personality and each path may result in different rights and remedies being available to the particular student union. In New Brunswick, for example, the University of New Brunswick Student Union is a statutory company established by a special act of the legislature in 1966. Conversely, la Fédération des étudiantes et étudiants du Campus universitaire de Moncton is a company created by way of letters patent in 1969. The constating documents of each sets out the rights and powers of each respective organization. What a company, including a student union, can and cannot do, is prescribed by its constating documents. Put another way, if a student union is not authorized for any given undertaking, it cannot do so in a legally binding fashion.
Understanding the nature of the party with which you are dealing is critical. For example, what happens if a student union enters into a type of contract that is not authorized by its constating documents? If that contract is not satisfied, an innocent third party such as a college or university may be without a remedy for breach of a contract. Issues such as these can be prevented by preliminary due diligence. The imperative is to appreciate the legal character of your respective student unions. Indeed, an ounce of prevention is worth a pound of cure.
... AND WHAT'S THE LEGAL RELATIONSHIP?
Student unions would not exist but for universities and colleges. That alone does not define a legal relationship. Rather, a web of contracts (both written and unwritten) between academic institutions and their respective student unions governs the rights and responsibilities of the parties' relationship.
Arguably the most common contract between an academic institution and its student union is the agreement by which the institution will remit student fees. Depending on your institution, this may simply be a historical practice or policy that is written or unwritten.
Ideally, once collected from the population, student fees should be segregated from the academic institution's finances and remitted to the student untouched. Spending any such funds may expose the university or college to liability.
Fee remittance practices may go unaltered for years until a student union requests an increase in student fees. Even then, an approach to altering student fees may be dealt with on an ad hoc basis.
In the dialogue between institutions and student unions, there are countless policy reasons why the independence of student unions should be respected. Deference to a student union does not eliminate a university's or college's obligations owed to the student body. When approached by a student union with a request for a fee increase, it is wholly appropriate to request disclosure with respect to how the student union justifies imposing additional fees on students.
In any event, fee remittance policies should be reviewed regularly to ensure they are consistent with best practices.
The second most common contract is the arrangement by which an academic institution allows a student union to use its property. These agreements may vary in their level of formality from leases of campus buildings to permission to hold social events on a college's or university's green space. Negotiating these agreements provides the institution with an opportunity to manage risk. Again, bearing in mind that a high degree of deference should be afforded to student unions to allow for the most productive relationship, a responsible university or college should view all use of its property through the lens of risk management.
RISK MANAGEMENT: TWO HYPOTHETICALS
Given this contractual matrix, let us posit two hypothetical situations where an academic institution may wish to compel a student union to act in a certain manner.
First, the student union on your campus wants to host a winter carnival. This year, you are advised the student union plans to hold a snowboarding competition, to include a half pipe constructed on your campus' quad.
Sounds risky: what can you do?
An institution should always be aware of the limits of its general liability insurance coverage. An institution can impose an obligation on a party using its property to obtain insurance to the benefit of the university or college. Independent of who is insuring against the risk, an academic institution's liability for injuries sustained at events held on its property will be assessed on a case by case basis. The extent to which a university or college provides oversight or security will impact any liability assessment. In short, an institution can compel the acquisition of insurance and, depending on the event, impose safety and security requirements.
Second, your phone rings. A staff member has just noticed a poster for an event hosted by a campus club, at which Milo Yiannopoulos is invited to a rally on free speech. You recall that, not so long ago at UC Berkeley, protests in response to Mr. Yiannopoulos' planned appearance caused $100,000 of damage.
Can you shut it down?
Setting aside the issue of whether a Canadian academic institution should or can impede free speech, there are clearly risks associated with such controversy. If Mr. Yiannopoulos were to speak on leased premises, that lease establishes your rights as a landlord to intervene. If the rally is to be held on general university property, an institution's options are much broader. In both cases, this conflict should be viewed through the lens of relationship management and risk mitigation.
WINNING THE LOVERS' QUARREL
At the end of the day, academic institutions and student unions have more interests in common than not. Each strives to foster the optimal environment in which students can learn and succeed. Understanding the nature of your institution's student union and your legal relationship can advance your objectives and mitigate risk. To finish Reverend Coffin's point, a healthy, respectful lover's quarrel between a college or university and its student union produces only winners. To that end, if there is anything Stewart McKelvey can do to assist you in navigating that quarrel, we are always happy to oblige.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
