ITEC 5070<br />April 13, 2009<br />Jessica Hollon<br />Brief for Young v. Bella<br />Title: Young v. Bella, 1 S.C.R. 108, 2006 SCC 3<br />Parties: Plaintiff: Wanda Young<br />Defendants: Professor Leslie Bella, William S. Rowe, and Memorial University of Newfoundland<br />Intervener: Child Welfare League of Canada<br />Court: Supreme Court of Canada<br />Procedural Posture: <br />This case was heard in 2001 before a civil jury. The jury found that the defendants, Bella and Rowe both professors at Memorial University of Newfoundland, had breached the duty of care owed to Young as a student of the University where they were employed. The jury also concluded that the report made to the Department of Child Protection Services (CPS) was made without reasonable cause and that the professors failed to meet the required standard of care. In addition, the jury also found that the loss and injury that Young suffered were foreseeable consequences of the professors' acts and that Young had not contributed to these damages. The jury awarded damages to young in the amount of $829,400.<br />In 2004 this case went to an appeals court and the appeals court overturned the jury award. The judge in this court concluded that section 38(6) of the Child Welfare Act which protects individuals from legal action when reporting “information that a child has been, is or may be in danger,” should protect the University from liability relating to the report made to CPS. This concern about what damages should be awarded from this case lead the appeals judge to conclude that a new trial was necessary. Wanda Young then appealed to The Supreme Court of Canada.<br />Facts: <br />In 1994 Wanda Young, a then 23 year old student was taking distance courses from Memorial University of Newfoundland with the goal of being admitted to the School of Social Work and eventually becoming a social worker. Her grades thus far had been marginal and the year before, in 1993, her application to pursue specialized courses in the School of Social Work had been rejected. Since then she had been taking courses she was eligible to take. For one of these courses taken in 1994 Young submitted her final assignment, over two weeks late, to Professor Leslie Bella. The paper was on the topic of juvenile sex offenders, a topic which Young says she had preapproved in the only meeting she had ever had with Professor Bella. The paper included a section discussing how abused child may grow up to become sexual abusers themselves. Young attached to this section of her final paper appendix A which was a case study copied from a textbook and was a first person account of being sexually abused as a child and then growing up to become a sexual abuser herself. The textbook from which this excerpt was taken was listed in Young’s bibliography, but the appendix was not footnoted in the body of her paper. <br />After reading the final paper Professor Bella speculated that perhaps this portion of the paper was autobiographical and a “cry for help” from Young. Professor Bella also speculated that the term paper was plagiarized. Professor Bella expressed these concerns to the Acting Director of the School of Social Work and Chair of the School’s Admissions Committee, Professor Jane Dempster. After seeing the excerpt of the Appendix, but not the entire term paper it was attached to, Dempster counseled Bella to meet with Young and discuss the appendix and if the meeting did not clear up the matter to then contact CPS. Instead, Bella wrote a letter to Young suggesting the paper was written for another course, which would be self plagiarism or that it was written by someone else because it was not written in the same style as Young’s previous papers. Bella then without waiting to hear from Young, contacted CPS who also advised Bella to speak to Young to obtain some clarification on the matter. <br />Young testified that she did, after receiving Professor Bella’s letter provide documents that rebutted the suspicion of plagiarism. However, Bella did not grade the term paper, and gave Young a zero. Bella then took her concerns of possible child abuse to the Director of the School of Social Work, Dr. William Rowe. Bella told Rowe the appendix, “was neither referenced nor had any explanation in terms of the paper,” and Dr. Rowe attached appendix A to a report that he then sent to CPS in which he stated “the case study was attached without explanation.”<br />In the meantime, the University had rejected Young’s request for reconsideration of her application to pursue a degree in social work. Young, still not aware of the child abuse allegation, approached Professor Jane Dempster to see how she may be able to improve her chances of acceptance into the program. Dempster advised Young that the facility did not think she had what it took to be a social worker and to look for a career elsewhere. Young then sought employment as a youth care worker at various facilities still not knowing there was an allegation she was a child sexual abuser which was disclosed to many social workers, many of which Young knew through her summer employment.<br />In 1996, a staff worker for CPS set up a meeting with Young and for the first time Young became aware of the long standing report against her. Young then delivered the textbook from which the excerpt in her tern paper had come from. It was then clear that the excerpt was not autobiographical and CPS immediately cleared Young. However, as late as 2001 the fact that Young had a “red flag” on her applications as once being mistakenly considered a potential child abuser, still plagued her when searching for employment. <br />Issues: <br /><ul><li>Did Bella and Rowe breach the duty of care they owed Young?
Do Bella and Rowe warrant protection according to section 38 of the Child Welfare Act?
Does the law and evidence support the jury’s award of damages?
Should there be a cap in the damages awarded in this case?</li></ul>Holdings:<br /><ul><li>Yes. Bella and Rowe were negligent because of their acts of omission in the report to CPS and the fact that both failed to mentor or properly advise Young.
No. While Bella and Rowe had a duty under section 38 (1) to report possible abuse they did not have reasonable cause to report this abuse as outlined in section 38 (6) of the Child Welfare Act.
Yes. It was within the jury’s province as the triers of fact to award damages.
No. While damages are higher than the Supreme Court would have awarded, the law awards the jury to assign the damages.
Bella and Rowe were found to not have upheld the duty of care they owed Young because of their positions as facility at the University at which Young was attending. They owed it to her to discuss the matter with her and get the facts before making a serious claim to CPS. They owed her this duty of care before the claim, and after the claim; and neither even brought the matter up to Young. While the main objective of section 38 of the Child Welfare Act is to protect children, it also seeks to do so in a way that takes into account the interests of the persons under suspicion as well as the interest of the informants. The interest of the informant is protected in this act by section 38(1) which states “where a person has information that a child has been, is or may be in danger of abandonment, desertion, neglect, physical, sexual, or emotional ill treatment or has been, is or may be otherwise in need of protection, the person shall immediately report the matter.” Section 38(6) of the Child Welfare Act seeks to protect the informant by stating informants need “reasonable cause” in order to implicate someone of child abuse. This section also states, “An action does not lie against the informant unless the making of the report is done maliciously or without reasonable cause. In this case , appendix A, was not found to be reasonable cause and could have been cleared up for what it was- a missing footnote, had the defendants gave the plaintiff her owed duty of care and met with her regarding the issue.
Also, because damage assessments are questions of fact for juries, the jury’s award in this case cannot be said to be disproportionate, and since a cap is not needed to protect the general public from a serious social burden such as high insurance premiums, the damages set by the jury were found to be justified. The Supreme Court of Canada found no basis to change the jury’s verdict finding that the jury made the award of damages reasonably after being properly instructed. So, it was ruled to set aside the judgment of the appeals court and restore the trial judgment.</li></ul>Dissenting and Concurring Opinions: <br />The judgment of this court was given by Chief Justice MacLachli and Justice Binnie. <br />Justices Bastarache, Lebel, Fish, Abella, and Charron JJ. concur.<br /> Ethical and Social implications: <br />This case brings up the topic of duty of care an instructor or facility member at a higher educational institution owes a student at the institution. In this case, the plaintiff, a student at a University was never aware of a very serious child abuse allegation being made about her, until years later. Ethically, I believe that educators as service personnel to the public do owe it to the public, and children especially, to report all suspected abuse. However; ethically they also owe this duty of care to their students, even if they are suspected of inflecting the abuse. When you accuse someone of something so monumental, it is their right to know. In this case, it could have stopped these very serious allegations from being passed around and ultimately causing a person’s life to be altered in light of a wrong suspicion. <br />Educational Ethics Critique of Young v. Bella <br />After reading the Young v. Bella case, as an educator I had a lot of thoughts on how the University and its employees had wronged Wanda Young. Young was a distance education student at the University and had submitted a term paper that had raised red flags with her professor. The issue at hand was that Professor Bella speculated that Young was writing in first person and confessing to the sexual abuse of children.<br />This charge being very serious, was never brought to the attention of Young. By reading through this case, it was clear to me that when this allegation got passed from Professor to Department Chair, to Director of the Social Work School in which Young was trying to apply; that the duty of care owed to her was never given. A civil wrong doing such as this owed duty of care not being given leaves the institution open for a tort claim. “Two classic torts that most frequently arise in the setting of postsecondary education are negligence and defamation” (Kaplin & Lee, 2006 p. 87). In this case Young could clearly claim defamation. <br />There were so many break downs in the way this issue was handled by the university employees. Ideally, if a professor has a question whether a paper is a confession of a crime, I think ethically they owe it to the student to discuss the matter with them before reporting to a superior or another agency. Also, in the case the professor also suspected Young of plagiarism and even threatened to check all of the sources cited in the term paper to prove this charge. Since the textbook from which the section about child abuse which raises the red flag was listed in the bibliography; had the professor done this they may have seen that the appendix was not a first person account. <br />Even after Young cleared herself of plagiarism and Professor Bella was told by her superior and the Child Protection Service to contact Young directly and address the concern, Professor Bella did not. If Professor Bella was so torn about this uncomfortable situation and really wanting to get to the bottom of it, why did she not take the advice of her superiors and the agency in which she went to for clarification on how to proceed? To me, this was the biggest mistake made in the case. Had Professor Bella done what she had been instructed to do, Young could have cleared her name, it would have eased Professor Bella’s mind, and the false claim could have all been overturned before a wrong and very serious allegation was spread through the tight knit Social Work School and community in which Young was a part.<br />As educators of any age group it is our duty to report suspected abuse, as it should be any citizen. However educators also owe it to their students with whom they are in contact with, whether it be face to face or online, to confer with them and let them be aware of what is thought and happening concerning the students themselves. <br />When the Chair of the School’s Admission Committee, Professor Jane Dempster, met with Young and was not straight with her but instead decided to tell her, (according to Young) “the faculty did not think she had what it took to be a social worker and that she should look elsewhere for a career “(Young v. Bella, 1 S.C.R. 108, 2006 p.12) it was again a breakdown in the communicated and owed duty and standard of care the educators owed Wanda Young. <br />Another breakdown in the owed duty of care came from Professor Rowe, also a defendant in the case. When Professor Bella brought the excerpt in question from Young’s paper to Professor Rowe, the paper in its entirety was never seen. Rowe owed it to Young to read the excerpt in the context in which she submitted it. Had that been done, it is possible that another point of view other than Professor Bella’s may have been seen on why the excerpt was a part of the term paper.<br />For me, the bottom line is that if anyone had been truthful and told Wanda Young about what their suspensions of her were, then Young could have cleared herself immediately. Had they been forthcoming with her, even if Young was actually guilty of child abuse the fact that the college and professors had divulged their suspensions and their plan for future actions against her would not have changed an outcome. She would have been prosecuted by Child Protection Services nonetheless. Young, unaware of the allegations could not defend herself and this did not afford her to clear her name and have the owed duty of care she was entitled.<br />Admissions Policy Question Being Answered: <br />Assume you are a senior administrator employed by a public college or university. Please briefly describe your institution in the introduction to your answer. The state or community served by your institution is very diverse (40% white, 25% African American, 25% Latino, and 10% Asian American). African Americans and Latinos are underrepresented in the health professions in the tertiary care hospitals in your state or community. They are also underrepresented in the health professional positions in the very large, regionally based, pharmaceutical firm; SKG Clinical Trials, Inc. Both the hospitals and SKG have just been sued for racial discrimination in employment. The plaintiffs’ attorneys have indicated that they may sue your institution if the discovery process shows the institution has some liability. <br /> <br />After extensive debate by the Board of Trustees, the Faculty Council, the Dean’s Council, and the President’s Cabinet, you have been given the responsibility of completing the first draft of a new admissions policy (for two highly selective educational programs) that must pass constitutional scrutiny. The admissions policy must provide for race-based, preferential treatment in the admissions process for African Americans and Latinos. The admissions policy must do the following:<br /> <br />a. Identify and explain the educational justification for the admissions policy,<br />b. Identify and explain the legal justification for the admissions policy, <br />c. Describe, in detail, the preferential treatment to be provided in the admissions process and precisely where the preference will operate, and<br />d. Explain how the overall admissions process will work.<br /> <br />Identify the appropriate legal authority (U.S. Constitution, U.S. Code, U.S. Supreme Court decisions, and U.S. Federal Court decisions) for various provisions in your policy and insert these in the relevant sections of your answer. Note: for purposes of this essay, assume your state does not have any constitutional or statutory provisions prohibiting race-based preferential affirmative action in student admissions. <br />Admissions Policy As Seen in Handbook:<br />Hypothetical University’s Nursing and Pre-Med. programs are highly selective and competitive programs. Each class consists of only 10 percents of the number of applicants these programs typically receive each year. Because the student body in the Nursing and Pre-Med. programs is small, class sizes also reflect this. Students admitted into either of these programs should expect to be involved in class discussions and be well known by the professors who are teaching courses in these areas. This small student to professor ratio is something Hypothetical University prides ourselves on as students in these courses will be ensured the amount of attention needed by their professors so students are able to succeed to their full potentials. <br />While Hypothetical University serves a larger community that is very diverse, so are our campus and the Nursing and Pre-Med. programs. We pride ourselves on this diversity in the classroom. Admission to the Nursing and pre-Med. programs is competitive and highly selective. Our admissions community seeks students who have the ability to succeed academically and personally in our University’s setting. <br />In coming to all admission decisions, Hypothetical University reviews and carefully assesses each applicant’s credentials fully. Included in these credentials are the applicant’s intellectual strengths and their academic promise and personal qualities. The admissions committee examines all applicants holistically, and while an applicant’s academic record is of great important, the committee will also consider an applicant’s race, geographical origin, and academic and co-curricular interests as well as other information provided in the student’s application. When making final admission decisions the committee will envision the future potential of applicants serving our community and others and will bring together a class of Nursing and Pre-Med. students who will offer a wide range of unique characteristics, experience, and knowledge.<br />Evaluation Procedure:<br />The process each application to the Nursing and Pre-Med. programs will go through at Hypothetical University will be as follows: <br />The committee will assign a specific rating for academic performance, recommendations, scoring on specific admission tests, leading to an overall rating to each file. When evaluating an applicant’s file and assigning a rating in each of these categories the committee will apply their professional experience and judgment. <br />These ratings will be used as guides to help the committee manage the large numbers of applications and select only the appropriate applications that should go on to further processes within this same committee. <br />The evaluation ratings are as follows: <br /><ul><li>Outstanding
Below Average/Poor</li></ul>Depending on how many applications are in each category, the committee will take all of the 1 applications, after that the committee will take applications in the lower rating categories. If the committee chooses to take an application from a certain rating level, they must take all applications that received this same rating as well.<br />In the next phase of the evaluation process, the committee may assign a plus or minus to an evaluation rating, where the applicant’s personal characteristics and attributes (personal background, geographic considerations, race, and academic and co-curricular interests as well as other information provided in the student’s application) are being evaluated. It is in this phase of the application process where reviewers will be able to draw attention to special circumstances or characteristics that stand out in an application and merit particular consideration. When evaluating race of an applicant the committee can, because Hypothetical University has a voluntary race conscious admission policy, give a plus to a candidate who is a member of a race that is underrepresented at the university or within these programs. The committee will take into account Hypothetical University’s quest for diverse classroom experiences for all students in this phase of the process.<br />After the committee has exercised their professional judgment and experience in rating the applications they will then provide an overall rating for the application based on the following scale:<br />Rating of 1 = Outstanding + or -<br />All of the applicant’s materials exemplify superior and exceptional characteristics that contribute to the specific evaluation categories.<br />Rating of 2 = Excellent + or -<br />The applicant’s materials illustrate extremely strong, but not exceptional, characteristics. <br />Rating of 3 = Good + or -<br />The applicant’s materials demonstrate competitive, average characteristics in most of the criteria, but may be particularly strong in one or more areas. The committee may have reservations about the applicant’s academic competitiveness.<br />Rating of 4 = Average/Fair +<br />While the applicant’s materials are competitive in each of the evaluated areas, the committee has concerns about the overall strength of the application and may have concerns about the applicant’s academic competitiveness. <br />Rating of 4 = Average/Fair –<br /> The applicant does not stand out.<br />Rating of 5 = Below Average/Poor + or -<br />In the applicant’s materials, the committee sees serious deficiencies in most of the evaluation criteria in comparison to other applicants. In addition, evaluation criteria may not be met or may not have been addressed in the applicant’s materials, or may have been found to be misleading.<br />Recommendation Decisions<br />After conducting a comprehensive, holistic and individualized review of an each application, the committee will then make an admissions decision recommendation based on the evaluation rating and comments. <br />MA = Must Admit<br />Applications with a 1+<br />A = Admit<br />Applications with a 2 + <br />Applications with a 1, or 1-<br />AR = Admit with Reservation<br />Applications with a 3 + <br />Applications with a 2, or 2-<br />DR = Deny with Reservation<br />Applications with a 4 +<br />Applications with a 3, or 3-<br />D = Deny<br />Applications with a 4<br />Applications with a 4-<br />MD = Must Deny<br />Applications with a 5 +, 5, or 5-<br />Depending on the size of each recommendation decision category (as listed above), the committee will admit each category in the order listed until the admitting class is within the range of students the committee sees fit to maintain a small, individualized experience for each students. If the committee admits one applicant from a certain recommendation group category, they must admit all applicants from that same recommendation group.<br />For example, if an applicant with a 3+ is being admitted (only after all applicants with a 1+, 2+, 1, 1- are admitted) then all applicants with a 3+ must be extended admittance as well.<br />Essay on the Educational and Legal Justification of the Admission Policy <br />When crafting the admission policy for a hypothetical institution ,which was to be a public institution I knew that I had to be careful not to violate applicants’ fourteenth amendments, “which generally prohibits discriminary treatment on the basis of race, ethnicity, or sex, including “reverse discrimination” but applies only to public institutions,” (Kaplin & Lee, 2006, p. 339). I also knew that I would have to make sure the policy did not violate Title VI of the Civil Rights Act of 1964, “prohibiting race, color, and national origin discrimination and Title IX of the Education Amendments of 1972 (prohibiting sex discrimination)” (Kaplin & Less, 2006, p. 339) all of which apply to public and private institutions that receive federal financial assistance.<br />In Grutter v. Bollinger, the court issued the opinion that a race conscious admission program was permissible when narrowly tailored, if the admission program did not use a quota. I was sure in the admission policy to not set any certain percentage of underrepresented racial groups to be admitted. I did use the “plus factor” used in the Grutter case, which was considered not a quota, but does give members of underrepresented racial groups a leg up in the admission process. In my proposed policy this only happens if they already were qualified to be admitted based on their academic and intellectual abilities. I also made my admission policy flexible enough to consider other factors under the “plus factor” system as well.<br />As seen in Bakke v. Regents of the University of California (553 P, 2d 1152 Cal 1976) “race or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it may not insulate the individual from comparison with all other candidates for the available seats” (Kaplin & Lee, 2006, p. 343). Knowing that race had to be a factor to help the underrepresented minority groups gain admission into these programs, but also knowing it could not insulate them in the process, I chose to have the same committee review all applications in all phases of the process. I also have the first phase of the process based solely on academic and intellectual ability, insuring anyone’s application that made it on past this point was academically qualified. Then using the “plus” factor I gave the application evaluation process and the evaluation committee the leeway to use their own expertise and knowledge of the current student body in these programs to better sort out what applications would be submitted for admission.<br />In cases such as Bakke, Grutter, Gratz, and Defunis, courts have historically left the admission decisions to the expertise of the committee charged with the assignment of deciding who is qualified. In “Lesser v. Board of Education of NewYork, 239 N.Y.S.2d 776 (N.Y. app. Div. 1963), the court declined to overturn the judgment of the college, stating that discretionary decisions of education institutions, particularly those relating to determining the eligibility of applicants, should be left to the institution” (Kaplin & Lee, 2006, p.318). <br />With this stance of the court not being uncommon, I chose to point out in the introduction to the admission policy that this hypothetical university deemed diversity in the classroom as a major factor as to why the program was successful, along with the small class sizes. Diversity in the classroom was said to be a major factor in the Grutter case when the applications committee was reviewing applications for admissions. The courts in the Grutter case upheld this interest by stating the court, “"
does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
Since, the court’s decision in this case was that a diverse classroom was a compelling state’s interest, I made a diverse classroom a compelling interest for the hypothetical institution as well which is stated in the introduction of the policy. <br />