Students et al. v. Canvas
74 U.Va 1 (2021)
J. Kulkarni delivered the opinion of the Court.
As we begin this new session of the esteemed Court of Appeals, I find myself no longer a junior member of the Court. While I wished that this meant I would deal with better cases, instead this Court is faced with a dark case today. The issue is simple: the administration has decided to rescind class recordings. This comes in the wake of a decision to implement masks for the first two weeks of the semester. The law school as a whole has expressed a concern with That-Which-Shall-Not-Be-Named, which is warranted given the recent rise in cases across the nation.
Therein lies the problem, however. The administration finds that the rise in cases is concerning and wants to prevent such a spike in cases here. On the other hand, the school has a vaccination rate above 95 percent among students, so the administration remains “hopeful.”[1] That hope is what drives the issue at bar. The Dean believes that we will return to normal[2] soon, and thus we no longer need consistent access to recorded classes. The students who have brought this issue are asserting that if the administration believes this rise in cases is concerning enough to necessitate masks, then it is also concerning enough to necessitate plans for instances where a student has fallen (or believes they have fallen) sick.
This Court agrees. The administration has no leg to stand on as far as we are concerned. Every student and member of the faculty has a deeply held wish that this Law School could return to the environment prior to That-Which-Shall-Be-Derided. But either we are still living under its shadow or we are not. The University administration believes (and this Court fervently hopes they are right) that the internal mask mandate will be lifted in two weeks. That means that while the Law School is getting started with students from all across the country returning, they want to prevent an initial spike. If we accept this wishful thinking,[3] then that means that students will be both in-person and wearing masks until September 6th.
Students, in this time when people are arriving from all across the country, shall be especially vulnerable. Why, then, does this administration insist on taking away what could be their savior if they fall victim to That-Which-Sucks-A-Lot? If students fall sick, especially 1Ls, then they have nothing to help them catch up. Those who are looking for private jobs will be forced to rely on their “personalities” during OGI to get a job because the administration purposely sabotaged their GPA.[4] Beyond this very important aspect, the recordings provide an opportunity for students who are more concerned than average that they have an alternative means of learning. It provides an out for disabled and immunocompromised students, something the administration conveniently forgot with the start to this new year. This Court finds it unlikely that an order to resume the zoom option for all classes would ever be followed. Thus, this option is the next best thing.
Having addressed the concerns of these two valid classes of students, it is now time to turn our attention to the final group: the procrastinators.[5] These students want the recordings to make studying easier at the end of the semester. And why shouldn’t they? Law school is hard enough—any tools that can be used to increase performance on exams should be used. Every student learns differently, and some have come to realize that they learn best by binging recordings in the two weeks before exams. This Court feels incredible sympathy for these students. But they are not the reason for the order below. These students are simply beneficiaries of the decision, not a driver. The administration should not believe that we are ruling against their interests to aid students they would call slackers.[6] Any assertion to the contrary is simply wrong and false.
To wit, this Court rules that Canvas should restore class recordings to their website. Professors should be ordered to use the laptops that provide their PowerPoints to record their lectures. That-Which-Ruins-Lives has drained us all and will undoubtedly continue to do so, and this small change can provide some insurance for sick, immunocompromised, and disabled students who would like an out from in-person classes. Put simply, the administration cannot have their cake and eat it too.
Bninski, J., concurring in the judgment.
I write separately today to agree heartily with my colleague, and to encourage reconsideration of a premise that might be used to support a ruling for the appellee.
First let us assume, arguendo, that the purpose of a law school is to educate the next generation of legal professionals.[7] The school houses resources oriented to this goal: classrooms, clinic space, library resources – not to mention the expertise of faculty and staff. The business of a semester is to convey knowledge, whether theoretical or practical, from instructors into the eager brains of students.
As my colleague points out, the pandemic persists. Why, given that fact, would it make sense to remove part of the information infrastructure that has allowed students to learn since the advent of COVID? While it is an established tenet of this Court that 1Ls always lose, I think it unnecessary to hew so assiduously to that premise as to require 1Ls to lose access to a valuable educational resource – a resource which the School has demonstrated to be viable, and which student attestations demonstrate to be valuable.[8]
I theorize that behind the School’s decision there may hover fears that, given reliable access to class recordings, students may not engage with the instruction, or may not even come to class, to the detriment of the educational environment and UVA’s much-vaunted “sense of community.” I counter that law students are a herd of nerdy try-hards, who largely showed up to classes that were recorded even before they had the safety of vaccination.[9]
Moreover, class recordings are in the interest of public health. Students who are ill with maladies other than COVID should be encouraged to stay home and reduce the spread of, say, the seasonal flu. Why incentivize students to come to class while sick? This opinion lacks scope to do more than gesture at COVID’s large and small horrors, but if nothing else, the pandemic should encourage all of us to consider how existing systems may be reshaped to serve the public health, and that of the UVA Law community, in the long run. The current policy pays little heed to the concerns of students who have disabilities or are immunocompromised while prioritizing a sense of community. I posit that the community would be well-served by policies that encourage everyone to make health choices that benefit the Law School at large.
Berdan, J., dissenting.
It is dismaying indeed that this august court has fallen so far out of touch with the Law School’s administration that it expects them to continue a temporary policy merely because it improves the educational product delivered by the Law School, gives students some much-needed flexibility, reduces student stress levels, supports university and community public health goals, and has absolutely zero downside whatsoever. The majority rightfully acknowledges that recording lectures and making them available to students online is a droolingly obvious way to contribute to student wellbeing, but it errs in assuming that the administration holds student wellbeing as their aim, and fails to find statutory support for any duty incumbent on the administration to continue practices in the best interest of students. Mental health and educational outcomes are only tangentially connected to U.S. News and World Report rankings, graduate starting salaries, clerkship placement percentages, and alumni donation rates. It is telling that no argument was made – by the majority or by the parties – attempting to connect recorded lecture availability to these, the admin’s ultimate aims and primary metrics of success.
A breeze through recent UVA Law history makes the majority’s opinion laughable in contrast. See, e.g. UVA Law v. Students Ticketed for Parking in Empty Lots (2021) (“The Office of Student Affairs is under no duty, statutory or otherwise, to stand up for Students in their Affairs.”); UVA Law v. America (2020) (Law student administratively withdrawn for serving in the National Guard during a pandemic state of emergency); and UVA Law v. Tuition Levels (2009, aff’d 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021) (“Shoulda got a Dillard, pal.”). Since my colleagues on this court are wildly detached from North Grounds reality, and are attempting to enforce duties against the Law School that it only dreams in marketing materials of upholding –
I dissent.
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omk6cg@virginia.edu
amb6ag@virginia.edu
mwb4pk@virginia.edu
[1] Don’t they know this is a law school? What are they doing being hopeful?
[2] This court has no idea what normal looks like, considering both this and the concurring opinion are written by people who never experience this so-called “normal.”
[3] Seriously, who has the ability to be wishful in law school? Two of the justices are 2Ls and feel burnt out already.
[4] Can you tell that I am one of those personality kids? I’m awesome, but not everyone is. Gotta be understanding.
[5] This was my polite name for the group. I was going to use “lazies” but I don’t like that label for my like-minded fellows.
[6] Why though? Does it matter how anyone gets there? Good grades are good grades, the path is irrelevant.
[7] I grant, this is a large assumption.
[8] 1Ls may, after all, share the benefit of decisions which affect the student body as a whole.
[9] It should also be noted that students on Zoom in hybrid classes also participated, or attempted to.