Whether it’s cancelled speaker appearances, limits to anti-abortion displays, racist or sexist taunting, or the ubiquitous names of Jordan Peterson and Lindsay Shepherd, it’s hard to miss the steady news detailing the drubbing that free speech – this pillar of a free and open society – seems to be taking in the halls of higher learning.
Of course, such debates aren’t new. Fifteen years ago, University Affairs published a cover story on clashes over free speech after violence flared at Concordia University, leading to the cancellation of an appearance by (at the time) former Israeli Prime Minister Benjamin Netanyahu. The plight of the Palestinians was the topic du jour, but each generation seems to have its own rallying point. Perennial though these debates may be, the fuel driving the latest free speech fights seems different. Social media has increased the speed and accessibility of interactions and, observers say, polarized and oversimplified the debate, playing on users’ psychology to generate clicks and taps instead of sounder arguments to nuanced problems. Conflicts that are initially limited become magnified, capturing headlines and generating huge petitions within hours.
“It’s easier to denounce than to debate,” says Peter MacKinnon, a legal scholar and former president of the University of Saskatchewan. He is the author of the recent book, University Commons Divided: Exploring Debate and Dissent on Campus, written out of concern for what he sees as the undermining of universities’ paramount value: seeking truth through the advancement of knowledge, learning and discovery.
Universities’ aspirations and the expectations placed on them have also shifted. These institutions have become big, complex organizations serving a multitude of interests and a much more diverse student population than in the past. Juggling competing goals is not itself a new thing, says Mark Mercer, a philosophy professor at Saint Mary’s University. However, he says, the academic goal of developing new knowledge based on critique and evidence is taking more of a back seat to universities’ responsibility for meeting social goals – preparing the next generation of business, political and cultural leaders and steeping them in community values, as their 19th-century, church-based founders once did.
“Our public universities are coming in many ways to resemble the religious universities that take that ideological mission very seriously, only this time the ideological concern isn’t producing good Christians but producing people who have the correct social attitudes towards diversity, sustainability and so on,” says Dr. Mercer, president of the Society for Academic Freedom and Scholarship. The advocacy group of 220 members, most of whom are Canadian scholars, focuses on the related but separate issue of academic freedom in teaching, scholarship and research.
Most universities are striving to welcome a broader spectrum of students, including international and Indigenous students and those who are first in their family to attend. That expands the perspectives and experiences among the university community – exactly what universities thrive on. But it can also mean fresh challenges to the status quo and expectations for universities to make good on their invitation: ensuring students who never used to be on campus feel that they belong like anyone else.
“This is a human rights issue,” says Rizza Umali, executive director, external relations, for the Graduate Students’ Union at Memorial University and the racialized students’ representative for the Canadian Federation of Students, Newfoundland and Labrador. Last fall, the university dealt with a spate of posters decrying immigration and “the Islamic domination of the West.” A medical student of Filipino-Chinese heritage from Dubai, Ms. Umali is the first in her family to attend graduate school and believes universities are obligated to ensure students “who have already had to go through so many barriers to even get through the front doors of our institutions” are not subjected to hate speech or rhetoric that questions their humanity. In addition to removing the posters when they first cropped up last year, Memorial developed guidelines last spring which say posters must comply with university anti-harassment and respectful workplace policies.
While some argue that the debate has been co-opted by right-wing activists using free speech as a Trojan horse to drive messages of discrimination and hate, others blame the left for claiming rights for their own causes while denying the same to views they find immoral. Still others blame both sides.
There are legal limits to speech, including those based on defamation, defined forms of hate and anything else falling under the Criminal Code, but those are narrow restrictions, say legal and freedom of expression experts, because of how specific they are. As for Canada’s Charter of Rights and Freedoms, courts have been inconsistent about how it applies to universities.
Universities are obligated to prevent genuine harassment and discrimination, “but most of what is being complained about is not harassment … is not discrimination under the law. It’s just deeply offensive speech,” says James Turk, director of the Centre for Free Expression at Ryerson University. Racism and other forms of discrimination are legitimate concerns, he says, but they are more effectively faced down through argument, not silencing.
Abigail Curlew, a Carleton University PhD student, knows that view well but, as a transgender woman, she says it ignores the reality of students cast into debates not about the merits of one theorist over another, but over aspects of their own intrinsic makeup. “You shouldn’t have to engage in a debate about whether you exist or not, or whether you deserve human rights,” says the sociology student, who researches surveillance.
“If you’re always expected to be the political entity representing the group you belong to, it becomes very tiring to enter into these discussions. For someone in one class, they might experience that debate once. Someone who experiences the inequalities, they experience that debate on a daily basis.”
Far from being an abstract concept, advocacy for unfettered speech tends to unrealistically assume that everyone will be heard equally, says Gregory Brophy, an assistant professor of English at Bishop’s University. When his university chose Marie Henein as a speaker for a prestigious lecture series in February 2017, Dr. Brophy and others questioned why it would provide yet another platform to a lawyer well-known for her successful defence of broadcaster Jian Ghomeshi against sexual assault charges.
At the time, Bishop’s was developing a sexual violence and harassment policy designed to combat under-reporting of sexual assaults and improve prevention. Dr. Brophy, a member of Bishop’s sexual violence working group, thought it would have been more valuable to hear from someone working to change the justice system so that sexual violence victims are better served. The university said that Ms. Henein’s appearance was an opportunity to ask questions and learn, and her talk did go ahead.
Free speech is “a vital principle,” says Dr. Brophy. However, “I’m very interested in the material circumstances that give rise to speech, against the idea that speech is just inherently free and all we have to do is prevent ourselves from mucking it up and getting in the way. I think sexual assault is a vital case. … Who is free to speak and who is silenced?”
The way forward is not clear cut. There are fundamental disagreements over whether free speech should be declared a principle above all others and the lengths to which a university should defend it, who pays for security for controversial speaking events and what the penalties, if any, should be for those deemed to be interfering with someone else’s right to speak freely or to listen.
There is also debate around whether universities should limit speech that would be permissible just steps off campus. Strong arguments are made that universities are not like the public square, where anyone can rant about anything from their soapbox. Sheldon Levy, former president of Ryerson, called that idea of curtailing speech on campus “misguided” in a piece he wrote for the Toronto Star in January. Instead, what should make a university different from other social spaces, he wrote, “is the level of scrutiny it can bring to any debate or discussion. The true test of any idea is whether it can withstand broad intellectual criticism, from as many diverse perspectives as possible, in a free-speech environment.”
Experts recognize, however, that the norms and limits on speech can vary depending on the location and context – a point not always understood by external critics. How public a space is and how much choice people have to be in it are key considerations. “In a classroom, the rules, the standards, the expectations are entirely different than somewhere else on campus,” says Richard Moon, a University of Windsor law professor who has been advising universities on free expression rights. “There is a particular subject area that is to be addressed, there are expectations of respect and civility within the conversation that takes place between teachers and students, or among students.”
A student residence setting may demand that those living in it are not subjected to bigoted expression, because it is their private home, he adds. The norms loosen up in more public contexts, including public presentations by invited speakers. But even then, Mr. Moon believes universities have a role to play – because of their academic mission – in fostering a culture of basic, mutual respect which does not undermine the standing of individuals or groups within the community based on identity.
Both Mr. Moon and Mr. MacKinnon note that, while an entire campus may not be a “safe space,” free from potentially upsetting ideas, smaller zones such as faith- or culturally-based student centres or club offices can be places where students of similar perspectives or backgrounds can gather to share ideas and experiences more openly. Problems crop up when it’s expected that what goes for those more private spaces should apply to the campus generally as well, writes Mr. MacKinnon in his book. In that more public space, expectations beyond physical safety, civility and mutual respect are “incompatible” with free expression, writes the former law professor, and “a threat to the vitality of the commons.” As he sees it, reducing the status of freedom of expression to one among many considerations is “not good enough in institutions committed to the search for truth.”
Wherever universities come down on such questions, there seems to be general acknowledgement that it’s important to have the discussion, to work proactively and, if universities are going to make statements about freedom of expression, to be clear about what they support. Some universities in the U.S. have turned to a 2015 statement developed at the University of Chicago as a guide for statements of their own and even adopted it outright.
The “Chicago principles” say no discussion can be suppressed because the ideas are considered to be “offensive, unwise, immoral or wrong-headed.” Members of the university community are free to make their own judgments “by openly and vigorously contesting the ideas that they oppose,” not suppressing them. The only limits are expression that breaks the law, falsely defames an individual, is “a genuine threat or harassment,” substantially violates confidentiality or “is otherwise directly incompatible with the functioning of the university.”
No Canadian university has adopted the Chicago principles, although there have been attempts to do so. Like most everything else, the principles have their critics, including that they were developed in the context of U.S. laws, not Canadian ones. In contrast to the Chicago principles, a statement approved by Wilfrid Laurier University’s senate in late May said that it is committed to “advancing intellectual excellence rooted in diversity of thought in an inclusive learning environment.” It includes the concept of “inclusive freedom,” defined as “the robust protection of free expression and the assurance that all members – including those who could be marginalized, silenced, or excluded from full participation – have an opportunity to meaningfully engage in free expression, enquiry, and learning.”
Laurier developed its statement after the public blow-up over the treatment of communications teaching assistant Lindsay Shepherd in late 2017. Ms. Shepherd was reprimanded by her supervisor and the head of her academic program after she showed a video, during her tutorial, of controversial University of Toronto psychology professor Jordan Peterson discussing his opposition to gender-neutral pronouns. Laurier apologized to Ms. Shepherd after the incident. Nevertheless, Ms. Shepherd and Dr. Peterson have since launched separate lawsuits against the university.
While Laurier says it’s working on ways to support its statement in practice, that’s exactly where many universities fall short, says Michael Kennedy, co-author of the Campus Freedom Index. It’s a project of the Calgary-based Justice Centre for Constitutional Freedoms, a legal advocacy organization that has led court challenges on behalf of pro-life and men’s rights groups that have been denied club status by student unions, among other actions. Its index assesses Canadian universities each year for how well they uphold freedom of expression. Only five out of 60 universities earned “A” grades in 2017. Gaps between policies and how universities behave in practice are common, Mr. Kennedy says: “It’s great to have a strongly worded free-speech statement, but you have to make it clear that no other policy supersedes it.”
Free speech, or else
Ontario Premier Doug Ford has told the province’s universities and colleges that they must adopt free-speech policies or face potential funding cuts. The premier issued the directive on August 31 and said that universities and colleges have four months – until January 1, 2019 – to comply.
The statement directed universities and colleges to develop and implement a free speech policy that “meets a minimum standard prescribed by the government.” That means, among other things, that “while members of the university/college are free to criticize and contest views expressed on campus, they may not obstruct or interfere with the freedom of others to express their views.” The policy will apply to faculty, students, staff, management and “guests.”
To monitor whether universities and colleges are complying, the government has instructed them to report annually on their progress to the Higher Education Quality Council of Ontario starting in September 2019. HEQCO is an independent advisory agency funded by the Ontario Ministry of Training, Colleges and Universities. Higher-ed institutions that don’t comply with the free-speech requirements “may be subject to a reduction in operating grant funding.” Students who don’t comply will be subject to existing campus student disciplinary measures.
Queen’s University principal Daniel Woolf, commenting in his role as chair of the Council of Ontario Universities, said “any framework must balance the right to free expression with universities’ duty to maintain a civil campus environment, along with physical safety and security for faculty, students and staff.” Gyllian Phillips, president of the Ontario Confederation of University Faculty Associations and an associate professor of English at Nipissing University, said her organization does not believe the intervention is necessary and that it could lead to a chill on free speech, as some members of the university community may be discouraged from speaking up for fear of being disciplined.
Free speech and inclusion, however, don’t have to be mutually exclusive, says Patrick Deane, president of McMaster University, which has also been developing guidelines and responses for handling freedom of expression issues. “It’s an incomplete view to see these two things as diametrically opposed,” he says. “They may be in terms of practical day-to-day political interactions on a campus. But, if you look at it from the point of view of what the work of a university should be, I see no reason why protecting freedom of expression should not sit very comfortably beside maximizing diversity of participation.”
Creating that culture can happen in subtle ways, says Arig al Shaibah, McMaster’s newly arrived associate vice-president, equity and inclusion. These include giving marginalized students focused support and mentoring, empowering them in their status as equal and respected members of the university community, and inviting students from a range of backgrounds into informal conversations so that they get to know one another.
At Bishop’s, for example, Dr. Brophy and others organized a panel discussion before Ms. Henein’s talk to give participants an opportunity to talk about issues they anticipated would be missing in her lecture. It was an “additive” event versus a protest, says Dr. Brophy, creating a “lively discussion” among about 40 people and has led to further activities.
As important as it is to keep talking about free speech, universities are being closely monitored by those on the inside and outside interested in how they will turn words into practical action. Federal Conservative leader Andrew Scheer has suggested that universities should lose federal funding if they fail to protect freedom of speech on campus, while Ontario’s new Progressive Conservative Premier Doug Ford recently followed through on an election promise to compel universities to develop free-speech policies or face funding cuts.
Mr. Kennedy’s organization, meanwhile, is keen to see a case reach the Supreme Court of Canada for a clear answer on how the Charter of Rights and Freedoms applies to campus freedom of expression. In the meantime, it’s putting out a toolkit to help university donors question their institutions about how they support freedom of expression.
Universities Canada, too, has provided its member institutions with resources to help university presidents with these issues, says Philip Landon, the association’s vice-president, governance and programs. The association has held numerous workshops on the topic and brought in speakers such as Nicholas Dirks, former chancellor of the University of California Berkeley, who addressed Universities Canada’s spring meeting in Vancouver in April.
The challenges from within and from outside universities over freedom of speech are all the more reason for universities to step up and lead, says Mr. MacKinnon. It is work universities are capable of doing and in many cases are already doing, but all universities must be conscious of their responsibility for it, he says. “This is not an area for codes and legal regulations and legislation as we’ve seen starting to emerge in the United States,” he says. “This is an area for universities to ensure that they are managing the exchange of ideas, as well as the individual’s right to speak. That’s more politesse than it is prescription, but sometimes it has to be managed, and it is the responsibility of university people to do that.”