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Dispatches on academic freedom

From pining to a saw-off: campus free speech news as we begin 2020

Surprise Alberta court decision released just days into the new year could have a huge impact on universities.

BY SHANNON DEA | JAN 30 2020

As we have previously discussed here, one of the issues that is closely related to academic freedom – and indeed often confused with it – is freedom of expression on campus. In Canada, 2019 ended with a somewhat prosaic campus freedom of expression story, and 2020 began with one whose impacts could be far-reaching. Let’s look at each of them in turn.

2019 HEQCO free speech report

This time last year, postsecondary institutions across Ontario had all just instituted free speech policies as mandated by the Ontario government. (Or rather, three institutions already had prior free speech policies in place; all the others implemented new policies for the province’s January 1, 2019 deadline.) One of the further requirements Ontario placed on colleges and universities was that they file an annual free speech report with the Higher Education Quality Council of Ontario (HEQCO), an independent advisory agency funded by the Ministry of Colleges and Universities. In November 2019, HEQCO released its report on the first year’s submissions.

While the issue of campus free speech is a hot-button topic, the HEQCO report is a bit of a snoozefest. According to HEQCO, all of Ontario’s universities and community colleges had free speech policies in place by the deadline and all of the policies satisfied the province’s requirements. In the first eight months that those policies were in place, postsecondary institutions hosted well over 40,000 non-curriculum events. Across Ontario’s 45 postsecondary institutions (21 universities and 24 community colleges), a total of 21 formal free speech-related complaints were lodged. All of them were resolved internally, without having to involve the Ontario ombudsman. Only a single event across the entire system was cancelled due to safety and security concerns.

Put simply, the HEQCO report is about as anodyne as they come. It is basically nine pages of “nothing to report.” You can almost see the ghostwriters of the report trying to inject interest into it via a dash of poetic language and a bit of concern trolling. The poetic language occurs midway through the report, at which point the authors tell us that “many institutions pine for a template,” a remarkable phrase that somehow straddles romantic verse and the interoffice memorandum.

The concern trolling is a bit more worrisome. After commending the colleges and universities for their “thoughtful, reflective consideration and sensitivity to the importance of free speech,” the report offers the observation (set off in a separate section headed “An Observation”) that not all of the institutional policies include the view that free speech trumps civility – a principle the authors take to be the “essential principle” of the Chicago Principles.

The Chicago Principles were initially spelled out in the University of Chicago’s 2014 “Report of the Committee on Freedom of Expression.” They were soon taken up by a range of U.S. colleges and academic organizations. The Government of Ontario’s mandatory minimum requirements for campus free speech policies are based on the Chicago Principles. However, HEQCO notes that the province didn’t require institutions to “explicitly acknowledge the dominance of free speech [over civility].” The HEQCO report acknowledges that “the tension between free speech and civility” did not emerge as an issue for Ontario campuses in 2018 but promises to keep a watchful eye.

So why is HECQO stirring the pot on this issue? As Higher Education Strategy Associates president Alex Usher notes, after a few years, an annual reporting process that turns up as few concerns as this year’s did may start to seem like “vexatious bureaucratic harassment.” In pointing to an issue that just hasn’t been an issue, HEQCO looks like it’s trying to drum up business and thereby justify its continued role as Ontario’s campus free speech watchdog. It does so while still recovering from a mass exodus of its senior leadership in August 2019, just a month before the institutions’ first annual free speech reports landed in the HEQCO in-pile. In 2019 at least, there was more trouble in HEQCO-land than in the realm of campus free speech in Ontario.

UAlberta Pro-Life appeal

Of much more potential consequence than the HEQCO report is a decision early this month by the Court of Appeal of Alberta in the case of UAlberta Pro-Life v. Governors of the University of Alberta.

The long and the short of this case is that UAlberta Pro-Life (a student club) held an event in the University of Alberta quad which was disrupted by protestors. When the student club booked their next event, the University of Alberta accepted the booking but charged a prohibitively high security fee because of the previous counter-protest. The organizers couldn’t afford the fee, so the event didn’t proceed. UAlberta Pro-Life (and a couple of individually named complainants) sued the university both for failing to discipline the protestors at the first event, and for violating UAlberta Pro-Life’s members’ Charter rights to freedom of expression by charging the high security fee.

The lower court ruled in favour of the university, but on January 6, 2020, the higher court filed what it described as a “saw-off” ruling – a stalemate. The court found that the university had no obligation to discipline the initial protestors, but also found that the university had (at least in part) violated its Charter obligations by levying the high security fee. The court did not assign any penalties to any of the parties to the case, telling each of them to pay their own legal costs.

If this ruling is a saw-off, it is sawing off a branch on which Canadian universities are perched. The Charter of Rights and Freedoms sets out Canadian governments’ responsibilities. In 1990, the Supreme Court of Canada ruled that universities aren’t the government, and hence do not bear Charter obligations. With a couple of minor exceptions, this has remained the view within Canadian law for nearly three decades. (See here for a more detailed explanation of the legal context.) In one decision, with surprisingly little justification provided for the shift, the Alberta Court of Appeal has changed the landscape.

If universities bear Charter obligations, it will both change how they operate (in a way that arguably compromises their institutional autonomy) and will expose them to dramatic and costly increases in litigation. So far, the ruling only directly applies in Alberta, but lawyers will no doubt cite the ruling in legal actions against universities in other provinces. Ontario universities could be particularly vulnerable since instituting their new mandatory free speech policies may in the view of the courts make them agents of the government.

It is too soon to tell how all of this will turn out, but it could mark the beginning of a massive shift for the sector – one that will have institutions pining for much more than a template.

ABOUT SHANNON DEA
Shannon Dea
Shannon Dea is a professor of philosophy and vice-president of the faculty association at the University of Waterloo.
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