The Bastarache report won’t set any precedents – but I hope I’m wrong

The saga of academic freedom at the University of Ottawa is likely coming to a close. The committee on academic freedom has submitted its report, and while it will probably have an effect on U of Ottawa, the Bastarache report’s impact will also probably be limited to that institution.

How can this be? The incident received huge amounts of media attention, and the issue of academic freedom made headlines for days. Imagine that: the world outside of university walls was interested, albeit briefly, in academic freedom. I don’t mean to minimize the importance of the concept, far from it, but let’s admit that it’s not the most accessible subject if you’re not directly affected by the debate. The fact that one aspect of this debate, systemic racism, was part of the public discourse at the time may have helped.

A controversy of current interest concerning a fundamental aspect of how Canadian universities operate … and your favourite columnist is predicting that the final report will ultimately have very little impact?

That’s my reading of the situation. I certainly hate to say it, and I hope the future will prove me wrong.

You see, the incident that set off the debate lies at the junction of two major societal issues, both of which merit discussion at the national level.

Systemic racism exists. Relationships of power and domination are built into every facet of universities as institutions, obstructing a transition to a truly equitable system that would reflect Canada’s diversity and actively encourage inclusion for everyone. Universities shouldn’t leave anyone behind – or at the very least, they should do everything in their power to avoid doing so knowingly. This will involve a process of questioning and introspection that many people(including my white/male/cisgender/heterosexual self, who’s also in the linguistic majority in my province) will find difficult. Correcting inequalities, especially those that harm people’s dignity, takes precedence over my personal comfort.

At the same time, academic freedom is one of those foundational concepts that is so omnipresent that we don’t even bother to define it. The Bastarache report offers several proposed definitions (primarily legal ones) for academic freedom, without really finding one that everyone can fully agree on. What almost all of them agree on is the idea that the university’s missions cannot be fully realized if the people who carry out those missions on a daily basis are the victims of censorship, or if they work in conditions that push them to censor themselves. The search for truth must take priority, and it must be possible to conduct that search by means of a free and public debate. All of this must be asserted, sometimes reasserted and protected – and subject to certain limits. It doesn’t cover hateful, discriminatory or violent speech, for example. From my point of view, that seems as obvious as can be, but apparently it bears repeating.

What do we do when asserting the right to dignity collides with the traditional exercise of academic freedom? Or when a manifestation of that right to dignity disrupts the more traditional lines of authority at the university? What should an educational institution do when, for the first time, its growing responsibilities toward its student population come into conflict with the traditional defence of its teaching staff’s academic freedom?

To take an even more concrete example: What should we do when a professor uses a historically degrading and intrinsically racist term in an educational context, and when at least one person considers it to be an example of hateful or discriminatory speech?

I had hoped to find the beginnings of an answer in the Bastarache report, an answer that would attempt to incorporate the different points of view on both issues – the right to dignity and academic freedom – into something new, or at least innovative, or even simply conducive to an open and inclusive discussion.

Looking closely, there are actually two fundamental issues at play here: academic freedom and protection from hate speech. But if we take a step back, there’s a sense of déjà vu to the whole thing.

Take a university system that’s subject to internal and external pressures which, though not entirely new, are taking on greater importance than they ever have had before. Make these pressures (or the problems they cause) a constant but secondary argument in the discourse of one or more stakeholders – preferably at the provincial level. Let the issue simmer for a few years so that it can blend thoroughly with many others, until a single institution experiences a localized incident that nevertheless embodies everyone’s fears on a specific subject. The institution will attempt to manage, then resolve the situation, until finally it is forced to pass the baton to a more neutral entity which, a few months later, will issue a report that may respond to the incident in question, but will not manage to push the debate forward in a way that would benefit the rest of the system that’s still grappling with the problem.

This isn’t just a general description of the background to the Bastarache report. It’s a description of the modern scenario of a university “incident” that touches on a fundamental issue, but that the resulting reports are unable to elevate beyond the resolution of the incident itself.

A few relevant examples

Don’t believe me? All right, then. Here are three university incidents that have taken place in Canada over the past 15 years:

• The Ilôt Voyageur site at the Université du Québec à Montréal (UQAM) – 2007
• Governance at Concordia University – 2011
• The struggles of Laurentian University – 2021

In all three cases, the triggering incident was a manifestation of an issue that had been present in latent form for a number of years: accountability for university executives, university governance, and the increased vulnerability of certain types of institutions. In all three cases, the crisis threw a spotlight on an institution and made the problem highly visible to the general public. In all three cases, the process was handed off to a neutral body, and in all three cases, the report that was issued failed to create the impact needed to ensure that the solutions put forward for a fundamentally systemic issue could influence that system, or even other institutions faced with the same issue.

Yes, yes, I know: the report of the auditor general of Québec (VGQ) in 2008 did have an impact beyond UQAM, because the government of Quebec reacted to it by modifying a number of rules relating to universities’ financial mechanisms and public accountability. This is certainly true, but the fundamental problem wasn’t the Îlot Voyageur property, just as the turnover among Concordia presidents or Laurentian University’s insolvency were merely consequences of larger systemic problems that were also present at other institutions. None of these reports had the impact that the issues deserved, even though in at least one case, that of Concordia, the report boldly addressed certain cultural difficulties that were not unique to that institution.

Similar pitfalls

Let’s turn back to the Bastarache report. It’s not  bad. Anyone who’s interested in freedoms in the university setting will certainly learn something from it. In my case, I even learned a lot. In addition, the committee dares to forcefully state certain principles like the rejection of violence, the existence of systemic racism, and the importance of protecting academic freedom, at least in a certain form.

Far from being unique, it seems that this committee fell victim to the same pitfalls as its predecessors. Here are three of them.

The very formulation of the committee’s mandate set the stage for difficult work ahead. By asking it to examine the issues of academic freedom; freedom of expression; institutional autonomy; equity, diversity, and inclusion (EDI); and the “pursuit of real equality and the legal framework for these issues,” the university served the committee a double poisoned dish. While all of these components are indeed involved in the issue of academic freedom, presenting them in this way with no relationship to one another opens the door to a scattered response – or, conversely, to limiting the committee’s scope of inquiry to the single incident in question, for fear of getting lost in its own words. The committee spread itself too thin, and that’s not entirely its fault.

The second obstacle relates to the end of the sentence quoted above – which is the only mention in the committee’s mandate of any analytic framework whatsoever. No one would fault the committee for deducing that it had been mandated to limit its considerations to legal sources, and that’s exactly what it did. Just as the VGQ’s 2008 report limited its analysis strictly to an audit framework, the report from the committee on academic freedom is based solely on a legal framework, despite the committee’s indication on page 11 that it had “consulted studies on issues relating to freedom of expression and academic freedom, including two major studies.” I searched the text for references to the scientific literature on this question beyond the legal domain, but it was in vain. I have no doubt that it is valid to examine this situation from a legal perspective. But by limiting itself to that domain, the committee deprived itself of what other perspectives have to offer. And by depriving itself of other perspectives, the report considerably narrows its audience, and thus the range of stakeholders who might seek to take inspiration from it – and in turn, its potential to have an impact on all aspects of the issue at a systemic level.

In response to such a mandate, the committee could not resist the temptation to flirt with the concept of “best practices” by explicitly proposing certain analytic tools and decision-making criteria. I do not mean to question the validity of drawing on such criteria, based on an analysis established in advance and designed to be as objective as possible. Nor do I question the legal validity of the case law from which these tools and criteria take their inspiration. Nevertheless, invoking the notion of “best practices” – if they are imported directly from outside of the academic world without being culturally adapted by and for the community  – has certainly not been shown to be effective at creating tangible support. Worse yet, it creates a resistance to change that is easily avoidable in this particular case. The sensitive nature of the issue calls for a more tactful approach.

Is it a bad report? No. It provides the University of Ottawa with an opportunity to reaffirm certain principles that are already stated in its rules and regulations. It presents reasonable arguments to justify replacing certain structures with others that operate more transparently. It reaffirms both the right to dignity and protection of academic freedom. It clearly states that feeling offended in a learning context is not the same as a violation of one’s dignity, and in the same breath, it strongly suggests that university personnel would benefit greatly from a refresher or two on the topics of diversity and inclusion, even going so far as to recommend that dedicated resources be granted for this purpose.

It’s a very good advisory report addressed to university leadership to avoid any further incidents of this type at U of Ottawa, written from a modern risk-management perspective.

But that’s all.

You might point out that the committee was under no obligation to get involved in the Canadian debate, or even to try and influence it. And you’d be right. So that task will fall to the next committee. If they don’t do it, we can always ask the one after that. And the one after that.

I will leave you with two quotes from the report that are filled with promise and hope. First, on page 16, the committee cites an Ontario arbitral decision which notes that:

“[…] Today’s accepted practices and beliefs become tomorrow’s discredited notions and out-moded ideas when exposed to the freedom of public debate and scientific scrutiny.”

And on page 32, it mentions that:

“The University must respect academic freedom and combat racism. This is difficult because the University cannot ignore history, the impact of systemic racism during certain periods, and sensitive reactions when certain words or events are referred to. The University must take into account societal changes in Canada and the makeup of the University community. [emphasis mine].”

So it will be up to the next committee to take action.