In August 2018, the Ontario Ministry of Training, Colleges and Universities, under newly elected Premier Doug Ford, required all colleges and universities to devise a policy on the freedom of speech by Jan. 1, 2019. In particular, it required that the policy adhere to the principles of the University of Chicago statement on free speech, notably that “universities and colleges should be places for open discussion and free inquiry,” that they “should not attempt to shield students from ideas or opinions that they disagree with or find offensive,” that “while members of the university or 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,” and that “speech that violates the law is not allowed.”
Universities and colleges should be places for open discussion and free inquiry
University of Chicago
Despite these moderate requirements, the faculty unions were outraged. Both the Ontario Confederation of University Faculty Associations and the Canadian Association of University Teachers came out roundly against the measure. They argued first that it actually limits the freedom of speech by violating the autonomy of the university (although they did not invoke university autonomy when previous governments imposed similar requirements for policies on equity and diversity, harassment, and sexual violence). And they argued secondly that universities already had sufficient protections in place (despite the recent and often successful attempts to bar controversial speakers from the University of Toronto, Ryerson, Wilfrid Laurier, Queen’s, and others). In fact, I could find on university websites many existing statements on academic freedom, but only one (the University of Toronto’s) on simple freedom of speech dating from before last fall.
Despite these moderate requirements, the faculty unions were outraged
Academic freedom is the freedom from undue influence in the conduct of one’s professional academic duties, and it is rightly conditional on the upholding of professional standards of teaching and research. It is thus a privilege — literally a private law, a special legal status — that applies only to such professionals in their professional capacity. Simple freedom of speech, in contrast, applies unconditionally to everyone, and in Canada it is protected and limited by the Charter of Rights and Freedoms. The Charter, however, does not apply to universities, which is why they need their own policies.
But it’s now February 2019, and the policies are posted. How well did the universities do?
Of the 17 university policies I looked at, only two give unconditional protection to freedom of speech, unqualified by any extraneous considerations. The substance of the University of Ottawa’s statement deserves to be quoted at length, as the standard to which the others failed to measure up:
“As an autonomous, self-governing institution whose most fundamental value is that of academic freedom, the University prizes and protects freedom of inquiry and all forms of freedom of expression. It neither seeks to shield its community from controversial or objectionable views nor permits interference with the free expression of the full spectrum of human thought, within the limits that bind the University under Canadian and Ontario law.
The University (of Ottawa) prizes and protects freedom of inquiry and all forms of freedom of expression
“All members of the University of Ottawa community — teaching and research faculty, staff, and students, including both individuals and groups — and all visitors to the campus have the right to express their views freely.
“The University recognizes that free debate and critique are essential to the pursuit of knowledge. As participants in collegial self-governance, all members of the community are expected to act in accordance with these values and applicable laws, which the university will safeguard by whatever steps it deems necessary. Visitors to the campus must also respect these values, relevant University policies, and applicable laws. Complaints in connection with this policy should be filed with the appropriate internal body as defined in University policies and regulations.”
Almost every other policy grandly states some version of the first sentence, but then weakens or negates it with conditions and qualifications. The University of Chicago statement, their supposed model, explicitly says that although the university greatly values civility, and although all members of the university community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some people in the community.
And this is precisely where almost all the other policies fall short. Only U of T’s policy, adopted in 1992, expressly states that civility and respect are sometimes trumped (reluctantly) by the freedom of speech. As for the rest, some tie the freedom of speech explicitly to the purely social goals of respect, diversity, inclusion and equality (Carleton, Guelph, Laurentian, Queen’s, and Western). Others actually subordinate freedom of speech to these social goals and to considerations of imbalances of power, either explicitly (Brock, McMaster and York) or implicitly by subordinating the freedom of speech to other policies that assert these higher goals (Nipissing and Waterloo). Several universities also seem to have confused simple freedom of speech with academic freedom, by hedging freedom of speech with conditions appropriate only to academic freedom (Carleton again, McMaster again, and Trent). Lakehead, Queen’s and Windsor assert that the university has the duty to protect its members from any harm or risks to health and safety supposedly caused by the exercise of free speech. “Safety” was the cry of protesters trying to prevent Jordan Peterson, Ricardo Duchesne and others from speaking on their campuses.
Others actually subordinate freedom of speech to social goals and to considerations of imbalances of power
Finally, two universities are in a league of their own. Both Ryerson and Wilfrid Laurier — coincidently where the most virulent protests against controversial speakers recently took place — adopted the notion of “inclusive freedom.” (Laurier credits Sigal R. Ben-Porath, author of Free Speech on Campus, with this Orwellian idea). In identical language — either plagiarized one from the other, or both from a common source — Ryerson and Laurier assert paradoxically that their university is “committed to equity, diversity and community inclusion and to freedom of expression. It does not see the idea that free expression and the goals of diversity, equity, and inclusion can be at odds with one another. The university embraces the concept of inclusive freedom which espouses a commitment to 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. Ryerson (or Laurier) recognizes that at times free expression may harm and/or further marginalize community members from visible and invisible minority groups … In such cases, the university encourages its community members to respond with an educational and intellectual approach that increases awareness and consideration of diverse positions.”
Note that freedom of expression comes last, and is so hedged in by diversity, equity, inclusion, awareness and consideration as to render it nugatory. At Ryerson and Laurier, you are free to say anything so long as it is seen not to impair these higher, social goals. Nevertheless, both universities decline (again in identical words) to censor — not for the sake of free expression, mind you, but for fear of setting a precedent:
“Some challenging cases of free expression will have to be navigated, but it is not the role of the university to censor speech. To grant the institution such power would set a dangerous precedent. Even if institutional censorship were deemed acceptable in one context, there is no guarantee that such restriction would be applied fairly or wisely in other contexts, or as power changes hands over time.”
They would happily censor, but only if they thought no one else could
Being fair and wise themselves, they would happily censor, but only if they thought no one else could.
These policies are up for review in the coming months. The ministry has its work cut out.
W.R. Laird is professor of history at Carleton University in Ottawa. The views expressed here are his own and are probably not shared by Carleton University, although he hopes they will fall under the protection of academic freedom.
https://nationalpost.com/opinion/ontario-universities-still-dont-really-want-free-speech-on-campus
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