BY LINDSAY SHEPHERD
More than a month after the Jan. 1, 2019, deadline the Doug Ford government gave Ontario universities to develop and enact an institutional free speech policy, the state of free speech on campus remains precarious and uncertain.
Responses from the Canadian academic community have been mixed.
Some professors and students are supportive, while others, including the Canadian Association of University Teachers (CAUT), have denounced the free speech policy requirements as “a solution in search of a problem,” saying the “campus free speech crisis” is a false narrative meant to appeal to a far-right political base.
The evidence in the Justice Centre’s annual Campus Freedom Index shows campus censorship is a real problem at Canadian universities. Nearly half of the universities surveyed fail to uphold free expression and academic freedom on campus.
Into this uncharted territory of government-mandated university free speech policies, there are doubts as to how it might proceed.
There are three key things to watch for:
— Protest vs. Disruption: Local Marxist student groups, such as Socialist Fightback, were immediately vocal about what they view as Ford’s “anti-protest laws,” claiming the rules will muzzle their ability to protest “fascists” and “racists” on campus. These Marxist groups fail to recognize the line between demonstration and disruption. Freedom of expression and assembly does not protect someone who uses noise, physical obstruction and other forms of violence to prevent someone else from exercising their own free expression rights.
Thus far, it seems as if the concerns over muzzled protests are overblown, as students across the province have already been hosting on-campus rallies to protest changes to Ontario’s student loan program, OSAP — without disruption!
Fortunately, the government’s new policy requires universities to discipline students who obstruct or interfere with the freedom of others to express their views. But questions abound about how the government will define its line in the sand between legitimate protest and violent disruption.
— Conflicting mandates: Canadian universities have institutional commitments to diversity, inclusion and equity, as well as statements in place to affirm these commitments. At least two-thirds of Canadian universities are committed to indigenizing their institutions. In addition, in 2016, Ontario’s Wynne Government passed a bill that mandated the province’s universities to implement sexual assault and gendered violence policies by Jan. 1, 2017. Many of these sexual assault policies, including those of my alma mater, have the potential to restrict speech, since “gendered violence” can refer to attitudes and expression that spread sexism, gender discrimination, biphobia, transphobia, homophobia, or heterosexism.
What is to be seen, then, is how a university will react if a guest speaker or student, for instance, challenges the gender wage gap perspective or affirmative action hiring policies at public institutions. These opinions could easily violate existing institutional mandates. So in the case of conflict, which mandate will take precedence over the other?
Chris Glover, the NDP colleges and universities critic, has signalled where the official Opposition would fall on this issue: “We want to ensure that campuses are safe, welcoming spaces for all — including those who are women, racialized individuals, and those who are LGBTQ2.”
— Policy violations: Given the conflicts, violations may be as inevitable as policy clashes. If a university violates its institutional free speech commitment — let’s say by slapping an exorbitant security fee on a student group that wants to bring in a controversial speaker — will the Ford government do the tough thing and financially penalize the university in question? Or will the university be able to explain away its actions using policy loopholes relating to “protecting safety,” or requiring “inclusivity?” Will the financial penalty be severe enough to change behaviour and set an example to other universities?
For these free speech policies to be tested, students and professors must take initiative and push the envelope by hosting public lectures or events on campus that are intellectually stimulating but also provocative.
However, what lies ahead largely depends on the Ford government’s commitment to solving this campus crisis and not solely on the challenging actions of students and faculty. It will be the Ford government’s own interpretation and enforcement of this policy that will make the difference between effective change and tough talk.
— Lindsay Shepherd is Campus Free Speech Fellow at the Justice Centre for Constitutional Freedoms
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