Controversy on campus

By Omar Ha-Redeye Summer 2016

Law schools, freedom of expression and the Charter

Controversy on campus

The Supreme Court’s 1986 ruling in RWDSU v Dolphin Delivery suggests that the Charter may extend beyond the administrative decisions made by universities, reaching into lecture halls and affecting the intellectual activities of students and professors.

This is especially true where educational policies intertwine with government mandates.

Given the increasingly close relationship between government and post-secondary institutions, this constitutional connection is even tighter. In the absence of clear statutes or definitive court decisions, however, the only clear guidelines for academic communities are the policies of the institutions themselves.

Alberta courts, for instance, have decided against universities in the regulation of anti-abortion student groups. In Ontario and B.C., though, courts held that restrictions on anti-abortion imagery fell outside the ambit of governmental policies or programs, and could be properly constrained. The lack of consensus on what is appropriate and what is not gives rise to its own problems.

Earlier this year, Michael Persinger of Laurentian University was removed from an introductory psychology course for asking students to agree to his use of foul language. He had been teaching there since 1971, but in 2016, the profanities he uses in class are considered unacceptable.

In Pridgen v University of Calgary, Alberta’s Court of Queen’s Bench found the university’s disciplinary activity to be unconstitutional after students were disciplined for publicly criticizing a professor on Facebook. The court still recognized the need to curtail some Charter rights to protect the well-being of staff and students and promote a positive learning environment.

It also determined, based on jurisprudence, that “a non-government entity may still be subject to the Charter of Rights and Freedoms when implementing a specific government policy or program.”

We value university education because of what universities still impart to us: critical thinking. The ability to challenge pre-existing mindsets, respond to new ideas, and develop a framework for analyzing arguments is still best taught in a university setting.

But for post-secondary education to perform this task, we need to protect freedoms around conscience and expression.

In his book Learn or Die, strategy professor Edward Hess argues that a psychologically safe environment is a necessary prerequisite for critical inquiry and developing problem-solving skills. The primacy of hierarchy and the fear of punishment are among the greatest obstacles to learning – restrictions on academic freedom could also be on that list.

Professors who rely on Charter rights to foster critical debate in schools should still be informed, and properly constrained, by Charter values. Limits on academic discourse should include avoiding propositions which would clearly fall outside of Charter values. Critical academic debate should promote the broader objectives of the Charter itself, namely the creation of a more inclusive society. The freedom of academic expression cannot be used to stifle other important rights and freedoms.

Where controversial content is introduced, it should be done for some pedagogical purpose. A challenging proposition can be posed where it falls outside of the Charter if the goal is to illustrate the existing arguments against it.  Otherwise we risk promoting intolerance, bigotry, and even hatred, all under the guise of academic freedom.

In my law school at Western, some of this critical discourse took the ugly turn of comparing homosexuality to bestiality. Another professor contemplated whether entire segments of the population should be deported based on their religion alone.

Persinger claimed to use swear words and innuendos to develop critical-thinking skills. But in introducing alternative approaches or views, the instructor is still responsible for maintaining a safe and inclusive learning environment, an objective mirrored in the Charter itself.

The Charter now plays a much larger role in how we deliver education. Appropriate deference to universities can still be instituted in any judicial review of academic decisions by applying a reasonableness standard, which would still preserve adequate institutional autonomy.

In the interests of inclusiveness, we will necessarily omit or exclude some ideas in the marketplace of exchange as being too costly to our societal goals. Those limits, and that justification, can be found in the Charter itself.

Profanity may be in, but homophobia and xenophobia certainly should not. And professors, though they may hate it, just might be stuck with some of those Facebook groups.

Omar Ha-Redeye is a Toronto lawyer and legal educator.

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