Another Campus Speech Code
Fiasco: Wilfrid Laurier University
In late 2017, the institution from which I had
recently retired, Wilfrid Laurier University (WLU), was embroiled in a free
speech fiasco.
Lindsay Shepherd, a graduate teaching assistant in
the department of Communications Studies, decided to show her students a clip
from a debate on a program called The Agenda,
put out by TVO (TV Ontario). This is a highly reputable program, along the
lines of PBS debate shows in the US. One of the participants in the debate was
Jordan Peterson, a professor at the University of Toronto who opposes the usage
of gender-neutral pronouns—or at least, opposes policing professors and
students to make sure they use such pronouns.
 |
| Lindsay Shepherd |
After she showed this clip, Ms. Shepherd was asked
to attend a meeting with two professors and one individual from the university’s
Diversity and Equity Office. Her supervising professor, Nathan Rambukkana, told
her that there had been “one or more” complaints under the WLU Gendered and Sexual Violence Policy and
Procedures (GSVP) about her decision to show it. When she replied that she was
merely trying to introduce her students to both side of the debate, he went so
far as to ask her whether she would show both sides of a debate about Hitler.
He and also claimed, absolutely erroneously, that Ms. Shepherd’s decision to
show her students this clip violated the students’ rights under the Canadian
Charter of Rights and Freedoms and/or the Ontario Human rights Code.
Unfortunately for her interlocutors, Ms. Shepherd
recorded her interview with them and took it to the press. It instantly became
a national news story about freedom of speech, embarrassing WLU. The President
of WLU issued a formal apology to Ms. Shepherd and appointed an independent investigator
into the incident. https://www.wlu.ca/news/spotlights/2017/dec/president-statement-re-independent-fact-finder-report.html
This investigator, among other things,
discovered that none of Ms. Shepherd’s students had complained about her. But someone
had overheard some of her students discussing the clip.
How, one might ask, was this possible? The answer is the content of the GSVP document,
which can be found at https://www.wlu.ca/about/governance/assets/resources/12.4-gendered-and-sexual-violence-policy-and-procedures.html
. It is supposed to be a document laying out procedures in the case of sexual
assault, harassment, etc., but its drafters took it upon themselves to also
police freedom of speech.
The GSVP defines
“Gendered Violence” as…. “an act
or actions that reinforce gender inequalities resulting in physical, sexual,
emotional, economic or mental harm. This violence includes sexism, gender
discrimination, gender harassment, biphobia, transphobia, homophobia and
heterosexism, intimate partner violence, and forms of Sexual Violence. This
violence can take place on any communication platform, (e.g. graffiti, online
environment, and through the use of phones” (Definitions, Clause 3:02).
This means that under the GSVP, speech is considered
to be violence, as the stress on communications platforms shows. There is no
distinction in this definition between actual physical violence and potentially
(depending on the eyes of the beholder) offensive speech. Nor are there any
guidelines as to when speech might be considered “violent,” as opposed to
merely offensive to some. While Canada does have a hate speech law, the bar is
set very high for prosecutions and convictions, and in general freedom of
speech is protected.
There is no mention in the document, either as a
preamble or elsewhere, about the university’s primary purpose of protecting
academic freedom and freedom of speech. Nor is there any mention that Canada’s
Charter of Rights and Freedoms protects freedom of speech and freedom of the
press.
The GSVP claims the right to police the speech of
any member of the university community at WLU (Definitions, clause 3.04). It
especially claims the right to police the speech of any student “regardless of
their position or role or time of incident (e.g. evenings, weekends and holidays)—when
on University property or when off campus and there is an impact on their academic
program or campus life (for e.g. in residence, at the gym, etc.) [Sic, Jurisdiction/Scope
clause 7:00].
The GSVP further stipulates that third parties
can make complaints about an individual’s speech, saying that those who have
experienced sexual violence and “those who have become aware of an incident” can
report it (Definitions: Clause 3:07), and that anyone making such a complaint
can do so anonymously (Student Procedures, Clause 2.01). Presumably, this is
what permitted someone who overheard Ms. Shepherd’s students talking about her class
to make a complaint.
The GSVP procedures for adjudicating complaints were
updated on December 17, 2017, following the national publicity over the Lindsay
Shepherd incident. But it is biased from the start. Complainants are free to
identify themselves, or to ask that those assisting them identify them, as “survivors”
throughout. Thus, the presumption that the action or speech complained about is
true permeates the procedures.
On the other side, there is no assurance of due
process for the individual against whom a complaint is made. Even in the updated
version of the document, bias is evident against the accused person. If he (or
occasionally she) does not comply with the university rules, s/he will endure “further
disciplinary action,” thus assuming that disciplinary action is automatically
forthcoming. (Policy: Clause 8.03) Moreover, the personnel of the SGVP are
available for support to the complainant, but not to the respondent, who is on
his or her own.
Here are some useful rules for drafting university harassment
documents. They are derived in part from the two years I spent at McMaster
University, 1992-1994, chairing a committee to draft anti-harassment and
anti-discrimination documents, with the aid of a legal scholar. I was given
this job after I stood up in the McMaster Senate to denounce a proposed document
that, in my view, severely violated the due process rights of accused
harassers.
1 1. Always
make sure that the document is drafted by, or with the assistance of, a lawyer
with experience in administrative law in the jurisdiction in which the
university is located.
2 2.In
deciding what to prohibit, never exceed what is prohibited by the law of the
jurisdiction in which the University is located.
3 3.Do
not have two sections, one written by people with a political/ideological
agenda, and one written by people familiar with the law and the rules of due
process.
4 4. Always
makes sure that due process is absolutely protected.
5 5.Always
include a preamble about the importance of, and protections for, freedom of
speech and academic freedom.
Had WLU followed this advice, it might not have found
itself with the problems it faced last year.
In the meantime,
I would advise any parents thinking of sending their child to WLU or any other
Ontario university to carefully investigate its policies and procedures
regarding speech and sexual harassment, before making a final decision. Otherwise,
the parents might find themselves paying hefty legal fees to defend their
children against charges for offenses that may be deemed contrary to the the uthe
university’s speech code, but that are not crimes in Ontario.
