Monday 12 February 2018

Another Campus Speech Code Fiasco: Wilfrid Laurier University

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.  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 . 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.