Lets turn universities into street corners - Macleans.ca
 

Lets turn universities into street corners

Why submitting universities to the Charter is a bad idea


 

If you question the morality of abortion then a university campus is no place for you. Anti-abortion student clubs are more likely to be subjected to an inquisition or denounced as misogynistic than to be invited to participate in robust debate. Student unions and university administrations have removed their funding, banned them from campus, and have even called the police.

These are not simply internal disputes. Pro-life groups have fought back through the courts, moves that, if successful, may ultimately bring universities within the purview of the Charter of Rights and Freedoms. To be sure, the militancy and hostility to diverse opinion of pro-choice student unions offends the libertarian norms of the Ivory Tower. But if campaigns to have expressive rights extended to universities are successful, then the precedent could demolish any notion of university autonomy.

While I hold no brief for campus censors, stripping universities of their independence, even for an exquisitely liberal purpose, is a greater threat. Universities should retain the authority to regulate what is and isn’t permitted on their campuses, particularly when it comes to non-academic activities. Just because political advocacy may occur on a university campus does not make it a scholarly exercise.

A University of Victoria pro-life group, Youth Protecting Youth (YPY), recently filed a lawsuit with the B.C. Supreme Court against the University of Victoria Students’ Society over a decision to deny the group the same funding that other student groups receive. Although that funding has since been restored, according to their website, the group wants assurances that it won’t be “silenced again.”

If the case makes it to court, it will centre, in part, around the question of whether the student society is in violation of B.C.’s University Act, which states that a student union’s “purpose is to represent the interests of the general undergraduate or graduate student body.”

This is supported by the British Columbia Civil Liberties Association (BCCLA), which argues in an affidavit that accompanied its recent application for intervener status in the case that, “for one group of students to purport to ‘govern’ by suppressing and singling out a group whose lawful expression it does not like is unlawful as being fundamentally offensive to fundamental legal principles.”

Although BCCLA executive director John Dixon has stated several times, including to Maclean’s, that his group believes denying pro-life clubs funding or space violates the Charter, the civil liberties group does not plan to make that argument this time around. Instead, in order to expedite the process, BCCLA simply plans to assist YPY in its lawsuit.

That doesn’t mean a quest to bring universities under constitutional control has been shelved for good. “We’ll look for the right case,” Dixon told me.

Immunity from the Charter, that student unions and university administrations cite in defence of their proclivity toward censorship, dates back to a precedent-setting 1990 Supreme Court ruling. At issue, was a case that sought to have the University of Guelph’s mandatory retirement policy struck down on Charter grounds. As the Charter is only applicable to Parliament and provincial legislatures, the Court first considered whether universities are under government control and ultimately ruled that they were not.

The majority did concede that universities are “creatures of statute carrying out an important public service,” and that “their powers, objects, activities and governing structures are determined by government.”

However, the Court ruled that “universities are legally autonomous”  because of the existence of an independent board of governors that does not represent the government. Despite legislative constraints and financial reliance, university institutions “control their own affairs and enjoy independence from government regarding all important internal matters.” In effect, “their decisions are not government decisions.”

Despite this ruling, Dixon points out that the decision did not entrench universities as non-governmental entities as clearly as is asserted by student unions and university administrations. The late Justice John Sopinka, who sided with the majority, wrote in his own opinion of the case that while universities are to be guaranteed strict autonomy in their selection of staff, “some university activities, however, may be governmental in nature.”

In a talk given at the University of Guelph a few years later, Sopinka elaborated on what he meant. “If governing bodies engage in acts of censorship, they run the risk of being classed as government action and subject to the control of the Charter,” he said.

This is a position Dixon enthusiastically endorses, writing in a statement last year that, “when the university forgets its core identity by preferring censorship over debate it undermines the legitimacy of its claim to independence, and to that extent, its immunity from Charter scrutiny.”

It is here that I find the logic somewhat confusing. “Immunity from Charter scrutiny” and the “claim to independence” are meaningless if that autonomy is to be removed when a university exercises its autonomy in a way that offends liberal principles. Moreover, why should an institution be declared to be an agent of government when regulating student groups, but not when hiring staff? Is the Charter of Rights and Freedoms applicable to the students of universities and not to their staff?

Political advocacy of the sort conducted by pro-life groups and activist student unions alike is only tangentially related to what universities actually do. Elevating them to be representative of the university’s “core identity” trivializes the rigorous pursuit of truth, through teaching and research, that is the enduring mission of the university. Otherwise, the status of universities is reduced to that of public street corners where any nut has the right to say whatever he likes.

In any case, if the precedent that universities are immune from the Charter is successfully challenged that does not necessarily mean that they will then be required to fund pro-life groups. They may simply be prevented from implementing policies that would prohibit such groups from operating on campus.

A central principle of free expression is that, while governments cannot outlaw speech, no one is guaranteed resources for expressive activities, or access to a platform. Unfortunately, a more recent Supreme Court ruling appears to whittle away at this long-standing convention.

Last year, the Canadian Federation of Students (CFS) won a case against B.C transit authorities over a policy that prohibited political advertising on the sides of buses. Although not directly related to universities, the case is instructive on how the Charter might be applied in the context of groups looking for a forum on campus. Because the advertising space on buses, the Court stated, is “an existing platform” that the CFS is “entitled to use,” restrictions on content violate the Charter.

Weirdly, it was argued by the judges that the CFS was “not requesting that the government support or enable their expressive activity.” It is true that the organization was not seeking funding for its political advertising, but it was requesting a venue be provided for political advocacy in a space that was not previously used for such.

A ruling that brought universities under constitutional control, as public institutions are in the United States, could impose costs on schools by requiring them to fund student groups seeking to use “an existing platform” to air their views.

There are broader implications. Would a university find itself in court because a professor neglected to teach all sides, no matter how discredited or scientifically spurious, of a debate? Would a professor dismissed for teaching irrelevant material to students find a remedy in the Charter?  Would entrance requirements for students have to be lowered because existing standards unfairly discriminate? Who would pay for the extra classroom space? To be sure, it is not being suggested by Dixon that universities lose their autonomy in all respects, but if these institutions are brought under Charter scrutiny, where do spurious claims to new “rights” stop?

Submitting universities to the Charter wouldn’t protect students’ right to expression so much as it would unduly interfere with an institution’s ability to conduct itself as a university. The classroom is not a soapbox, and the Charter shouldn’t be used to turn it into one.


 

Lets turn universities into street corners

  1. Carson, nothing is “immune from the Charter,” and certainly not a university.

    The Constitution, of which the Charter is a part, is the supreme law of Canada. All other laws in Canada are subordinate to it. The question of whether different aspects of a university are regulated by the Charter is only a question of degree.

    The Charter applies directly to the actions of government. It applies indirectly to the rest of us “civilians” and our institutions in that the laws that govern our conduct (which were acts of government) are all governed by the Charter. In other words, the B.C. University Act is governed by the Charter, so the fact that the BCCLA is filing a case under the BC University Act does not mean that they are somehow escaping Charter scrutinty. It merely means that they are fighting their case at a somewhat lower level on the legal food chain. The court will interpret the University Act in conjunction with the Charter guarantees of freedom of expression, freedom of religion, etc. not independently of them.

    As for your questions about legal challenges to entrance requirements and lecture content, those challenges are all possible now. The fact that they don’t happen very often is not because Universities are except from Charter scrutiny. It is for two reasons. 1) The Charter is a very basic, reasonable and flexible document and 2) Universities generally obey the law.

  2. Thirsty Mind, the question at issue in the University of Guelph case is only wheather a University can be considered a government entity, and therefore, whether the Charter applies directly, rather than indirectly.

    The litigants against the University of Guelph originally filed their complaints under the Ontario Human Rights Code–which is the “civilian law” governing discrimination complaints against non-governmental entities. Having lost their case under the Human Rights Code, they then tried to argue that a university was a government entity. If they had won that argument, they could have attempted to reargue their case in a federal court. Essentially, they were after a second chance at victory. The court ruled that a university is not a government entity and, therefore, they were not entitled to go this route.

    However, an Ontario Human Rights Code case is still subject to the Charter. If the litigants in the Guelph case felt that the Human Rights Code’s failure to protect them from what they saw as age discrimination was a violation of their Charter rights, then they had the option to file a notice of Constitutional question–at which point they would engage in a legal battle with the government over whether the Human Rights Code was violating the charter.

    I can give you an example of a case that’s precisely on point as it applies to a University:

    Back in the early 90s, a guy named Delwin Vriend was fired from a Christian college because he was gay. Delwin tried to file a Human Rights complaint against the University under the Alberta Individual Rights Protection Act. However, the Alberta Human Rights Commission told him that they could not accept his complaint because the Albert IRPA did not offer protection from discrimination based on sexual orientation. Delwin then sued the Alberta government, saying that the IRPA violated his Charter rights to equality. He won that case. Thus, the IRPA, which governed his university, was brought into line with the Charter and Delwin was free to file a discrimination complaint against his university.

    Ultimately, the university was forced to comply with the Charter of rights, even though the Charter did not apply directly to the university. It still applied to the law that governed the university.

  3. Mature Student,

    That is an interesting point. Thanks for raising it. Still there is a difference between bringing the Human Rights Act in line with the Charter, and bringing universities inline with the Charter. The Human Rights Act is government legislation, and the human rights commission is an agent of government. University policy is not, as of yet, considered to be on par with government legislation, nor are universities seen as an agent of the government.

  4. Indeed. However, I would argue that the question of whether universities are directly under the Charter or not has no bearing on the issues you raise. Matters such as arbitrating free speech rights, enforcing equality rights, etc. are already governed by the Charter–if indirectly in the case of a university. Any law that would address these matters as they apply to a campus will, or at least should, be consistent with the Charter.

    The potential problem of declaring universities to be government entities is not that it might place additional restrictions on students and universities. It wouldn’t–at least not where the Charter is concerned. As the judges in the Guelph case wrote, the problem is one of bogging down the court system. If everyone who had a complaint about teaching policies, student governments, etc. had to mount a constitutional challenge to get their point across, we’d be wasting a lot more money and court time than we do now.

  5. How does whether or not universities are under the Charter have no bearing on “arbitrating free speech rights”? As is, universities are legally autonomous and can regulate, more or less, expression accordingly, similar to any store owner who might have a policy against using his store for protesting.

    If universities were ruled by the Supreme Court to be acting as government, and therefore subject to the Charter, than any policy they might implement that bans a political group, like the pro-life clubs, would be unconstitutional.

    But until such a ruling is passed, universities have the autonomy to regulate speech on their campuses.

    That’s not to say that there aren’t certain contractual, explicit and implicit, agreements as well as legislation that applies to everyone (including private actors)that might preclude them from banning certain groups.

    For example, as noted in the story, student unions are obligated to serve the general interests of the students. But that’s not the same thing as the Charter.

  6. Carson, quite simply, if a university’s policy could be struck down under the Charter, then it would be struck down by the Human Rights Code or the BC University Act or by whichever other statue applies directly to the University currently.

    The principals articulated in the Charter–the balance between rights and reasonable limits on rights–is consistent throughout our legal system. University policy is subject to Human Rights Codes and other laws that are all subject to the Charter. There isn’t some separate set of laws for universities that give them more freedom than the Charter would otherwise allow.

  7. But the Human Rights Code offers protection from discrimination on specific grounds and does not extend a general duty of ensuring Charter rights are upheld. That’s the difference.

    For example, if the UVic pro-life club case were to proceed under the BC Human Rights Code, they would have to argue that they are being discriminated against on the basis of “race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age” (s.8(1)). Moreover, they would also have to prove that club status at UVic is “accommodation, service or facility customarily available to the public” (s.8(1)(a). Probably a tough task.

    If, however, universities were to be defined in law as an arm of government, then no university could adopt a policy, procedure or regulation that would be inconsistent with the Charter. The Charter imposes broader obligations than does human rights legislation. In particular, governments cannot act in a way to limit Section 2 rights, which are:

    2. Everyone has the following fundamental freedoms:

    (a) freedom of conscience and religion;
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    (c) freedom of peaceful assembly; and
    (d) freedom of association.

    So, although the UVic pro-life club may not have grounds to proceed under the BC Human Rights Code (or at least would have a tough time of it), if the Charter were to apply directly to UVic, then the pro-life folks would have grounds for legal action under Section 2 of the Charter.

    On the issue of the University Act, the BC government has the responsibility to ensure that the Act is consistent with the Charter of Rights and Freedoms, bu that does not create an obligation for the University to act consistently with the Charter. For example, the Government of BC could not amend the University Act to say that people who believe the Earth is flat are prohibited from speaking on campus, because that would be inconsistent with Section 2 rights under the Charter. An individual university, however, could adopt a policy saying that people who believe the Earth is flat are prohibited from speaking on campus. Such a policy would be consistent with the BC Human Rights Act, but would be inconsistent with Charter principles.

    A parallel here would be the BC Business Corporations Act. This Act sets up the legal framework for corporations in BC but does not impose a duty on companies to act consistent with Charter principles. So the Act itself must be consistent with Charter principles, but the actions flowing from the Act are not governed by Charter principles.

    I hope that helps clarify.

    Rob

  8. Indeed the various Human Rights Codes are not consistent with Section 2 of the Charter. However, presumably those would not be the statuatory mechanisms through which one would seek to enforce section 2 rights in a case against a university. Human Rights Codes exist to enforce Section 15 rights for the most part.

    I’m not sure how section 2 rights are enforced in a university situation, but judging by John Dixon’s comment in Carson’s article, it would seem that the BC University Act achieves the desired outcome in this case.

    In any event, I understand what you’re saying about the the legal framework needing to conform to Charter principals but not the actions flowing from the legal framework.

    What I’m saying, is that if the actions flowing from the legal framework ever resulted in serious violations of Charter rights, the legal framework–or lackthereof–that permitted them could be challenged under the Charter. The result being that a new rule would be put in place preventing such violations from taking place again. The Vriend case is a good example of a situation where the statute law did now allow Vriend to exercise his Charter rights. And that lack of statute itself was found to be unconstitutional as a result.

    At the end of the day, therefore, I would argue that there is relatively little discrepancy between what the Charter allows and what actually goes on on campus.

    Thus, I would argue that the question of whether university policies would be radically different if Universities were directly governed by the Charter is largely one of process and logistics rather than one of increased or decreased freedoms.

  9. Quoting Mature Student

    “What I’m saying, is that if the actions flowing from the legal framework ever resulted in serious violations of Charter rights, the legal framework–or lack thereof–that permitted them could be challenged under the Charter.”

    Sorry, this just isn’t the case. I’ve been trying to come up with a better example, but it gets too convoluted. I found the following explanation on the CanLII website, which I think says what I’m getting at more clearly:

    http://www.canlii.org/en/ca/charter_digest/s-32-1.html

    The third paragraph (which starts “The words of s. 32(1) give a strong message…”) says it very well, I think.

    John Dixon is specifically not invoking the Charter as the basis for the legal challenge by the pro-life club. Instead he’s appealing to the definition of “student society” in the University Act, which states:

    “student society” means an organization incorporated as a society under the Society Act whose purpose is to represent the interests of the general undergraduate or graduate student body.

    He’s arguing that by this definition the student society cannot restrict the legal expression of speech by a group of students because to do so is not in “the interests of the general undergraduate or graduate student body”. So, he’s saying that the UVic student society violated the University Act, not that the student society violated the Charter rights of the pro-life students (although he still believes that to be the case), or that the University Act is inconsistent with Charter requirements (although he appears to believe that to be the case too).

    As afar as I am aware, there is no piece of legislation from any provincial legislature that requires non-governmental or private individuals, associations, corporations or other legal entities to uphold Section 2 rights. If there were, then the potential would exist for anyone who operated a blog that allowed comments to be taken to court for deleting comments from the blog they didn’t like.

    The universities certainly perform an extremely valuable public function, but they are not, under current law, agents of government and therefore under Section 32, they are not required to act consistently with general Charter principles. They are, however, required to act consistently with human rights legislation because that law applies to everyone, whether they are governmental, non-governmental or private in nature.

    Now, whether the universities, on moral and political grounds, *should* work to uphold Section 2 rights is a whole different discussion.

    I think that’s about as clear as I can be on the legal issues.

    Cheers!

    Rob

  10. Just a note, the lawsuit between YPY and the UVSS was settled today.

    I think it can be argued that YPY’s message is relevant to an academic setting. UVic even teaches a philosophy course in bioethics which includes a discussion of the various moral positions on abortion, both pro-choice and pro-life. I’ve seen a variety of leaflets and material that YPY uses, and they use both moral and scientific arguments. By stifling the pro-life side (and the club was actually suspended, not just denied funding) we were impeding discourse on the moral and scientific issues around abortion–and this discourse is arguably part of a university’s role.

    That being said, I very much oppose the idea that student societies should take a position on those issues. The role of a student society is to advocate for all its members who have varying positions on on abortion. The low levels of voter turnout and engagement at most student societies means that the studnet union leadership rarely has a good idea of where a majority of students stand on controversial issues.

    The student society can facilitate discussion and debate by supporting independent student groups on both sides of the issue but not taking sides which is how the club system works. There are political clubs for the Liberals, Conservatives, NDP, Greens etc, there are a variety of religious clubs and as long as one of them is not favoured over another it’s a fair system.

    If we were going to take the other approach and say that YPY’s activities were not really relevant to a university setting, we would have to apply that to the Students for Choice club as well. The pro-choice club is equally vocal and last year they chalked their slogans all over the public space outside the Student Union Building. Students who don’t agree with their message could certainly be offended by that. If both pro-life and pro-choice clubs were banned, I think that would actually be fair and equal–but would it be consistent with the role of a university?

  11. “There are broader implications. Would a university find itself in court because a professor neglected to teach all sides, no matter how discredited or scientifically spurious, of a debate?”

    Junior and secondary schools are directly under the Charter and don’t have this problem.

    “Would a professor dismissed for teaching irrelevant material to students find a remedy in the Charter?”

    There is nothing in the Charter that prevents an employer for firing an employee on the basis of poor performance.

    “Would entrance requirements for students have to be lowered because existing standards unfairly discriminate?”

    The Charter allows for discrimination based on merit.

  12. Rob, I get that universities are not government entitites and that the Charter does not apply per se.

    I just have a very hard time with the proposition that a statute that allowed a university to do what UVIC just did to the Pro-Life group could not be found unconstitutional as a result…or that a government could not be found to be violating charter rights by failing to enact a statute that protected expression rights on campus–particularly if their was evidence that the government knew that rights were being violated and chose not to act. I’m not sure if I’m being clear either, but that’s my best attempt to explain what I mean.

  13. Mature Student,

    The whole point of McKinney is that the Charter is an instrument for checking the powers of government over an individual and that it is not intended to cover the activities of non-governmental organizations – even those created by government to facilitate individual action. Thus, all sorts of creatures of statute that don’t meet the s. 32 test for being government entities – from the CBC (see Adbusters cases) to hospitals (see Stoffman) – routinely engage in activities that, were they considered government actions, would undoubtedly violate the Charter. But we accept this: we generally don’t think that every corporation should have to allow for s. 2(c) “peaceful assembly” on its property, for instance. Instead, we generally say that corporations have access to trespass laws in ways that governments do not and the courts do not require the government to change the Canada Business Corporations Act on this point (see R. v. Behrens for an example of the way that s. 2(c) limits the power of government to remove protestors).

    You point to the Vriend case; the principle there is that if the government enters a field (e.g. by enumerating a list of criteria in a human rights statute for what constitutes discrimination) then it cannot do so in a discriminatory fashion. If the government doesn’t enter the field, though, Vriend does not apply and the government is not compelled to act – as in Gosselin.

  14. I do understand that the Charter cannot be applied to non-governmental organizations and that, indeed, one cannot rely on the Charter to claim the right to protest on corporate property. (That said, if ever the Charter DID apply to non-governmental organizations, one can only imagine that section 1 would be interpreted much more broadly to allow limits on actions such as this and such as the blog situation that Rob mentioned earlier.)

    I have to say, though, that I’m surprised–and somewhat disturbed–to know that, in a university setting, the government cannot be compelled to protect section 2 rights. I’m not familiar with the Gosselin case.

    Sorry Carson, clearly I’m wrong on the section 2 front. On the discrimination questions you raise, though, I’m quite confident that there is nothing the Charter would prohibit that isn’t already prohibited by the Human Rights Code (and the specific examples you raise aren’t problems for the reasons ABarlow already mentioned). In fact, I would say that the limited burden of proof placed on complainants under the Human Rights Codes makes it substantially easier to file a nuisance discrimination complaint under the Code than under the Charter.

  15. Quoting Mature Student:

    “I have to say, though, that I’m surprised–and somewhat disturbed–to know that, in a university setting, the government cannot be compelled to protect section 2 rights.”

    For the outside observer, the university appears as a single entity but there are many legal entities on campuses governed by different pieces of legislation with different legal relationships to the university. The student association is one of those “other” entities that are part of campus life but separate from the university.

    As I recall the details (and someone please correct me if I’m wrong), the YPY folks were not prohibited from expressing their views on campus, they were denied club status and access to various student association services customarily available to student clubs. This certainly limited their ability to express their views in the same ways as other clubs, but did not prohibit their views from being expressed on campus.

    So, even if the Charter did apply to the university generally, the fact that the actions were by the student association would still put the matter outside the scope of the Charter (unless someone was able to argue that the student association was exercising university-delegated powers).

    I agree with you, however, that it is disturbing to see freedom of expression curtailed on a university campus, regardless of who does it.

    Cheers,

    Rob

  16. I find it interesting that the “Pro-Choice” are usually the ones who want to prevent the other side from expressing their views and yet the so called “Anti-abortionists/Pro-Life” have never objected to the Pro-Choice folks from saying whatever they want. There is no muzzle on them only on the Pro-Lifers. Universities should not be exempted from the Charter of Rights even if they are not technically government. The Charter has to apply to every facet of society in order to protect the rights of every citizen. The autonomy of the Universities is not an issue but when they attempt to censor its constituents a referee has to step in to ensure that rights are not trampled by well meaning administrators.