Newsletter

September 2012

University of Calgary must free its students

Peter Bowal

Public universities are the last sanctuary to
abide, if not stimulate, the free flow of ideas, debate and controversy.
Punishing and banishing students, staff and faculty who express their ideas and
opinions (much as I am doing here) must not be tolerated if universities are to
remain relevant and effective.

Over the past five years, we have watched
students being disciplined for their thoughts, consciences and beliefs and their
expression of them on the campus of the University of Calgary. This has been
peaceful activity protected by the charter for 30 years in the public realm. The
student speech did not come close to the disturbances of the Occupy activities
last fall that our public authorities tolerated.

Nevertheless, student tuition money and taxpayer
money, likely in the order of hundreds of thousands of dollars, has been spent
to silence and evict individuals from university property because someone might
be offended by their honest beliefs about abortion, same sex marriage, the
helpfulness of their professor, or whatever.

Free the students. Let them speak and argue. Let
the best ideas prevail in the campus square. This is the lifeblood of democracy.

I have heard three reasons stated for university
control of student speech. With respect, they are all flawed.

The first argument is that certain graphic
images, like aborted fetuses, or words must be suppressed because they might
incite others to violence. The public peace needs to be preserved.
Should we limit public discourse by appeasing all who would choose to
respond with violence? We cannot allow violence to be justified merely on the
ground that it was provoked.

The problem with the incitement to violence
argument is that it erroneously focuses on the expresser, when rather we ought
to restrain the aggressor.

The second argument is that the Charter of
Rights and Freedoms does not clearly apply to public universities. This remains
an open legal question. But why does the University of Calgary have to run the
test case, arguing that it should not apply? Why not respect freedom of student
expression on campus as a value, even if the Supreme Court of Canada has not yet
compelled it as a matter of law?

The third argument relates to universities being
at arm’s length from government. Academic freedom means that professors should
pursue truth and knowledge free of government meddling. We are not to be
mouthpieces for partisan politics. The university administration (more than
faculty members doing actual research) are concerned if we are in the same legal
category as government, regulated by the charter, our own research and teaching
functions will suffer political interference.

If we were a mere branch of government, without
academic freedom, we could never criticize government and its policies. Then we
would never cure cancer or discover new alternative fuel sources or interpret
Shakespeare correctly because we are symbolically an arm of government burdened
by its own political agenda.

Well, universities are already influenced by
government, which incorporates and funds them. It legislates for them.
Government monitors and regulates universities through ministries and policies
and it makes appointments to the board and senate.

It is strange reasoning that universities need
to operate beyond the reach of the charter, and to suppress free speech, so
researchers might have a better chance to cure cancer. Being subject to
provincial human rights, privacy and employment law has not hindered academic
freedom. The charter will not destroy Canadian universities. Academic
administration fetters academic freedom more than government.

There are also non-legal reasons to free the
students.

The University of Calgary has endeavoured to
improve its “student experience” ranking. Riding herd on students by curtailing
their speech and demanding they sign statements contrary to their personal
convictions are not endearing, student-friendly gestures. The university cannot
litigate its way into students’ hearts and use the courts to soar in the
rankings.

A university can’t begin to control speech in
all its forms. Even a $1-billion budget cannot monitor the blogs, forums,
e-mails, texts, websites and conversations on and off campus.

I’ve had unspeakably worse things said and
written about me over the years, than that which came to light in the Pridgen
case. I’ve faced threats. No action was taken by administration. I’ve also been
disciplined for far less wrong than described in that case. If disciplinary
action is politicized, none is better.

The academic leadership utterly misjudged the
issues at stake and they mismanaged their response. Caught off guard, it
responded with a heavy hand. The university should have had an hour-long
conversation with the Pridgen family back in 2007. The matter could have been
quietly resolved.

Instead, the university dug in and offered up
untenable arguments. It gambled that its huge financial advantage might extract
a win by attrition, but it did not. Intractable litigation against its own
students is failed leadership.

So what now? If the university learns nothing
from these judges and their ruling, it will apply for leave to the Supreme Court
of Canada.

If, on the other hand, the university is humbled
by this public embarrassment, it will immediately reclaim this dispute from the
lawyers, reconcile with (and try to win back) the Pridgen family, come clean on
what this battle has cost and ensure accountability. And the university will
free the students.

Peter Bowal is a University of Calgary law professor.

The Calgary Herald, May 16, 2012.