Does President Naylor's March Statement To Governing Council Threaten Academic Freedom?

September 2006

During the last two decades, there have been two conflicting visions of a university. One position is that the university’s essential purpose is the search for truth through the conflict of ideas. This position entails that academic freedom (of both student and faculty members of the academic community) is the paramount value. The other position is that comfort (of individuals or of various collectivities) should be the criterion of what can be thought and said (especially in public), A common defense of this culture-of-comfort position is that it averts violent and even dangerous behavior, and so contributes to making the campus “safe”.

Most Canadian universities have conceded ground to the culture-of-comfort position by instituting what are essentially speech codes, although that term is seldom used. My university followed this trend in the early nineties inasmuch as its code forbade not only offensive behavior but also offensive speech, and hence weakened, at least in principle, the academic freedom of its community. In practice, however, the administration, for the last two decades, has not employed the speech code and has, in fact, protected academic freedom against the complaints of those who were offended by certain opinions.

The most recent instance where the academic freedom and culture-of-comfort principles have collided is the case of the Danish cartoons. I was encouraged that the Paul Gooch, the President of Victoria University spoke clearly for academic freedom on two separate occasions. The first of these defenses was his statement on the primacy of academic freedom (Bulletin, February 20). The second defense was his reply to a forum piece (Beyond Posturing, Bulletin, March 6) that argued for limits on academic freedom on culture-of-comfort grounds. In his reply, President Gooch rejected comfort as the criterion of permissible speech ("Civil Discourse is Free Discourse", Bulletin, March 27).

A cursory reading of President Naylor’s March Statement to the Governing Council (reported on in the March 27 Bulletin which also provides a reference to the full text of this statement) may suggest that this too is a defense of academic freedom, or, in terms of the statement, of the administration’s determination that “The University of Toronto will continue to uphold the principle of free expression”. However, there are aspects of this statement that at least have the potential to ultimately harm academic freedom in our University. These aspects need consideration because the statement is not just an opinion of an administrator, but rather a formal statement to the Governing Council. As such it has precedent-setting status for the way in which future incidents are handled in a way that ignores the logical distinction between acts or behavior that are clearly inappropriate, and opinion or speech that is appropriate (for the distinction between acts and opinion, see:

The aspects in the statement that I think are potentially threatening to academic freedom all arise from the treatment of one of the four “incidents” that are said to have lead to the “current strain”. That incident is the “distribution of flyers including one of the Danish cartoons and statements that have caused offense to Muslims”, to which the Anti-racism Office is said to have “responded fully and quickly” by “treating the flyers like offensive graffiti”, and calling the police. The justification given for this “full and quick” administrative action in the statement was that the administration wished to distinguish between (permissible) “provocatively reasonable” and (punishable) “unreasonably provocative” flyers and (presumably) other expressions of opinion. The administration learned from the police that they did not consider the distribution to contravene Canada’s hate laws, but the President’s statement to the reports that, nevertheless, the flyers (and hence, presumably, the distributors) remain “points of interest” to the police.

I suggest that in its treatment of this “flyers” incident, the President’s statement to the Governing Council undermines academic freedom not only with respect to its treatment of those who distributed the flyers, but also those others who, in the future, wish to express opinions that are offensive. In particular, there are the following six aspects that particularly concern me:

  1. Treating the flyer incident as if it were in the same class as the other three incidents (which all involved a varying degree of violence and criminality perpetrated on individuals, i.e., inappropriate acts) is to confuse offensive behavior with offensive speech.
  2. The statement’s criterion for distinguishing between permissible and forbidden (“unacceptable on our campuses” is the way the statement puts it) speech is completely subjective. Individuals in the administration can decide what is “reasonable” and what is “unreasonable”. It is these sorts of subjective distinctions that allow authorities in a totalitarian regime to act in what is essentially a lawless manner, and to confuse acts or behavior with the expression of opinions.
  3. Even the statement’s own subjective distinction is not applicable to the flyers incident. In elaborating what is meant by “unreasonably provocative” the statement refers to “targeting individuals (my emphasis) on the basis of their identity”. Individuals were certainly so targeted in the other three incidents, but in this one it was Muslims as a collectivity rather than an individual that was targeted. So the rationale for “responding fully and quickly” to the flyers was, in my view, conceptually primitive, and unworthy of any university, let alone a great one.
  4. There is also an aspect of arbitrariness involved in the administration’s treating the flyers “like graffiti”. What if some “representatives” of people who are strongly opposed to homosexuality (e.g., those Muslims who consider homosexuality, on religious grounds, to be a mortal sin) treated the positive space” signs like “offensive graffiti” and removed them?
  5. In addition to calling in the police, the administration also relied on them to determine whether the flyers “constituted hate literature”. This is disturbing for at least two reasons. In the first place, the concept of “hate literature” is based on assumptions which, at least in Sharansky’s free/fear distinction are part of a fear society, because “hate literature” involves no actual criminal acts. Surely a university should err on the free rather than the fear end of this continuum. Secondly, if the university really wished to get advice on what is a complex and fine legal distinction, it should rely on expert (Canadian) legal opinion rather than that of the police.
  6. Finally, even after getting a police ruling that no “hate literature” was involved, the President goes on to report that his administration was informed that the flyers will remain “points of interest” to the police. Why is this police opinion part of the statement? Just what does it mean to declare those members of the academic community who posted those flyers (or even those who did not post them, but approved of the posting) to be “points of interest” to the police? Is this like not being arrested for a thought crime in a totalitarian regime, but nevertheless remaining a “point of interest” to the rulers of that regime? Will my university, in the future, treat those members of the academic community who express offensive opinions but who cannot be prosecuted in terms of Canada’s hate laws by referring them to the police, and publicizing the fact that, to the police, they remain “points of interest”? Is this our Orwellian “golden future time”?