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.