Freedom of Expression and the Cromwell Inquiry

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In the early fall of 2020, a firestorm of controversy erupted when the Dean of the Faculty of Law at the University of Toronto elected not to proceed with the appointment of Valentina Azarova to the position of Director of the International Human Rights Program (IHRP), even though Dr. Azarova was the unanimous and enthusiastic choice of the selection committee convened to make a hiring recommendation to the Dean. The decision (ostensibly made on the basis of immigration concerns) came a scant two days after a federal tax court judge had suggested to University administrators that Azarova’s appointment would be damaging to the law school and to the University.  Her crime? Having been critical in her scholarship of Israel’s treatment of Palestinians in the West Bank.

In defending the Dean’s decision, the University has consistently maintained that the Directorship of the IHRP is not protected by academic freedom. This is based on the fact that the Memorandum of Agreement between the University and the Faculty Association, which protects “academic freedom”, applies only to members of UTFA – academics and librarians – and the IHRP Directorship is a non-academic appointment. This view was accepted by Mr. Cromwell, the former Supreme Court of Canada Justice invited by the University to report on whether the judge’s communications played any role in the termination of the Azarova hire. 

This view is both egregiously and demonstrably wrong in a number of respects.  First, the fact that librarians are protected by “academic freedom” under the Memorandum of Agreement between the University and the Faculty Association indicates that academic freedom is not conferred solely on the basis of title. This is shown by the fact that under the Memorandum, librarians, who do not have academic appointments, are nonetheless accorded the protection of “academic freedom” when performing academic functions

This is highly significant.  The Director of the IHRP is manifestly expected to perform academic functions, including teaching a law school class on human rights and participating in the selection and prosecution of human rights cases under the banner of the IHRP. Particularly as matters dealing with human rights are virtually guaranteed to generate controversy, it is inconceivable that the Director could properly carry out her mandate without the benefit of academic freedom. For the University to hide behind a technical distinction between academics and clinical directors is to elevate form over substance in a manner that does the University little credit.

Second, the collective agreement between the University and UTFA is not the only source of protections for freedom of speech and expression. In 1992, U of T’s Governing Council adopted a policy extending both protections to all members of the University community, from the most humble to the most exalted. It is thus beyond peradventure that the Director of the IHRP, and every other clinical director at the University, is protected by freedom of speech and expression. 

Some have suggested that this policy does not apply to prospective hires, who are not immediate members of the University community. This too is false. The Statement on Freedom of Speech explicitly encompasses persons with no formalized or contractual relationship to the University. Moreover, the University’s internal hiring policies and procedures incorporate by reference all University policies dealing with freedom of speech and expression (as well as equity and diversity). So does a Governing Council policy entitled Statement on Equity, Diversity, and Excellence. 

In addition, it should not need pointing out that if hiring decisions (whether of academic or non-academic staff) are not covered by doctrines such as freedom of speech, freedom of expression, equity, and diversity, it would make a mockery of the University’s solemn commitment to these principles. Suppose that political and/or other prejudicial factors (such as race or gender) are allowed to operate at the hiring stage. If so, we can scarcely expect to have the kind of bold, vibrant, and diverse University community that various Governing Council documents hold so sacred.

The foregoing raises a number of troubling questions. Why did the University focus Mr. Cromwell’s attention on the artificially constrained “academic freedom”, rather than the much broader freedom of speech and expression? Why did University officials apparently not make Mr. Cromwell aware of University documents that extend freedom of speech and expression to all members of the University community, including those with no formal or contractual relationship with the University? Why has the University continued to publicly assert that only academics and librarians are entitled to “academic freedom”?

Perhaps the most troubling question in the end is the University’s actual commitment to freedom of speech and expression. While hiding behind earnest platitudes embracing the importance of academic freedom, the proof is in the pudding, and the pudding has been little in evidence of late.

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Professor Jeffrey G. MacIntosh
Faculty of Law
University of Toronto

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