TO: Advisory Group on Professional/Managerial (PM) Staff Roles Administering Professional Experiential Education Programs
FROM: Abigail Bakan (OISE), Joseph Carens (Political Science), Vincent Chiao (Law), Deborah Cowen (Geography), Anver Emon (Law/History/Institute of Islamic Studies), Mohammad Fadel (Law), Ariel Katz (Law), Trudo Lemmens (Law), Audrey Macklin (Law), Ruth Marshall (Political Science/Dept. for the Study of Religion), Denise Réaume (Law), Kent Roach (Law), David Schneiderman (Law), Judith Taylor (Sociology/WGSI), Alissa Trotz (WGSI/Caribbean Studies)
DATE: 20 August 2021
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We welcome this opportunity to make submissions to this Advisory Group about the protections required by members of the University community who are not faculty, but who lead or deliver professional experiential education programs. We understand that this goal is to formulate a policy that will be incorporated by reference into all employment contracts.
- Process
We remark at the outset that this Advisory Group is not representative of the various constituencies that have a stake in these issues. We are disappointed that this Advisory Group was constituted with only one faculty member who appears to have direct experience or involvement in clinical programs, and without any apparent participation by present or former clinical directors, or UTFA. A more representative committee would adhere better to the principle of collegial governance.
We are also concerned with the tight timeline set up. Announcing the Advisory Group’s creation in early August, when many are on holiday, and expecting submissions roughly two weeks later does not conduce to wide participation.
Finally, we point out that the Faculty of Law, which has a clear stake in this Advisory Group’s work, has a dedicated Clinical and Experiential Education Committee comprising faculty, clinical directors, students and administrators. Last year, it produced a preliminary report on academic freedom for clinical directors and recommended that the Dean mandate a committee to ‘consult broadly among the law school community [and] devise concrete recommendations’ on appropriate safeguards for academic freedom in the context of clinical and experiential education. Given the more representative and expert constitution of the law school’s Clinical and Experiential Education Committee, we discourage this Advisory Group from adopting any position that would pre-empt or constrain the outcome of a more in-depth, collegial process undertaken at the law school or in other units that operate professional and experiential education programs.
A necessary part of a collegial process of consultation in this case is circulation of a draft of a proposed policy for comment. We look forward to receiving that as your work progresses.
- Substance
Our submission relating to the substance of a University-wide policy addresses three elements of a policy: terminology, scope and adequacy of protection, and recourse. We finish by proposing model language.
- Terminology
In its various public pronouncements relating to this matter, the University has assiduously refused to use the term ‘academic freedom.’ In addressing the initial IHRP controversy, the University was at pains to suggest that the classification of the position of Director of the IHRP as Professional/Managerial is inimical to, or precludes, recognition of academic freedom. The name and terms of reference of this Advisory Group, through its opaque reference to job “protections”, carries this forward. There is no principled basis for this position. It is contradicted by the University’s own Statement of Institutional Purpose, Statement on Freedom of Speech, by the Canadian Association of University Teachers (CAUT), and by practices in other jurisdictions.
Each of these sources point in the same direction: the appropriate standard for determining the application of academic freedom to non-faculty is functional, not formal. What matters is not the classification attached to the position, but the functions actually performed by its holders. Academic freedom attaches to clinical directors and instructors because they engage in one or more of teaching, researching, and knowledge dissemination, and therefore are members of the University’s academic community
Any policy addressing “protections” for clinical directors and experiential educators must clearly affirm that they are protected by the principles of academic freedom. Evasive or obfuscating language would suggest a gap or hierarchy between whatever protection is provided and genuine academic freedom, and reduce confidence in the University’s commitment to this bedrock principle.
The University’s Statement of Institutional Purpose, Governing Council’s “Statement on Freedom of Speech”, and a variety of allied documents all guarantee freedom of speech and freedom of expression to all members of the University. In particular, the Statement of Institutional Purpose also specifically sets out the broad scope of academic freedom:
PURPOSE OF THE UNIVERSITY
The University of Toronto is dedicated to fostering an academic community in which the learning and scholarship of every member may flourish, with vigilant protection for individual human rights, and a resolute commitment to the principles of equal opportunity, equity and justice.
Within the unique university context, the most crucial of all human rights are the rights of freedom of speech, academic freedom, and freedom of research. And we affirm that these rights are meaningless unless they entail the right to raise deeply disturbing questions and provocative challenges to the cherished beliefs of society at large and of the university itself.
It is this human right to radical, critical teaching and research with which the University has a duty above all to be concerned; for there is no one else, no other institution and no other office, in our modern liberal democracy, which is the custodian of this most precious and vulnerable right of the liberated human spirit.
Academic freedom is a right of every member of the academic community, not only those who happen to be covered by a Memorandum of Agreement or a Collective Agreement, or a targeted policy. These instruments merely concretize and specify the meaning of academic freedom in context. The source of academic freedom lies in the character of the university as the ‘custodian of this most precious and vulnerable right of the liberated human spirit.’ A policy pertaining to Professional/Managerial staff may similarly specify the meaning of academic freedom in the context of clinical directors and experiential educators. But academic freedom must be named, and remain firmly at the core of that policy. The attached letter by Professor Kent Roach, resigning as Chair of the Asper Centre Faculty Advisory Group, powerfully expresses the damage and disrespect of refusing to name academic freedom as embracing clinical directors and of the University’s repeated efforts to classify clinic directors as “non-academic staff” despite their teaching and research responsibilities .
- Scope and Adequacy
We endorse a functional approach to academic freedom, and we understand this to be consistent with CAUT’s position. The appropriate scope of application for an academic freedom policy for ‘Professional/Managerial (PM) Staff Roles Administering Professional Experiential Education Programs’ is every such position holder who engages in teaching, researching and knowledge dissemination. Knowledge dissemination may encompass written documents and public engagement (including advocacy) through various media.
This approach to identifying members of the academic community is consistent with the protection provided in relation to teaching to sessional lecturers under CUPE 3092 Unit 3 Collective Agreement. Nor is this approach confined to employees. Clinical faculty in the Faculty of Medicine are protected by academic freedom, ‘regardless of employment relationships’ with the University, pursuant to a Governing Council ‘Policy for Clinical Faculty’. Notably, the language is identical to the academic freedom language contained in the UTFA Memorandum of Agreement.
The Appendix includes the relevant terms of the CUPE Collective Agreement, the Policy for Clinical Faculty, and UTFA Memorandum of Agreement. All instruments incorporate the rights and obligations set out in central University policy and affirm the protection of academic freedom for faculty, librarians, sessional lecturers and clinical medical faculty using the same language:
Academic freedom is the freedom to examine, question, teach, and learn, and it involves the right to investigate, speculate, and comment without reference to prescribed doctrine, as well as the right to criticize the University, and society at large.
Academic freedom does not require neutrality on the part of the individual nor does it preclude commitment on the part of the individual. Rather academic freedom makes such commitment possible.
It is worth emphasizing that with respect to clinical faculty in Medicine formal employment classification is not determinative of the scope of academic freedom. Most clinical faculty may have no employment relationship with the University and are not even ‘on the university payroll,’ and so the title ‘faculty’ is mostly honorific – they are more similar to adjuncts. Sessional lecturers are not permanent employees and are not eligible for tenure, yet their academic freedom is also protected. Indeed the fact that clinical directors are generally employed full-time by the University makes it even more important that their academic freedom be fully protected. Nothing about the classification of a clinical director as managerial or professional precludes recognition of the academic freedom of those who hold those positions.
Against this backdrop, the various statements from senior administrators since the IHRP scandal erupted suggesting or implying that academic freedom does not apply to professional/managerial staff are troubling, and highlight the need to reaffirm it and ensure that it applies in practice. Therefore, the only issue is how to properly articulate and specify the entailments of academic freedom in accordance with the role of a clinical director.
We recommend that this Advisory Group, at a minimum, adopt the same language in use in other contexts to cover clinical directors and instructors in other units through the following non-exhaustive statement:
Members of the University community who deliver professional experiential educational programs have a right to academic freedom, which is defined as the freedom to examine, question, teach and learn, and the right to investigate, speculate and comment without reference to prescribed doctrine, as well as the right to criticize the University and society at large. Academic freedom does not require neutrality on the part of the individual nor does it preclude commitment on the part of the individual.
A final necessary clarification of the scope of any policy concerns its applicability to hiring decisions. Given that the scandal that led to this Advisory Group’s mandate concerned hiring, we recommend inclusion of the following:
For greater specificity, the University of Toronto’s hiring process shall comply with its commitment to academic freedom.
We see no reason to think that greater detail about the content of academic freedom is required for those who deliver professional, experiential education programs. However, if the Advisory Group takes a different view, we recommend delegating the task to collegial, representative, consultative and knowledgeable committees at the unit level. Such a committee will be familiar with the governance structure of their own program. Some programs have faculty advisory committees tasked with overseeing the program and approving certain types of decisions made by the Director about, for example, project selection. The exercise of oversight need not conflict with the academic freedom of a Director, as long as the exercise of that authority respects the principles of academic freedom. Other programs may operate under a different governance structure, and a policy on academic freedom could take account of that in a contextual elaboration of academic freedom. This Advisory Group is ill-equipped to address all of these potential variations and nuances in a University-level policy. A representative unit-level committee is better placed to supply further specificity on how academic freedom can best be protected in the context of a particular position and program.
We therefore recommend that the policy include a provision along the following lines:
Units that offer professional, experiential education programs may enact policies in relation to specific programs that elaborate on the content of academic freedom, provided they do not limit or constrain its protection.
- Recourse
Since the decision in Ashby v White in 1703, it has been a fundamental principle in our legal system that if someone “has a right, he must of necessity have a means to vindicate and maintain it.” University policy should honour this principle.
If the academic freedom of faculty or librarians is breached, they have recourse to a grievance mechanism under the Memorandum of Agreement. The same is true for sessional lecturers under the CUPE Unit 3 Collective Agreement.
Clinical faculty in Medicine are not members of UTFA or of a union. The Policy for Clinical Faculty appears to contemplate that threats to academic freedom will arise in a clinical setting, and not from University administration. It gives Chairs and Deans the role of advocating on behalf of clinical faculty and investigating allegations of breach of academic freedom and envisages dispute resolution through an independent tribunal of Faculty of Medicine colleagues:
9. The University of Toronto has a fundamental role in the protection of academic freedom for clinical faculty. This includes:
- University Chairs acting as advocates on behalf of the academic freedom of clinical faculty members when issues of academic freedom arise in the clinical setting
- The Dean promptly investigating referrals to his or her office of allegations of breach of academic freedom
- Appointment of an independent tribunal of colleagues from the Faculty of Medicine to adjudicate disputes involving an apprehended breach of academic freedom in the clinical setting, as noted above (Academic Clinical Tribunal).
This model is unsuitable in the case of an allegation that a member of University administration, such as a Dean, a Provost, or a Vice-President has breached academic freedom. The situation of Professional/Managerial staff is even more precarious. We are unaware of any existing independent body within the University capable of mediating or adjudicating a dispute of this nature. This leaves an individual only the unattractive option of suing the University for breach of the employment contract.
Designing an appropriate recourse would require more extensive investigation and consultation. Here are three avenues that warrant further exploration:
- Set up an independent dispute resolution mechanism with a mandate to address and resolve alleged breaches of academic freedom (and other allied University policies) where the individuals concerned do not have access to union or UTFA recourse.
- Engage UTFA in a discussion about how clinical director/educator positions can be re-classified to bring them within the ambit of UTFA as ‘professors of practice’ (or something similar).
- Enable access to the dispute resolution mechanisms available under the MOA to manage complaints about academic freedom. Precedent exists in some partially unionized workplaces to give non-unionized employees access to grievance mechanisms created under collective agreements.
CONCLUSION
Based on the foregoing, we recommend inclusion of the following provisions in any policy. These are non-exhaustive, and meant to set a floor (not a ceiling) on academic freedom protections for those who direct and deliver clinical or experiential education programs.
- Members of the University community who deliver professional experiential educational programs have a right to academic freedom, which is defined as the freedom to examine, question, teach and learn, and the right to investigate, speculate and comment without reference to prescribed doctrine, as well as the right to criticize the University and society at large. Academic freedom does not require neutrality on the part of the individual nor does it preclude commitment on the part of the individual.
- For greater specificity, the University of Toronto’s hiring process shall comply with its commitment to academic freedom.
- Without limiting or constraining the protection of academic freedom, units that offer professional, experiential education programs may enact policies that elaborate on the content of academic freedom in relation to specific programs.
Thank you for this opportunity to contribute to your deliberations; we would welcome an opportunity to respond to questions regarding this submission. We also look forward to reviewing a draft report when it becomes available.
Appendix:
CUPE 3902 Unit 3 Collective Agreement, Article 7
Governing Council Policy for Clinical Faculty
https://governingcouncil.utoronto.ca/secretariat/policies/clinical-faculty-policy-december-16-2004
University of Toronto Faculty Association Memorandum of Agreement, Article 5
Censure UofT 