In August 2020, Dr. Valentina Azarova was in advanced negotiations with the University of Toronto about becoming Director of the International Human Rights Program (IHRP) at the Faculty of Law. On September 4, the Dean of Law was advised that a prominent alumnus objected to the hire based on Dr. Azarova’s scholarship on Israel/Palestine. On September 6, the Dean decided to terminate the hire. Former Supreme Court Justice Thomas Cromwell was asked, inter alia, to review these events to provide “a comprehensive factual narrative of events pertaining to the search committee process and the basis for the decision to discontinue the candidacy.” Cromwell says “the inference of improper influence is not one that I would draw.”
The Canadian Association of University Teachers (CAUT) began censure proceedings in November 2020. On April 22, 2021, after considering the Cromwell Report and submissions from many sources (including the University and the Law Faculty administrations), it imposed censure on the University of Toronto over its decision to terminate the candidacy of Dr. Azarova for the Directorship of the IHRP.
This situation is complex. The Cromwell Report and the CAUT’s response raise many issues of academic freedom and collegial governance crucial to all members of the University. Here are brief answers to some common questions. However, colleagues should read the key documents for themselves, collected at the end of the FAQs.
President Gertler asserts Mr. Cromwell was the only person who saw all the documents and heard from all the people involved. Shouldn’t we defer to his conclusions since we don’t have the same access to the evidence?
Frequently Asked Questions (FAQs):
Q: President Gertler says Mr. Cromwell conducted “an independent and impartial review” (Response, March 29, 2021). Why doesn’t that settle the issue?
A: Mr. Cromwell was chosen by the university and given a mandate without consultation with any of those expressing concern about the IHRP hiring process. A tripartite structure with representatives of the University, the University of Toronto Faculty Association (UTFA) or CAUT, and a neutral chair would have been an independent and impartial review. It was suggested. The University instead chose to retain control over the entire process.
Q: President Gertler says Mr. Cromwell is a highly respected former Supreme Court of Canada judge whose credentials are unimpeachable. How can we question his report?
A: The report must be read and assessed on its merits, not defended by an appeal to authority. It does not warrant deference on account of the reputation or stature of the author. Reading a text for the quality of its analysis is exactly what all university faculty do professionally. In reading the report, we are necessarily limited to the evidence Mr. Cromwell presents in the report – the documents he cites and the statements he attributes to participants. However, he is not in a privileged position when it comes to drawing inferences or conclusions from that evidence, or in making recommendations.
Q: President Gertler asserts Mr. Cromwell was the only person who saw all the documents and heard from all the people involved. Shouldn’t we defer to his conclusions since we don’t have the same access to the evidence?
A: No. The fact that only Mr. Cromwell had access to all the evidence is a weakness, not a strength, of the review. We question courts if their records are not open; we question the reliability of research based on data that is not shared. Same here. Indeed, the reason for non-disclosure of evidence was never explained, and so we have no way of knowing what was left out of the report or why.
In any case, Mr. Cromwell bases his conclusions and recommendations entirely on the evidence disclosed in the report. Critical analyses of Cromwell’s report have proceeded from the evidence provided in the Report, and CAUT did the same. Mr. Cromwell is in no better a position than anyone else to draw inferences from this evidence. For more detail on the defects in Mr. Cromwell’s analysis, see “Q: Are the reasons offered for terminating Dr. Azarova’s hire plausible?”.
Q: Mr. Cromwell refuses to infer that the Dean’s decision was influenced by the donor’s intervention. Should that settle the issue?
A: No. The first part of Mr. Cromwell’s mandate was to develop a “comprehensive factual narrative of events pertaining to the search committee process and the basis for the decision to discontinue the candidacy of the search committee’s Preferred Candidate”. In fact, rather than “determining the basis for the decision to terminate the hiring process”, Mr. Cromwell sets out what the Dean told him was the basis for terminating the process. These are not the same thing. Mr. Cromwell did not explain why the Dean’s version of events is more probable or believable than the conflicting accounts provided by others. He also did not consider whether the Dean might have been influenced by the interference of the donor even though he did not think he was.
At the outset, Mr. Cromwell takes the process to be unsuitable “for making findings of credibility.” However, when witness accounts differ it is impossible to decide what happened without assessing credibility. For example, in a conversation between the Dean and the faculty member of the Selection Committee, after the Dean had decided to terminate the appointment, the faculty member said that the Dean identified the external intervention as “an issue” in his decision while the Dean denied it. This is obviously a matter critical to deciding what the basis for the decision was.
Even if inconsistent accounts were purely the product of the vagaries of imperfect memories, a factual narrative is impossible without accepting some memories as accurate and rejecting others. In fact, Mr. Cromwell tacitly does exactly that – and in each and every case in which “memories” differ, he accepts the administration’s account without explaining why.
In the end Mr. Cromwell concludes “as with any review, I am obligated to see well-founded evidence before I can reasonably draw the inference that someone has been untruthful. That is not an inference that I could reasonably draw on the information available to me” (pp. 47-48). But since he explicitly refused from the outset to assess credibility, he deprived himself of the ability to draw any inference of untruthfulness, no matter what the evidence revealed. This fatally compromises the finding that external pressure played no role in the Dean’s decision.
Q: Should CAUT have deferred to the Cromwell Report in deciding whether or not to censure the University?
A: No. CAUT decided, given the information in the Cromwell report, to make its own assessment about the overall credibility and plausibility of the various accounts, a task that Mr. Cromwell declined to perform. The members of CAUT Council determined it was most likely that the external influence played a role in the Dean’s decision. The “decision to cancel Dr. Valentina Azarova’s hiring was politically motivated, and as such constitutes a serious breach of widely recognized principles of academic freedom”.
Q: Are the reasons offered by the Dean of Law for terminating Dr. Azarova’s hire plausible?
A: No. Over the Labour Day 2020 weekend, a hiring process was abruptly terminated, following the intervention of a donor whose objections to Dr. Azarova’s hire (because of her scholarship on Israel’s occupation of the Palestinian territories) were immediately relayed to the Dean.
The Administration denied that the donor’s intervention influenced the outcome. Instead, the Administration’s version is this: Dr. Azarova (a foreign national residing in Germany) was offered the position on August 11 on condition that she begin working on September 30. It would not be possible for her to begin work by September 30 except through an independent contractor arrangement enabling her to work online. The Dean rejected this option, and so the hiring process was terminated in favour of finding a suitable Canadian candidate.
However, the existence of a September 30 start date was disputed. The unacceptability of the independent contractor arrangement was disputed. Whether there were qualified Canadian candidates was disputed. Mr. Cromwell acknowledges that each element of the Dean’s explanation was disputed, but accepts the Dean’s explanation at face value anyway. That is wrong. For more comprehensive analyses, see the Resources collected below. Critically evaluating the disputed facts leads to the inference that external intervention exerted an influence over the outcome. We encourage you to read them. Based on its own analysis of the facts, CAUT decided the official explanation is not plausible. The following summarizes how CAUT reached its conclusion.
The independent contractor arrangement
“[T]he Dean expressed his concern about the independent contractor agreement as a bridge until the work permit was obtained. His view was that this was improper and could not be done and that he had consulted with the VPHR about this.” (Cromwell, p.38)
This is unsupported by the evidence. The Dean was told by the “VPHR” (Vice-President Human Resources and Equity) that the University had used independent contractor arrangements in the past. The offer was made to Dr. Azarova before the option of making her an independent contractor arose. Indeed, the arrangement was proposed by the University, not Dr. Azarova. The Dean did not consult with University employment lawyers before rejecting the option, even though a meeting with them was already scheduled for the Tuesday after the Labour Day weekend.
The hiring deadline
The Cromwell Report states, “the Dean indicated that [the law school] needed to hire a Canadian so someone could start right away” (p.39).
The urgency of the start date receives no support from the facts:
● Members of the selection committee were never informed or consulted about any hard deadline other than the start of 2021. The offer was only extended to Dr. Azarova on 11 August on condition of obtaining a work permit as soon as practicable, and before the start of the winter 2021 term. A deadline of September 30 would have been unrealistic, especially for an international hire. The option of an independent contractor arrangement to bridge the period until a work permit was obtained did not emerge until later, and so was not a factor in making the offer to Dr. Azarova on 11 August.
● The Dean contradicted himself on whether the end of September was a hard deadline, telling Mr. Cromwell that he would have been satisfied to find a [Canadian] candidate who could be hired by the end of September or sometime in the fall. Yet, the immigration lawyer had advised that Dr. Azarova would have a work permit sometime in the fall.
● As the Cromwell Report recognizes, Dr. Azarova did not actually have to be in Toronto until the start of 2021, when she would begin teaching.
Availability of Qualified Canadians or Permanent Residents
The search process prioritized Canadian citizens and permanent residents at every stage in hope of hiring a qualified Canadian. Nevertheless, Dr. Azarova emerged through consensus as the clear preferred candidate; the second choice was also a non-citizen. Two members of the selection committee claimed there was a consensus that it would be a failed search if neither were available. The Dean was aware of this view. The Assistant Dean told Mr. Cromwell that she did not recall this consensus decision.
The University did not rely on any of the following grounds to defend its decision to terminate the hiring of Dr. Azarova:
· Dr. Azarova asked to be away from the law school for part of the summer
· Dr. Azarova’s scholarship on Israel’s occupation of the Palestinian territories under international law made her unfit for the job
· Dr. Azarova was too ‘academic’ to be a committed Director of the IHRP
· Dr. Azarova was not admitted to the bar in Ontario
Q: Is a view that the former Dean of Law was influenced by external pressure the same as calling him a liar?
A: No. A person can honestly and sincerely believe they were not influenced by a given factor, and yet be mistaken. This is a basic insight that informs unconscious bias training – we are not always conscious of our own biases. We are not always conscious of the forces that shape our responses and reactions, especially when incentives point us in one direction more than another. Our own motives may sometimes be opaque to us. This means that we cannot take a sincere belief that one is not influenced as definitive proof of the actual absence of influence. One may honestly say “I was not influenced” even where the evidence leads to the opposite conclusion.
Q: Was the termination of Dr. Azarova’s hiring a breach of academic freedom and/or freedom of expression?
A: Yes. At the University of Toronto, the protections of freedom of speech and freedom of expression apply to all members of the University community. That extends to the Directorship of the IHRP. This protection extends to prospective hires, and not just those already employed by the University.
CAUT censured the University over the Azarova de-hiring because it concluded that academic freedom had been violated. The external party’s objection to the appointment of Dr. Azarova was that, in her scholarship, she has been critical of Israel’s treatment of Palestinians in the West Bank. The termination of the hiring process on the basis of this objection was thus “politically motivated” and amounted to an interference with academic freedom (CAUT April 22: CAUT Council imposes rare censure against University of Toronto over Azarova hiring controversy | CAUT).
At the heart of this controversy is the behind-the-scenes role of donors in university decision-making, and the implications for academic freedom. This is not a new issue at the University of Toronto. In 2000, a pharmaceutical company and major donor persuaded the university to terminate the appointment of Dr. David Healey, a psychiatrist whose academic research questioned the safety of an antidepressant marketed by that company. In the current case, Justice Spiro’s intervention was instigated by the Centre for Israel and Jewish Advocacy (CIJA), a pro-Israel advocacy organization. This kind of external interference must be challenged, no matter who the donor is or what their reasons are.
A donor raised objections about the ‘politics’ of Dr. Azarova’s scholarship, namely her criticism of Israel’s occupation of Palestinian territories. Dr. Azarova was referred to as a “major anti-Israel activist” (Cromwell: 32) for advocating for Palestinian human rights on the basis of international human rights and humanitarian law. There is a documented pattern of discrimination against Palestinian scholars, and those who advocate for Palestinian human rights, on university campuses in Canada, the US and Europe (see for example Jon Thompson, No Debate, 2011; Susan G. Drummond, Unthinkable Thoughts, 2013; Steven Salaita, Uncivil Rights, 2015; and Masha Gessen, “Did a University of Toronto Donor Block the Hiring of a Scholar for her Writing on Palestine?”, New Yorker, May 8, 2021 Did a University of Toronto Donor Block the Hiring of a Scholar for Her Writing on Palestine?).
Q: Does the protection of academic freedom and/or freedom of expression apply to prospective hires?
A: Yes. Mr. Cromwell focused, as did the University, on the protection of academic freedom in the Memorandum of Agreement (MOA) between the University and the faculty association (UTFA) which applies only to UTFA members (academics and librarians), and protects the academic freedom of those UTFA members. This overlooks the equally fundamental principle of freedom of expression. Mr. Cromwell had an obligation to look beyond the MOA and to determine whether any policies relating to “freedom of speech” or “freedom of expression” were applicable and whether they were violated. (See MacIntosh ‘Appendix’ for a representative sample of relevant policies).
Governing Council’s “Statement on Freedom of Expression” confers the protection of freedom of speech and freedom of expression on every member of the University community – and even on non-members such as visitors, guests, and those renting space at the University.
Governing Council’s “Statement on Equity, Diversity, and Excellence” also includes freedom of speech under its banner, and extends to all University policies, procedures, and decisions. It thus includes hiring decisions within its purview. The University’s internal hiring “Toolkit”, discussed in the Cromwell Report, explicitly incorporates by reference all University policies dealing with freedom of speech, freedom of expression, equity, and diversity.
It would make a mockery of broad-textured doctrines such as freedom of speech and expression, equity, and diversity if these doctrines were to apply only after hiring, and not in the hiring process itself. Governing Council’s “Statement on Freedom of Speech” states:
“The existence of an institution where unorthodox ideas, alternative modes of thinking and living, and radical prescriptions for social ills can be debated contributes immensely to social and political change and the advancement of human rights both inside and outside the University. Often this debate may generate controversy and disputes among members of the University and of the wider community. In such cases, the University’s primary obligation is to protect the free speech of all involved. The University must allow the fullest range of debate. It should not limit that debate by preordaining conclusions, or punishing or inhibiting the reasonable exercise of free speech.”
These lofty goals obviously cannot be achieved if non-merit-based biases are allowed to operate in the hiring process.
Q: Does it make a difference that the IHRP Director is not an academic position?
A: No. There are two main reasons why academic freedom applies to non-academic positions such as the Director of the IHRP.
First, Governing Council’s “Statement on Freedom of Speech” and a variety of allied documents guarantee freedom of speech and freedom of expression to “all members of the University”, not just those holding academic appointments. The Statement of Institutional Purpose also applies to all members of the University, and declares the following:
”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.”
Article 5 of the Memorandum of Agreement between the University of Toronto and University of Toronto Faculty Association contains similar protections for its members (Faculty and Librarians).
Second, in professional school settings, clinics perform many important teaching and mentoring functions. Though the directors themselves are not tenure-track faculty members, their day-to-day work intersects squarely with the academic, pedagogic, student-facing function of the university. This work goes to the heart of the academic enterprise, and requires analogous academic freedom protections. A model at one U of T professional school that recognizes the academic freedom of clinic directors is the Medical School’s “Clinical Faculty Academic Appointments” typology of clinical leaders.
CAUT policy recognizes that where a staff member in an administrative or managerial position is performing functions to which academic freedom attaches (teaching, researching, writing), the rationale and the protection for academic freedom applies. The Director of the IHRP engages in teaching and supervising students, legal research, and writing. It should be apparent that the nature of international human rights is often controversial, making academic freedom protections all the more crucial for the IHRP Director.
Q: If academic freedom did not apply, does that suggest that it is OK for donors to influence the hiring of a candidate for the Director of the IHRP?
A: No. As quoted in the Cromwell Report (p. 6) the Administration concedes that external influence would be highly improper in any event: “University leadership and [the Dean] would never allow outside pressure to be a factor in a hiring decision.”
Q: Does it matter whether or not the University had entered into a formalized contract with Dr. Azarova when the Dean terminated the hiring process?
A: No. Mr. Cromwell concluded that there was no formal offer and acceptance at the time of the termination of the hiring process. His legal analysis might be contested. In any case, though a formal contract would certainly affect any private civil claim that Dr. Azarova might wish to make against the University for breach of contract, it would not in any way affect the application of the principles of academic freedom, freedom of expression, and non-discrimination.
The Cromwell Report states, “it was also clear that the University wanted to hire the Preferred Candidate and that she wanted the position.” Thus, absent outside interference, in the normal course of events Dr. Azarova would have been extended a formal offer of employment. Indeed, the Assistant Dean was of the view that this would happen following her meeting with the Dean on September 8.
In short, a termination of “advanced negotiations” by the University on the basis of outside influence is no less egregious, from the point of view of an interference with fundamental principles of anti-discrimination and academic freedom/freedom of expression, than the termination of an already concluded contract.
For a more comprehensive answer, see here.
Q: Was the academic freedom of the faculty member on the Selection Committee breached in this case?
A: Yes. Recall that the hiring process involved a selection committee, one of whom was a tenured faculty member. The selection committee was formed pursuant to university commitments to collegial decision-making processes. That committee examined each application, reviewed all relevant scholarly writing, and made an assessment of the candidates. While one member of that committee was the Assistant Dean (an administrator who reports to the Dean), the other two were a tenured professor and a research fellow at the IHRP, whose work involves the very things to which academic freedom traditionally attaches (research, writing, teaching). The committee members exercised their own academic freedom in the course of unanimously identifying Dr. Azarova as the best candidate from the roster of applicants. For the then-Dean to abruptly subvert the selection committee violates those committee members’ academic freedom.
Q: What did Cromwell say about confidentiality and privacy and why is it a problem?
A: This question is thoroughly addressed in the memo by Prof. Ariel Katz (see “Resources” below). Here is a short answer. Cromwell identified and equated two distinct types of confidentiality and privacy breaches. The first involved breaches that occurred during the hiring process to individuals and organization who sought to thwart Dr. Azarova’s appointment. These breaches included disclosure of Dr. Azarova’s candidacy by an unnamed faculty within University of Toronto to unnamed outside actors who disclosed Dr. Azarova’s candidacy to the Centre for Israel and Jewish Affairs (CIJA), who then solicited Justice Spiro to intervene, as well as the disclosure of Dr. Azarova’s identity and the status of the appointment process by the Assistant Dean of the Faculty of Law to the advancement officers who inquired on behalf of Justice Spiro.
The second was the disclosure of concerns about irregularities in the process by members of the IHRP Director selection committee after the Dean decided to terminate the hiring process. One member disclosed first-hand knowledge to members of the faculty advisory committee, former directors and directors of the IHRP alumni committee in order to seek guidance. That member also disclosed first-hand knowledge regarding donor intervention when asked for information by a handful of Law faculty who had heard about the incident through other sources. After the controversy erupted in the media, the other member disclosed specific information on social media that contradicted public statements by University administration about whether an offer had been made to Dr. Azarova.
Mr. Cromwell erroneously treats both types of disclosure as problematic. The first set of disclosures infringed the privacy of Dr. Azarova because they disclosed her personal information (her identity and the fact that she was a candidate) to individuals and organizations who were not authorized to receive it, and they also breached the confidentiality of the hiring process for purposes of derailing it.
The second disclosure occurred after the Dean decided to terminate the hire of Dr. Azarova and, in the social media case, after the entire hiring process was halted. These did not infringe Dr. Azarova’s privacy because she had consented to those disclosures. They did not constitute breach of confidentiality because they occurred after confidentiality had already been breached and because they addressed the original and damaging breaches of confidentiality entailed by the donor’s intervention that led to the termination of the offer. While Mr. Cromwell regards both types of disclosure as improper, the law does not. As a matter of law, the first set of disclosure was clearly improper while the second was clearly proper.
Mr. Cromwell recommends that the University formulate and disseminate policies and guidelines around confidentiality, which seems like a good idea in principle. However, he also recommends that members of selection committees be required to sign undertakings of confidentiality and under no circumstances may they share details of a recruitment process with anyone not directly involved (except for the purposes of checking references or obtaining necessary legal advice).
This recommendation is overbroad and fails to distinguish between justified and unjustified disclosure. It would preclude members of an appointments committee from ever raising concerns about a hiring process, and thereby deter accountability. As Ariel Katz points out: “Implementing this recommendation will not only be against the public interest, but it will also render hollow the University Statement on Freedom of Speech, which includes the right to criticize the University. How can one criticize the University without disclosing the details that underly the criticism?”
The President has embraced all the recommendations contained in Mr. Cromwell’s Report.
Q: Were University policies about collegial governance undermined by the hiring process?
Norms of collegial governance
Mr. Cromwell was asked to determine “Whether existing University policies and procedures were followed in this search, including those relating to academic freedom, if applicable…”
Despite noting in his report that “collegial governance is one of the four principles to which the University is committed”, Mr. Cromwell nonetheless concludes that collegial governance “is a broad and important subject that is far beyond my Terms of Reference.” In fact, collegial governance is a bedrock principle of the University of Toronto.
The Governing Council’s “Statement of Institutional Purpose” (“SIP”) states that the University is committed to four principles. One of these is “collegial governance”.
Likewise, the Memorandum of Agreement between Governing Council of the University of Toronto and the University of Toronto Faculty Association (2016) commits “to promote and maintain harmonious collegial relationships within the University of Toronto, and to provide a mutually acceptable means of settling differences”. It also declares “faculty members shall deal fairly and ethically with their colleagues, shall objectively assess the performance of their colleagues, shall avoid discrimination, shall not infringe their colleagues’ academic freedom, and shall observe appropriate principles of confidentiality”.
Norms of collegial governance were breached in the present case in the following ways:
• the Dean of Law failed to engage collegially with the selection committee
• the Dean of Law actively avoided discussion with concerned colleagues (some of whom voiced concerns and subsequently resigned their committee positions) and with knowledgeable actors within the University who possessed specific expertise in employment law and immigration law
• the decision was made by the Dean over two days of a holiday weekend, (immediately following the Donor’s intervention), after playing no role in a four-month search process that sifted through over 140 applications, drew up a long and short list, and conducted a dozen interviews.
Despite ample reason to find that norms of collegiality were violated, Mr. Cromwell’s decision to treat collegiality as outside his mandate led him to deal with this issue only obliquely. Although he noted that “where a decision-maker feels unable to accept the recommendation of a selection committee, the principle of collegial governance supports full consultation and discussion before a final decision is made” he failed to apply this insight to the facts surrounding this hiring decision.
For a more comprehensive response to this question, see here.
Q: Is CAUT exceeding its mandate by imposing a censure on U of T?
A: No. The Canadian Association of University Teachers (CAUT) has a responsibility to attend to issues of academic freedom and collegial governance, and has done so across Canada since it was founded in 1951. This is only the third time in its history that a decision to censure has been adopted. Censure proceedings have been commenced in other cases, but the affected universities and CAUT were able to arrive at a negotiated resolution to avert a censure. CAUT represents 68,000 academic staff at 122 universities and colleges across Canada (https://www.caut.ca/about-us/history-of-caut). The CAUT Council came to the unusual and rare decision to impose censure after a lengthy process of review and consideration. CAUT’s decision was unanimous (with one abstention, UTFA).
“When reviewing all the evidence, CAUT Council delegates concluded that the decision to cancel Dr. Valentina Azarova’s hiring was politically motivated, and as such constitutes a serious breach of widely recognized principles of academic freedom,” says CAUT Executive Director David Robinson. The hiring process was abruptly aborted following concerns raised by a sitting judge over Dr. Azarova’s academic work on human rights in Israel and Palestine. Facing mounting criticism, the University of Toronto commissioned an external review undertaken by Justice Thomas A. Cromwell, but whose mandate did not include determining credibility or plausibility (CAUT April 22: CAUT Council imposes rare censure against University of Toronto over Azarova hiring controversy | CAUT).
Q: What is the role of the University of Toronto Faculty Association (UTFA) in the dispute in the Law School?
A: UTFA is a member of the Canadian Association of University Teachers (CAUT). It abstained on the CAUT Council original vote, but like all members of CAUT, it is bound by the motion of censure. For further information, see UTFA’s CAUT Censure: Frequently Asked Questions
Q: What is the relevance of Dr. Azarova’s research on Israel/Palestine?
A: The Dean of the Law School suddenly intervened in, and terminated, Dr. Azarova’s hiring after a sitting judge and prominent alumnus (Justice Spiro) objected to Dr. Azarova based on her scholarship addressing Israel/Palestine (Cromwell: 32-33). The key issue in this case is that attention was focussed on Dr. Azarova’s political beliefs, as expressed in scholarly publications about Israel’s occupation of Palestinian territories under international human rights and humanitarian law. It should be obvious that human rights defenders often and even inevitably take positions that challenge existing uses and abuses of power. Recognition of Palestinian human rights, which are extensively addressed in international human rights law and policy, is no exception.
Q: How has the issue of antisemitism entered the hiring process?
A: Outside actors have publicly accused Dr. Azarova of antisemitism in their attempt to discredit her qualifications, experience and scholarship. Mr. Cromwell declined to specify the precise content of the objections raised by the donor.
Numerous submissions rejected this accusation of antisemitism, and objected to the misuse of the term (Independent Jewish Voices Canada, “Rights Group File Complaint Against Sitting Judge Accused of Meddling in U of T Hiring, Cite Anti-Palestinian Racism”, 2020 https://www.ijvcanada.org/rights-groups-file-complaint-against-sitting-judge-accused-of-meddling-in-uoft-hiring-cite-anti-palestinian-racism/). Also, concerns have been raised that, given this confluence of circumstances, support for the censure risks perpetuating anti-semitic tropes about Jews, wealth, and power. The perpetuation of anti-semitic tropes obviously needs to be strenuously opposed. The CAUT censure, however, in no way perpetuates such tropes. The focus of attention must be on how the university deals with and discourages attempts by any donor to influence decisions that impair academic freedom, engage discrimination, and undermine collegial governance.
There is a vigorous international debate regarding antisemitism and criticism of the State of Israel – at the United Nations, in Canada, in Ontario, in Toronto and among faculty, students and staff at the University of Toronto. The debate will not and cannot be settled through interventions that challenge the collegial governance process regarding searches that is central to academic freedom and integrity.
In his Report, Mr. Cromwell states that Dr. Azarova,
”was the strong, unanimous and enthusiastic first choice of the selection committee after an international search resulting in over 140 applications and after two interviews and conversations with references. Moreover, no decision-maker in the University has at any point to my knowledge justified or attempted to support the decision not to proceed with [Dr. Azarova’s] recruitment on the basis of the candidate’s qualifications. In short, the selection committee found that she was highly qualified and the University has never suggested otherwise.”
That should be the end of the matter.
Q: Mr. Cromwell gave a keynote address at a CIJA conference in the middle of conducting his review (in February 2021). Why is this a problem?
A: Mr. Cromwell was appointed as an impartial reviewer. This required that he actually be impartial, in the sense of having no interest in the outcome, and also that he appear impartial to a reasonable outside observer. Both the reality and the perception of impartiality are necessary to maintain the confidence of participants and the public in the process. Mr. Cromwell delivered a keynote lecture to CIJA after he knew that CIJA had acquired confidential information about Dr. Azarova’s hiring, and had solicited Justice Spiro to use his donor relationship to thwart the hire. Mr. Cromwell provided a (paid or unpaid) service to a party that played a significant role in the events he was in the midst of reviewing. Choosing to deliver a lecture to CIJA in these circumstances — whatever the content of the lecture — undermines the appearance of neutrality that is vital to impartiality.
The law school student newspaper, Ultra Vires, maintains a resources page that includes most of the relevant publicly available documents: http://ultravires.ca/2020/09/ihrp-director-hiring-controversy-resource-page/
MacIntosh, ‘Some Reflections on the Cromwell Report’