July 10, 2019
By Linda McKay-Panos
Reposted from 43(6) LawNow with permission.
Recently, Ontario’s Premier Doug Ford passed a new policy that Ontario universities should adopt free-speech policies, or face receiving less money from the Government. The policies must meet “a minimum standard prescribed by government.” This means that “while members of the university/college are free to criticize and contest views expressed on campus, they may not obstruct or interfere with the freedom of others to express their views”. Universities must report on their progress in implementing the policy to the Higher Education Quality Council of Ontario. In addition to threatened funding cuts, students who do not comply with the policy will be subject to university discipline policies.
Other provinces, such as Alberta, have indicated they will consider whether the “Chicago Principles” should be applied to university campuses. Conservative Leader Andrew Scheer also indicated in his campaign that his government would include a similar free speech proposal.
The Chicago Principles are intended to “reflect the long-standing and distinctive values of the University of Chicago and [affirm] the importance of maintaining and, indeed, celebrating those values for the future”. Universities are encouraged not to suppress “offensive, unwise, immoral, or wrong-headed” ideas. Instead, members of the university community and the university itself should openly and forcefully contest the ideas they oppose. The Chicago Principles also recognize the U.S. law’s limitations on free speech:
The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. (Chicago Principles.)
Unlike most Canadian universities, the University of Chicago is a private research university and is not operated or funded by governments, but may be subject to government regulation.
Academic freedom and freedom of expression are not the same concept. How do they differ?
Freedom of expression is guaranteed under the Canadian Charter of Rights and Freedoms, but it is not clear whether the Charter applies to campuses;
Academic freedom in Canada is described as: “the right, without restriction by prescribed doctrine, to freedom to teach and discuss,” and the “freedom to express one’s opinion about the institution, its administration, and the system in which one works” (see: Paul Axelrod, “Academic Freedom: Can History be Our Guide?” (Axelrod)). Academic freedom policies apply to university campuses across Canada.
However, academic freedom and freedom of expression are not mutually exclusive. They are similar or related in these ways:
In Canada, there are limits on both concepts (neither is absolute):
Freedom of expression does not protect violence or threats of violence. It is limited by our Criminal Code hate speech laws, our provincial human rights codes’ hate/discriminatory speech provisions, and anti-defamation laws.
Academic freedom “is constrained by the professional standards of the relevant discipline and the responsibility of the institution to organize its academic mission” (Axelrod).
Alberta Court of Appeal Justice Marina Paperny, in Pridgen v University of Calgary, explained how these two concepts do not usually compete:
 Academic freedom and freedom of expression are inextricably linked. There is an obvious element of free expression in the protection of academic freedom, whether limited to the traditional conception of academic freedom as protecting the individual academic professional, or applied more broadly to promote discussion in the university community as a whole. Interestingly, the protection of free speech on campus is not universally seen as a threat to academic freedom.
… …Academic freedom and the guarantee of freedom of expression contained in the Charter are handmaidens to the same goals; the meaningful exchange of ideas, the promotion of learning, and the pursuit of knowledge. There is no apparent reason why they cannot comfortably co-exist. That said, if circumstances arise where these values actually collide, a [Charter] section 1 analysis would be required to properly balance them. …
While freedom of expression is an important value, it is only one tool that supports the main purpose of universities. That purpose is “to serve society by pursuing knowledge and advancing our understanding of the world in its many aspects. Universities exist not merely to communicate, but to try to get the story right” (see: Shannon Dea, “First dispatch: Academic freedom and the mission of the university” (Dea)). On the other hand, academic freedom is complex and may be defined as “a cluster of freedoms associated in various ways with various scholarly personnel and institutions. Freedom of expression is just one of those subsidiary freedoms” (Dea).
The freedom of expression and academic freedom issues that arise from Doug Ford’s policy are:
Does the difference between Canadian and U.S. law, and funding of universities practices, require that the policies be modified or implemented differently?
Can a provincial/federal government refuse to provide funding to a university that fails to adopt freedom of expression policies and practices that are approved?
First, there is a significant difference between the U.S. and Canada when it comes to free speech (freedom of expression). In the U.S., commitment to the First Amendment protections of free speech is almost limitless, and it could be said to almost supersede all other considerations (including academic freedom). In Canada, the rights and freedoms guaranteed by the Charter are subject to both internal limitations (e.g., freedom of expression does not protect violence) and the limitations of Charter section 1 (reasonable and justifiable in a free and democratic society). Applying Charter section 1 can involve balancing other rights with freedom of expression—such as the right to equality, which may be harmed by expression in some situations.
In Canada, universities and degree granting colleges receive most of their funding from governments and tuition fees. Conversely, in the U.S., universities and colleges receive funds from many sources, including states and the federal government. However, it does not appear that following the Chicago Principles is tied to the receipt of government funding.
Second, while the concept of freedom of expression at Canadian universities (if the Charter applies) would seemingly encourage broad debate that would seek to arrive at the “truth”, this debate should be done in a respectful and civil way that complies with Charter section 1. The “appropriate” topic of the expression should not be forced on universities by governments (which are subject to the Charter) by threatening their funding. Rather, open debate should be encouraged.
Finally, if an outside agency determines the university has not implemented and followed policies (like the Chicago Principles), threatening to cut funding ironically imposes on both freedom of expression and academic freedom. This would ultimately amount to government intervention into the autonomy of universities.