Court clips autonomy of universities

An Alberta judge ruled last week that universities are not entities deserving of independence and protection from the state, but rather that they are part of the state.

In her decision, involving a case where twin brothers challenged being punished by the University of Calgary for negative Facebook posts about an instructor, Justice Jo'Anne Strekaf ruled that the university violated the Charter right to free expression. The landmark decision may have legal precedence, but it will unnecessarily handicap universities when acting as universities.

As only Parliament and provincial legislatures are subject to the Charter, Strekaf has confirmed that at least some policies held and enforced by universities are on par with government legislation when certain Charter rights are concerned.

In 1990, a Supreme Court ruling concluded that, despite government regulation and funding, universities "control their own affairs and enjoy independence from government regarding all important internal matters." That ruling, long cited by universities accused of violating the Charter, did leave open the possibility that some university activities could be subject to Charter review.

Strekaf's contribution is, briefly, that when dealing with the hiring and firing of staff, universities are not government. With respect to students, however, universities educate them according to a government mandate and, therefore, are government.

While the university argued that its disciplinary policies are part of a private contract between the U of C and students, Strekaf concluded that those policies are too closely related to the school's educational mandate to not be considered government action.

Strekaf could have only ruled that the punishment (six months' probation) was excessive, or inconsistent with university policy, or that the students' comments were not defamatory, and left it at that. But no, the judge went all the way, and whittled Ivory Tower autonomy down to a pathetic nub.

As is often the case with rulings as significant as this, the facts are now irrelevant. That brothers Steven and Keith Pridgen started a Facebook group titled I no longer fear Hell, I took a course with Aruna Mitra, and that the university saw fit to punish them for it just seems so petty. (The Pridgens had taken a course with Mitra who was a U of C sessional instructor in 2007-08.)

Of course, universities, along with most bodies, be they public or private, already have to align their policies to labour codes and human rights legislation. In some cases these can be more intrusive than having university policy subject to Charter review.

The difference is that such legislation is intended to apply to everyone, and can be amended with an act of a legislature or Parliament, whereas the Charter, as part of the Constitution (the supreme law of the land) is intended to protect citizens from government and is nearly impossible to amend.

Unless we want to reimagine universities as state-owned rather than state-supported institutions, it makes little sense to rule that they are akin to government, particularly since public support for universities, as a proportion of operating funds, has been steadily declining, not rising.

If Strekaf's ruling holds, it will prove popular among any number of campus protest groups, and anti-abortion clubs in particular. Such groups have been denied campus space for their activities at schools across the country, and have even been arrested and charged with trespassing. They may now have a remedy.

While I am somewhat sympathetic to the idea of open universities, I can't see why an institution should not be able to control what happens on its campus. Or why they shouldn't have exclusive control over student discipline.

The principle of free expression protects the right of two parties to communicate on mutually agreeable terms absent the interference from a third party, the state. The Alberta ruling means that universities are now that third party and, as such, could be robbed of their own rights to keep unwanted expression off their campuses.

Anti-abortion groups are controversial, but perfectly mainstream. What about explicitly racist organizations that may tread close to the line of criminal hate speech without crossing it? Are they to be granted access to university space on the grounds that it is their Charter right?

University autonomy is necessary to ensure academic freedom and internally directed teaching mandates. We shouldn't sacrifice that simply because universities sometimes do things we don't like.

Carson Jerema is editor of Maclean's On Campus. carsonjerema@gmail.com

Republished from the Winnipeg Free Press print edition October 18, 2010 A12