My office door and the campus free speech crisis that never was

If you are reading this column, you probably know that the Government of Ontario has mandated that all postsecondary institutions in the province must have a free speech policy in place by January 1, 2019 – just a couple of weeks from now. So, let’s talk about free speech on campus. But first let me tell you about my office door.

I have one of those iconic office doors. You know the kind. Every university department has a couple of professors whose doors are plastered with flyers and clippings and stickers. In my department, that’s me. Visiting speakers sometimes photograph my office door. Colleagues send me stuff to post on it. Students go ahead and post stuff there themselves.

A couple of years ago, a senior high school student shyly knocked on my door and introduced herself to me. She’d been visiting my building every December throughout her high school years for an annual event, and apparently she had gotten into the habit of visiting my door to read the stuff on it. Over the years, she had found some of the feminist and LGBTQ-positive stuff on my door helpful. On this, her last visit, she wanted to meet the person behind the door. Another time a student from a nearby university came to talk to me because he had noticed on my door a comic strip poking gentle fun at libertarians. He wanted me to know that he thought I was wrong, but he also wanted to hear my side. I invited him in and we spent an hour cordially discussing the stuff we disagreed on but also some stuff we agreed on. I gave him my email address so that he could follow up if he wanted to.

All of this is to say: I wear my views on my sleeve and my sleeve is my office door. The stuff on my door provokes varied responses – both negative and positive – but no one at the university has ever interfered with what I post there.

I am telling you this because I think that my office door nicely emblematizes just how much free expression is valued on university campuses. Very few professionals outside of academe have office doors like mine. But doors like mine are a familiar feature of university academic buildings. That’s because we expect professors and students to tell us what they think, and we expect them to do it in ways that go beyond articles, books and lectures. Indeed, it is very difficult to imagine anyone with greater freedom of speech protections than university professors.

Free speech on campus extends well beyond the rights that all members of the public enjoy. University personnel have standard Charter protections, of course. That is, for professors as for anyone else, the state may not without good reason limit our expression. Unlike state colleges in the U.S., Canadian universities are not regarded as agents of the state. The question has come up in a number of court cases over the years, and Canadian judges have consistently found that universities are not agents of the state and therefore do not have Charter obligations toward their employees and students. So, like other non-state employers, universities have the right to limit their employees’ expression in various ways. (For example, a McDonald’s employee may be disciplined for recommending to customers that they go to Burger King instead. If McDonald’s were an agent of the state instead of a private organization, things would be more complicated.)

While they are thus not obliged by the Charter to do so, universities typically extend to their employees and students considerable freedom of expression. The reason that universities extend greater expressive freedom to their employees than McDonald’s does is that such freedom, while unnecessary for selling burgers, supports the scholarly mission of the university.

The founding document for my university is the University of Waterloo Act. The Act lists the “objects” of the university as “the pursuit of learning through scholarship, teaching and research within a spirit of free enquiry and expression.” Language of this type is pretty common in the founding documents of Canadian universities. And most universities have additional language reinforcing these objects in other policies and in collective agreements.

Since the extraordinary free expression enjoyed on university campuses is tied to the scholarly mission, it is the scholars themselves – professors and students – who have the greatest freedom of expression. Thus, there are often limits on how freely non-academic staff members and senior academic administrators (like deans and vice-presidents) can express themselves. The reason for this asymmetry is that while scholarship requires a spirit of free expression, administration often requires discretion and strategic, coordinated communication. (For a recent illustration of this, see the case of Robert Buckingham, formerly of University of Saskatchewan. Dr. Buckingham was fired from his position as dean for criticizing the university, but was quickly reinstated as a tenured professor because, unlike deans, professors have the right to publicly criticize their employers.)

For rank-and-file professors and students, though, expressive freedom is virtually unmatched anywhere else in society. As part of their academic freedom, professors have not only freedom in inquiry, but also the freedom to criticize their employer and the freedom to engage in full-throated extramural expression. Last April, I published a widely-read criticism of my university president’s approach to free speech. I was never subject to any discipline for having publicly called out my president in this way. Moreover, he and I remain on very good terms. There are very few sectors that work this way.

Likewise, as part of the freedom to learn (the student side of academic freedom), university students are free to publicly criticize their professors and institutions, and to engage in protest to a much greater degree than most people outside of universities are. Student protests are a regular occurrence on university campuses. Again, it is difficult to think of any other type of private institution besides universities where protest is so much a part of the normal order of things. This is all to the good. Critique is an important part of scholarship, and protest is one form that critique can take.

Despite the unparalleled expressive freedom enjoyed by university personnel, in recent years, the media and the public have grown increasingly credulous of the view that there is a free speech crisis on campus. There are two main reasons for this – one more sinister than the other.

The innocent reason is psychological. Human beings pay more attention to anecdotes than they do to other kinds of data, including statistical, and are more riveted by negative anecdotes than positive ones. For this reason, we tend to think that there is more violent crime than there is. Rather than attending to declining rates of violent crime, we fixate on the stories we read in the news about horrible crimes. Likewise, we pay more attention to periodic campus free speech violation stories than we do to the overall evidence that campus free speech is healthy and getting healthier.

Of course, with thousands of students, professors, courses, and campus speakers across the country, free speech violations occur from time to time. But these are outliers. Unfortunately, they are the only stories we hear about. A controversial speaker whose talk doesn’t get shut down doesn’t make for much of a headline. A few days ago, in a heroic and carefully documented Twitter thread, Acadia University politics lecturer Jeffrey Sachs highlighted the media silence on the many controversial campus talks that proceed without incident.

The more worrisome reason for the campus free speech panic is political machinations aimed at undercutting universities’ institutional autonomy. In recent years, the American Association of University Professors has tracked the role that the Goldwater Institute (a conservative and libertarian think tank) has played in constructing a campus free speech crisis in aid of so-called campus free speech legislation in state governments. As of March of this year, campus free speech legislation had been approved in nine states and introduced in seven more.

It isn’t clear at this point whether the Ontario government’s intervention is the product of guileless credulity in a crisis that doesn’t exist or whether it is the offspring of a more sinister parent. And it isn’t yet clear whether the policies that many Ontario universities are still scrambling to approve on time will have deleterious downstream effects on campus free expression, not to mention collegial governance and institutional autonomy. Much will hang on the implementation.

Over the coming weeks, as you wish people a Happy New Year, cross your fingers that the new campus free speech policies that take effect in 2019 will support rather than harm the robust free expression that has always been enjoyed at Ontario universities.