In Defence of “Safe Spaces” on Campus

A university student walks on to campus, wearing a hat that appears to support Donald Trump. Controversy ensues. Oh yeah, the campus was in Canada.

The video of the incident attracted far broader attention, including renewed discussions of the role of “safe spaces” on campus. The debate in Canada followed right after a similar discussion at the University of Chicago, where the Dean of Students told the incoming class of 2020,

We do not support so-called ‘trigger warnings,’ we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with our own.

Although the use of safe spaces were initially created to help protect vulnerable LGBTQ students from vitriol from other students, and provide them with a supportive environment to help assist broader hostility, its use has expanded beyond that to others as well. The cancellation the Dean was referring to was a speaker who many students at Williams College considered racist, and subsequently had his invitation to speak their cancelled.

In contrast, the President of Northwestern University has come out in support of Safe Spaces, specifically citing student diversity and recognizing their learning needs, stating,

The irony, it seems, is that the best hope we have of creating an inclusive community is to first create spaces where members of each group feel safe.

After the firestorm, University of Chicago staff clarified that the use of this word was intended for “intellectual safe spaces alone,” and they will still continue their Safe Space program. It seems that at University of Chicago, some members of the educational environment will be able to retreat from some ideas to feel safe, even in the interest of fostering of ideas in the campus as a whole.

In Canada, there is currently a judicial review underway over the Ryerson Students Union’s decision to deny club status to the “Men’s Issues Awareness Society.” Other Canadian universities have previously made comparable decisions on men’s groups.

The RSU concern with some of these men’s groups is that they might “certain speakers and events could cause an unsafe learning environment for woman-identified students,” as well as that they lacked “proper safety measures to prevent the group from spinning out of control.”

Presumably there would be similar concerns about starting a heterosexual club, or a “white pride” club on campus. These things can actually happen. An anonymous group of students at Western University recently created a Western White Student Union on Facebook, but have refused to provide their identify or seek club status. One could say they did not feel safe in identifying themselves.

But Donald Trump isn’t a white pride leader, even if those who are inclined in that direct may lean in his direction. So what is the status of Canadian law on this issue?

Earlier this year, the British Columbia Court of Appeal ruled in BC Civil Liberties Association v. University of Victoria, dealing with a pro‑life student club, Youth Protecting Youth (“YPY”), who were denied a permit to host an event on campus. The trial judge reviewed the university’s policies in considering the applicants’ request for a declaration that their Charter rights were denied, but concluded that s. 32 was not engaged and Charter rights were not engaged.

That’s not to say that Charter rights don’t exist at all in universities. Michael Marin argues in Should the Charter Apply to Universities that the nexus between government and education institutions has changed from previous cases which excluded them entirely from the Charter.

Dwight Newman explores s. 2(b) rights specifically in Application of the Charter to Universities’ Limitation of Expression, and states, “The university context has remained subject to contestation over recent years.”

Newman provides several categories of where expression-limiting actions could be subject to the Charter:

  1. limiting expression by students about the university
  2. limiting expression by individuals (including non-students) about matters under discussion within a university
  3. challenging academic judgments around evaluation of student work

The first of these is best illustrated by Pridgen v. University of Calgary, where students were disciplined for criticizing a professor.

The second might include restrictions on the dissemination of literature that others might object to, as in R. v. Whatcott, or in Wilson v. University of Calgary. The use of “safe spaces,” or even denial of student group activity, might fall into this category, except these two cases might be limited given they involved a review of expression rights in light of criminal charges or academic penalties, not the denial of permits.

The third is illustrated by cases like Alghaithy v. Ottawa University and Maughan v. University of British Columbia, usually involving student evaluation or academic progress that does not meet professional standards.

In BC Civil Liberties Association v. University of Victoria, the Court of Appeal distinguished the case from Pridgen because it arose out of a disciplinary matter out of a specific statutory context which provided judicial review. The activity in Pridgen was akin to statutory compulsion, and therefore was required to be Charter compliant.

Instead, the court found that in Alberta at least s. 32 of the Charter was not engaged under these fact set,

[25] Can it be said that when the University of Victoria exercises its particular statutory power, pursuant to s. 27 of the University Act, to regulate, prohibit or impose requirements in relation to activities and events on its property, it is acting in furtherance of a specific government policy or program? That argument must be considered in light of the decision in Harrison. There, the impugned decision was the enactment of a mandatory retirement policy respecting the members of the University of British Columbia faculty and administrative staff. As Wilson J. pointed out, in dissent, the mandatory retirement policy was enacted by the university’s Board pursuant to s. 27(f) of the University Act. That fact alone, the fact that the university was specifically empowered to undertake the impugned decision by statute, was considered by the majority to be insufficient to bring the Charter to bear on the decision. The simple fact, in the case at bar, that the Policy can be said to have been adopted pursuant to s. 27 of the University Act, does not permit students to invoke the Charter in an attempt to quash the policy.

Under a different statutory regime, in a different province, or in reviewing a different activity by the university, the Charter certainly could apply. However, in Lobo v. Carleton University, the Ontario Court of Appeal similarly concluded there was no s. 32 engagement, but this might have been more a product of how the action was plead. The interesting fact about this case is that the court held when there is space booked for non-academic extra-curricular use, there is no implementation of a particular government policy or program.

So how should universities approach with balancing competing interests on campus, ensuring their activities are as compliant with the Charter as possible? As I suggested recently in National Magazine, the best guide might be the Charter itself.

That may mean dealing with some groups differently than others, such as under s. 15(2). It might mean recognizing under. s. 1 that not all groups contribute in the same meaningful way to intellectual debates, and this is a reasonable restriction in a free and democratic society. It does not mean that universities should ignore entirely the content of the expression which occurs on their campuses, and these minimal restrictions need not approach the type of conduct that was observed in Whatcott or Wilson.

At least one study, at the elementary school level in Ontario, suggests that greater levels of immigrant populations usually resulted in lower levels of behavioural problems like bullying or being bullied. The creation of Safe Spaces, and regulating at least some of the expression that occurs on campuses, is directly related to educational results of students. In the same way that the Court has found infringements on the free marketplace of the ideas justifiable in some contexts, universities should be aware that intellectual bullying is frequently used by majoritarian groups on campuses to squelch dissent of the minority views. The open and inquisitive discourse touted by expression champions is not touted equally, and does not recognize that all participants, in this case students, have the same voice.

The student groups are not left without any recourse at all. They may have the ability to carefully tailor their groups and activities to meet university requirements and policies. But that also means the control that universities apply on them will be subject to greater scrutiny. Cooperation may in fact be to their advantage, in particular if it engages a government-related activity the university is providing.

In concluding that the Charter was not engaged in BC Civil Liberties Association v. University of Victoria, the court applied the criteria from Eldridge. Simply because an entity performs a public function doesn’t necessarily bring it under s. 32. Charter scrutiny comes with activity that can be ascribed to the government, not by the actor, but by the action. On that basis the court concluded at para 32 that there was no assumed or retained responsibility to maintain a public forum for free expression.

In other words, under Canadian law we cannot always assume that the main purpose for a university is to promote free and unbridled expression. If that’s our starting position, the entire discussion over “safe spaces” starts in an entirely different place.



  1. “In other words, under Canadian law we cannot always assume that the main purpose for a university is to promote free and unbridled expression.”

    I think you mistate the problem. The problem is assuming that Canadian law shapes the purpose of universities. Given that many Canadian universities predate the existence of Canada (UofT, Queens, McGill), almost all predate the Charter, and they all draw on a history of universities that long pre-date modernity, it seems ill-founded to look for the purpose of universities in Canadian law.

    Moreover, in that long history, universities long-existed to provide scholars with immunity from the illiberal laws of an earlier era. They were bastions of free inquiry (of which free speech is only one neccesary pre-condition) in a largely unfree world. The Charter establishes the minimum set of rights that governments must respect, it doesn’t say that we can’t expect that they (and the non-governmental institutions they fund) go above and beyond their bare minimum legal requirements. The perverse irony now is that one generally has more freedom to speak in the broader Canadian world than one has on Canadian university campuses. That should give us pause.

    With respect to “safe space” specifically. I wonder what the debate would have been like at the University of Calgary had that confrontation involved a student wearing a “Black Lives Matter” hat instead of a Trump hat? No doubt “safe space” would have been invoked, but I suspect in defense of the right of the student to wear a “Black Lives Matter” hat without being confronted and harassed for doing so. Indeed, my reaction in viewing the initial confrontation was to ask myself which of the two parties’ “safe space” is being violated? Does safe space mean that you can’t wear the hat you want, because it offends me? Or does it mean that I can’t come up and start yelling at you for wearing a hat that offends me? Both? Clearly as it was being used in the “Trump hat” confrontation, “safe space” was not understood as involving reciprocal obligations. Certainly the use of “safe space” now (as opposed to when it first originate) often has a “head’s I win, tails you lose” aspect to it .

    And it’s precisely the non-neutrality of university restrictions on speech that is offensive. The people who assert the need to censor speech would never tolerate the same restrictions if they were imposed on them. I mean, how ironic is it that you cite restrictions on speech as being justified by concerns over majoritarian bullying – I mean, geeze, is that not exactly the complaint against universities in the various disputes over pro-life clubs. Does anyone seriously suggest that the pro-life clubs on various university campuses reflect a majoritarian view on campus, rather than a small dissenting (and, usually, not particularly popular) minority? If so universities are VERY different places than when I attended. If majoritarian bullying is a concern – and it should be – it seems obvious that the ability to limit free speech is a much more serious concern since it allows majoritarian bullying through coercion rather than simply speech.

  2. Bob,

    Here’s what the court in the BC Civil Liberties Association v. University of Victoria stated:

    [32] Applying the criteria Eldridge suggests we must use, I cannot find the specific impugned acts of the University of Victoria to be governmental in nature. The government neither assumed nor retained any express responsibility for the provision of a public forum for free expression on university campuses. The Legislature has not enacted a provision of the sort adopted in the United Kingdom, s. 43(1) of the Education (No. 2) Act 1986 (UK), c. 61, which imposes an obligation on universities and colleges to:

    … take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment, and for visiting speakers.

    [33] The University Act, by contrast, does not describe a specific governmental program or policy which might have been affected by the impugned decisions and there was no evidence before the judge of any legislation or policy that does so. There is no basis upon which it can be said on the evidence that when the University regulated the use of space on the campus it was implementing a government policy or program.

    It seems that the court here specifically put its mind to the purposes of universities, including the statutory context outside of the Charter.

    Although all educational institutions have a history of centers of inquiry, it would be incorrect to simplify that by saying they were bastions of thought against previous illiberal eras. In many circumstances, the ideological roots and the justification for discriminatory conduct, racism, xenophobia and even genocide, started and was formented in bastions of “higher” learning.

    Universities today are indeed very different places than when we attended them, as Marin concludes,

    Although universities may profess to be independent from government, they have become important instruments of government policy, for which they are directly accountable. The Supreme Court’s plurality judgment in McKinney exempting universities from the Charter should no longer be followed. It represents outdated concerns about institutional autonomy, and pertained to an essentially private contractual relationship. As recent case law demonstrates, the strict application of McKinney to circumstances that implicate freedom of expression is problematic in terms of judicial policy. In an era in which all public bodies are expected to respect constitutional values, the treatment of universities as Charter-free zones is both indefensible and risks bringing the administration of justice into disrepute.

    Simply stating that the Charter may now apply to universities doesn’t necessarily mean that expression will be infringed. As Newman illustrates, in some circumstances it will serve to protect further expression.

    But when comparing some expression against others, or as you point out, differential treatment to some form of expression versus another, Charter rights and values may help navigate this terrain.

    The argument for white pride or white culture groups on campus stems from the existence of a multitude of other groups reflecting various cultures and ethnicities. This argument is almost always rejected, as we have an understanding that majoritarian culture already reflects established patterns of dominance. The creation of specific clubs, programs or activities, to support these minority groups is justifiable in this context, and already mirrors the exception found in s. 15.

    Similarly, expression which seeks to further exclude marginalized minorities may attract greater scrutiny than expression which is more closely aligned with values in the Charter itself. What we also know, and what the Northwestern Dean was illustrating, is that creating greater inclusivity on campus for historically marginalized groups creates a better educational environment and more learning opportunities for everyone.

    If that’s not enough, the example that I always use to some of my more libertarian students is the example of ISIS recruitment. If we actually believed in pure and unbridled expression on campuses, we would have no objection to playing ISIS recruitment videos on campus televisions, allowing individuals to distribute recruitment literature, and hosting forums where they could disseminate ideology.

    In this context even these students seem to conclude that the risk of allowing this expression is indefensible, and that competing expression challenging their ideas would be ineffective and unsuccessful in dissuading many individuals from joining them. Even in a free and democratic society we understand that there are reasonable restrictions on expression, even in places where expression and inquiry are used for the purposes of learning.

  3. “Although all educational institutions have a history of centers of inquiry, it would be incorrect to simplify that by saying they were bastions of thought against previous illiberal eras. ”

    It would be incorrect to say that. But I didn’t. I said they were bastions of free inquiry, in a world where such inquiry was generally not free. They were. That “free inquiry” may have given space to racist or prejudiced thoughts, it also lead to science, liberalism and, ultimately the emergence of a rejection of illiberal thought. It seems perverse to embrace the end result of that process, but say “Ok, but no more”.

    “The argument for white pride or white culture groups on campus stems from the existence of a multitude of other groups reflecting various cultures and ethnicities. This argument is almost always rejected, as we have an understanding that majoritarian culture already reflects established patterns of dominance. The creation of specific clubs, programs or activities, to support these minority groups is justifiable in this context, and already mirrors the exception found in s. 15.”

    This is something of a non-sequitur, since there are few serious arguments for “white pride” or “white culture” groups. The examples of groups that have been contested almost never represent the “majoritarian culture” on campus – as I noted earlier, one would be hard pressed to argue with a straight face that the “pro-life clubs” at places like Carleton or Calgary reflect that majoritarian cultures of those universities (or of the broader Canadian society), they palpably do not. Rather it is the majoritarian culture on those campus use the traditional tools of majority power (elected student governments, for example) to silence what is an unpopular minority. That this is typically done in the name of “diversity” reflects the increasingly Orwellian abuse of language on university campuses

    Moreover, I’m greatly disturbed by the notion that you believe the existence of “minority” clubs needs to be justified under section 15(2). Surely the creation of clubs of any kind whatsoever reflects the charter values enshrined in our section 2(d) freedom of association. It seems perverse to justify the existence of clubs based on a provision that allows (in limited circumstance) positive government discrimination, when the right to form such clubs is positively affirmed elsewhere in the Charter. The right to form a club of any sort – without government approval – is a core Charter right and, presumably, a core Charter value. But apparently the section 2 charter values are not the ones that Canada’s universities are keen to adopt.

    ” Even in a free and democratic society we understand that there are reasonable restrictions on expression, even in places where expression and inquiry are used for the purposes of learning.”

    Indeed, we have. But, I note that the court has held that restrictions on free expression can only be justified in the most extreme of cases – e.g., the Whatcott type cases. To suggest that that reasoning would extend to a banning a “men’s awareness society” and is simply not supported by the Canadian caselaw and does a great deal of violence to the jurisprudence around section 2(b). (As an aside, I doubt you would object to forming a club for any other group whose members were (i) more likely to be imprisoned, (ii) more likely to die younger, (iii) more likely to be victims of violence, (iv) less likely to attend university, (v) more likely to commit suicide, and (vi) more likely to drop out of high school than the rest of society, why such a club becomes an issue when the group in question are men, I think raises some serious questions).

  4. Bob,

    The bastions for “free inquiry” also repeatedly led to results that were contrary to illiberal thought. We can look at all of the educational institutions on the other side of every world war and see that (and actually, typically on both sides of every war). The universities actually provide the ideological backing for the broader state agenda, even if that agenda leads to horrible results, including invasion of other nations and genocide. The academics did not magically reign it in or become independently enlightened. It only actually changes after such nation is defeated, and there is a new state agenda.

    As for the restrictions in a free and democratic society, both Whatcott and Wilson as cited above pose a limit on the ability of universities, but largely because of the sanctions involved. The Whatcott case was based on criminal trespass. That’s not what we’re discussing here (usually). What I actually proposed is that these groups properly follow university policies to have the best chance of participating fully on campus.

    This includes any “males” group, especially if they focus on the marginalized nature of individuals within this group, and not advancing men’s “rights” as a whole. That’s why the current case with RSU is so interesting, and you’ll note I don’t take a position above with any finality

  5. Omar,

    Funny, I could make the exact same argument with respect to limitations on free inquiry – and the use of universities and state power to expel and suppress unpopular groups and dissenting opinion (and, aside, are you really holding up Nazi Germany as a bastion of free inquiry? Surely not). Saying “we’ll use it better” is not at all compelling – the road to hell is paved with good intentions. The difference is free-inquiry – if protected – allows for self-correction. Limitations on free inquiry tend to be self-reinforcing.

    I’m going to correct you on the Whotcott decision, it was not based on criminal trespass, it was based on the Saskatchewan Human Rights Code. Moreover, since university free speech limitations invariably involve the imposition of severe sanctions – the University of Calgary threatened to expel its anti-abortion protestors – that argument helps you not at all.

    Moreover, requiring students to follow university procedures is a decidedly odd approach for protecting minority groups (of any kind) – since the procedures are invariably defined by the powers that be at the university. That is a recipe for squelching unpopular groups and dissenting opinions – this should be obvious. And what do you do when university policies are used to suppress those dissenting opinions?

    And I’m curious at the notion that a groups entitlement to participate within the university community depends on the content of their message? Again, we come back to charter values, when it comes to values like freedom of association and freedom of expression, they’re content neutral – your rights don’t depend on what you have to say. And who decides whether a “men’s rights” group is sufficient focused on the “marginalized nature of individuals within the group” and not “advancing men’s “rights” as whole”? Indeed, I’d suggest that it’s not appropriate for universities to be determining that “advancing men’s “rights” (note, why the air quotes? Do men not have rights?)” is an illegitimate topic for discussion. Framing the debate as you have has already sharply limited the scope of free expression and association on university campuses

  6. Bob,

    I am holding up the notion that all forms of oppression in society, and especially in Western societies that champion unbridled free speech/expression, develop their ideological roots and gain support in academia. That’s not a surprise.

    Speech or expression by itself does not have its own merit without context. We look at the content, and the purpose, and there are decades of s. 2(b) litigation on this point now. As for who decides, ultimately there is review by the courts, but they are largely deferential to many institutional policies, especially with universities.

    The Whatcott decision I’m referring to, and the one referenced by Newman (see footnote 44), was indeed a criminal charge under Alberta’s Trespass to Premises Act. I wrote about the decision here when it was first released.

    A similar decision, based on a criminal conviction for littering on campus, was upheld in Saskatchewan.

    All of these decisions are mentioned by the court here in University of Victoria (see paras 7, 10), but his separate legal dispute with the Human Rights Commission is not. For our purposes here, it does not currently play a central role.

    The point of campus groups observing and following any university policies is that it places those policies themselves under scrutiny. If the policies are too restrictive, we may indeed see future decisions which find them to be unreasonable under s. 2(b).

    As mentioned, this is still a very uncertain and still evolving area of law. It’s for that reason that I made reference to the RSU case, and it should be an interesting one to observe.