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:
- limiting expression by students about the university
- limiting expression by individuals (including non-students) about matters under discussion within a university
- 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,
 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.