Open letter to President Rhonda Lenton and Senate Executive – Response to the Free Speech draft policy Reply

We, the undersigned senators, address in this communication our assessment of the proposed York University Statement of Policy on Free Speech submitted to Senate Executive by the York Working Group on Free Speech Policies. The proposed statement was included in the November Senate agenda package. We identify areas of strength and weakness and the changes we deem necessary to be able to vote in favour of this policy at December’s Senate meeting. If no satisfactory changes are introduced, we will, with regrets, vote against the motion.

We would like to thank Lorne Sossin and the members of the Working Group for their hard work under a very restrictive timetable. They have made considerable effort to engage with, and receive input from, members of the community, and in particular, democratically-elected and representative student unions (YFS and YUGSA) who requested to join the Working Group.

Overall, we read the draft policy and the process leading to its formulation with much concern. In the attached statement we first offer our concerns regarding process and content, and then propose changes that would allow us to support the adoption of the policy at December’s Senate meeting.

Our requests may be summarized as follows:

  1. Commitment to continue the agenda of work proposed by the Working Group in the document entitled “Free Speech Resources and Projects” by expanding or establishing a Working Group that incorporates representatives from YFS and YUGSA as well as representation of equity-seeking groups.
  1. Commitment to conduct a formal review of the Code of Student Rights and Responsibilities (CSRR).
  1. Commitment to adopt new and revised policies through proper governance processes that include Senate approval for the academic considerations in those policies.
  1. Commitment to establish an independent and effective Freedom of Speech Ombudsperson that would be structured according to the best standards of practice.
  1. All the commitments above will be stipulated in writing by Senate Executive either in their report in the agenda package or in a separate document.
  1. Introduce editorial changes to the draft York University Statement of Policy on Free Speech as specified in the attachment.

Submitted and signed by 39 senators (updated 4 December):

Aimé Avolonto

Emilio Bernardo-Ciddio

Lily Cho

Devin Clancy

Michelle Cobblah

Andrea Davis

Roopa Desai Trilokekar

David Doorey

Susan Ehrlich

Barbara Evans

Lisa Farley

Lee Frew

Amanda Glasbeek

Ricardo Grinspun

Shubhra Gururani

Les Jacobs

Alia Karim

Magdalena Kazubowski-Houston

Aqsa Khalil

Amanat Khullar

Naemat Khurana

Bonita Lawrence

Marcia Macaulay

Anne MacLennan

Andrea Medovarski

Merouan Mekouar

Kim Michasiw

Jacinthe Michaud

Marina Morrow

Lina Nasr El Hag Ali

Mina Rajabi Paak

Art Redding

Markus Reisenleitner

Leslie Sanders

Brenda Spotton Visano

Gail Vanstone

Richard Wellen

Lesley Wood

Anna Zalik
 

RESPONSE

This statement details our concerns and our proposals in regards to the Statement of Policy on Free Speech.

Our concerns

Troubling Ontario government policy

We would like to start by emphasizing how uncomfortable we are with the government’s demand to enact free speech policies. As the Ontario Universities and Colleges Coalition recently argued, “This is an ideological fiction advanced by the government to justify interference in the academic governance and autonomy of Ontario’s universities and colleges”. The unprecedented announcement of the policy through a press release, sidestepping normal policy processes, raises serious concerns. The government did not consult with any sector stakeholders before announcing the new requirement for free speech policies and disciplinary measures tied to potential cuts to university and college funding. We are concerned that the government’s threat of disciplinary measures actually limits expression rights on campus, especially for systematically marginalized groups.

Lack of response from universities

The response from universities has been worrisome as well. The decision of York University administration to push forward with these changes without protest, as well as the anemic and disappointing communication from the Council of Ontario Universities representing the administrations of York and other institutions, will embolden the government to engage in further harmful intrusions of this type. If Ontario’s public trust in its universities is to thrive, it is essential that universities, their administrations, board of governors, alumni, families and other stakeholders, applaud positive government agendas and stand up to harmful ones. This is not happening, and we will pay a dear price for that inaction, for this government is not done attacking the fabric of our public institutions. We should learn from Francophone communities in Ontario, which have decided to respond effectively to the government’s agenda and thus will be better protected in the go forward.

Concerns about process

There are serious concerns about the process being followed to put this policy in place at York. These include the composition of the Working Group, which did not include representatives from student organizations potentially most affected by the new policy. The initial intention was to establish the policy as a presidential regulation and involve Senate through consultation about, not approval of the policy, on the grounds that there is an imminent deadline to put the policy in place. Hearing concerns about this process, Senate Executive presented their view that both Senate and the Board of Governors should formally approve the policy, and President Lenton, after repeated urging in Senate, Senate-D, and other forums, agreed. The consultation sessions, led by Lorne Sossin, were useful and demonstrated an earnest effort to hear and incorporate ideas from various stakeholders and in particular, student groups. Following urging from senators, Senate Executive decided to follow up with a second stage consultation, by bringing a notice of motion on the policy to the November Senate meeting and announcing the final approval would be in the December meeting. This created a short window to provide feedback on the draft policy.

The need to acknowledge free speech as an academic matter

Free speech is at the core of any academic pursuit, and poor policies and wrong approaches can have deleterious effects. Senate plays a key role in these matters. Experiences in academic institutions south of the border provide evidence of negative academic and reputational impacts when matters of free speech are not addressed appropriately. A major concern regarding free speech policies at York is the excessive centralization of legislation, management and implementation with York’s administration, and the small or negligible role played by Senate and other multi-stakeholders processes that involve faculty councils, student organizations and unions (see discussion of CCRR below). There has to be a re-balancing of responsibilities with Senate, so that there is broad input in tune with York’s diverse and rich academic environment. This rebalancing of power between administration and Senate is congruent with the commitment expressed by both Senate Executive and President Lenton following the concerns about administrative overreach expressed during the labour disruption earlier this year.

Concerns about the response to hate groups and hate speech

We are greatly concerned about the rise of white supremacists and hate groups who have stated that they are looking forward to the Ontario Free Speech policy to protect their activities at Ontario university and college campuses. The intent of this policy appears to restrict, not broaden, the exercise of a fundamental freedom of expression on Ontario’s university and college campuses. Past application of “free speech” suggests that such a policy could be used to insulate racist, sexist, xenophobic, and otherwise discriminatory speech on campus, rather than protect the rights of students. Many York University students and faculty voiced these concerns at the recent consultations at York.

With regard to the November draft submitted by the Working Group, it is unclear how York University responds to hate groups. The draft argues, “Freedom of speech is not absolute and does not protect expression that constitutes hate speech, harassment, threats, discrimination or otherwise violates the law.” We understand that the Criminal Code of Canada contains a definition of hate propaganda, and that it states that anyone who wilfully promotes hatred against any identifiable group is guilty of an indictable offence under law. But there is no clear mechanism at York to determine what is hate speech, what is the mechanism of enforcement against hate groups and hate speech, and what is the process to appeal such decisions.

Our proposals

Establish a Working Group that incorporates proper representation of student and equity-seeking groups

The Working Group has acknowledged gaps in the current framework, such as the one identified in the paragraph above. Their recommendation is that “Additional guidelines, tool-kits, education and training with respect to free speech will be developed from time to time as needed,” including tool-kits on protests, interpretative guidelines, a website with resources, an ongoing discussion of free speech, and the need to address gaps and new policies. We heartily embrace these recommendations, reiterating our caution regarding the need for truly consultative and collegial processes to bring them into effect. Our proposal is to expand the current Working Group or establish a new one to continue with this agenda of work. It is essential that representatives from YFS and YUGSA as well as representation of equity-seeking groups be incorporated.

Conduct a formal review of the Code of Student Rights and Responsibilities (CSRR)

The draft policy says that the CSRR addresses the requirement of the directive relating to student discipline. We would to make it clear that we, along with many members of the York community, have long-standing concerns with regards to the CSRR.

The CSRR has been defined as a presidential regulation, with no legislative history and no consideration of academic implications. It was enacted in 2007 by the approval of President Marsden at the time. Student organizations strongly dispute the claim in the regulation that “This Code has been developed through extensive consultation with students, staff and faculty.” Currently, only the President and Vice-Provost Students govern it, with no reporting to other bodies. The CSRR was never passed by Senate and they do not oversee it, even though the most serious penalties are academic in nature ranging from suspension to expulsion, and there are potentially serious academic repercussions to its action. CSRR meetings and tribunals are directed by university administration. A panel of three members is used for tribunals, which York’s administration claims to be fair and open, but the panel is entirely appointed by the Vice-Provost Students and it remains an unpublicized process that lacks open nominations and participation by members of the York community. To our knowledge, there is no annual or otherwise report on the actions taken under the Code. In effect, the CSRR is an opaque, top-down and undemocratic policy used by the administration to govern student behaviour.

The CSRR has not been revised since 2007 and is in, in the eyes of many, in disrepute as a policy tool. It is high time for review of this policy and for creating legislative and oversight mechanisms that will assure no recurrence of such events in the future. In practice, this means including Senate in the approval process for the policy, which will approve its academic and free speech considerations. We are asking President Lenton and Senate Executive to announce a formal review of the CCRR, to be completed during Fall 2019, that would gather insight from students, staff and faculty, and for Senate Executive to place this goal as a priority during the forthcoming year.

Adopt new policies through proper governance processes

As discussed earlier, there should be a proper consultative and collegial process before new and revised policies are brought for approval. This entails, depending on the type of policy, involvement of stakeholders in the groups developing the proposals, consultation, involvement of student organizations, unions, faculty councils, etc. There should be two distinct stages to the consultation: a) the first one on broad questions leading to the drafting of a policy, and b) a second consultation when the draft policy is available but not yet approved. The policy then should be brought for formal approval, not just consultation, to Senate. To allay the concern of Senate interference with administrative aspects, motions to Senate can explicitly address the academic aspects and implications of the proposed policy, without expressing itself on other matters. A motion, for example, could seek “Senate’s approval of the academic considerations in Policy X”.

Establish a Freedom of Speech Ombudsperson

We are concerned that the proposals from the Working Group do not present any recourse when there are questions or complaints about the administrative application of policies, such as those described regarding the CCRR. We are proposing the establishment of an independent freedom of speech ombudsperson to address this concern. This role would have inference to all matters of freedom of speech at York and their application by York administration. The office would have to be, and be seen to be, independent and autonomous.

What is an ombudsperson? “With a focus on fairness, equity and respect, the ombudsperson builds capacity to help the institution be accountable to its own value and mission statements. In working with individuals, the ombudsperson facilitates fair resolutions that build trust and fortify the relationship between individual and institution.[1]

Our proposal could be fulfilled either by creating a new position of Free Speech Ombudsperson, or as a restructuring of the current of office of University Ombudsperson. Virtually unknown in campus, the latter office currently reports to the President, has a low profile, does not provide publicly available annual reports, and is situated in 10th floor of Kaneff Building. The current office has not been present in addressing matters such as those involving the CCRR.

The proposed position would have an appropriate structure, following the best standards of practice, and the matter of reporting and independence would need to be addressed. One option is for the ombudsperson to be appointed by Senate, a multi-stakeholder body, rather than the President. The other is for joint reporting to, and perhaps joint funding by, the administration and student organizations, following the example of some other Canadian universities.

We are asking that Senate Executive and the President commit to the establishment of an independent and effective free speech ombudsperson position as described above. Furthermore, we ask that this goal be included in Senate’s priorities for the next year with a timeline of implementation of the new position by Fall 2019, and an update on the advance included in the mandatory reporting on free speech to HEQCO in September 2019.

Editorial changes to the draft York University Statement of Policy on Free Speech

In paragraph 8, insert the following change:

  1. York University affirms that it has in place mechanisms to deal with complaints and ensure compliance. Each of the existing policies underlying this Statement of Policy include mechanisms for interpretation, compliance and enforcement. Complaints that remain unresolved may be referred to the University Ombudsperson, whose role on matters of free speech will be reviewed during the coming year with the intention of assuring its effectiveness and independence, and to the Ontario Ombudsman. Additional guidelines, tool-kits, education and training with respect to free speech will be developed from time to time as needed. Existing policies will be reviewed periodically based on their implementation experience and new policies will be created when the need is identified. All these actions will be undertaken through collegial and consultative approaches that incorporate a diversity of perspectives and stakeholders within the University.

[1] Association of Canadian College and University Ombudspersons (ACCUO), http://accuo.ca/resources/toolbox/. In more detail, “The ombuds office provides accessible and independent mechanisms for addressing disputes or complaints respectfully and constructively. Through its provision of information, education, problem-solving interventions, investigations and recommendations, an ombuds office helps to address grievances fairly, assists in resolving conflict before it escalates and provides a feedback loop for the pro-active improvement of policies, procedures and practices on campus… Attention to relational, procedural and substantive fairness builds trust between individuals and the institution. An important rationale for establishing an office is the ability of the ombudsperson to analyze issues with the goal of making recommendations for systemic improvements.”

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