Vol. 15: 23–37, 2015 ETHICS IN SCIENCE AND ENVIRONMENTAL POLITICS Published online October 1 doi: 10.3354/esep00163 Ethics Sci Environ Polit

Contribution to the Theme Section ‘Academic freedom and tenure’ OPENPEN ACCESSCCESS Tenure and academic freedom in Canada

Michiel Horn*

York University, , ON, Canada

ABSTRACT: In Canada, a persistent myth of academic life is that tenure was initiated and devel- oped in order to protect academic freedom. However, an examination of the historical record shows that in both its forms — viz. tenure during pleasure, whereby professors could be stripped of their employment if it suited a president and governing board, and tenure during good behav- ior, whereby professors were secure in their employment unless gross incompetence, neglect of duty, or moral turpitude could be proven against them — the institution took shape as the main defense of academic employment. In this paper, I explore the development of tenure since the middle of the 19th century, and the concepts of academic freedom with which tenure has become closely associated. I also make the case that tenure during good behavior has become a major sup- port of the academic freedom of professors even as that freedom is undergoing new challenges.

KEY WORDS: · Sir Robert Falconer · McGill University · University of · University of Manitoba · University of Alberta · Harry S. Crowe · Canadian Association of University Teachers

INTRODUCTION academic freedom as it is understood today, the free- dom to teach, research, and publish, the freedom to Is the defense of academic freedom central to the express oneself on subjects of current interest and im- institution of tenure? Most Canadian academics are portance, and the freedom to criticize the institution in likely to answer, reflexively, in the affirmative. Yet, which one teaches. However, protecting all these the question is more complicated than it seems at first things was not the original or initial purpose of tenure glance, and a comprehensive answer needs to be in either of its two main forms, tenure during good be- qualified. At issue are what tenure and academic havior, in which professors were secure in their em- freedom mean, and how they interact and influence ployment unless gross incompetence, gross neglect of each other. duty, or gross moral turpitude could be proven against A persistent myth of Canadian academic life is that them, and tenure during pleasure, in which they tenure was initiated and developed in order to protect could be stripped of their employment if it suited a academic freedom. As recently as October 2014, in president and governing board (usually they needed addressing the 50th anniversary conference of the to be in agreement) to do so. As well, the scope of Ontario Confederation of University Faculty Associa- academic freedom has changed over the decades. tions, historian Craig Heron re- asserted this myth. In the context of a panel discussion about the future of faculty associations, he asked what TENURE IN THE 19TH AND EARLY 20TH lay ahead for academic freedom and ‘the tenure that CENTURIES was designed to protect it.’1 Did anyone beside myself notice anything problematic in this formulation? In both of its forms, tenure in the late 19th and early Myths acquire force because they are usually true 20th centuries was a continuing appointment or at least in part. And it is true that tenure, as it is under- appointment without term, granted to professors stood in Canadian universities today, does protect after a probationary period that was usually short. In

© The author 2015. Open Access under Creative Commons by *Corresponding author: [email protected] Attribution Licence. Use, distribution and reproduction are un - restricted. Authors and original publication must be credited. Publisher: Inter-Research · www.int-res.com 24 Ethics Sci Environ Polit 15: 23–37, 2015

the oldest English-language institution of higher to recover property rather than secure damages. education established in what is now Canada, i.e. However, in 1866 the Court of Appeal of Canada King’s College, Nova Scotia, professors enjoyed West, as Ontario was then called, ruled that the Court explicit tenure for life during good behavior until it of Chancery had no jurisdiction because Weir’s chair was removed from the college statutes in 1885 and was not endowed. Beyond that, ‘we see nothing in replaced by tenure during pleasure.2 Most of the the evidence of any contract for any engagement of older institutions made no reference to professorial plaintiff beyond a general hiring, which the law terms of office in their charters or statutes, feeding would probably hold to be a yearly hiring ...’.5 If Weir the assumption that professors held their positions for were to sue in a court of law he might gain damages life. This was particularly the case in universities like for wrongful dismissal, the judges stated, but they Dalhousie and Queen’s, that were influenced by the would not restore him in his employment. Scottish tradition in this respect. This did not mean This reinforced a change the board of governors that professors were absolutely secure. Gross negli- had made in the Queen’s statutes in 1863, stating that gence, incompetence, moral turpitude, or insubordi- henceforth professors held their tenure during the nation could lead to dismissal. Furthermore, profes- board’s pleasure. This change, the judgment in the sors might be pensioned off if it suited a governing Weir case, and the uncertainty they together created, board to allocate the necessary money. In the ab- complicated matters for the principals of Queen’s in sence of pension plans, which did not emerge until seeking recruits in Scotland, the preferred source for early in the 20th century, professors carried on until new faculty for a university that did not sever its they were clearly unable to do so. University boards, Presbyterian links until early in the 20th century. It is never flush with money, were understandably reluc- not clear how William Snodgrass, principal from 1864 tant to devote scarce resources to pensions, so that to 1877, dealt with this, but George Monro Grant, not a few professors died in harness. principal from 1877 to 1902, assured potential faculty Judicial interpretation from 1860 onwards did not members that they would hold their positions for life generally sustain the institution of tenure during during good behavior.6 Although this was in defiance good behavior. Whenever it was tested it was of the statutes, it reflected the de facto state of affairs. rejected, usually in favor of the idea that tenured pro- Asked in 1920 to define tenure at Queen’s, Principal fessors held their offices at pleasure, that is, at the Bruce Taylor alluded to the statutes and the Weir discretion of governing boards who might dismiss case, but added: ‘The practice has been to regard the professors in their employ, for reasons that they appointments as permanent after the first two years.’7 considered good and sufficient, and that they did not Permanence implied security, which was (and is) need to disclose. Moreover, with the passage of a the core aspect of tenure. How secure should it be? In new University of Toronto Act in 1906, tenure during 1919 Ira MacKay, who taught law and political sci- pleasure became the legislatively imposed policy ence at the University of Saskatchewan until his dis- and practice of that institution and soon also of the missal on the grounds of disloyalty to President W.C. provincial universities of Manitoba, Saskatchewan, Murray,8 undertook to explain tenure to a Saskatoon Alberta, and British Columbia, whose statutes were newspaper reporter. Only the tenure of the judiciary influenced by the 1906 Act. In the provincial Univer- was more secure, he said: ‘The reasons for this secu- sity of New Brunswick, tenure during pleasure had rity are apparent. University appointments are made been established by means of judicial interpretation after a period of long probationary training ..., the as far back as 1861.3 remuneration is small and the offices are few.... A What did tenure mean in practice? An incident in university professor once removed from his chair has the history of Queen’s University is instructive. In very little chance of obtaining similar employment 1864, the classicist George Weir was dismissed, elsewhere.’9 essentially for disloyalty to the principal. Claiming Four years later, Mr. Justice A.K. Dysart of the that Queen’s had been modeled on the University of Supreme Court of Manitoba offered a similar justifi- Edinburgh, where tenure was for life unless impro- cation in an obiter dictum stated in the case of Smith priety of conduct was established, Weir sued to be v. Wesley College. Professors should not be lightly reinstated in his chair. He cited as grounds that his dismissed, he wrote. Trained for work of a special dismissal had been improper, no notice having been kind, ‘their opportunities for suitable employment given, no opportunity for defense provided, and no are rare, and if lost are not easily substituted by other impropriety proved.4 He won his case in the Court of congenial employment. Their special training unfits Chancery, a court of equity used by those who sought them for general service. In their chosen field, the Horn: Tenure and academic freedom in Canada 25

material rewards are relatively small. In order ... that vocation of his own institution, he stated that wealthy this noble profession may still attract recruits, it is men had put ‘undue pressure’ on professors in the US wisely acknowledged both in theory and practice and that similar pressure was not unknown in Can- that the employment of professors by colleges should ada. This undermined ‘the spirit of independence in be characterized by stability approaching to perma- ... which alone the best work can be accomplished’. nence’. How stable? Dysart equated the security that Using words that sound highly relevant today, professors ought to have with that enjoyed by bank Braithwaite said that scientists should not be judged officers, whose positions (at that time; matters have by the financial benefit of their research to their uni- changed since then) were normally assured until versity or the community, professors should not be retirement.10 judged by the number of students their courses attracted, nor should they have to worry about the acceptability of their teaching and research to influ- ACADEMIC FREEDOM IN THE EARLY 20TH ential people. ‘If the Professor of Political Economy CENTURY must make his conclusions conform to the ideas of the capitalists who may occupy a seat on his govern- Academic freedom did not figure in these justifica- ing board, the usefulness of the institution is seri- tions. However, very likely because of what was hap- ously impaired.’13 But Braithwaite added that he pening in the United States, where the American feared many professors, concerned about their jobs, Association of University Professors (AAUP) was would not oppose infringements of academic free- founded in 1915 and issued a declaration of princi- dom if those who applied pressure were powerful ples in which the defense of academic freedom was enough. central, there was growing interest in the subject in Canada. If any Canadian professors expressed them- selves on the subject, their words have gone unno- SIR ROBERT FALCONER AND ACADEMIC ticed. However, from 1919 to 1922, three university FREEDOM AT THE UNIVERSITY OF TORONTO heads addressed the issue. Speaking to the graduating class of the University Taylor and Braithwaite were the heads of small pri- of Manitoba in 1919, Queen’s University’s Bruce Tay- vate universities. As president of the considerably lor discussed the effects that financial dependence larger and public University of Toronto from 1907 to had on academic freedom, which he took to be the 1932, Sir Robert Falconer had to concern himself with freedom of professors to teach, do research, and pub- occasional pressure not only from men of wealth and lish as they pleased. Predicting that the state would influence, but also from the provincial government, take an ever-increasing part in financing higher edu- the chief source of the institution’s financial support. cation, Taylor asked whether this entitled the gov- Among the former was Reuben Wells Leonard, a ernment to control the type of teaching in the univer- silver-mining magnate and a member of the univer- sity. ‘Will the administration of a University ... sity’s governing board, who in 1921 objected strenu- depend on the whims of the Legislature,’ he asked: ously to the views of the University of Toronto politi- ‘Will men of independence accept positions when the cal economist Robert M. MacIver. Arriving from the tenure may be insecure?’ And what if administrators University of Aberdeen in 1915, MacIver four years discouraged the expression of ‘inconvenient and later published Labor and the Changing World,14 original’ ideas so as not to displease those who pro- which among other things supported industrial vided the money?11 workers in their efforts to organize collectively. Taylor was fully aware that this included wealthy Leonard loathed unions, which he saw as a threat to benefactors, for late in 1917 he had faced down an his own welfare as well as to the national economy. attempt by some of them to have the political econo- When he got wind of MacIver’s book, Leonard com- mist O.D. Skelton fired because of unwelcome views plained to the board chairman, the banker Sir he was known to hold about conscription for overseas Edmund Walker, about the Scot’s ‘ultra-socialistic service (he was against it unless the matter was first teachings’.15 Walker expressed mild concern but approved by Canadians in a referendum).12 How- counselled inaction: ‘Nothing would seem more dan- ever, Taylor did not specifically address the influence gerous than to restrain a free expression of opinion that wealthy individuals might have. Someone who by a professor short of almost anything but treason.’16 did was President E.E. Braithwaite of Western Uni- Having received copies of this correspondence, versity in London, Ontario. Speaking at the 1919 con- Falconer felt compelled to add his voice to Walker’s. 26 Ethics Sci Environ Polit 15: 23–37, 2015

It would be ‘extremely injurious were the Board of leagues.’ Finally, in a few remarks that were clearly Governors to attempt to restrain the expression of directed at Leonard, Falconer discussed the role of views on economic subjects different from their own,’ governing boards. One of their duties, he said, was to he wrote. That was not the British way of doing secure ‘the best possible persons available for the things. Besides, ‘the most treasured privilege of the professorial office’. Their views might differ from University is freedom of thought’. Unless the views those held by board members, but the latter would be expressed were ‘so extreme as to cause some injuri- ill-advised either to challenge a professor’s compe- ous action,’ it was best not to interfere.17 tence or to deny ‘that there is a place in the Univer- Leonard disagreed, insisting that the board had a sity for his type of thought’. It was better ‘to tolerate duty to prevent ‘any teaching tending to upset a civ- an erratic or even provocative thinker’ than to disturb ilization which has been the result of some thousands the normal functioning of the university.23 of years of struggle’.18 Leonard was not the first per- Leonard’s response was perhaps to be expected. son, nor would he be the last, to identify his pecu- ‘The inference I would draw from your Paper,’ he niary self-interest with civilization itself. Conscious of wrote to Falconer, ‘is the necessity for exercising this, Falconer replied that Canada had nothing to extreme caution in the selection of Professors’.24 The fear from ‘the thoughtful, earnest man, who is most efficacious way of preventing professors from endeavouring to arrive at principles that will stabilize saying or writing something potentially objection- the country’.19 Leonard would have none of it. Later able was to prevent the appointment of those who that year the millionaire informed Falconer that if might do such things. From Leonard’s perspective, MacIver were permitted to teach his views, ‘we MacIver was such a person, and he dissented when should be honest with ourselves and true to the trust the governors approved Falconer’s 1923 recommen- imposed upon us by the people of Ontario, and estab- dation that the Scot succeed James Mavor in the lish a Chair of Political Anarchy and Social Chaos, so chair of political economy. ‘If I had not made this that the people of Ontario, who pay for the Univer- nomination,’ Falconer told Leonard, ‘there would sity, and the students who take the courses, will have gone abroad a feeling that a man was not at lib- know what is being taught under its proper name’.20 erty to express views which are widely held in the Falconer replied that MacIver’s views were not out- economics departments of the leading English Uni- rageous, that it was wrong to repress freedom of versities’. This would have harmed the University of expression, and that social progress came through Toronto more than ‘any subversive doctrines that discussion.21 Did he think his words needed wider MacIver would ever promulgate’.25 MacIver served distribution? Falconer’s biographer believes that Fal- as head of the department until 1927, when he left coner thought the time had come to make a state- Toronto to join the faculty of New York’s Barnard ment that would make it awkward for Leonard to College and, in 1929, Columbia University. (In the continue to press his attack on MacIver.22 When Fal- 1950s he headed the project that gave birth to studies coner addressed a meeting of alumni in February of academic freedom in the USA by the historians 1922, he was determined to make the case for his Richard Hofstadter and Walter P. Metzger, and by conception of the academic freedom of professors in MacIver himself.26) the most persuasive way possible, praising it as ‘the Newspaper coverage of Falconer’s speech focused freedom which gives its distinction to the ancient less on academic freedom than on the limitations he English academic life’ and called it ‘one of the most sought to impose on it. ‘No Party Politics for the Pro- sacred privileges of a university’. The privilege came fessor,’ stated a Mail and Empire headline.27 ‘Says with limitations, however. A tenured professor was Professor Must Keep Out of Politics,’ a Toronto Star ‘not fixed for life in an easy place’ in which he was headline noted.28 The Telegram sent a reporter to ‘free to do as he will and say whatever he pleases’. inquire whether a complaint from the Ontario gov- He was ‘the servant of the nation’ in matters intellec- ernment had prompted the president’s remarks (he tual. Like judges and civil servants, he was not free to denied it).29 Only the Globe registered an editorial take an ‘active share in party politics’ by running for criticism. Surely Falconer did not mean that profes- office or discussing ‘burning political questions,’ and sors ‘should keep silence on public questions such as doing so might easily harm his institution: ‘A govern- the tariff, the railways, immigration, or public policy ment might well without giving any reason easily in regard to education’? This seemed unreasonable.30 show its displeasure in such a way as to affect If it involved discussing issues of current contro- adversely the fortunes of the institution and the versy, Falconer meant what he said. His conception financial position of many guiltless and wiser col- of academic freedom was influenced by the German Horn: Tenure and academic freedom in Canada 27

tradition of ‘Lehrfreiheit’, the freedom to teach and Falconer may have thought that what was accept- publish (Falconer had done graduate work in able in the universities of England and Scotland was Leipzig, Marburg, and Berlin) and its adaptation in dangerous in Ontario’s provincially-financed univer- the American research universities that developed sity. This restrictive view of academic freedom was after the US Civil War. This led eventually to the rooted in recent experience. In 1916 he had received General Report of the Committee on Academic Free- a strong complaint from Premier Sir William Hearst dom and Tenure, issued in 1915 by the newly-estab- about the attack the head of political economy, James lished AAUP. In Germany, where professors were Mavor, was making in the press on the Ontario civil servants, involvement in party politics and polit- Hydro-Electric Power Commission (known more ical debate, though not unknown, was uncommon. In recently as Ontario Hydro). The utility had been cre- the USA it happened more often, but there professors ated by the Conservative government headed by were more constrained in the classroom than were Hearst’s predecessor, Sir James Pliny Whitney, their German counterparts.31 The 1915 general chiefly to enable Ontario industries and consumers to report stated that professors had a role to play in pub- enjoy lower prices for electricity than the private sec- lic debate but added that they should avoid unveri- tor was charging. A classical liberal, Mavor objected fied statements and sensational modes of expression, in principle to government interference with what he and it remained silent on the matters of working for a believed to be free markets. Noting that Mavor had political party or running for office. Academic free- also objected to the government’s introduction of the dom did not cover all professorial speech, the report Workmen’s Compensation Act, Hearst complained said: ‘Not the absolute freedom of utterance of the that the economist seemed ‘anxious to injure the individual scholar, but the absolute freedom of Government whenever he [could] and to attack thought, of inquiry, of discussion and of teaching ... is everything in the nature of progressive legislation for asserted by this declaration of principles.’ Discipli- the benefit and comfort of the people’. This had the nary action, if any, should be taken by professors: ‘In effect of ‘bringing condemnation upon the Univer- matters of opinion, and of the utterance of opinion ... sity’ and undermined the government’s efforts to boards can not intervene without destroying, to the support the institution adequately.36 extent of their intervention, the essential nature of a Falconer copied Hearst’s letter to Mavor, who university.’32 wrote a reply defending himself and his ideas and Admission to full membership in this university affirming his own freedom of speech as well as the would not be easy. The report recommended that university’s autonomy from political interference. ‘If after a probationary period of 10 (!) years, professors the Members of the University are to be subjected to should either be granted tenure or let go. While on the dictation of the Government as to what they may probation they should be given adequate notice of or may not discuss,’ Mavor wrote, ‘the University non-renewal; once tenured, they should only be dis- may as well strike its name from the roll of Universi- missed after a fair hearing by a committee of their ties’.37 Falconer copied the bulk of this letter to the peers at which they could defend themselves against premier, who backed off somewhat. He denied that specific charges. Governing boards would presum- he had threatened the university, but he did point out ably be bound by committee findings.33 ‘the unwisdom’ of a professor at the University of The report was a conservative statement commit- Toronto, largely supported by public funds, ‘carrying ted to ‘professional autonomy and collegial self-gov- on a newspaper campaign of the kind in which Pro- ernance’.34 As such, it would surely have appealed to fessor Mavor has been engaged’. It undermined sup- Falconer (and other university presidents of the port for the university among people who had not time), even if his view of professorial involvement in personally enjoyed the benefits of higher education, political life, as stated in 1922, was more restrictive might be uneager to fund it, and resented Mavor’s than the AAUP committee’s. Professorial free speech, articles, quite possibly inferring from them ‘that the which would in time come to be identified as a major University is the friend and ally of the rich and the aspect of academic freedom, was to him of question- corporations, as against the labouring man’.38 able value at best. Yet, although Falconer sought to Mavor, who counted among his friends and identify academic freedom with British rather than acquaintances some of the richest and most powerful German or American university traditions, professo- men in Canada,39 was safe from discipline or dis- rial free speech and political involvement were more missal. However, Falconer could not ignore Hearst’s widely accepted in Great Britain than in Germany or letters and their implications. He evidently drew the the USA.35 lesson that it was undesirable for professors to take 28 Ethics Sci Environ Polit 15: 23–37, 2015

part in controversial political debate, and that to pro- had written about Canadian-American relations in tect the university’s autonomy and financial welfare, general and bootlegging of liquor to the USA in par- their free speech needed to be curbed. This explains ticular. Inferring criticism of his government, Fergu- the limitations he placed on academic freedom in his son complained to Cody that ‘these articles are speech of February 1922. His biographer comments: purely political. Some day when the estimates are ‘The views outlined were widely shared and not only, brought over here I will be tempted to tick off a num- one suspects, by administrators and politicians.’40 ber of salaries of some men who seem to take more Falconer might nevertheless have done well to heed interest in interfering in matters of public policy than what Harvard University’s President A. Lawrence they do in the work for which they are paid’.44 Others Lowell had said some years earlier, when he declined he may have had in mind were the political econo- to dismiss a professor for making pro-German state- mists C. R. Fay, E. J. Urwick, and H. A. Innis.45 It is ments even though Harvard was threatened with the not known whether Cody acquainted Falconer with loss of a large bequest: ‘A university that takes the contents of this letter. If he did, the latter must responsibility for deciding what professors may not have been confirmed in his belief that free speech by say thereby assumes responsibility for everything academics was dangerous to the university’s finan- professors do say, and a wise university would refuse cial health. Ferguson’s views about what professors the first responsibility in order to relieve itself of the might and might not say, his biographer claims, were second.’41 This incident had been well-publicized, ‘not out of line with the views expressed by Falconer and Falconer must have been aware of it. He may in 1922’.46 Their motives were surely different, how- have thought, however, that the dangers his univer- ever. Ferguson wanted to stop professors from saying sity faced from the Ontario government were greater what he did not want to hear; Falconer sought to con- than those Harvard faced from its donors. trol what professors said in order to safeguard the During the remainder of his term as president — he university’s financial welfare. retired in 1932 — Falconer generally defended pro- Of course, on rare occasions this might require fessors in their classroom teaching while cautioning controlling what happened in the classroom. This them about statements outside the classroom. In was true both in public universities and in private 1924, for example, when Premier Howard Ferguson ones, at that time mostly denominational. In the complained about the use in class of the Communist 1920s, as it had been in the years before the First Manifesto and urged the summary dismissal of any World War,47 religion was a source of more than one professors who encouraged or condoned its doc- controversy in which academic freedom was at stake. trines, Falconer responded that the professor using In 1928, for example, William Irwin, professor of the document was the staunchly anticommunist ancient languages at University College, the non- Gilbert Jackson, who in his course in economic his- sectarian undergraduate college in the University of tory could not very well ignore the ideas of Karl Toronto, aroused a storm of public protest with Marx.42 remarks about God and the Bible that may have been Four years later Falconer took a somewhat differ- widely accepted among biblical scholars but seemed ent tack. When the historian Frank Underhill was blasphemous to literal-minded believers. Falconer reported to have said in a public lecture that the expressed no opinion on the controversy, but he British were as much to blame for the recent world became annoyed when he heard of the examination war as the Germans, and Ferguson complained questions Irwin set that year, one asking to what about this to board chairman Rev. Henry J. Cody, extent the stories of Noah, Abraham, and Moses who had been his undergraduate roommate, Cody might be accepted as dependable history, another passed the complaint on to Falconer, who questioned inviting examinees to decide whether the book of Underhill. The historian denied he had made the Jonah was history, allegory, or something else. Writ- statement ascribed to him, claiming he had actually ing to the head of Irwin’s department, Falconer noted said that Anglo-German rivalry had contributed that three of the questions contained ‘dangerous more to the coming of the war than Belgian neutrality explosives ... It is unfortunate that in a subject that had, and that this ‘historical commonplace’ comment has to be handled with such great care, he did not might have been misunderstood. Falconer informed show more discretion.’48 Ferguson that he had urged Underhill ‘to be careful Did Falconer warn Irwin to be more prudent? No in his casual remarks’.43 copy of a letter is on file, and he may have felt inhib- This seemed to satisfy the premier, but in 1929 he ited from asking a professor to modify a course. For reacted with annoyance to a column that Underhill his part, Irwin felt that the university had not done Horn: Tenure and academic freedom in Canada 29

enough to defend him against public criticism. Two MacLean quoted from this article approvingly in years later he resigned to take a position at the responding to Hinchliffe and deprecating his con- University of Chicago (he later also taught at South- cerns,54 and President Leonard S. Klinck stood by ern Methodist University). Two days after his re - Eastman’s textbook choice. The book continued to be signation, the student daily The Varsity carried a let- used. In the long run, however, the incident may ter from him charging that the University of Toronto have helped to damage the university. We may safely did not adequately protect the academic freedom of assume that Hinchliffe appreciated criticism no more its professors because it was afraid of the govern- than the next person, and if he harbored a grudge as ment. The institution, he wrote, was ‘mildewed with a result, some years later he had an opportunity for discretion’.49 retaliation. In 1929, the Conservatives came into Falconer did not respond to the charge. Principal office, and Hinchliffe became Minister of Education. Maurice Hutton of University College dismissed Eastman had left in 1925 to take employment with Irwin’s claim as ‘rather absurd’.50 It is hard, however, the International Labour Organization in Geneva, to escape the impression that senior university peo- but it seems likely that Hinchliffe had not forgotten ple tended to worry that someone important might the historian’s scorn. Furthermore, the new minister criticize something a professor said or wrote. Further- complained to President Klinck about the alleged more, the experience of another provincial univer- Liberal bias of several professors.55 Indeed, during sity, the University of British Columbia, suggests that his term in office, he showed a marked degree of hos- such worry was not completely out of place. tility to the University of British Columbia. With the province in the grip of the Depression, the govern- ment grant for 1932-33 was cut by more than 60% ACADEMIC FREEDOM AT THE UNIVERSITY OF from what it had been two years earlier, but had BRITISH COLUMBIA IN THE 1920s Hinchliffe had his way the cut would have been even deeper.56 In 1922, the Rev. Joshua Hinchliffe, an Anglican clergyman and Conservative member of the British Columbia Legislative Assembly, where he was ACADEMIC TENURE AT MCGILL UNIVERSITY prominent on the opposition front bench, publicly IN THE 1930S criticized the textbook used in the survey course in European history, taught by the head of the History The Depression raised the issues of academic free- department, Mack Eastman. Hinchliffe charged that dom and tenure in a heightened manner. Provincial The History of Europe, by J.H. Robinson and governments and boards of governors became in - Charles Beard, should not be used because it was creasingly sensitive to professorial criticism of the ‘written by Americans for American students’ and political, social, and economic order while at least a said too little about the British and Canadian con - handful of professors were becoming more critical.57 tributions to the recent war effort.51 Eastman de - At the same time, the meaning of tenure assumed fended his choice both privately to John D. new importance for institutions facing financial crisis. MacLean, the minister of education,52 and publicly Given this crisis, it is probably not surprising that with an article, ‘Textbooks in European History,’ Principal Sir Arthur Currie of McGill University was that appeared in the Vancouver Province. The war, thinking about faculty dismissals in 1933. McGill Eastman asserted, had stimulated popular interest adhered to the notion of tenure during good behav- in history. One result was that ‘the enlightened, sci- ior, and this complicated Currie’s problem. Letting entific and truthful historian has been oppressed by go of senior faculty would be difficult, so he mused ambitious autocrats and badgered by ignorant about taking another course of action, that is, deny- democrats,’ among them ‘honest fanatics’ and ‘vote- ing tenure to many faculty members in the first catching politicians,’ none of whom desired a bal- place. He thought of instituting a system whereby anced treatment of the past. If University of British most junior faculty members would be replaced Columbia’s historians were incompetent, he con- rather than given tenure, a system used at some of cluded, ‘the remedy is dismissal’. If they were com- the private universities in the northeastern USA. As petent, this should be taken as ‘presumptive evi- he explained to President Joseph S. Ames of Johns dence that the history courses will be scholarly, Hopkins University, this would make room for ‘new truthful and beneficial; and the choice of textbooks men of genius on the staff’.58 No doubt it would also will be at least defensible’.53 have saved money. 30 Ethics Sci Environ Polit 15: 23–37, 2015

Stephen Leacock disagreed. The renowned hu - fessor ‘no notice is required, nor need any hearing be morist, who taught economics at McGill, sought to given’.62 For that reason, the dismissals on grounds of dissuade Currie from his plans. Having learned of disloyalty to President Walter C. Murray of Professors them, Leacock wrote to Currie: ‘The tenure of a col- John Hogg, Ira MacKay, and Robert MacLaurin, all of lege teacher should not be on a mere basis of success. them tenured, were allowed to stand. What has been called the “hire-and-fire” system This ruling was confirmed soon afterwards by the makes every man tremble for his job. In the long run judgment in the case of James A. Craig at the Univer- it kills a college at the root.’59 Once appointed, fac- sity of Toronto. Having moved from the University of ulty members should be maintained in their positions Michigan to Toronto at a late stage of his academic unless they committed some egregious offense, Lea- career, Craig was appointed professor in Semitic cock continued (he mentioned spreading communist languages in 1916. His letter of appointment made no propaganda in class). Only the security of tenure mention of the term, and he apparently assumed this allowed professors to do their best work. meant he had life tenure. Was this a reasonable The issue became moot late in 1933, when Currie assumption? In 1919, President Falconer answered a suddenly died. When, two years later, McGill needed query about terms of appointment by stating that to reduce costs in order to balance the budget, the professors and associate professors ‘are not engaged Board of Governors decided to retire the 14 faculty under contract, but it is usually supposed that it is a members who had reached the age of 65, enforcing life appointment unless the President has some ade- a rule that had come into existence soon after quate reason ... to recommend that the appointment McGill joined the pension scheme originally begun terminate’.63 by the Carnegie Foundation but had hitherto been In June 1920, Craig was disagreeably surprised to ignored.60 receive a letter from Falconer informing him that a Among those who lost his position was the 66 year board regulation put the age of retirement at 65 and old Leacock, who felt well able to carry on. He com- that therefore he must retire a year hence.64 Craig mented, in a half-facetious half-serious article, on his replied that he had never been apprised of the regu- dismissal within the context of academic freedom as lation, could not admit its validity, and expected to he understood it: essentially, the freedom to teach occupy his chair for as long as he could ‘discharge and carry out research. ‘The truth is,’ he wrote, ‘that the duties of the position acceptably’.65 Falconer re- any college which falls into the unhappy position on sponded that a rule was a rule, that Craig had pre- living on the current bounty of rich men, finds itself sumably qualified for a pension while at the Univer- in chains’. In this situation, which existed at McGill sity of Michigan, that he was getting on in years, and for much of the 1930s, with board members balanc- that it was time to make room for someone younger.66 ing the budget out of their own pockets, the idea of From Craig’s point of view, this added insult to academic freedom ‘must be put aside’, and profes- injury. He was ‘quite unconscious of any struggle sors like himself, said Leacock, could suddenly be against advancing years,’ he wrote, and was well told to leave.61 able to carry on teaching. Moreover, retirement would not only hurt him financially but also violated ‘the professor’s rights which have been established TENURE AT THE PROVINCIAL UNIVERSITIES: by the historic traditions of centuries of university THE CASE OF JAMES A. CRAIG custom’.67 When Falconer then referred him to a cir- cular, sent to all faculty in 1919, stating that the age The events Leacock deplored did establish a clear of retirement was 65, Craig asked for, and was time limit on what otherwise continued to be tenure granted, a postponement of one year.68 Early in 1922, during good behavior at McGill. As far as the provin- however, he informed Falconer that he questioned cial universities were concerned, however, two cases the board’s right to retire him, noting that several of in the early 1920s had clarified the issue: tenured its members were working well beyond the age of professors served during the pleasure of the board of 65.69 (One of them, Sir William Mulock, became governors, although at most institutions — the Uni- Chief Justice of Ontario in 1923 at the age of 80 and versity of Manitoba excepted — a recommendation held that office until 1936, when he was 93!) Falconer from the president was required for appointment, submitted this letter to the board, as well as a petition promotion, and dismissal. In 1920, three judges of the signed by a number of students who asked that Craig Court of King’s Bench of Saskatchewan, acting for be kept on, but the governors declined to reopen the the university’s visitor, ruled that to dismiss any pro- matter.70 Horn: Tenure and academic freedom in Canada 31

Having failed to secure third-party arbitration of The law was clearer in the case of those engaged for the difference between him and the board, Craig fixed terms: ‘The employee can be dismissed before filed suit against the university and its president, the end of such period, but such dismissal is ex seeking $50 000 damages for wrongful dismissal.71 hypothesi wrongful and is a basis for a claim to The trial took place without jury before Mr. Justice damages.’ How much? That would depend on actual John Orde of the Supreme Court of Ontario, who loss suffered ‘after diligent effort to secure other took little time to decide in favor of the defendants. employment’. Such employees should therefore get No definite term had been fixed at Craig’s appoint- ‘as long notice as possible’.74 ment, he wrote in his judgment, ‘and the ordinary In the spring of 1932, a number of faculty members rule, that such a contract of employment could be ter- were informed that their appointments might be ter- minated upon reasonable notice by either party minated, and late in July, seven associate and four would apply, unless the particular nature of a con- assistant professors received notice that their tract of employment of this kind, or the circumstances employment would end on 31 August. All eleven in which it was made, override that rule.’ Neither was were on contract, four on contracts ending on 31 the case. Craig’s contention that ‘the appointment to August 1933, and one on a contract ending 31 August a professorship ... without limitation is an appoint- 1934. The board secured consent by means of sever- ment for life, subject only to the appointee’s good ance pay and promises of re-appointment when cir- behaviour and his ability to perform his duties effi- cumstances might permit.75 No one sued, and only ciently,’ met with disbelief. ‘If this contention were one fired professor registered a reproach.76 correct, the contract for a life-appointment must nec- Why were tenured professors exempted from dis- essarily be mutual. It could not be binding on the missal, although they generally earned more than University without at the same time binding the pro- untenured faculty and Reid had advised that dismiss- fessor ... It should only be necessary to state this con- ing tenured faculty was preferable to dismissing tention to show its absurdity.’ (The doctrine of mutu- untenured faculty with multi-year contracts? Neither ality as an argument against life tenure also featured the board minutes nor the presidential files offer a in US jurisprudence, notably in an 1898 New York clue, and we are left to speculate about the answer. It case to which, however, Orde did not refer.72) Even if seems likely that President Klinck feared the effects the board of governors had always treated tenured on future recruiting if the university encroached on appointments as if they were for life, this would not tenure. He would probably not have seen the letter affect their power to dismiss someone whose tenure warning against dismissals and drastic reductions in was during pleasure, provided the president so rec- salaries that a University of British Columbia gradu- ommended. He did not adjudicate the contention by ate then teaching at the University of Toronto sent to the defendants that the University of Toronto Act Premier Tolmie, but he would surely have been alive gave them ‘power to dismiss at pleasure without any to its central argument. ‘When the present depres- notice whatever,’ saying it was unnecessary to do so sion is over and an offer is made to a Toronto or in order to decide in their favor on the larger issue.73 McGill professor to go to British Columbia,’ Harry How many professors took note of this judgment? Cassidy warned, ‘he will very probably hesitate seri- No answer is possible, but lawyers surely paid atten- ously, thinking that ... British Columbia will not be tion to it. One was the solicitor for the University of able to offer that security of tenure and position British Columbia. The province’s University Act of which is usually considered the chief economical 1908 was based on the 1906 University of Toronto advantage of academic life’.77 We may assume that Act, so that tenured professors served during pleas- those charged with the university’s affairs saw their ure. Asked in 1932 how the board of governors, faced quandary in that light. The University of British with a deep cut in the provincial grant, could go Columbia could not afford to keep all its teaching about dismissing professors, both tenured and hired staff, but its president and board respected tenure. for fixed terms, R.L. Reid informed President Klinck: ‘Where the terms of the contract do not provide for its termination, the law imposes that it may be termi- TENURE AT THE UNIVERSITY OF MANITOBA IN nated provided reasonable notice is given.’ No court THE DEPRESSION had laid down ‘a hard and fast rule’ as to what consti- tuted reasonable notice, but it ranged from three During the Depression, some tenured faculty did months to a year. ‘If it were possible in all cases to lose their positions on financial grounds, three at give six months’ notice, we would advise that length.’ Acadia University alone.78 The controversial dis- 32 Ethics Sci Environ Polit 15: 23–37, 2015

missal of J. King Gordon from his tenured posi- stating that henceforth three months’ notice would tion at Montreal’s United Theological College was be given.86 Gradually, the faculty began to feel more prompted primarily by the institution’s budgetary secure. At a meeting of the board’s staff committee shortfall, though objections to his outspoken Chris- 20 years after the crisis of 1932, President A.H.S. Gill- tian socialism probably played a contributory role.79 son said that professors seemed to think their However, tenure was nowhere more in danger than appointments were permanent. He considered this at the University of Manitoba. Cuts in the provincial undesirable; the board members present agreed and government grant were very difficult to accommo- at a subsequent meeting confirmed the by-law date, though increases in tuition fees covered part of requiring only three months’ notice.87 the shortfall. More devastating still was the revela- This was effectively a dead letter. Whatever the tion in August 1932 that the chairman of the board of board might think, and whatever the situation might governors and honorary bursar, the prominent be legally, tenure during good behavior was becom- lawyer J.A. Machray, had embezzled most of the uni- ing a de facto reality. It remained for Gillson’s succes- versity’s endowment.80 Within days, the board de- sor, Hugh H. Saunderson, to spell this out. In January cided to notify all faculty members that they had a 1959, he explained to the board that a tenured job only until 31 August 1933, and that they would be appointment was one without term until retirement informed as early as possible in 1933 what their at 65. Its purpose was ‘to protect the community and future tenure would be.81 its universities by maintaining places where scholars The 1917 University Amendment Act stated that can seek to find truth and to express their views, the tenure of the university’s officers and employees, even although their individual views may currently ‘unless otherwise provided, shall be during the be unpopular with a very large fraction of the com- pleasure of the board’. The board sharpened this in munity’.88 Tenure was not a means of protecting early 1934, passing a by-law stating that every the incompetent, Saunderson added, for machinery appointment contract ‘shall be terminable at the will existed to encourage improved performance and, if of the board’.82 Faculty anxiety, which had waned necessary, to dismiss someone for cause. somewhat when the great majority of professors This statement was remarkable. It contradicted not were re-engaged for 1933-34, grew again at this only the 1917 University Amendment Act and the point. The board also lowered the retirement age board’s 1934 by-law, but also the jurisprudence of from 68 to 65. At a meeting of the board and the fac- tenure in Canada and the way it had been under- ulty, the latter argued that they should enjoy greater stood. For example, when Frank Underhill was security of tenure, and, more specifically, ‘that staff threatened with dismissal in 1941, his lawyer cited members should not be required to hold office at the the Craig judgement and said that, provided Presi- pleasure of the Board of Governors’.83 A board mem- dent Cody recommended termination, the board was ber responded that tenure during pleasure was also free to show Underhill the door.89 Eventually, Presi- the rule at the Universities of Saskatchewan and dent H.J. Cody, under political pressure because Alberta, and since grants fluctuated annually, the Underhill was a person of interest in the USA, a governors of a provincial university could safely country British and Canadian politicians were eager make commitments only from year to year. However, to enlist in the Allied cause, withdrew his recommen- the board intended ‘to retain its staff with as great a dation that Underhill be dismissed. However, it was a degree of permanency as the circumstances war- near run thing.90 ranted’.84 Board chairman Mr. Justice A.K. Dysart added to this that the board recognized the impor- tance of the faculty as ‘the heart and soul of the Uni- TENURE AT THE UNIVERSITY OF ALBERTA IN versity,’ but that even more important than the desire THE 1940s to give professors peace of mind about their tenure was the duty ‘to build up and maintain efficiency in At the University of Alberta a year later, President the staff’. The board must be able to weed out those Robert Newton recommended to the board that three who had ‘become incapable of rendering the requi- senior professors, including the heads of chemistry site service’.85 This introduced an additional element and pharmacy, be ‘retired’ on 31 August 1942, into the discussion, with a professor’s contribution to because they were ‘inefficient’.91 The board accepted the university’s functioning becoming central. the recommendation, although there had been no By the autumn of 1934, with the financial crisis hearing of any kind. Seven years later, the board receding, the Manitoba board adopted a new by-law ignored their own 1943 statement on dismissals, as Horn: Tenure and academic freedom in Canada 33

well as common standards of fairness, to fire, with 20 formed by the CAUT and consisting of V. C. Fowke, weeks’ pay in lieu of notice, the head of the depart- professor of economics at the University of Sas ka t ch - ment of biochemistry, George Hunter, who had been e wan, and Bora Laskin, professor of law at the Uni- at the University of Alberta since 1929.92 No explana- versity of Toronto (and later Chief Justice of Can- tion was ever given, and Newton offered only gener- ada).97 However, the investigators also found that alities to justify the dismissal. To the media he spoke Crowe’s first dismissal in July 1958 — a second took of ‘dissatisfaction over the years’ and ‘his whole place in September — was due to his ‘audacity in unsatisfactory history in this university’.93 In a letter protesting an invasion of privacy and violation of to an acquaintance, he mentioned what he called ‘a what he conceived to be his legal rights, as well as long career of trouble and making trouble’.94 The protesting possible adverse use of the contents of the board’s right to dismiss Hunter was beyond chal- letter based on conclusions which he declared were lenge, for he served at their pleasure, and they were unfounded’.98 Although the board of regents acted under no obligation to explain their decision. on the basis of the 1938 United College Act by which It is difficult to imagine a president and board of professors held their tenure during the pleasure of governors declining to explain a similar decision only the board, Fowke and Laskin held that the board had ten years later, and impossible to imagine their infringed on tenure as Canadian professors had come behaving that way 20 years after the Hunter case. to understand it, adding: ‘Security of tenure is pre- Professors, both tenured and untenured, were still requisite to academic freedom.’99 occasionally dismissed after 1960, but not without at Did Crowe’s dismissal have any relation to aca- least a semblance of due process and some attempt to demic freedom? Fowke and Laskin concluded that it justify the decision publicly. One reason may have did.100 Were they right? And by whose definition? been that Hunter’s dismissal exposed the University On the issue of tenure: it may well be true that of Alberta to a certain amount of negative comment, some, possibly many, Canadian professors had come but more important was the extraordinary amount of to assume that they held their tenure during good publicity that came to surround the dismissal of the behavior and could be dismissed only for cause and historian Harry S. Crowe from United College (now after a proper hearing in which they would have a the University of ) in 1958. This publicity chance to defend themselves. All the same, the legal was greater than it would have been a decade earlier situation was that Crowe’s tenured position had been because the Canadian Association of University terminated because it no longer pleased the board to Teachers (CAUT), which had come into existence in employ a man they regarded as insubordinate. A rec- 1951, drew attention to the dismissal. ommendation from Principal Wilfred Lockhart was not required, and he did not make one. By law, the regents owed Crowe neither a hearing nor an expla- THE CROWE CASE, 1958 nation, and he received neither. Since Crowe’s critical remarks about religion were Unlike the AAUP, the CAUT did not initially focus made in a private letter, the issue of academic free- on academic freedom and tenure.95 Bread-and- dom with respect to them arose mainly because in butter concerns such as salaries, pensions (several September the regents made the contents of Crowe’s universities did not yet have pension plans), and letter, of which they had been previously unaware, health benefits dominated during the early years. By the reason for changing the notice of one year, during 1958, however, the CAUT was beginning to concern which Crowe would have taught at United, to dis- itself with matters of appointment and dismissal, and missal with a year’s salary in lieu of notice. The refer- the Crowe case was highly relevant to the latter. ence to academic freedom with respect to the July The reasons for the dismissal, and whether Crowe’s dismissal was problematic. In fact, it was novel in academic freedom or his tenure were central to the Canada at the time. Did the concept of academic case, continue to be sources of disagreement to this freedom, in this country or elsewhere, cover actions day.96 At the time, and since, many people have be- that boards might regard as insubordinate? lieved that Crowe was improperly dismissed for The 1915 and 1940 AAUP statements on academic expressing, in a private letter that was illegally freedom and tenure did not discuss this, but Fowke diverted, opinions hostile to organized religion. and Laskin judged that Crowe, in protesting an inva- These were unwelcome in a denominational college, sion of his privacy and demanding that any copies of an institution of the . That the letter be sent to him, was ‘neither intemperate was in part the finding of a committee of inquiry nor vigorous beyond the point of reasonable firm- 34 Ethics Sci Environ Polit 15: 23–37, 2015

ness’.101 His dismissal for defending his rights they of tenure in the protection of academic freedom, he saw as an attack on his academic freedom. Beyond wrote that the jurisprudence of tenure in Canada was that, they saw an implicit attack on the dignity of the ‘not helpful ... The picture of our legal rights is an academic profession. At United College, and not only unhappy one. Indeed, if the legal picture were the there, professors were expected to defer to the whole story, the state of academic freedom in Can- authority of executive heads and lay boards of gover- ada would be intolerable’.107 The ‘whole story’ was nors. In challenging this state of affairs, Fowke and that tenure during pleasure had generally become Laskin signaled a change in the self-perception of tenure during good behavior in fact if not in law. He Canadian professors. Commenting on Crowe’s pro - urged professors to work towards reaching agree- test against the photocopying of his letter by Princi- ments with governing boards that would establish pal Lockhart, they wrote: ‘Canadian scholars are not tenure during good behavior in law and provide for commonly or properly held in such low esteem that procedures dealing with appointments, promotions they must abstain from protest in such circum- and dismissals, including full hearings and appeals. stances.’102 Encouraged by the CAUT and aided by a tempo- The assumption that boards of governors or rary shortage of qualified people, Canadian profes- regents were synonymous with the colleges and uni- sors in the 1960s sought and obtained agreements versities they governed had legal support, but pro- that established tenure during good behavior. At the fessors were beginning to question it. A small but University of Toronto, for example, a committee growing number were asking why members of lay appointed by President Claude T. Bissell in 1964 and boards, who did none of the institution’s essential chaired by the physiologist R.E. Haist, authored the work of teaching and research, and often seemed to ‘Haist rules’ dealing with appointments, promotions, lack interest in it, should be able to dispose of profes- and tenure, which included a requirement to show sors’ careers. They looked to changes in university cause in cases of dismissal. The board of governors government that would award more power and influ- adopted these rules in 1967, thereby significantly ence to the teaching staff.103 Fowke and Laskin made limiting their own power.108 Other governing boards a logical leap in linking this issue to the issues of aca- were doing the same thing. By 1970, many university demic freedom and tenure. In the 1960s the CAUT people, including presidents and board members, would do much to spread this idea in the academic had come to the view that tenure as a permanent world, notably in a book edited by George Whalley appointment, terminable only for cause and after a and published under CAUT sponsorship in 1964, A properly constituted hearing, should be enjoyed by Place of Liberty: Essays on the Government of all professors who had passed a period of probation, Canadian Universities.104 The essay on academic usually three to six years in length. The protection freedom was written by Frank Underhill, who identi- that academic freedom derived from tenure had fied it with faculty self-government but claimed that become its chief justification, and professors now ‘academic freedom will only be securely established understood that freedom to include not only the free- through the growth in the community at large of a dom to teach, do research and publish, but also the genuine belief in the supreme value of intellectual freedom to speak freely as citizens and even the free- activity’.105 This was unlikely to happen anytime dom to criticize one’s own institution.109 soon because the belief could be damned as ‘elitist’. For a time the argument for tenure as a guarantee Bora Laskin contributed a discussion of tenure, with of economic security dropped out of the discussion. It a synopsis of several court cases and a brief account was absent from Soberman’s discussion of tenure of the Crowe affair. The principles of tenure laid even though the CAUT’s initial statement on aca- down by the courts, Laskin concluded, ‘do not com- demic freedom and tenure in 1960 had claimed that port with the views generally held by the academic the provision of ‘sufficient economic security to make community’.106 the profession attractive to men and women of abil- ity’ was one of two key ends of tenure, the protection of academic freedom being the other.110 That claim THE CANADIAN ASSOCIATION OF UNIVERSITY echoed Mr. Justice Dysart’s obiter dictum in the TEACHERS AND TENURE Smith case 40 years earlier; yet Soberman, writing when academic jobs had suddenly become plentiful, A 1965 report on tenure that Queen’s law professor described Dysart’s attitude as ‘patronizing’.111 It soon Daniel Soberman prepared for the CAUT made the became relevant again, however, when new aca- same point in greater detail. Finding the justification demic positions became scarce after 1971, even as Horn: Tenure and academic freedom in Canada 35

the number of graduate programs and thus of quali- freedom in all its forms is embattled. Tenure may fied candidates kept growing. Among other things, protect people whom others regard as undeserving this meant that those who lost their position found it and who may in fact be so, people who, in spite of the very hard to find another. This in turn prompted a promise they showed when they received tenure, renewed appreciation of the need for security. have turned out to be wanting in some aspect of their ‘University employment is rather like membership work. But this drawback is the price that may have to of some profession,’ the University of Alberta legal be paid to protect the innovative, the outspoken, the scholar G.H.L. Fridman wrote in 1973, ‘because dis- unconventional, and the unpopular, those whose missal is like loss of professional status: the dismissed fields of academic specialization have fallen into party is deprived of the means of obtaining a liveli- temporary disfavor and, most of all, those who do hood by the exercise of that skill and expertise for research, sometimes very important research, that which he has prepared himself by years of train- does not produce quick results and satisfies no com- ing’.112 In an obiter dictum in 1990, the Supreme mercial demand. As it did in the past, tenure contin- Court of Canada made a related point. Professors, the ues to serve the long-term interest of the universities Court held, ‘must have a great measure of security of and of society. employment if they are to have the freedom neces- sary to the maintenance of academic excellence which is or should be the hallmark of a university. 1Craig Heron, speaking as a member of a panel discussion: Tenure provides the necessary academic freedom to ‘Rising to the challenge: What lies ahead for faculty allow free and fearless search for knowledge and the associations,’ OCUFA 50th Anniversary Conference, 113 Toronto, 24 October 2014 propagation of ideas.’ 2‘Re Wilson,’ 18 Nova Scotia Reports (April 1885) 196. Michiel Horn, Academic Freedom in Canada: A History (Toronto: University of Toronto Press, 1999), 285 3 CONCLUSIONS ‘Ex Parte Jacob,’ 10 New Brunswick Reports (1861), 162−163 4Horn, Academic Freedom in Canada, 15−17 The justification of tenure as employment security 5Weir v. Mathieson, 3 Grant’s Error and Appeal Reports was as relevant at the end of the 20th century as it (1866), 162 6 had been at the beginning. If professors are less Hilda Neatby, Queen’s University, Vol 1 (Montreal: McGill- Queen’s University Press, 1978), 178 likely to make this point, it is because the argument 7McGill University Archives (MUA), RG2, Principal’s Office is too easily described as self-serving. Nevertheless, (PO), c.90/2550, R. Bruce Taylor to Frank Adams, 31 May the desire for economic security has a close link to 1920 academic freedom. 8Horn, Academic Freedom in Canada, 54−61 9 Tenure during good behavior, terminable only University of Saskatchewan Archives, Presidential Papers, I, B.121/5, clipping from Saskatoon Phoenix, 18 August after cause had been established in a fair hearing, 1919 had by 2000 become the rule, and academic freedom 10Smith v. Wesley College, 3 Western Weekly Reports had come to include the freedom not only to embrace (1923), 201, 202 11 controversial research topics but also to espouse R. Bruce Taylor, ‘Academic Freedom,’ Queen’s Quarterly, 27 (Summer 1919), passim unpopular causes. In some senses, then, academic 12Horn, Academic Freedom in Canada, 46−47 freedom is safer than it was before. However, in 13E. E. Braithwaite, ‘Academic Freedom,’ Globe [Toronto], 4 recent decades Canadian universities have been June 1919 14 increasingly reluctant to appoint academics to Robert M. MacIver, Labor and the Changing World (New tenurable positions, and the teaching staff has come York: Dutton, 1919) 15University of Toronto Archives (UTA), President’s Office to include a growing number of people who are (PO), A67-0007/67, R. W. Leonard to Edmund Walker, 14 employed on eight month contracts. Although collec- January 1921, copy tive agreements usually contain a clause protecting 16UTA, PO, A67-0007/67, Walker to Leonard, 17 January academic freedom, in fact the insecurity of contract of 1921, copy 17UTA, PO, A67-007/65, Robert Falconer to Leonard, 18 part-time faculty members has seriously limited their January 1921, copy academic freedom. Especially their freedom to carry 18Ibid., Leonard to Falconer, 21 January 1921 on long-term research projects is severely hampered, 19Ibid., Falconer to Leonard, 22 January 1921, copy 20 not least because most need to work during the UTA, PO, A67-0007/72, Leonard to Falconer, 9 December 1921 summer. 21Ibid., Falconer to Leonard, 12 December 1921, copy Economic security, not academic freedom, is at the 22James Greenlee, Sir Robert Falconer (Toronto: University core of tenure, but without that security, academic of Toronto Press, 1988), 278 36 Ethics Sci Environ Polit 15: 23–37, 2015

23Robert Falconer, Academic Freedom (Toronto: University 54UBCA, Eastman Papers, D II B6/2, Vol 1, MacLean to East- of Toronto Press, 1922), passim man, 7 December 1922 24UTA, PO, A67/0007/72, Leonard to Falconer, 24 April 1922 55UBCA, President’s Office (PO), microfilm reel 32, file E.21 25UTA, PO, A67-0007/78, Falconer to Leonard, 28 February Sp., Leonard S. Klinck, statement made to L.S. Klinck by 1923, copy Mr. Hinchliffe, 5 August 1931 26Richard Hofstadter and Walter P. Metzger, The Develop- 56University of British Columbia Library, Special Collections, ment of Academic Freedom in the United States (New Simon Fraser Tolmie Papers, folder 7-2, Minister of Educa- York: Columbia University Press, 1955); Robert M. tion, J. Hinchliffe to S. F. Tolmie, 9 November 1931 MacIver, Academic Freedom in Our Time (New York: 57Horn, Academic Freedom in Canada, 88−144 Columbia University Press, 1955) 58MUA, RG2, PO, c.55/779, Arthur Currie to Joseph S. Ames, 27Mail and Empire, 15 February 1922 25 April 1933, copy 28Toronto Star, 15 February 192 59MUA, RG2, PO, c.43/301, Stephen Leacock to Currie, 13 29Telegram, 15 February 1922 May 1933 30‘The Higher Politics,’ Globe, 16 February 1922 60MUA, Board of Governors, Minutes, 7 June 1935 31Hofstadter and Metzger, The Development of Academic 61Stephen Leacock, ‘Academic Freedom,’ Maclean’s Maga- Freedom in the United States, 377, 387, 389, 405, 469−470 zine (1 February 1936), 38−39 32American Association of University Professors, ‘General 62In re The University Act, 2 Western Weekly Reports (1920), Report of the Committee on Academic Freedom and 824−831, passim Tenure,’ Law and Contemporary Problems (LCP), 53 63UTA, PO, A67-0007/59A, Robert Falconer to J.D. (Summer 1990), 404−405 MacLean, 2 January 1919, copy 33Ibid., 406 64UTA, PO, A72-0033/001, Falconer to J.A. Craig, 26 June 34Thomas L. Haskell, ‘Justifying the Rights of Academic 1920, copy Freedom in the Age of ‘Power/Knowledge,’ in Louis 65Ibid., Craig to Falconer, 28 June 1920 Menand, ed., The Future of Academic Freedom (Chicago 66Ibid., Falconer to Craig, 30 June 1920, copy and London: Chicago University Press, 1996), 54 67Ibid., Craig to Falconer, 14 October 1920 35A. H. Halsey and M. A. Trow, The British Academics 68Ibid., Falconer to Craig, 30 October 1920, copy; Craig to (Cambridge: Harvard University Press, 1971), 117; Conrad Falconer, 4 November 1920 Russell, Academic Freedom (London and New York: 69Ibid., Craig to Falconer, 1 February 1922 Routledge, 1993), 43−44 70UTA, A70-0024/11, Board of Governors, Minutes, 9 36UTA, PO, A67-0007/42, William Hearst to Robert Falconer, February 1922 2 November 1916 71UTA, PO, A72-0033/001, Statement of Claim, 1 September 37UTA, PO, A67-0007/43, James Mavor to Falconer, 9 1922 November 1916 72Walter P. Metzger, ‘Academic Tenure in North America: A 38UTA, PO, A67-0007/42, Hearst to Falconer, 30 November Historical Essay,’ Commission on Academic Tenure in 1916 Higher Education, Faculty Tenure: A Report and Recom- 39S. E. D. Shortt, The Search for an Ideal: Six Canadian Intel- mendations (San Francisco: Jossey-Bass, 1973), 134; Clark lectuals and Their Convictions in an Age of Transition Byse and Louis Joughin, Tenure in American Higher Edu- (Toronto: University of Toronto Press, 1976), 123 cation: Plans, Practices, and the Law (Ithaca, NY: Cornell 40Greenlee, Sir Robert Falconer, 282 University Press, 1959), 93 41A. Lawrence Lowell, quoted in Walter P. Metzger, ‘The 73Craig v. Governors of the University of Toronto, 53 Ontario 1940 Statement of Principles on Academic Freedom and Law Reports (1923), 319−322, passim Tenure,’ LCP, 53 (Summer 1990), 21−22 74UBCA, PO, microfilm reel 33, General Correspondence, 42UTA, PO, A67-0007/83a, G.H. Ferguson to Falconer, 2 file Re 57 Special, R. L. Reid to L. S. Klinck, 23 February June 1924; A67-0007/83, Falconer to Ferguson, 4 June 1932 1924 75UBCA, Board of Governors, Minutes, Vol 11, 25 July 1932 43UTA, PO, A67-007/114, Ferguson to H.J. Cody, 17 October 76UBCA, PO, microfilm reel 33, General Correspondence, 1928; Cody to Falconer, 19 October 1928; F.H. Underhill to file Ow 52 Special, Eivion Owen to L. S. Klinck, 6 August Falconer, 23 October 1928; Falconer to Ferguson, 23 1932 October 1928 77Provincial Archives of British Columbia, GR1222, British 44Public Archives of Ontario (PAO), F980, H.J. Cody Papers, Columbia, Premier, Vol 120, H. M. Cassidy to S. F. Tolmie, MU4964/5, Ferguson to Cody, 6 April 1929 24 February 1932 45Horn, Academic Freedom in Canada, 71−72 78Acadia University Archives, Board of Governors Executive 46Peter Oliver, G. Howard Ferguson: Ontario Tory (Toronto: Committee, Minutes, 30 July 1930, undated [1933], and 15 University of Toronto Press, 1977), 328 February 1934 47Horn, Academic Freedom in Canada, 25−32 79Horn, Academic Freedom in Canada, 114−116 48UTA, PO, A67-0007/110a, Falconer to W.R. Taylor, 29 May 80University of Manitoba Archives (UMA), Board of Gover- 1928, copy nors (BoG), Minutes, 25 August 1932; W.L. Morton, One 49The Varsity, 15 January 1930 University: A History of the University of Manitoba, 1877- 50Toronto Star, 15 January 1930 1952 (Toronto: University of Toronto Press, 1957), 148−154 51Vancouver Province, 23 Novembr 1922 81UMA, BoG, Minutes, 25 August 1932 52University of British Columbia Archives (UBCA), S. Mack 82UMA, BoG, Minutes, 30 January 1934 Eastman Papers, D II B6/2, Vol 1, Eastman to J. D. 83UMA, BoG, Minutes, 15 March 1934 MacLean, 2 December 1922, copy 84Ibid. 53S. Mack Eastman, ‘Textbooks in European History,’ Van- 85Ibid. couver Province, 7 December 1922 86UMA, BoG, Minutes, 10 October 1934 Horn: Tenure and academic freedom in Canada 37

87UMA, UA/14, Office of the Comptroller, Vol 43, Minutes, 99Ibid. Staff Committee, 18 April, 9 May 1952 100Ibid., 40 88UMA, UA/20, Presidential Papers, Vol 167, file 9, Hugh H. 101Ibid., 49 Saunderson, ‘Academic Tenure,’ 20 January 1959 102Ibid. 89Library and Archives Canada (LAC), MG30, D204, Frank 103Horn, Academic Freedom in Canada, 253−254 H. Underhill fonds, Vol 6, Leopold Macaulay to F.H. 104George Whalley, ed., A Place of Liberty: Essays on the Underhill, 6 January 1941 Government of Canadian Universities (Toronto and Van- 90Horn, Academic Freedom in Canada, 154−165 couver: Clarke Irwin, 1964) 91University of Alberta Archives (UAA), Board of Governors, 105Frank H. Underhill, ‘The Scholar: Man Thinking,’ Ibid., 69 Executive Committee, Minutes, 7 January 1942 106Bora Laskin, ‘Some Cases at Law,’ ibid., 177 92Horn, Academic Freedom in Canada: 195−202 107Daniel A. Soberman, ‘Tenure in Canadian Universities,’ 93Globe and Mail [Toronto], 6 July 1949 CAUT Bulletin, 13 (March 1965), 8 94UAA, George Hunter File, Robert Newton to Hardolph 108William H. Nelson, The Search for Faculty Power: The Wasteneys, 13 September 1949, copy University of Toronto Faculty Association, 1942-1992 95Horn, Academic Freedom in Canada: A History, 221−222 (Toronto: Canadian Scholar’s Press, 1993), 33 96Ibid., 222−245 109Horn, Academic Freedom in Canada: A History, 300−303 97[V.C. Fowke and Bora Laskin], ‘Report of the Investigation 110‘Principles of Academic Freedom and Tenure,’ 6 by the Committee of the Canadian Association of Univer- 111Soberman, ‘Tenure in Canadian Universities,’ 6 sity Teachers into the Dismissal of Professor Harry S. 112G. H. L. Fridman, ‘Judicial Intervention into University Crowe by United College, Winnipeg, Manitoba,’ (Fowke- Affairs,’ Chitty’s Law Journal, 21 (June 1973), 186 Laskin Report], CAUT Bulletin 7 (January 1959) 113McKinney v. University of Guelph, 3 Supreme Court 98Ibid., 38 Reports (1990), 229

Editorial responsibility: Konstantinos Stergiou, Submitted: January 5, 2015; Accepted: August 11, 2015 Thessaloniki, Greece Proofs received from author(s): September 25, 2015