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Mapping the Freedom to Learn: Making the Case for Student Academic Freedom in Canada

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Mapping the Freedom to Learn: Making the Case for Student Academic Freedom in Canada 1 \ MAPPING THE FREEDOM TO LEARN: MAKING THE CASE FOR STUDENT ACADEMIC FREEDOM IN CANADA ANGELA S. REGNIER A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO MARCH 201~ ©Angela S. Regnier, 2013 \ I ABSTRACT Academic freedom has been defined as having two components: the freedom to teach and the freedom to learn. However, whether there is truly a freedom to learn and how it intersects with general liberties is unresolved. Incorporating a <r;ritical pedagogical approach, this thesis explores whether Canadian post-secondary students have any such role-related rights. In aiming to map the conditions that might safeguard such a freedom to learn, certain civil liberties are examined - namely associational and expressive freedoms. A critique of contemporary jurisprudence and relevant legislation is situated within an historical and comparative context of academic freedom and students in Canada and United States. It examines how reinforcing robust civil liberties is necessary for supporting role related academic freedom rights on campus. This thesis proposes that it is necessary for both faculty and students to recognize the precarious and sometimes competing rights and freedoms to support the broader goals of academic freedom - to develop knowledge and inquiry for the common good and to foster critical independence of mind. ii I \' DEDICATION To my brother Gabriel-because you teach me more. about wisdom, 1 strength, and life than any book or course ever will. iii i -~~\ i ACKNOWLEDGEMENTS I would like to recognize and thank the many people who supported me through this process. First and foremost, I would like to thank my supervisor, Professor Jamie Cameron - for her brilliance, patience, and endless support and encouragement. I would also like to thank my second reader, Professor Susan Drummond for her valuable insight and support. I would also like to acknowledge the support and inspiration from the rest of the faculty and my colleagues at the Osgoode Hall Law School graduate programme. A special acknowledgement must go to some 0f the wonderful administrative staff in the faculty - particularly Rhonda Doucette and Lynne Fonesca - for keeping me on track. Thank you to my loving and supportive family - especially to my mom (Sylvia) and dad (Bob) - for just being the best in every way. Finally, I want to thank all of my friends, colleagues, and acquaintances who either listened to my ramblings, pontifications and commiserations or were brave enough to read drafts throughout this process. Especially thank you to Susan Lutkin, Meghan Gallant, Meghan McPhee, Kai Michael,, Sheetal Rawal, Jess Turk-Browne, and Alice Wu for your unique and valuable ways of supporting this project and for your friendship. iv \, \ Table of Contents Chapter 1 - Introduction: Towards a Freedom to Learn ................................. 1 Chapter 2: Foundations and Principles of Academic Freedom and Student Rights ..........................................................................•...,.................................. 18 Historical Roots of Academic Freedom - Freedom to t~ach and learn ................ 20 Academic Freedom in the United States: For the Public Good or an Individual Right? .................................................................................., .................................... 22 Power, Neutrality and the Responsibility of Academic Freedom ........................ 24 Academic Freedom as a Narrow Responsibility ................................................... 27 Academic Freedom in the Law in the US: Free Speech and Academic Freedom .................................................................................................................................. 28 Commercialization and Academic Freedom ...................•..................................... 33 Students and Academic Freedom in the United States ........................................ 36 Backlash to Student Radicalism .......................................•.................................... 43 Students and Academic Freedom in the 21st ceintury ........................................... 44 Academic Freedom in Canada···········································~··································· 48 Privatization, Public Education and Canadian Campuses ................................... 55 Is Academic Freedom a Right in Canada? ............................................................ 57 Academic Freedom and Students' Special Rights ............•.................................. 59 Towards a Freedom to Learn .................................................................................. 69 Chapter 3 - Higher Education in Canadian Courts ....................................... 73 The Charter and Post-Secondary Institutions in Canada ..................................... 74 The Changing Landscape of higher education in the law ...•................................ 79 Developing opportunities for Charter review in university decisions ................. 82 Universities are not Charter-Free Zones, with possible exception in Alberta .... 84 Conclusion ...............................................................................,. .............................. 92 Chapter 4: Freedom of Association for Students ..............•........................... 95 Defining Freedom of Association .......................................................................... 97 Student Organizing and Associational Activities ............................................... 100 Canadian Right to Associate Jurisprudence ...................................................... 104 Limitations on Associating ........................................................•.......................... 105 First Trilogy and Beyond: The Right to Associate but not to Associational Activities ................................................................................................................ 105 Second Trilogy: Establishing Group Rights .............................•......................... 109 The Weak Patchwork of 2(d) Jurisprudence ....................................................... 111 Associational Freedoms on Canadian Campuses .............................................. 112 Students' Union Security: Mandatory Fees ......................................................... 113 U.S.: Mandatory Student Fees Support the Public Forum ·········~······················· 115 Voluntary Student Unionism in Australia and New Zealand .............................. 117 Voluntary Student Unionism: Hindering Student Political Engagement ........... 118 Political Engagement and Associating ................................................................ 120 Canada: Mandatory Student Unions with Provincial Disparity····~····················· 121 Legislation in British Columbia and Quebec································~····················· 128 Threats to Associational Activities in BC and Quebec ....................................... 130 Students and the "Right to Strike" .................................................•.................... 134 Conclusion ........................................................................................,.................... 135 v \ \ Chapter 5: Expressive Activities on Campus: Student Non-Academic Discipline and Dissent·············································-'~···································· 138 The Context of Political Dissent on Canadian Campu,ses .................................. 141 Freedom of Expression in Canada and Dissent.......... ~ ... ,.................................... 148 Student Discipline and Regulation on Canadian Campu':ses ............................. 152 I Student Discipline, Dissent, and Power Relations in the\Academy .................. 155 Harassment, Discrimination, and Free Speech on Ca~pus ....................................... 166 Conclusion: Freeing Debate and Dissent in Academia ...................................... 171 Chapter 6: Analysis and Conclusion-Mapping the Course for the Freedom to Learn in Canadian Higher Education ........................., .............................. 17 4 Safeguarding the Freedom to Learn: from Civil Liberties to Associating to Expressive Activities and Beyond ....................................................................... 178 Analysis .................................................................................................................. 184 Works Cited: ................................................................................................... 189 LEGISLATION ........................................................................................................ 189 JURISPRUDENCE ·····································································~··························· 190 SECONDARY MATERIAL: MONOGRAPHS ........................•................................. 193 SECONDARY MATERIAL: ARTICLES·································~································ 195 OTHER MATERIALS: INSTITUTIONAL & ORGANIZATIONAL, POUCIES ........... 200 OTHER MATERIALS: REPORTS & BRIEFS ......................................................... 201 OTHER MATERIALS: LECTURES ......................................................................... 201 vi \ \ Chapter 1 - Introduction: Towards a Freedom to Learn Education either functions as an instrument which is used to facilitate integration of the younger generation
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