Special Section: Speaking Freely and Freedom of Speech Research Speaking Freely vs. Dignitary Harm: Balancing Students’ Freedom of Expression and Associational Rights with their Right to an Equitable Learning Environment

Elizabeth Brulé is an Assistant Professor in the De­ pholding both liberal principles of freedom of partment of Gender Studies, at Queen’s University, Uexpression and the principles of equity as pro­ with a research focus in institutional ethnography, In­ tected respectively in the Canadian Charter of Rights digenous feminist, anti­racist and anti­colonialist the­ and Freedoms and Canadian Human Rights legisla­ ory and activism. She is of Franco­Ontarian and Métis tion presents real political challenges. With the rise in ancestry. extreme right groups that espouse white nationalism on campuses in the last decade, the desire to create a Abstract: In this article, I examine the difficulty of us­ safe learning environment for all students and, in par­ ing student codes of conduct and civility policies as a ticular, for marginalized students, has resulted in con­ way to restrict harmful speech. I argue that policies cerns about whether the speech of the former and used to monitor students’ non­academic behaviour their associational rights should be increasingly regu­ provide administrators with a means to restrict and lated (Masri 2011; Moon 2014; Palfrey 2017; Spencer, surveil students’ political advocacy work, especially Tyahur, & Jackson 2016; Waldron 2012). Still, others marginalized students’ advocacy. Rather than provid­ argue that students’ rights to free speech and associa­ ing a ‘safe’ learning environment, codes of conduct tional rights should have the same status on university curtail students’ opportunities for freedom of expres­ campuses as they would off campus (Cameron 2014; sion and limits their ability for critical pedagogical en­ CAUT 2018, 2019; Chemerinsky & Gillman 2017; gagement with controversial ideas. Drawing on case Cloud 2015). ey contend that restrictions on aca­ studies at Canadian universities, I illustrate the con­ demic freedom and freedom of expression through tradictory challenges that student activists encounter student codes of conduct and civility policies are prob­ when attempting to balance principles of freedom of lematic. While acknowledging the undeniable harms expression and principles of equity on university cam­ of hate speech, they nonetheless counter that the risk puses. Rather than use codes of conduct, I argue that of censoring legitimate political speech outweighs such administrators should adopt criteria that help students harms. identify and limit dignitary harms. In doing so, stu­ dents will be better equipped to assess their expressive In this article, I examine the current debate around freedom and associational rights with the rights of the use of student codes of conduct and civility others to an equitable learning environment. policies to restrict harmful speech and their effects on Moreover, such an approach represents a decolonial marginalized students’ political advocacy work on Ca­ shift and promises to expand our narrow liberal con­ nadian campuses. I argue that the use of codes of con­ ception of rights and ensure marginalized peoples’ duct and civility policies for non­academic behaviour voices and worldviews are heard. to monitor students within the Canadian post­sec­ ondary system provides administrators with a means Keywords: codes of conduct, equitable learning en­ to restrict and, indeed, surveil students’ political ad­ vironments, freedom of expression, harmful speech vocacy work, especially marginalized students’ ad­ vocacy. Rather than providing a ‘safe’ learning environment, such policies and codes of conduct cur­

Atlantis Journal Issue 41.1 / 2020 21 tail these students’ opportunities for freedom of ex­ ing.” And at Western University, some students pression and limits their ability for critical pedagogical posed in front of a giant #WesternLivesMatter engagement with controversial ideas. Moreover, such banner. (2017, 1) restrictions have provided the impetus for conservative provincial governments such as Alberta’s United Con­ More recently, in the fall semester of 2019 at Queen’s servative Party and Ontario’s Conservative Party to University, a racist, homophobic note that threatened compel universities to adopt free speech policies. violence against its student residents was posted in While seeming to uphold students’ Charter rights, Queen’s University’s Chown Hall residence common such directives also require that student conduct rules room. A day prior, a Métis and an 2S­LGBTQ+ flag be in place to penalize groups that ‘disrupt’ (or rather, was stolen from the same fourth­floor room—a floor counter­protest) the free speech of others. In this art­ designated for Indigenous students and their allies. As icle, I draw upon case studies at Canadian universities a social justice advocate of Franco­Ontarian and Métis to illustrate the contradictory and often precarious heritage, and a gender studies faculty member, I was challenges that student activists encounter when at­ concerned for my students’ safety and the impact that tempting to balance principles of freedom of expres­ such violence would have on them and their families. sion and principles of equity on university campuses, I was not alone. From the university’s principal, and how administrators apply student codes of con­ Patrick Deane, to a majority of students, staff, and fac­ duct in often discriminatory ways. While universities ulty, the reaction was one of shock and disgust (CBC are exempt from upholding Charter rights due to in­ News 2019). Over 1,000 students, staff, and faculty stitutional self­governance and academic freedom, I along with the broader Kingston community took to contend that administrators should move away from the streets to protest the hateful note and to support student codes of conduct and civility policies and, in­ our Indigenous and 2S­LGBTQ+ students. Organized stead, adopt criteria that helps students identify and by Four Directions Indigenous Student Centre, the limit dignitary harms whilst balancing their right to march called on all members of the Queen’s com­ associational and expressive freedoms. In developing munity to stand up against racism, homophobia, and such criteria, students will be better equipped to assess transphobia on campus. Flags representing the their expressive freedom and associational rights with Haudenosaunee Confederacy, the Métis Nation, the the rights of others to an equitable learning environ­ Pride flag, the Trans Pride flag, and the Two Row ment. Moreover, such an endeavour may help foster Wampum were hung outside Four Directions in sup­ students’ sense of collective responsibility in uphold­ port of our Indigenous and 2S­LGBTQ+ students, ing dignitary rights on campuses and encourage critic­ only to be vandalized the last day of Pride Month in al consciousness.1 June of 2020. A month later, on July 29th, staff dis­ covered damage to the Four Directions’ Tipi. Hate Speech in Ontario Universities Unfortunately, such hate speech acts are not uncom­ In the past decade, there has been an increasing num­ mon at Queen’s. Prior to the Chown Hall incident, in ber of reports of racist propaganda at Ontario uni­ September of 2019, buildings, a sidewalk, and an In­ versities. Steven Zhou reported in Academic Matters digenous banner were covered in racist and anti­ that: Semitic graffiti (Svonkin 2019). And in 2016, Queen’s In the fall of 2015, “White Student Union” students held an off­campus Halloween party that be­ posters were found at Ryerson University, York came infamous for its racist costume attire as reported University, and the University of Toronto’s St. in major news outlets across the country (Journal Ed­ George Campus. A year later, flyers decrying itorial Board 2020). While the Queen’s administration “anti­white racism” were found on the McMas­ has taken such acts quite seriously, calling in local po­ ter University campus in Hamilton, while a lice to investigate and publicly denouncing these hate­ study room in McMaster’s Innis Library was ful speech acts, we are nonetheless left with the booked with the note: “McMaster KKK meet­ question: How can the university community foster a

Atlantis Journal Issue 41.1 / 2020 22 more inclusive campus environment, free from dis­ placed these rules and evolved to “resemble a quasi­ju­ crimination and hateful speech, while at the same time dicial framework that is used to monitor, discipline ensuring the expressive and associational rights of its and control political dissent on campuses” within a student population? corporatized university context (Brulé 2015, 161).

A Devolution of Students’ Rights Under the In recent years, such policies on non­academic beha­ Provincial Ontario Conservative Govern­ viour have been meet with accusations of ‘political cor­ ment’s Free Speech Directive rectness’ and a stifling of free speech by right­wing extremists and the far right in order to discredit hu­ Up until recently, a post­secondary student’s constitu­ man rights and social justice advocates. e abuse of tional rights to freedom of expression and the right to free speech as a regulatory discourse by the conservat­ assembly have not been protected.2 In Canada, legal ive far right, while reminiscent of the ‘cultural war’ of statutes and legislative acts have maintained a uni­ the 1980s, is again evident in recent provincial govern­ versity’s autonomy vis­a­vis the state and its right to set ment directives to post­secondary institutions. Last its own rules and regulations regarding students’ aca­ year, the conservative governments of both Alberta and demic and non­academic conduct in fulfilling its edu­ Ontario instituted new free speech directives for col­ cational mission (Cameron 2014; Moon 2014, 2018; leges and universities. Modelled after the Chicago Stewart 2010). As Richard Moon notes: “Since the Principles of Free Expression developed at the Uni­ university is not (as a general matter) a government versity of Chicago in 2014, the Ontario Ford govern­ actor, subject to the Canadian Charter of Rights and ment introduced a new directive in August of 2018 Freedoms, this is significantly a political or institutional requiring colleges and universities to develop a free­ question about the kinds of speech that advance the dom of speech policy by January 1, 2019. e direct­ university’s educational mission or are consistent with ive states that: its operation” (2014, 185). In upholding notions of • e universities/colleges should not attempt to institutional self­governance and academic freedom, shield students from ideas or opinions that they administrators further define the codes of conduct that disagree with or find offensive; students within the institution must abide by (Brulé • While members of the university/college are 2015). ey also determine the disciplinary proced­ free to criticize and contest views expressed on ures and processes that dissenters are subjected to; campus, they may not obstruct or interfere with speech codes, codes of conduct, restrictions on use of the freedom of others to express their views; space, disciplinary tribunals, appeal processes and the • Speech that violates the law is not allowed. like all come under university administrators’ jurisdic­ (Ontario, Office of the Premier, August 30, tion (Brulé 2015). While universities are exempt from 2018, 1) upholding a student’s Charter rights, they have non­ etheless purported to support a student’s expressive e Ford government’s directive also compels uni­ and associational rights, albeit on a limited case by versities and colleges to use their existing student dis­ case basis (Brulé 2015). ciplinary measures to punish students “whose actions are contrary to the policy” (Ontario, Office of the Since the 1960s, university administrators have had to Premier, August 30, 2018, 1). For instance, any “ongo­ grapple with how to address questions of freedom of ing disruptive protesting that significantly interferes expression and equity. Prior to this time, in loco par­ with the ability of an event to proceed” should be con­ entis (in place of the parent) rules were used to regulate sidered grounds for disciplinary action by university all aspects of a student’s life on campus (Brulé 2015, and college administrators (Ontario, Office of the 2020). With the rise of the left counterculture and the Premier, August 30, 2018, 1). Such a requirement ob­ Free Speech Movement (FSM) of the 1960s, students liges administrators to discipline students who peace­ challenged the paternalistic rules of in loco parentis fully contest the presence of public speakers they find (Post 2002). Student codes of conduct have since re­ offensive. Moreover, in order to receive institutional

Atlantis Journal Issue 41.1 / 2020 23 funding, student unions and clubs must comply with case at Dalhousie University in Halifax, Nova Scotia in the Ford government’s ‘free speech’ requirement. e 2017 when student leader and social justice activist directive further compels administrators “to use their Masuma Khan was charged under the university’s stu­ existing mechanisms to handle complaints and ensure dent code of conduct for having posted an ‘offending’ compliance” (Ontario, Office of the Premier, August Facebook post in the summer of that year. As vice­ 30, 2018, 1). president academic external of the student union, Khan had tabled a motion to opt out of Canada’s cel­ Of further significance is the use of the Higher Educa­ ebration activities of its 150th anniversary of Confed­ tion Quality Council of Ontario (HEQCO) to mon­ eration, arguing that such activities were an act of itor conformity with the new directive. e ongoing colonization (Rahr 2017). Young Progressive government’s news release states: Conservative students denounced the policy on the If institutions fail to comply with government Student Union’s Facebook page, which prompted requirements to introduce and report on free Khan’s comment, “White fragility can kiss my speech policies, or if they fail to follow their ass” (Rahr 2017, 1). own policies once implemented, the Ministry may respond with reductions to their operating It was this comment that compelled Progressive Con­ grant funding, proportional to the severity of servative member and graduate student Michael Smith non­compliance. (Ontario, Office of the Pre­ to submit a formal complaint against Khan and write mier, August 30, 2018, 2) an opinion piece condemning her comments in the Seemingly in line with freedom of expression policies National Post (Rahr 2017). Khan was subsequently already in place in most colleges and post­secondary brought forward for violations to the student code of institutions, critics contend that these types of free conduct policy for behaviour that could be “reasonably speech directives represent an effort to normalize understood as demeaning and intimidating” (Chiose right­wing extremist discourse on campuses (Ben­ 2017, 1). While the disciplinary action against her was Porath 2018; Cohn 2019; James 2018; Rangwala eventually dropped due to the overwhelming support 2019; Zachariah 2019). Moreover, such free speech from staff, students, and faculty for her right to politic­ policies have not been evenly upheld within the col­ al speech, she was nonetheless subjected to violent legium. For instance, marginalized students have been threats and hate speech following the student conduct disproportionally subjected to campus regulatory and charges (Rahr 2017). In this case, political speech used quasi­judicial policies and procedures, which has res­ to contest Canadian colonial institutional practices ulted in restricting rather than increasing their ability had been considered “demeaning and intimidating” by to express political views on campus (Brulé 2015; university administrators. Carey 2016; Nadeau & Sears 2011; Smeltzer & Hearn 2015; Stewart 2010; Turk 2014, 2017; Turk & Man­ Yet, months later, at Ontario’s Wilfrid Laurier campus, son 2017). a debate about the legitimacy of using gender­neutral pronouns was considered a matter of freedom of ex­ e Uneven Application of Student Codes pression. Graduate student Lindsay Shepherd, who of Conduct Policies for Non­academic Stu­ leaked a secretly recorded tape of a meeting convened dent Behaviour by her professor for having shown an episode of a TVOntario current affairs program, e Agenda, to her e disjuncture that marginalized students experience tutorial class, called foul play when challenged for her between their expressive freedom and associational potentially transphobic behaviour. e Agenda had fea­ rights within the quasi­juridical framework of codes of tured controversial University of Toronto psychology conduct are contradictory, with few institutional pro­ professor Jordan Peterson in a debate on his objection cesses in place to protect students from discriminatory to the use of gender­neutral pronouns. Shepherd aired or unfair practices (Brulé 2015; Nadeau & Sears 2011; a five­minute clip of the debate in her tutorial lesson Smeltzer & Hearn 2015; Stewart 2010). Such was the on grammar, which introduced a very controversial

Atlantis Journal Issue 41.1 / 2020 24 topic, especially in the wake of Bill C­16 of the Cana­ former Rebel Media journalist and a confirmed white dian Human Rights Act (2017), prohibiting discrimin­ nationalist and white supremacist advocate, to speak ation against non­gender conforming individuals on free speech on campus (Chaudhury 2017; Murrel (Chaudhury 2017). As a teaching assistant, Shepherd 2017). In response, Laurier’s student Rainbow Group, was required to deliver the curriculum outlined by the along with gender non­conforming and supportive al­ professor of the course. In this instance, the course fo­ lies across campus, held a silent counter­protest cused on “basic writing skills including grammar, (Chaudhury 2017). e event was eventually cancelled punctuation, essay formatting and annotated biblio­ due to a pulled fire alarm, but not before Goldy and graphies” (Chaudhury 2017, 1). As Chaudhury points her supporters engaged in a physical altercation with out, the problem was not that the video was shown, the counter­protesters outside the university complex but rather Shepherd’s invitation for students to cri­ (Chaudhury 2017; Murrel 2017). After the protest, tique whether or not alternative gender pronouns were many members of this marginalized community repor­ acceptable when addressing trans and nonbinary ted receiving threats, harassment, and online trolling people. Such an invitation not only deviated consider­ and became victims of doxing5 (Chaudhury 2017). ably from the course curriculum, but provided a for­ Greg Bird, an assistant professor at Laurier, gathered um for some students to ridicule trans and nonbinary over 450 faculty signatures demanding that the presid­ individuals, diminishing their social standing within ent denounce the resulting transphobic actions and de­ the classroom and the collegial environment in general velop measures to protect staff and students from such and, as such, calling into question their human dig­ attacks (Bird 2017). Bird argued that the university did nity.3 While students do not have academic freedom, not address nor defend the rights of trans people to an they are the beneficiaries of their professor’s academic equitable learning environment (Lam 2017). He pos­ freedom within the classroom. In this case Shepherd ited that, by not speaking out on behalf of marginal­ had not adhered to the curriculum and was in poten­ ized faculty, staff and students, the president further tial violation of Bill C­16 of the Canadian Human validated the discriminatory behaviour of the alt­right Rights Act (2017). perpetrators (Bird 2017). In this case, trans students, staff and faculty’s right to be shielded from dignity e public controversy arose when Shepherd released harms within their learning environment was not up­ the clandestine recording to the media, proclaiming held. that her right to free speech and academic freedom had been violated. e content of the recording e Aftermath of Ford’s Free Speech Direc­ sparked outrage on the part of the alt­right, which tives proclaimed that a culture of ‘political correctness’ was prohibiting open and free debate on campus. Christie e Ford government’s free speech directives have Blatchford, journalist and right­wing pundit, argued done little to resolve the issue of balancing principles that Shepherd’s free speech was under attack from of freedom of expression and principles of equity on “leftist authoritarian ideologues” (2017). Wilfrid Ontario’s post­secondary campuses. In fact, as the in­ Laurier’s president and vice chancellor, Deborah cidents at Queen’s University cited earlier indicate, fas­ MacLatchy, defended Shepherd’s right to freedom of cist and far­right groups have been further expression within her tutorials,4 despite the professor’s emboldened to spread hateful speech since the direct­ objections and protests by 2S­LGBTQ+ students and ive was announced. At York University, similar events allies who felt that their right to a safe learning envir­ have taken place. On November 20, 2019, York was onment had been violated (Chaudhury 2017; Murrel the site of a violent confrontation between Students 2017). Against Israeli Apartheid (SAIA) and Israeli Zionists at an event sponsored by the student group Herut Shepherd took matters even further. In the midst of Canada. Undergraduate student Lauren Isaacs, Herut’s the controversy, she co­founded the Laurier Society president at York, invited Israeli Defence Forces (IDF) for Open Inquiry (LSOI) and invited Faith Goldy, a reservists to speak on campus.

Atlantis Journal Issue 41.1 / 2020 25 e event, which was sanctioned by the university’s property. York reserves the right to issue trespass administration and approved by the Temporary Use of notices to anyone with similar intent. (Canadian University Space (TUUS) staff and security risk man­ Jewish News 2020, 2) agement assessment personnel (York University 2019a), resulted in an unsanctioned “alternative secur­ On December 3, 2019, the Vice­President, Finance & ity” presence by the Jewish Defence League (JDL) of Administration and Vice­Provost, Students formally Canada—a Jewish religious political organization that suspended both Herut and SAIA student groups’ priv­ has been classified as a right­wing terrorist group by ileges. And on December 10, 2019 they announced the FBI in the United States (Federal Bureau of In­ the commissioning of a comprehensive independent vestigation 2001). While both student groups engaged external review that was to be conducted by the Hon­ in verbal and physical altercations during the event, orable Justice omas Cromwell, former Justice of the university video footage shows individuals bearing the Supreme Court of Canada (York University 2019b). JDL crest assaulting SAIA members (Cromwell 2020, 14). Following the event, Lauren Isaacs thanked the Justice Cromwell’s external Independent Review, re­ Jewish motorcycle groups (Riders of the Covenant and leased June 2020, provides a comprehensive overview e Deplorables) and Jewish Defence League for of York’s TUUS policy and the security measures put providing security “to help us stay safe” on the Herut’s into place and also the findings from his interviews Facebook page (cited in Cromwell 2020 18). Lauren with 22 student groups as well as individuals who par­ Isaacs’ post states: ticipated in the event of November 20. In line with my I personally appointed a security organizer who own empirical research (Brulé 2015), the 85­page re­ rallied many people in the community to come port reveals a fundamental lack of transparency in how out and help us stay safe. He had connections administrators decide which student events are permit­ to certain Jewish motorcycle groups like e ted to take place on campus and which are not (Crom­ Riders of the Covenant and e Deplorables, well 2020). Cromwell also found many of York’s whose members came out and selflessly pro­ policies and procedures on racism, discrimination, and tected our community. ank you guys! My se­ harassment to be in need of clarification for students. curity organizer also reached out to the JDL, Many of the students he interviewed were unsure as to who sent out a group of guys. We are very what constituted hate speech and harassment and what grateful to them as they helped keep the pro­ the university’s responsibility and authority was in rela­ testers away from our event, protected the Jew­ tion to student groups (Cromwell 2020, 16). In his re­ ish students and Zionist community members, port, he further posits that when freedom of expression and helped to safely escort us home after the and equity issues collide, freedom of expression should event. (cited in Cromwell 2020, 18) take precedence (Cromwell 2020). Justice Cromwell also counsels administrators to adopt a more robust se­ York administrators subsequently banned Meir Wein­ curity decision­making process for student events and stein, the head of Jewish Defence League of Canada, suggests that they consider training special constables on March 2, 2020, under the trespass laws and remov­ vested with the authority to arrest students that do not al from all three of its campuses, and they are now comply with student conduct rules. Last, he advises pursuing damages following the event (Canadian Jew­ that York adopt the International Holocaust Remem­ ish News 2020). In an e­mail to the Canadian Jewish brance Alliance (IHRA) definition of anti­Semitism News (CJN), acting chief spokesperson for the uni­ (Cromwell 2020), a highly controversial definition versity Yanni Dagonas stated: that has been criticized as conflating anti­Semitism It is the right of all York community members with legitimate political critic of Zionism and Israeli to express their views within the law and with­ government policies (Sachs 2019). out fear of intimidation or harassment. As such, external groups with the intent to cause poten­ While I concur with Cromwell’s recommendation that tial disruption are not welcome on university York clarify the criteria used to determine how permis­

Atlantis Journal Issue 41.1 / 2020 26 sion is granted to use university space and define more imprisonment for a term not exceeding two clearly what constitutes racism, hate speech, discrim­ years; or an offence punishable on summary ination, and harassment, I take issue with his over­ conviction. (Criminal Code of Canada (1985), valuation of freedom of expression, adoption of the Section 319(2)(a)(b)) IHRA definition of anti­Semitism and his law and or­ der approach to monitoring approved events. Such re­ e Criminal Code (1985) also includes any speech act commendations do not only discourage students from that advocates or promotes genocide of any identifi­ critically engaging with controversial political issues able group by either: “(a) killing members of the (Brulé 2015), but also contributes to the over­policing group; or (b) deliberately inflicting on the group con­ of marginalized people in Toronto, especially Black ditions of life calculated to bring about its physical de­ people who, according to an Ontario Human Rights struction” (Criminal Code of Canada (1985), Section Commission report (2018), are 20 times more likely 318(2)). Within this context, an identifiable group is to be the victims of police brutality than White defined as “any section of the public distinguished by people. As such, I argue that administrators should colour, race, religion, national or ethnic origin, age, move away from punitive codes of conduct and civil­ sex, sexual orientation, gender identity or expression or ity policies and, instead, assess the potential dignitary mental or physical disability” (Criminal Code of harms of a student event in an effort to balance stu­ Canada (1985), Section 318(4)). dents’ expressive freedom with their right to an equit­ able learning environment. Moreover, I believe that Despite the fact that Canadian hate speech laws were such an approach would help students identify their enacted over two decades ago, students are often con­ collective responsibility in balancing these principles. fused as to what constitutes hate speech. is is partic­ What follows is an overview of Canada’s legislative re­ ularly evident with student groups’ concerns with strictions on hateful speech, how they relate to dignit­ racist, homophobic, transphobic, ableist, anti­Semitic, ary harms, and how administrators and students alike and Islamophobic views expressed by extreme right might develop criteria with which to assess students’ speakers on campuses in the province of Ontario. As collective responsibility in ensuring that both prin­ illustrated earlier, conservative critics proffer the myth ciples of freedom of expression and principles of that these student groups are advocates and practition­ equity are upheld on our campuses. ers of ‘political correctness’ who are ‘too emotional’ and ‘unable to take political criticism.’ However, such Canadian Hate Speech Laws and the Harm fictions mischaracterize the problem of hate speech. to One’s Dignity Rather than a problem with ideas resulting in “hurt feelings,” hate speech is dealing with what Jeremy In Canada, few legal restrictions exist to curb free Waldron characterizes as enduring “artifacts of hateful speech: content restrictions on hate speech, defama­ expression” (2012, 38). He states: tion, and obscenity laws and false advertising are but a e issue is publication and the harm done to few, as are limits on speech that is considered intimid­ individuals and groups through the disfiguring ating or threatening (Moon, 2014, 185). While there of our social environment by visible, public, and are few restrictions on speech, the Criminal Code semi­permanent announcements to the effect (1985) does prohibit hate speech that “incites hatred that in the opinion of one group in the commu­ against any identifiable group where such incitement nity, perhaps the majority, members of another is likely to lead to a breach of the peace” (Criminal group are not worthy of equal citizenship. (Wal­ Code of Canada (1985), Section 319(1)). e Crimin­ dron 2012, 39) al Code further stipulates that: [E]veryone who, by communicating statements, Within a pluralistic society, with people of varying other than in private conversation, willfully pro­ races, ethnicities, cultures, abilities, gender identities, motes hatred against any identifiable group is and sexual orientations, there is a certain expectation guilty of an indictable offence and is liable to that they can live alongside each other free from viol­

Atlantis Journal Issue 41.1 / 2020 27 ence, discrimination, or exclusion by others (Waldron maintenance of group dignity unfortunately do not 2012). Waldron identifies this space as a public good factor into criminal proceedings involving hate crimes that contributes to sustaining a good society. For in Canada. is said, several legal scholars use group Waldron, hate speech undermines this public good. dignity to argue that there is a need for policies that For vulnerable and marginalized communities that protects a student’s fundamental right to learn and have been subjected to hate speech, a good society participate in the collegium free from the exigencies of provides assurances that they can live as its equal discrimination and harmful speech (Ben­Porath 2017; members. Waldron states: Masri 2011; Moon 2014; Palfrey 2017; Spencer, [T]hey, too, are members of society in good Tyahur, & Jackson 2016; Waldron 2012). Richard standing; they have what it takes to interact on Moon argues that certain types of hateful speech, such a straightforward basis with others around here, as racist, sexist, and homophobic speech, are inconsist­ in public, on the streets, in the shops in busi­ ent with an institution’s educational mission and, as ness, and to be treated—along with everyone else such, merit restriction (2014, 186). He states that, —as proper objects of society’s protection and while: concern. (2012, 5) [r]acial generalizations and insults may not breach the criminal ban on hate speech...when is basic social standing he calls their dignity. He they occur in the workplace or in schools they goes on to define hate speech as “both a calculated may be considered unlawful harassment or dis­ affront to the dignity of vulnerable members of society crimination under anti­discrimination laws.… and a calculated assault on the public good of inclus­ e objection to sexist or racist speech on cam­ iveness” (2012, 5­6). pus is not simply that it is irrational, sometimes vitriolic, and unlikely to contribute to thought­ Waldron sets out to make the distinction between un­ ful discourse; it is also that this speech seeks to dermining a person’s dignity and causing offence. For undermine the standing of members of a com­ Waldron, hate speech undermines one’s dignity and munity dedicated to learning and scholarship. the public good by calling into question a groups’ (2018 3­4) right to be treated as an equal in their everyday lives (2012 39). at is, when a speaker portrays a particu­ Scholars such as Sigal Ben­Porath (2017) agree. She lar group as less valuable, less deserving or less than posits that what is needed to ensure both expressive equal, they are causing dignitary harms (Waldron rights and the right to dignity is what she terms “in­ 2012, 39). e purpose and thrust of restricting hate clusive freedom” within the collegium (2017). She as­ speech is to ensure that one’s dignity is protected from serts that “inclusive freedom demands that speech on attack, “especially against group­directed attacks campus be protected as broadly as possible while aim­ which claim that all members of a given group are, by ing to ensure that all members of the campus com­ virtue of their race or some other characteristic, not munity are recognized—and know that they are worthy of being treated as equal members of soci­ recognized—as members in good standing” (2017, ety” (Waldron 2012, 39). For Waldron, this type of 56). Nevertheless, Ben­Porath does not support a re­ harm necessitates legal regulation similar to the ways striction on speech based on identity and group affili­ in which personal libel or defamation are regulated ation, but rather encourages administrators to “fulfill (Waldron 2012, 40). their civic and educational missions by protecting and encouraging political and other forms of speech by in­ Within Canadian jurisprudence, there has been little dividual students and student groups” (2017, 48). consensus about what kinds of behaviours diminish a However, without clear criteria to guide administrat­ group’s dignity and, as a result, the Supreme Court of ors, students will nonetheless be vulnerable to the ar­ Canada has determined that it is no longer useful as a bitrary application of ideals such as inclusive freedom. referent in its equality jurisprudence (Schneiderman 2014, 224). Consequently, arguments about the

Atlantis Journal Issue 41.1 / 2020 28 So What Is to be Done? nial shift and has the potential of expanding what counts as knowledge and truth in todays academy. So what is to be done to ensure the broadest exercise of freedom of expression and associational rights for student political advocacy while at the same time en­ Endnotes suring that their rights to equity free from dignitary harms are upheld? Drawing on the free speech and 1. I adopt Sami scholar Rauna Kuokkanen’s under­ civil rights movements of the 1960s, Joy James (2018) standing of responsibility that links consciousness with argues that today a similar response is needed, that is, conscience (2008). She states: “It is not enough to one that collectively takes responsibility for fighting merely know one’s responsibilities; one must also be against the onslaught of hate speech and far­right aware of the consequences of one’s actions. ... is xenophobia. Alan Sears agrees. He believes the chal­ starts by addressing one’s privilege...It requires the crit­ lenge lies in building long term resistance for “militant ical examination of one’s beliefs, biases, and assump­ mass mobilization that can fight to transform colleges tions as well as an understanding of how they have and universities from below into the kinds of educa­ developed and become naturalized in the first tional spaces that meet student needs and serve as place” (2008, 115). good places to work” (2019, 5). Reflecting on the syn­ dicalist movement of student's and workers’ solidarity 2. While the Alberta Court of Appeal upheld a stu­ struggles of the 1960s, Sears asserts that what is dents’ Charter rights to freedom of expression under needed is mobilizing educational strategies, tabling Section 2(b) of the Charter in both the UAlberta Pro­ counterdemonstrations, and building meaningful Life v. Governors of the University of Alberta (2020 solidarity with marginalized folks to overturn the ex­ ABCA 1) and Pridgen v. University of Calgary, (2012 treme right (Sears 2019). I concur. ABCA 139), the Supreme Court of Canada has yet to rule on a student’s Charter rights. While I believe it is important to maintain the broad­ est understanding of expressive freedom on campus, 3. See Murrell (2017) for firsthand accounts by stu­ especially for public speakers, given the educational dents in Shepherd’s tutorial class that were present context within which post­secondary institutions op­ when she introduced the TVO clip to the class. erate, it is incumbent upon its members that all stu­ dents are protected from dignitary harms. I believe 4. Under the Wilfrid Laurier University Act (1973) the that this balance can be achieved through an emphasis President has the right to make unilateral decisions re­ on our collective responsibility in ensuring that a garding a student’s non­academic behaviour (Uni­ group’s dignity is not harmed—one that moves away versities Canada 2018). is said, all universities must from an individualistic understanding of rights, to one comply with the Canadian Criminal Code, including that emphasizes our collective responsibility to others hate speech laws and human rights legislation. In this beyond oneself. By adopting principles that protect situation, it would appear that President MacLatchy one’s dignity from harm—that is, harm to a group’s erred on the side of free speech to avoid conservative reputation, their status and good standing in society, media pundits’ criticism. and the damage that hate speech may do to it (Waldron 2012, 139)––students will be better able to 5. Doxing is when an individual’s personal informa­ balance their right to freedom of expression with their tion is shared online and may be used to pose a per­ fundamental right to learn and participate in the col­ sonal threat to the individual. legium free from the exigencies of discrimination and harmful speech. Moreover, in doing so, administrators will expand the narrow liberal conception of rights and ensure marginalized peoples’ voices and world­ views are heard. Such an approach represents a decolo­

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