Balancing Students' Freedom of Expression and Associational

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

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