I’m trying to use this blog more as a way to think through things that I disagree with. It’s not good to have an immediate knee jerk reaction to something and to leave it there. I wouldn’t be the person I am today if I had just stayed with my assumptions of the past. So, similar to how I treated McKinnon a few weeks back today I’m going to try to actively and intentionally engage with something that based on the news articles, I will probably disagree with. But maybe I won’t. I may be wrong.
Today I’m reading through the petition to the BC Supreme Court by Andrew Irvine (Professor), Nathan Cockram (Recent PhD Student), Brad Epperly (Associate Professor), Christopher Kam (Professor), and Michael Treschow (Associate Professor). They have submitted a request for judicial review about their institution, the University of British Columbia.
To be clear, I write this as someone who is supportive of institutional neutrality and how it supports free expression. So I am coming into this as the type of person this should be persuasive to.
First, since I hate it when people don’t include the original, here is the petition.
The background required for their argument in the petition is that under the University Act in BC, which all public universities are under to one level or another, “66 (1)A university must be non-sectarian and non-political in principle.”
Now the reason I say one level or another is that this is in Part 12, in the subheading “Theological colleges” because the purpose of section 66 is actually about exemptions to (1) which allows a university to have a theological college affiliated with them. If it does so, then despite what (1) says, a theological college may:
(a)make provisions it considers proper in regard to religious instruction and religious worship for its own students, and
(b)require religious observance as part of its discipline.
This section does not apply to all public universities, specifically the two universities with their own acts, Royal Roads University and Thompson Rivers University. Neither of these universities includes section 66 in their Act specifically or through reference. More on that shortly.
Orders Sought
The specifics requested in the petition are to prohibit UBC from:
- “engaging in political activity within the meaning of s.66”
- “declaring or acknowledging that UBC is on unceded Indigenous land”
- As done by administrators, Senates, and Board
- “requiring or encouraging other persons to declare or acknowledge that UBC is on unceded Indigenous land”
- As done by administrators, Senates, and Board
- “making statements or declarations of support or condemnation of Israel or Palestine”
- As done by Okanagan Senate and Faculty of Creative and Critical Studies
- “stating opinions on the absolute or relative morality, lawfulness or political justification of violence in Israel or Palestine”
- As done by Okanagan Senate and Faculty of Creative and Critical Studies
- “requiring expressions of agreement with, fidelity to or loyalty to diversity, equity and inclusion doctrines, or any other political beliefs, as a condition of applying for UBC faculty positions and/or as a condition of appointment as UBC faculty”
- As done by the administrators in charge of hiring and academic departments
There are several additional things that are essentially to tell UBC to issue retractions or take things down from their website. Next up is a request that the court determine who does and does not speak for “UBC”.
- Those who are the “university” when they speak would be all administrators, the Board of Governors, all Board committees, the Senates of Vancouver and Okanagan, their committees, all “UBC faculties, schools, departments, institutes, centres, programs and other academic and administrative units” and all those with “governance or administrative roles and capacities”
- Those who are NOT the “university” when they speak are “professors, instructors, lecturers, scholars, researchers, artists, performers, librarians, archivists, curators, students, and other members of Convocation not holding an administrative or governance position”
Why are they petitioning?
The key thing they are trying to do explicitly here is assert that “Section 66 of the University Act is an express and specific statutory provision intended to preserve and uphold academic freedom….” I will leave to the side the concern that the petitioners are saying that the section that does not apply to two of the public research universities in the province is the one that is about academic freedom seems concerning to me.
The petitioners are asking for this because they say UBC has done the following:
a. UBC has declared and/or acknowledged, orally and in writing, electronically on its website and in print media, that UBC is on unceded indigenous land;
b. UBC has required and/or encouraged persons within its sphere of influence, including professors and students, to declare or acknowledge that UBC is on unceded Indigenous land;
c. UBC has issued and publicized declaratory statements condemning violence in Israel or Palestine and has issued and publicized opinions on the morality, lawfulness or justification of violence in Israel or Palestine; and
d. UBC has imposed and/or approved application processes for hiring faculty members and criteria for hiring or appointing faculty members that require applicants to express agreement with, fidelity to or loyalty to diversity, inclusion and equity doctrines (“DEI” or “EDI”)
The Key Arguments
- Someone who speaks for the University declaring that UBC is on unceded land is a political statement
- Someone who speaks for the University condemning violence committed by a state or organization, calling the actions of another country genocide, and condemning the actions of another organization as discriminatory, are all political statements
- UBC requiring an EDI statement from potential applicants in a hiring process, or a department stating that they wish to hire people who agree with a “commitment to… equity, diversity, inclusion, and justice” are political actions, and may rise to the level of requiring “specific political beliefs as a condition of employment.”
The petitioners say that these actions of the university create an environment where individual members of the institution are pressured to agree with the perspective of the institution. So the first question to be asked is what definition should there be for “political”?
What is Political?
The petitioners say that the meaning of “non-political” must be the “reader’s first impression meaning”. Which seems strange when there is a counter example already given in the Act. Section 66 (1) is given so that section 66 (4) has something to be the exception to. The exception then is:
(a)make provisions it considers proper in regard to religious instruction and religious worship for its own students, and
(b)require religious observance as part of its discipline.
If we work from the exception to the rule, it means that “non-sectarian and non-political” means the opposite of that:
- You may not mandate religious (or political) instruction for students
- You may not mandate religious worship (or political actions) by students
- you may not require religious (or political) observance as discipline (in the punishment sense)
This is not about punishment, so we can ignore #3. But #1 and #2 are about mandating instruction and actions for students, which the petitioners do not seem to be alleging has happened.
However, later on (s. 33) the petitioners state that the implication of section 66 is that it is to ensure that “the University and its administrative components are prohibited from undertaking political activities that are inconsistent with [academic freedom]”. They go on to say that political should be interpreted as part of freedom of expression under the charter
2 Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
In that “non-political” means the institution may not compel or mandate any “thought, belief, opinion and expression”.
The petitioners go on to say that a statement made by the institution that is “political” applies pressure to those who should have academic freedom to agree with a specific “thought, belief, opinion and expression” because it implies that those who do not agree are not welcome at UBC.
The concern I have here is that the counter example given in the Act is about actions by the institution (requiring religious classes, requiring attendance at religious observances, and using religion based punishments), but the petition asks us to redefine political from political actions to “political statements” which is not supported by a reading of the Act.
We’ll come back to the statements vs. actions later, but for now lets accept the petitioner’s redefinition to political statements. If we do so, then, while it makes sense not to have the University as a whole dictate the thoughts of an individual, we need to first look at who the petitioners are saying speak for the University.
Who Speaks for the University?
The first argument to look at is around who speaks on behalf of the University. It is easy to know who makes up the University as an institution, it’s in the Act:
3 (2.1) … the University of British Columbia is composed of a chancellor, a convocation, a board, an Okanagan senate, a Vancouver senate, a council and faculties.
But who speaks on behalf of the university? It cannot be everyone listed above because that includes a huge list of people including all faculty and all graduates. I am a graduate of UBC, and so am part of convocation, but by no means am I speaking on behalf of UBC when I say anything. Who speaks then? Well the Act does say:
46.1 A university has the power and capacity of a natural person of full capacity.
And when it exercises that power it does so by using the “corporate name and seal of the university” which are controlled by the Board. In fact we then see the following sections laying out who is in charge and could be conceivably making a political statement on behalf of the university:
27 (1)The management, administration and control of the property, revenue, business and affairs of the university are vested in the board.
59 (1)There must be a president of the university, who is to be the chief executive officer and must generally supervise and direct the academic work of the university.
So then based on this it seems like the Board as a whole or the President may be the ones who speak on behalf of the university. UBC has a process for this to further restrict it beyond the assumption of Board and President to say that no, only the President may speak on behalf of the University:
Speaking on Behalf of the University
The President, or her/his designate, is the spokesperson for the University.
The Chair of the Board only is the spokesperson for the Board and, in this connection, the Chair consults the President.
The Chair will seek guidance from the Board of Governors, in consultation with the President, to determine the items which will be released publicly.
Going back to the petition, it asks the court to designate the following as individuals and groups who speak on behalf of UBC:
- Chancellor
- President and Vice-Chancellor
- Principal and Deputy Vice-Chancellor
- Vice-Presidents
- UBC Board of Governors
- Board Committees
- Vancouver Senate
- Okanagan Senate
- Vancouver and Okanagan Senate Committees
- Faculties
- Schools
- Departments
- Institutes
- Centres
- Programs
- Academic Units
- Administrative Units
- Deans, Assistant Deans, Heads, Assistant Heads, and all other administrators – when speaking in their administrative roles and capacities
Although it is clear that the President speaks on behalf of the University, and it makes sense that the Principal and VPs speaking could be construed as being endorsed by the President, anything beyond that is a lot. But the petitioners want to have the court determine that regardless of “official” statements, that any statements by these groups and individuals that is sectarian or political is against the Act.
Collective vs. Individual Academic Freedom
The biggest concern I see are the Academic Units listed. At UBC the Faculties (sometimes called Faculty Councils) are made up of the Dean of the Faculty, three ex officio members (who normally don’t attend), the faculty members and other teaching staff, and a few staff and students. But these are always primarily faculty members, meaning any decision by a UBC Faculty, such as the one identified in s.14 of the petition by the Faculty of Creative and Critical Studies, was a decision made by the very “professors, instructors, lecturers, scholars” etc. that they are asking to be the ones who can speak to political matters. The petitioners are asking for the freedom of expression of a collective of individuals with Academic Freedom to be restricted so that the freedom of expression of any one individual with Academic Freedom is not limited.
To combine this with the above definition they want for “political” it would mean that a UBC Faculty may not require or even request any individual to agree with a specific “thought, belief, opinion and expression” if there is any “controversial political debate” around it. The problem there is that taken to its logical conclusion this means that the Faculty of Science may not put out a statement stating that they affirm something which people may disagree with, such as evolution. This of course sounds ridiculous, as a Faculty is individual faculty members who have come to this decision together as a group based on what they think or believe and are individually protected to say it as they have Academic Freedom.
To save the core of the petitioner’s argument, then, I will need to remove any of the groups that are primarily made up of those with Academic Freedom then from the list, which would be the academic units, faculties, senates and senate committees. But next I will need to remove those who are explicitly prevented from speaking on behalf of the University, that would be the Board and their committees. The Chancellor’s power outside of their role on the Board is only the conferring of degrees and chairing Convocation, so they also must be removed. Finally, administrative units are made up of individuals and act on the behest of the head of the unit, so statements from them have only the power given to their head or the individuals and since this can’t be about the group they are removed.
- President and Vice-Chancellor
- Principal and Deputy Vice-Chancellor
- Vice-Presidents
- Deans, Assistant Deans, Heads, Assistant Heads, and all other administrators – when speaking in their administrative roles and capacities
Remaining are the administrative employees. This means that the key arguments need to be rewritten, because #2 only had examples from Senate or a Faculty (both primarily made up of faculty members and therefore cannot be statements of the University).
- An administrator
Someonewho speaks for the University declaring that UBC is on unceded land is a political statement Someone who speaks for the University condemning violence committed by a state or organization, calling the actions of another country genocide, and condemning the actions of another organization as discriminatory, are all political statements- UBC requiring an EDI statement from potential applicants in a hiring process,
or a department stating that they wish to hire people who agree with a “commitment to… equity, diversity, inclusion, and justice”are political, and may rise to the level of requiring “specific political beliefs as a condition of employment.”
What is unceded
The petition states that calling the land UBC is on “unceded” is a “political statement” and asks us to define unceded as “the claim to Canadian sovereign territory is illegitimate or unethical or contrary to international law.”
While I’m sure that there are some who would agree with that definition, it seems strange for the petitioners to state that is it’s “ordinary usage”. The OED defines it as:
Of land, territory, etc.: belonging to Indigenous peoples; not ceded, given up, or handed over to a colonizing people, government, or nation.
The ordinary usage in Canada since before Canada was a country for “unceded” is “not under treaty” in 1848 we see it used in a recommendation for the government to establish a national treaty in order to “extinguish the Indian claim to all the unceded Lands…” for the land not yet under treaty. UBC even has a page explaining this where they say “Unceded: refers to land that was not turned over to the Crown (government) by a treaty or other agreement.” Since this is a website by one of the VPs, someone the petitioners say speak for the University, then since UBC’s usage, the OED current definition, and the historical usage of the term all mean the same thing, we cannot accept the petitioners definition.
The question for this now is “was the land UBC is on ever transferred under treaty to Britain, British Columbia, or Canada?”
I am unable to find any record of a treaty transferring the land UBC is on from the Musqueam, Syilx, Squamish, or Tsleil-Waututh. So the phrase that is considered objectionable which is on the UBC website is a statement of fact:
We acknowledge that UBC’s two main campuses are situated within the ancestral and unceded territory of the Musqueam people, and in the traditional, ancestral, unceded territory of the Syilx Okanagan Nation and their peoples.
I assume that the petitioners don’t feel that a statement of fact is a political statement. If they do then we have a different discussion to have here. We then must remove the first argument entirely as it is a statement of fact rather than a political opinion.
Remaining Concerns
The remaining specific exercises of “statutory powers” that infringes on the “non-political” issue then are:
a. UBC has declared and/or acknowledged, orally and in writing, electronically on its website and in print media, that UBC is on unceded indigenous land;
b. UBC has required and/or encouraged persons within its sphere of influence, including professors and students, to declare or acknowledge that UBC is on unceded Indigenous land;
c. UBC has issued and publicized declaratory statements condemning violence in Israel or Palestine and has issued and publicized opinions on the morality, lawfulness or justification of violence in Israel or Palestine; andd. UBC has imposed and/or approved application processes for hiring faculty members and criteria for hiring or appointing faculty members that require applicants to express agreement with, fidelity to or loyalty to diversity, inclusion and equity doctrines (“DEI” or “EDI”)
EDI and Politics
Moving to the section on “UBC Imposes Political EDI Criteria for Hiring Processes and Appointment Decisions” s.16-19. The sub argument here is:
- UBC requires applicants to submit an EDI statement and identify how they have, or plan to, advance EDI.
- Specific departments want to hire new faculty who “share a commitment” to EDI.
- EDI principles are “informed by critical race theory and include the belief that individuals, institutions and societies are inherently patriarchal, colonialist and racist”.
I will make the assumption that the petitioners are not interested in requiring the University to ignore the BC Human Rights Code or the Canadian Employment Equity Act and what BC calls “Special Programs” and so I assume that what they mean by 1 is this guide by HR which has this to say about the EDID statements:
Examine EDID statements for insights on a candidate’s reflections and capacity to create environments where all students and colleagues can learn and thrive. While the EDID statement will not receive its own rating, it will contribute to the general rating of the candidate with respect to their score on the evaluation criteria that relates to commitment to inclusive excellence and EDID competencies. The statement should not be used to exclude an applicant unless their commentary is openly and clearly in violation of UBC’s human rights commitments and policies and/or the specific job being advertised requires particular EDID competencies that are not being demonstrated in the candidate’s statement.
The hiring process recommended by HR is that the minimum employment requirements are used first to screen candidates. Then a long list is created based on who the most qualified candidates are. The short list is developed by using various rubrics and guides including the above review of the EDID statement. The EDID statement is to be used only if it shows an opposition to Equity, Inclusion, or Diversity, and even the Faculties which use a rubric to assess the EDID statements allow the individual to use their own definition of Equity, Diversity, or Inclusion, rather than the petitioner’s claim that it must affirm “that individuals, institutions and societies are inherently patriarchal, colonialist and racist”.
The closest the rubric gets to that claim is if the writer is “Unaware of (or does not understand) the particular challenges that individuals from HPSM groups face in academia, or feel any personal responsibility for helping to create an equitable and inclusive environment for all” or “Explicitly states the intention to ignore the varying backgrounds of their students and “treat everyone the same.”” Of note, HPSM seems to have a definition in line with the BC Human Rights Code.
Because the specific “fidelity to or loyalty to diversity, inclusion and equity doctrines” that are in UBC’s documents are those aligned with both BC and Federal legislation on the matter I find it hard to see the concern here as requesting someone to align with legislation cannot be a prohibited political statement. That means sub-argument 3 has to be left. There may be more of a problem in the specifics for sub-arguments 1 and 2 rather than the general process though. For that we will focus on s.42 in the petition:
Similarly, the EDI Hiring Requirements imposed by UBC effectively prohibit the appointment to faculty of any person, however qualified, who does not personally support and uphold EDI principles and values. A person, for example, who took the political position, on the basis of equality of opportunity, that all hiring of faculty should be done on the basis of merit, would be prevented from applying for a faculty position and prevented from being appointed as faculty. A critic of critical race theory, for example, would be ineligible for appointment as faculty and would be deterred from exercising their entitlement to apply for a position, in the case of the Petitioner Nathan Cockram, Dr. Cockram was effectively excluded from applying for or being appointed to otherwise open UBC faculty positions by the EDI Hiring Requirements.
The core of this is that (in alignment with sub-argument 1) a person who disagrees with the use, at all, of EDID statements in hiring, and so refuses to submit one is excluded from being able to apply; and (in alignment with sub-argument 2) if they do submit one but it does not meet the expectations of the specific hiring committee they will not be hired.
Here I agree with sub-argument 1. A persons refusal to submit a required piece of documentation because of a political position opposed to that type of document would be excluded from the job.
Sub-argument 2 however is about the determination of the hiring committee. The guide for these documents is that the use of EDID statements isn’t until the long list has been created. And that long list is a list of all of those who meet the required qualifications, and are on the list of people who would be able to successfully do the job. That means that all candidates are already past the “merit” bar before any consideration of an EDID statement. Any use of the EDID statement beyond “do you disagree with the Human Rights Code” seems to be left up to the individuals on the hiring committee, and so that is not a political action by the university, but a decision of an individual or small group of individuals.
So only sub-argument 1 remains, but with the caveat that “diversity, inclusion and equity doctrines” in this case means not to discriminate against disadvantaged individuals or groups under the BC Human Rights Code and to actively oppose discrimination of those disadvantaged individuals or groups.
d. UBC has imposed and/or approved application processes for hiring faculty members
and criteria for hiring or appointing faculty membersthat require applicants to express agreement with, fidelity to or loyalty to diversity, inclusion and equity doctrines (“DEI” or “EDI”)
As previously stated, agreeing with legislation cannot be a prohibited political act. This means that what remains is a request for a judge to tell UBC what it may or may not request in their job applications.
Conclusion
I am not a lawyer (IANAL) and so I have no idea what will happen with this petition for judicial review. But I do a lot of deep reading on things so here’s my take:
- Trying to define section 66 as the one which protects Academic Freedom in BC is a mistake because it does not apply to two of the six research universities in the province.
- “Non-political in principle” does not mean “must refrain from all political speech”, it means must not enforce political actions beyond adherence to this and other legislation (so you can’t require people to be a member of the Liberal Party to have a job, but you can require them to not break the criminal code).
- Claiming your opponent is using one definition when they have been very clear they are using a different one (and your opponent’s is actually aligned with the dictionary definition) is not a great look from an academic.
- Acknowledging that “UBC is on unceded Indigenous land” is a historical fact under the specific definition of the words in that phrase.
- Asking a judge to restrict the free expression of a group of faculty is a bad look from a faculty member.
- It may be possible that some departmental hiring committees are going too far with how they use EDID statements, but it is also true that many of them have historically used other parts of the application package in a way that goes too far (the use of reference letters historically) so perhaps this is not the correct venue for asking for change.
Too many of these claims lack merit, support, or are unconnected to what they claim to be about. That makes me worry that I’ve put too much thought into what is actually an attempt to “virtue signal” and is not an honest critique of UBC, but here we are.