In many countries, academic freedom is protected in law through legislation or through a constitutional guarantee. In the European Union, it is grounded in the EU’s Charter of Fundamental Rights and in individual state constitutions (such as Estonia, Finland, Germany and Greece). In the United States, academic freedom for public post-secondary institutions is primarily anchored in the right to freedom of speech contained in the First Amendment of the U.S. Constitution. In these countries, academic freedom cases are invariably litigated in the courts.
In contrast, academic freedom in Canada is a negotiated right, secured through labour law, and given shape and content in the collective agreements that govern the terms of academic employment. Approximately 90 percent of the faculty employed by Canadian universities are unionized, ensuring the broad reach of collective agreements. As a consequence, many university collective agreements today contain comprehensive definitions of the term. Challenges by faculty unions to decisions made by university administrators when academic freedom becomes an issue are adjudicated through a mandatory labour arbitration process, which provides an expert and accessible dispute forum as well as legally binding decisions. The Supreme Court of Canada, like the rest of the judicial system, has rarely addressed the scope of academic freedom, and legislation in Canada is silent on the issue.
I have recently written a paper on academic freedom and labour law in Canada, which will be published in the spring of 2020 in Constitutional Forum. This blog summarizes my findings.
In a leading contemporary study examining academic freedom in the American landscape, Matthew Finkin and Robert Post identify the four components of the freedom regarding university faculty: (i) freedom to teach, (ii) freedom to research and publish; (iii) freedom of intra-mural expression, and (iv) freedom of extra-mural expression. These four components of academic freedom are found in many university collective agreements across Canada. Given the centrality of academic freedom to the university mission to pursue free and fearless inquiry, and its broader relationship to a vibrant democracy, the ability to define the legal content of the freedom with sensitivity and rigour, recognizing its sui generisnature in the workplace, has become an important interpretative task for Canadian labour arbitrators. As Louis Menard has written: “Academic freedom is not just a nice job perk. It is the philosophical key to the whole enterprise of higher education.”
As a labour law academic, I think having academic freedom issues adjudicated in front of labour arbitrators, rather than the courts, is a significant benefit. The arbitration system is much more flexible than the courts, arbitrators are skilled in deciding workplace issues (which is an integral component of academic freedom), their decisions are given great deference by the courts because of their administrative law expertise, and they have demonstrated a purposive approach towards workplace human rights over the past several decades.
Alas, this has not necessarily meant that Canadian arbitrators have provided academic freedom with the legal scope and content that would match its importance. To their credit, arbitrators have stated on several occasions that academic freedom requires a generous content to exemplify its significance to the academy and beyond. In rulings over the past 20 years, arbitrators and other legal forums have stated that academic freedom includes the broad, but not absolute, right of professors to determine their own grades, to claim ownership over their course notes, and to decide the content of their university courses.
In my paper, I examined five leading arbitral decisions issued over the past three decades on intra-mural expression, the third component of academic freedom. Overall, the decisions have been disappointing. In all of the rulings, the issue was whether criticism by a unionized professor or librarian directed at the academic leadership was protected by the intra-mural expression guarantee in the governing collective agreement. The incidents ranged from sharp questioning by librarians of a library branch head regarding recent staff layoffs, to ‘insolent and intolerable’ criticisms by an assistant professor issued at the university interim president, and a toughly-worded leaflet written by a professor and distributed at a campus event which reproached the funding arm of the university for the purported views of its senior members on the Middle East conflict. In four of the five rulings, the arbitration award provided a shallow approach towards academic freedom, and held that the critical comments were not deserving of protection under the collective agreement.
Are there common patterns in the decisions that might explain the constrained approach? I suggest in my paper thatCanadian labour arbitrators have treated academic collective agreements as part of the same legal whole cloth as collective agreements found in other types of workplaces. This comme les autresapproach makes, for the most part, intrinsic legal sense. It has been flexible enough to support an effective labour relations voice for university professors through their unions on employment and academic freedom matters, while both preserving the benefits of collegial decision-making on some aspects of institutional governance and ensuring that the lines of managerial authority are clearly delineated and protected
However, if Canadian universities are, at one level of labour law, workplaces comme les autres, they are also, at another level, workplaces d’un genre spécial. Academic freedom as a negotiated employment right is unique to universities (and, increasingly, to community colleges) in Canada. In particular, the arbitral rulings on intra-mural expression appear to be influenced by the arbitral rules that have been developed from non-academic unionized Canadian workplaces regarding insubordination and loyalty-to-the-employer, rather than employing a contextual application of the distinctive nature of academic freedom to the factual issues on expression before them.
These common law arbitral rules on insubordination and loyalty are drawn from non-academic workplaces that requires employees to respect the hierarchical structure of the workplace; they must obey, and not challenge, the directions and policies of management; and they must not publicly criticize their employers or damage their reputational brand. While these rules may be appropriate for an ordinary command workplace, they make for a poor fit in the university environment. The result, in Canadian academic freedom cases, has been a lacklustre arbitral appreciation and application of the freedom of intra-mural expression.
In WIC Radio, the Supreme Court of Canada stated in 2008 that: “We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones;” and “public controversy can be a rough trade, and the law needs to accommodate its requirements.”A leading text on Canadian constitutional law has observed that: “Political debate is often heated and intemperate. Criticism of public institutions and officials will not always be respectful and measured: those who challenge established authority often have to resort to strong language and exaggeration in order to gain attention.”
Civility and collegiality have an important place in university workplaces, and arguments made with these values in mind will often be the most persuasive and cogent. However, they should not be the only forms of protected expression available to the professoriate when they are engaged in contesting the words, policies or actions of the academic leadership. Frank and blunt criticism, along with candid and even intemperate comments, are also permissible means to assert a position, and are also deserving of a generous legal protection on our university campuses.
Michael Lynk, “Academic Freedom and Labour Law in Canada” Canadian Law of Work Forum (February 28 2020): https://lawofwork.ca/academic-freedom-and-labour-law-in-canada/
The decisions examined were: University of Saskatchewan v University of Saskatchewan Faculty Association,2015 CanLII 27479 (SK LA); Manitoba Government and General Employees’ Union v University College of the North,  MGAD No 33; Association of Professors of Bishop’s University (Khouzam et al) v Bishop’s University, 2007 CanLII 68089 (QC SAT); York University and York University Faculty Association (Noble)(2007), 167 LAC (4th) 39; and University of Manitoba v University of Manitoba Faculty Association (Vedanand), 1991 CarswellMan 511.
WIC Radio Ltd. v Simpson, 2008 SCC 40, at paras. 4 and 15.
R. Sharpe & K. Roach, The Charter of Rights and Freedoms(6thed.) (Irwin Law, 2017), at 166.