The Real Crisis and the U of L… and why the Board must Act [1]

Full disclosure. I am a professor of English at the University of Lethbridge and a member of the University of Lethbridge Faculty Association (ULFA) Executive. ULFA is a party to a labour dispute associated with the events discussed in this piece.

The opinions presented here concern the wisdom of the Board’s current actions and are mine alone. They are published under my contractual right as a Faculty Member to “participate in public life, to criticize University or other administrations, to champion unpopular positions, to engage in frank discussion of controversial matters, and to raise questions and challenges which may be viewed as counter to the beliefs of society” under Handbook Article 11.01.1. They do not advocate any specific remedy under the Association’s contract, beyond following well-established, previously negotiated procedures.

While I have checked with the Association to confirm that no confidential information is used in this post, I have not asked their permission or consulted with them as a member of the Executive on its publication. All information presented in this piece is available from public sources. The opinions here do not represent those of Faculty Association, the University of Lethbridge, its Board of Governors, or Professor Hall.

I take no pleasure in discussing this matter. The crisis affecting the University hurts us all as surely as the solution to preventing it is clear.

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As the University of Lethbridge Board of Governors convenes this week for its bimonthly meeting, it, and the University it governs, is on the cusp of what could be the most serious crisis of its fifty-year history.

The background to this crisis is well-known to everybody at the U of L. It is the case of Globalisation Professor Anthony Hall and the unproven allegations of Anti-Semitism that have been levelled against him.

These allegations have their origins in a fiercely Anti-Semitic post that appeared briefly on Professor Hall’s Facebook page last summer. According to Professor Hall, the post was made by somebody else while he was out of the country and was removed before he returned. Professor Hall has vehemently disavowed the sentiments it contained.

In the course of debate about this post, other aspects of Professor Hall’s work came up for public criticism. Professor Hall is a well-known figure in Globalisation Studies who has taken controversial positions on a number of contemporary topics. By summer’s end, various groups and individuals both internal and external to the University were calling for Professor Hall’s resignation or dismissal.

As controversial as Professor Hall’s work has proven to be, however, he is not the crisis that is facing the U of L. University research is often controversial and it is not at all uncommon to hear calls for individual professors to resign or be disciplined. As a result, Universities throughout Canada, including the U of L, have developed well-defined methods for evaluating whether such criticism is valid and, if it is, disciplining Professors through training, suspension, or even dismissal. These methods and procedures are the core of what we call Academic Freedom. Despite what you sometimes hear in the media, Academic Freedom is not the right to say whatever you want without consequence. Instead, it is the right to defend yourself in a transparent and fair process against charges that your work is irresponsible or incompetent. If you lose and the case against you is serious enough, this process can lead to loss of tenure and dismissal.

No. The crisis facing the U of L is that it has failed to follow these well-established procedures. Although these procedures call for complaints against a professor to be adjudicated in an open and transparent fashion by a body of academics excluding members of the Administration or Faculty Assocation Executive, the U of L has evaluated Professor Hall’s work in a closed process led by administrators who have no experience in his discipline. Although these procedures require the University to wait for the results of its investigation before deciding on an appropriate punishment, the U of L suspended Professor Hall pre-emptively, initially without pay. And while these procedures recognise the right of the U of L Faculty Association to represent faculty members throughout the process, the University has repeatedly taken to the media to defend itself instead of dealing with Professor Hall’s contractual representatives.

The result of this failure to observe the University’s legal and contractual obligations has been disastrous. This is the University’s fiftieth anniversary and it should be a year of celebration. Instead, we have received more bad press at the local, national, and international levels than at any time in our history. Because we have so clearly violated established norms for dealing with questions of Academic Freedom, our actions have been condemned for the first time ever by an open letter from the Canadian Association of University Teachers (CAUT). The refusal to use existing processes for dealing with these kinds of issues has led, for the first time in recent memory, to the prospect of a court case between the Association and Board of Governors.

Above all, however, there is the fact that we have nothing to show for the damage we have inflicted on ourselves. Professor Hall is still being disciplined in a manner that violates the University’s legal and contractual obligations. But otherwise, things have returned almost entirely to where they were before this all this started five months ago. The administration has retreated on the original suspension without pay. It has retreated on withholding his back pay. The investigation into an internal complaint against Professor Hall has found in his favour. All that is left is the bad press, the grievances, a pending court case, and a sanction from CAUT that is unlikely to be lifted before we admit that we took the wrong approach and agree to respect our legal and contractual obligations. Having failed to achieve a quick win, the Administration is now slouching back to the starting line, hoping that nobody will notice its retreat.

But what about the Alberta Human Rights Commission (AHRC) complaint President Mahon claims the Board has filed against Professor Hall? Is that not a potentially serious sanction that might affect the outcome of this case?

Actually, it isn’t. For two reasons.

The first is that there is almost no chance that the AHRC will accept the Board’s case against Professor Hall. Or, in the event that it does, find against him. The overwhelming majority of cases heard by the AHRC involve complaints by individuals against organisations and tend to focus around being denied employment opportunities or access to services. The last major case against an individual to be concluded by the AHRC was the relatively famous Lund vs. Boisson case that involved a homophobic letter to a Red Deer newspaper that asked “Heterosexuals” to take unspecified action against what the letter described as a Homosexual “enemy.” In this case, there was even an unproven allegation that this speech had resulted in an actual physical assault against an individual.

The AHRC itself ultimately found against the respondent in this quite extreme case. But its finding was comprehensively and definitively overturned upon Judicial Review and, ultimately, appeal. This appeal ruled that both the test used by the AHRC (a technical test involving the impact of discriminatory or hateful speech) and the remedies assigned by the AHRC were seriously flawed and that the AHRC should neither have found against the respondent nor assigned the penalty it did (a small award to compensate Lund for his effort in the case). Given that the University’s own internal investigation in response to the complaint of an aggrieved individual on campus into Professor Hall’s actions has found in favour of Professor Hall, there is simply no reason to believe that the AHRC will come to a different conclusion when its rulings against the much more direct exhortations in Boisson was overturned.

But even if the AHRC defied expectations and did consider the case and did find against Professor Hall, the result of this finding would presumably not be what the Board is looking for. The AHRC is explicitly a conciliatory and not a punitive body (this is well-established law and factored heavily in the review of the Lund vs. Boisson decision). The only remedies available to it should it find against Professor Hall in this particular case are to require him to stop and to promise not to do it again. And before it did even this, the AHRC’s mandate expects it to first seek an alternate reconciliation of the complaint, encouraging the complainant and respondent to see if they can not reconcile using other methods—such as, for example, the Collective Agreement that (should) currently govern their relations.

In other words, after all the bad publicity, the threat of CAUT sanction, a failed internal complaint, and two suspensions that violate both the PSLA and its collective agreement with its Faculty Association, the “best” the administration can hope for to justify the turmoil it has caused is a very unlikely non-sanction from the AHRC that would be roughly equivalent in effect to the mildest form of correction found in Article 25 of the Faculty Handbook—the explicitly non-disciplinary Guidance Letter deans are permitted to write to Faculty indicating actions they should take in order to correct minor issues.

It is for this that we have thrown all process and comity out the window.

All pain and no gain is the definition of management failure. Given the latest developments in this case, it is time now for the Board to ask itself what the end game looks like. How does the University end the threat of CAUT sanctions? How does the University change media focus from its failure to respect academic freedom to the celebration of its fiftieth anniversary? How does the University get back on track to restoring its reputation and prestige? What does the University do if, as seems almost certain, the AHRC refuses to hear its case against Professor Hall, returns a verdict against the Board, or assigns him the maximum penalty available to it: an order to stop and promise not to continue?

We also need to remember that the stakes are extremely high… for the U of L. If the last decades have demonstrated anything, it is that things rarely end well for Universities that fail to honour their legal and contractual duty to follow due process in Academic Freedom cases. The University of Saskatchewan recently lost a President and Provost in such a case. A much less serious case at UBC led to the resignation of the University’s Board Chair. There is still time for the U of L to avoid a similar crisis. But it can only do so if the Board takes seriously its duty to act in the best interests of the University and instructs the administration to change course and begin using the established procedures for resolving cases of this nature. The longer it takes to do this, the more we end up with a situation in which President Mahon is, in essence, betting his job against Professor Hall’s that the Board is following correct procedure.

This is not an outcome I wish to see. President Mahon is in my experience a decent man and, with this glaring exception, a conscientious President. No University is better for the turmoil that follows the kind of forced resignation that this case, if it continues along its current trajectory, will bring inevitably.

But if we are to avoid this outcome, we must act now. At some point, we are going to have to accept that we were wrong to ignore our obligations the way we have for the last five months. The question is whether we do this now while we can change course relatively easily, or later, when the crisis overtakes us and there are no good choices left. It is up to the Board to decide which path we take.

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