Thursday, January 04, 2018

Is Freedom of Religion Really a Right to Discrimination?

The short answer is "it shouldn't be." The long answer is "no" and spelt out below.

This question is important because people -- particularly but not exclusively self-identifying evangelical Christians -- periodically argue that it is. Freedom of religion guarantees them the right to discriminate against, say, LGBTQi or to reject women's control over their own bodies if, they say, this rejection is grounded in their religious beliefs. Thus, to reject their right to discriminate is tantamount to a rejection of their guaranteed freedom of religion. This is, I will to suggest, an inaccurate reading of this right. Explaining why requires a bit of space.

When the Canadian Charter of Rights and Freedoms was established, freedom of religion/conscience was categorized as a "fundamental freedom." By this, what was meant was the following: matters or issues that were so important that the state should not exercise authority over them. Instead, by virtue of their very import, they should be left -- as much as possible -- to individuals to determine for themselves.

Why are these things important? Various reasons. Some are vital to maintain democracy. Others are vital to the good the life (spirituality, association, expression); what this means is that we cannot easily imagine living a good life without them. If we were, for example, unable to worship how we wanted (which includes not at all), express ourselves in our own voices or hang out with family and friends or the people of our choice, that would seriously damage our enjoyment (the goodness) of our own lives. If we were forced, for instance, to maintain spiritual practices that ran against the tenor of our own views, or we were not allowed to communicate with friends, or we could not visit family members ... our quality of life would suffer and suffer severely. Freedom of religion then -- of conscience -- is fundamental, and this is why it is protected by the Charter of Rights and Freedoms.

But, what does this protection mean?

In my last post, I tried to argue that it would be wrong to construe freedom of religion as meaning the right of men to control women's bodies. Indeed, I tried to suggest that the current debate on this issue -- such as it is -- in the product of the anti-choice side not fully considering the implications of its position, which I think would upset most of them.

The point I want to make in this post is that this conception of freedom of religion -- that I have the right to claim control over others' bodies on the basis of my religion --  runs against the grain of the Charter. Said differently: the Charter was intended to protect individual freedoms; not to aid in the subversion of freedom and autonomy (my right to control my own body). Indeed, it is, I believe, a fundamental misreading of the Charter to believe it somehow protects the right of a man to control a woman's body. Or, guarantees the right to, say, organize institutional discrimination against identifiable groups (say, LGBTQi).

As this applies to religion, this is the pertinent point: the Charter is intended to protect an individual's right to worship as they will, express their spirituality (or, as evangelical Christians say "to witness"), associate with others of the same faith (to be in fellowship, as evangelical Christians say). These are, I  contend, all vital elements of freedom of religion that apply to Christianity, particularly but not exclusively its evangelical bent. Said in different words: the Charter establishes a powerful set of ideas that are supported by the state (necessarily) that are essential for freedom of religion and which are already enjoyed by evangelical Christians (and other faiths).

This is not just a so-called "negative" freedom (that the state cannot interfere with, say, worship) but a series of proscriptions that are elements of the life blood, as it were, of faith (say, fellowship and witness). You don't need to know exactly what these are if you are not an evangelical Christian. You can take it from me that they are important and this is my point: the Charter provides not simply a nifty add-on to freedom of religion for Christians. The various rights it protects as fundamental lie at the core of a meaningful, dynamic, and living Christianity. To be sure, they are essential to other faith perspectives (including, I think, agnosticism and atheism), but it is not those groups about whom I am writing. What this means is that there is good reason for Christians to view the Charter as valuable; not as an impediment to their faith.

I make this point because I don't like, very much, the conflicting rights discourse (say, gender or reproductive rights versus religion) because I don't think it actually captures the complexity of Charter rights or their import. Nor does it provide a full consideration of why a defense of freedom of religion based in the Charter cannot sanction (that is, accept) freedom of religion as meaning control over others or a right to use state money (because in the case of attestation, this is what we are talking about) to build institutions and organizations that discriminate.

The logic here is fairly simple but important. If the Charter is about individual freedom, then it is about my right to determine for myself what is good and valuable, and what is spiritual, in my life. The Charter accords to me (and protects) my right to associate with others who share my views (association and assembly) to express and talk about my beliefs (say in art, on TV, in a blog, with others, etc.), and asserts that the state must protect me in these endeavors. That is, it cannot stand idly by while someone else threatens my rights (say, if someone tries to burn down my church, the fire department puts out the fire and the police arrest the arsonist). This is not what upsets evangelical Christians. They are trying to take this argument one step further and say that it does not matter what I believe if I believe it as a matter of my religion, the state must protect me in that endeavor. And, moreover, the state must provide financial support -- in the form of, say, access to job grants -- to carry out own goals.

On this point, they are wrong. It does matter what one believes in this sense. One retains the right to believe what one will, but the state is not required to facilitate the implementation of that belief. These are two different things. It is one thing, for instance, for someone to believe that women are inferior to men and should be paid less. It is an odious belief but it is one thing to believe that. It is another to use state funding to set up institutions that realize that vision: women's inferiority. We move from belief to practice. However odious a belief is, there are people who will belief it but the fact that people do and can believe odious things does not mean that we are required to fund the realization of that odious belief.

You see the distinction? Let me make it clearer with an extreme example. It is one thing to be a fascist and to believe that some races are inferior and should be deported, etc. It is another thing for the government to fund fascist organizations that are trying to create segregation and deport (or, worse) Jews.

This distinction is what evangelical Christians have not really considered because ... well ... likely because we have actually not had a serious discussion of this matter. Evangelical Christians who reject equality for women and gays and lesbians still enjoy all kinds of Charter protection and there is no move whatsoever to remove these. As I noted above, these include assembly, expression, belief, association. And, the state will protect evangelicals in the exercise of these beliefs (through police and fire departments, etc.). But, the question of whether or not one should receive state funding to build organizations and institutions that subvert the Charter rights of others is an entirely different questions.

This is not an idle question. If the state is required to sustain the rights protections in the Charter -- including the ones I've noted above that are essential for Christianity -- then it cannot be part and parcel of the subversion of those very rights, can it? Put differently: if the state were supporting organizations that were looking to subvert rights, exactly how stable would those rights be? How stable, dare I ask, would any rights -- including freedom of religion -- be if the state were actively involved (by providing financial resources to organizations that reject them and look to subvert them) in their destruction? In my view, if the state were to engage in the subversion of some Charter rights, then all rights would be drawn into question. They would, in this way, stop being rights and become matters of politics or privilege (that is, something that someone else allows you to do). And, on this point, I have some bad news for evangelical Christians: you are a minority. In a political battle about the applications of rights (if that is if rights were subject to politics), you will lose because the vast majority of Canadians disagree with what you think on equality issues. Thus, in my view, there is good reason for you to *not* politicize the rights issue in the name of trying to secure state funding for organizations and programs that look to subvert the Charter in the name of religion.

Let me summarize. The argument that attestation is wrong and religious groups should have a right to discriminate and receive state funding for that discrimination does not hold up to concerted examination. And, it does not hold up because I  (or, anyone) happens to disagree with arguments against attestation, but because it works with a false logic and is ill informed about what rights mean and their importance in ensuring a vibrant and dynamic, in this case Christian, spirituality. All Canadians have the right to believe what they will, associate with others, express their believes (although there is nuance and sophistication required on this point, too), and assemble. These things are all necessary for Christian workshop. Indeed, without them, I don't think you'd have Christianity (this is why Christians in totalitarian states risk their lives to gather together -- it is important for their worship).

But, the fact that those rights are protected -- and they are -- does not mean that the state is required to fund organizations that look to subvert the rights of others. This is not a matter of debate about whether or not I or you or anyone else agrees with those rights. If it were, they would not be rights! A right to be a right must exist independent of mine or your or anyone else's agreement of it. If it doesn't, it is a privilege that can be revoked by someone else and not a right one inherently enjoys. This discussion is not, therefore, a debate about a matter of policy but a consideration of the quality of rights.

On this point, it seems to me, logic is clear. The state simply cannot facilitate the subversion of some rights because (a) the state is required to sustain the Charter and (b) the subversion of some rights establishes a bad precedent that, in fact, calls all rights into question, including those rights necessary for freedom of religion. I don't think anyone wants to see that.

Tuesday, January 02, 2018

Freedom of Religion, Sexism, Reproductive Rights

A key issue for some evangelical Christians is attestation. What is that? It is a new policy whereby organizations that receive federal summer employment grants -- these are to hire students over the summer -- must agree to that they support the Charter of Rights and Freedoms.

Here is the precise wording:

"CSJ applicants will be required to attest that both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression."

You can find the larger description here. Some of my friends who are evangelicals are reading this as a direct attack on their views and on freedom of religion. In New Brunswick, this issue has popped up in the past -- on the provincial level -- with regard to state funding of post-secondary education and, in particular, the fact that students attending Crandall University do not qualify because it is a private school that maintains a faith-statement commitment.

The problem -- for at least the people that I have seen comment on this -- is that some evangelical Christian organizations believe they cannot attest to this statement because of their religious believes but rely on job grants to run, in part at least, their summer programs. I don't believe my church applies for federal grants (I'd need to check that one out) but they do apply for provincial grants and hire high school/college kids to run summer camps and the like. Are they right? Is this attestation requirements a threat to freedom of religion?

I will confess that I am not sure. I don't think it is, but I'd also like to argue that there is some room for discussion and that there should be.  The issue, in other words, for all concerned might be more complex than we allow. They issues are "reproductive rights" and "sexual orientation or gender identity or expression." Some evangelical Christians see themselves as ardently anti-choice and opposed to anything but hetero normative and patriarchal gender and marriage relations. Others -- a larger group, in my opinion -- would not make an unqualified statement on either of these points, but argue that individuals retain the right to hold views regarding reproductive rights and gender identity and *not* suffer discrimination for these beliefs. All, they would argue, should enjoy equal *benefit* of the law.

I want to come back to this point -- equal *benefit* of the law -- because it is an important standard that is often neglected in consideration of equality issues. I should begin by saying, however, that I find it very difficult to speak about reproductive rights, as a man and this is the key point that I want to make today. My general view is that this is an issue in which there is an unequal burden, as it were, and that unequal burden creates a necessarily unequal authority to speak on the subject. I want to be clear: I am *not* saying that men should not speak on this issue but that the weight of authority must necessarily rest with women. A man cannot, quite simply, claim an equal right to a woman's body.

This is a point that I don't think enough evangelical Christians have considered because they have gotten so used to debating the merits of abortion and choice. I do think that the issue of children affords evangelical Christians many opportunities to be constructively involved in the world. I am not certain that forcing often young, poor, marginalized women to bear the burden of someone else's ethics is, however, one of those constructive ways. There are children to adopt, poor families in need of assistance, food banks that will nearly run out of food sometime shortly after Christmas, school supplies to be bought, access to minor sports and music programs to be provided, and a range of other things. There is tutoring and mentoring and driving (which often takes two people owing -- rightly -- to new regulations about ensuring that no one adult has supervisory control of children who are not there own). I recognize that many churches are involved in these things right now. Mine is. But, my point is this: there is no shortage of ways to be active in the world in support of children and families. There is poverty and need and  loneliness that can and should be addressed right now, as I write and as you read this. But, whether or not this extends to control of another person's body is not at all clear to me.

Let me unpack that sentence a bit more. Childbirth and child raising are difficult, time-consuming tasks that challenge who we are as people.  Men do not have to experience pregnancy and childbirth and will never experience these things first hand. Hence, to say that a man -- any man -- should have an equal voice in reproduction is theoretically interesting but in practice *must* confront a stark reality. I am a man. The price of my having a say on this issue, or even a determining voice, is born by someone else. I will not have to be pregnant. I will not have to give birth. I recognize that there is an unequal burden to child care, as well, on a macro scale but let us leave that off because there are a lot of exceptions.  The issue that we have to address is whether I get a vote on what someone else will do with their body? If we were talking about two men and one man controlling what another did with their body for, say, nine months ...  would we even be having this discussion? I deeply and fundamentally doubt it.

This is what I mean by someone else bearing the burden of my ethics. For me to say "see I have done the right thing," I, as a man, never have to address the implications of me feeling that I have done the right thing, if I so choose. Other people do, and they will not get that choice; often people I will never meet, never know their story, never understand their circumstances, never share their aspirations or cry with them for the things that have gone wrong in their lives. In other words, I not only claim control over their bodies, but over the bodies of women I have never met, will never meet, and will not ever try to understand what is going on in their lives. I will make up my mind on the basis of what I think is right and without any regard for them, their circumstances, the child for which they will care, the choices they will have to make, the heartache and pain I can bring to them.

And ... make no mistake about it: this will not *only* be one person controlling another's body. It will be control exercised through the state. What those who oppose choice seek to do is make it illegal for women to have abortions. This means that the police, the courts, even the medical profession will be used as instruments to control the choices women can make with their bodies. This is not an abstract, Philosophy 101, debating club type of discussion. This is a discussion with real implications: women being arrested and forced against their wills to have children. I really wish I were exaggerating but before anyone accuse me of doing so, let me ask you a few questions: what do you think will happen if abortion becomes illegal? What do you think the word "illegal" means? Who do you think enforces the law?

I will need to come back to this issue -- and it might not be a bad thing because I've blogged way too much on freedom of speech so perhaps I should address another issue -- but the first problem that evangelicals need to address is not their supposed right to their religious beliefs. And, this is the key point I want to make. I think this issue is miscast as a freedom of religion issue. I support freedom of religion. Indeed, I think spirituality is just way too important to allow anything but individual freedom.

But, I am less than certain that my freedom of religion is the same as to my ability to control someone else's body. Is this actually what those who argue for freedom of religion mean? Is this their definition of freedom of religion: the right to use the state to control other people's bodies? Thus, rather than asserting a right and demanding equal treatment on its basis (which might be fine; we will come to that in the future), I'd argue that evangelical Christians should, as it were, "go back to the drawing board." Pause in their certainty that they know what is right and that they are acting according to the will of God, consider their options, and think about the implications of the rights they are asserting. Phrased in the way I just phrased it, you can see the gender bias inherent in the assertion of this supposed freedom of religion. Evangelicals -- including myself -- need to ask: is this really what we want to do? Legitimize men's control over women's bodies? We've had that in the past and there is far too much of that in the present. It has not worked well and that is why the advocates of equality want to get rid of it. Is this really what we mean by freedom of religion: the right to have men force women to have children against their will?

I'd argue, no.

Tuesday, December 19, 2017

The Unreality of Free Speech: Toxic Environments that Might Not Exist

I don't like to blog on current events all that much because I like to have some distance from the subject at hand to gain perspective. Not everyone is like this but I hope it works for me and prevents me from saying things that I'd regret later. I'm going to break from this pattern because of the sur-reality that is starting to surround the Wilfrid Laurier-Lindsay Shepherd free speech/toxic environment discussion. You can find the latest information here and here and likely in other places as well. Here is the upshot. For those who need a refresher, a TA named Lindsay Shepherd who works at Wilfrid Laurier University (WLU) was reprimanded by panel consisting of her supervisory faculty member, another faculty member, and an administrator after, they said, a -- and potentially more -- student(s) had complained that she had created a toxic environment in a tutorial she ran by showing a short clip of a televised debate about gender-neutral pronouns. One of the debaters was an individual well-known for biased and, it appears, homophobic and transphobic views. This occasioned an extensive debate about free speech versus safe learning environments in which LGTBQ and other advocates urged WLU to take steps to support a safe environment and to ensure that marginalized individuals were not subject to harassment, threats, denial of identity, etc., and so-called free speech advocates who argue that free speech was paramount and that the rough equivalent of secret trials that censor people should not take place at universities. There was a certain level of extremism to this debate whereby alt-right groups came to support of the TA (despite her denial of their politics) and a series of others claimed that she was standing on white privilege, etc.

The surreality of this debate -- its oddity -- became more odd when a WLU investigation could find no complaint against the TA involved. That's right. It appears that the complaint that supposedly underscored -- and, in fact, supposedly triggered -- the hearing in which the TA was reprimanded never existed, even as a less-formal expression of concern (say, an inquiry or even a "gee ... that made me ...."). This, of course, begs a whole bunch of questions to which we will likely never have answers because it appears WLU does not want to release the report to the public and does not want to make its internal disciplinary procedures matters of public debate. (I kind of agree with this because of the heightened tensions that now surround this issue). We are left to wonder: did the faculty make up this complaint? Was it something that they, say, overheard and magnified? In other words, was there ever a shred of truth to the supposed complaint or was it constructed out of whole cloth? Were all members of the tribunal involved in a deception or only, say, one with the other two taking that person at their word? To whom are complaints supposed to be made and why were red flags not raised when a complaint -- on which disciplinary action was being taken -- was not in some way officially registered? In other words, why did it take an investigation to discover that there was no complaint? Who is supposed to check these things and why didn't they? If only one member of the tribunal claimed to have a complaint, and the others accepted that person at their word, why did they not ask to see the complaint before they began disciplinary proceedings and certainly before they made a decision to reprimand the TA?

The other day, I was chatting with a friend about this matter -- before I had read this news -- and we agreed (and this has been the point of my other blogs on this subject) that there was more than enough blame to go around and that just about everyone who had commented one this issue was wrong in one way or another. That might have been an overstatement. If, there never was a complaint, if no LGBTQ person found what was going on in the tutorial to be of sufficient concern to complain ... then ... it is not clear that there was a substantive issue in the first place. In my previous blogs on this subject, I assumed, as a thought exercise, that the TA was guilty. That thought exercise was designed to serve a certain point. It was designed to show how problems such as this could have been avoided *if* greater attention were paid to establishing proper procedures to address complaints and impose discipline. I assumed that there was a complaint and that that complaint reflected a real sense of marginalization coming out of the classroom. It appears that that assumption was wrong. That thought, however, exercise is still valid. In fact, I'd contend that it is even more valid as a result of this revelation. 

Why? Because proper procedures would have show up the fact that there was no complaint. If you look over the list of procedures that I tried to argue were reasonable (and, by extension, tried to argue that the vast majority of people will find reasonable), you will see that I contended that someone accused of misconduct had a right to know:

  1. The number of complaints against them
  2. The specific rules that they violated
  3. And the complaint itself. 
If these procedures had been in place (and, I had others but this is the short list with which I began), the matter would have stopped right then and there.

What would have happened? Well ... because there was no complaint, there could not have been a disciplinary tribunal (or, whatever the precise forum that was convened). Perhaps the faculty member involved might have said "gee, I heard that ... " and it would have provided an opportunity to chat with the TA about the matter. 

There are, I think, some real problems with this issue and I'll address that sometime in the future but for now, without being arrogant, I write this blog to maintain my point. Regardless of all the oddity of someone inventing a complaint, the basics with regard to free speech, education, and disciplinary action are exactly the same today as they were a week ago. I am as curious as the next person about why someone, as it were, fabricated a crime. But, that does not change the fact that the "debate" around free speech at WLU needed to move in a different direction. 

As An Addendum: 

In the same way that one might ask me -- as I did rhetorically in a previous blog -- are you not neglecting issues (in that case with regard to LGBTQ issues), one might ask "Should I not say strongly that the TA -- Lindsay Shepherd -- was innocent?" She is. But, I want people to understand that my point was not to enter into a debate about her and her teaching tools. I was using her situation as a real world example to illustrate another point and I think that point still stands. I feel bad that someone was accused of a made up crime. In the same way did a month or so ago, however, I feel odd and uncomfortable commenting on specific cases where I do not have all the details. Moreover, I don't think one's free speech should be contingent on one being "innocent." In fact, the substance of my argument -- I hope --  runs in a different direction: toward a procedural mechanism that protects free speech by ensuring the rule of law, as it were, as opposed to ad hoc decision making processes. I'd stand by that. 

Monday, December 11, 2017

Marginalization and Free Speech: Steps Beyond a Toxic Environment

To recap: WLU dropped the ball on the free speech issue, even if we assume that the TA is guilty.  I mean not to single out WLU. I'm sure most institutions have similar problems, perhaps even my own, because we don't often think about procedures until we actually need them.

What about the people who have been affected by a toxic environment? What about those whose identities are denied by Transphobia? These are good questions. Surely, someone reading my blog might say that I have spilt a great deal of text laying out procedures to defend someone who I am assuming is guilty. I've explained why and why the rule of law, as it were, is so important to democracy, transparency, and, I'd argue, post-secondary education, among other things. Procedures are not add-ons. They are not things we should discover after the fact as a way of addressing issues that arise from situations such as what happened at WLU. If we only use these procedures after the fact to ensure that the alt.right were given their day in court but that was all ... then that would be a pretty poor use of procedures, even if it would, I am saying, still be a necessary one.

Those who ask: what about the other side? What about the LGBTQ community? Why are you not saying anything that protects them, affirms their identity, provides a positive learning environment for them? I think these are necessary questions and I think addressing these issues is necessary as well. If we simply stopped with procedures that protected those who discriminated but not those who suffered from discrimination (in my example, I assume the guilt of the individual involved), members of marginalized communities would have a very similar complaint and concern to the one I outlined in my last blog.

I want to belabour this point because I think that the response to this question has, in fact, been pretty poor. It amounts to various elements of one of the following:
  • That's life, grow up. People these days are just too sensitive. Back in my day, no one took offense. 
  • That is too bad but it is the price we pay for living in a free society. I don't agree with discourse that marginalizes someone but the fact is that we have to accept it or we don't have free speech.
  • Good education will be disturbing because thinking is disturbing, challenging, it takes us to new places and by challenging our preconceptions necessarily makes us uncomfortable. 
None of these standard responses -- which, I freely concede could be said in a way that sounded more sophisticated -- really, in my view, is an effective response to why historically marginalized communities must accept continued marginalization so that I -- as mainstream a Canadian as you are going to get -- can enjoy free speech. Said differently, if we are going to protect speech, we also need to be well aware of the power relations and inequalities that can infuse that protection. To do otherwise would be naive and academic. If we pretend that conflicts over speech occur only in idealized situations where there are no victims, there is no marginalization, there is no violence against marginalized communities ... then, we are not really discussing a real issue, are we? We are making up a hypothetical situation and applying it to the real world *as if* that hypothetical situation were the real world and it just is not. I will, in fact, go so far as to argue that a failure to address real world issues is disingenuous and irresponsible. I think each of these positions are flawed and I'd like to take this blog to address them. 

The first point is simply empirically wrong. Back in the day, people did take offense to being called names, to being denied equality, to being subjected to marginalizing behaviour, to having the legitimacy of their identities denied. The difference was that they lacked the power to do anything about it. Thus, LGBTQ people did not walk about happy about the denial of their equality, the rejection of their voice, the contention that their identities were illegitimate. In often small but profound ways, in fact, they attempted to assert themselves into politics but it was dangerous. Violence was a normal part of their lives. They could not turn to authorities for help. And, they might even have been rejected by parents and loved ones if the truth about who they were came to be publicly known. The silence of the past is not indicative of acceptance. It is indicative of power inequalities that denied voice to the LGBTQ community. 

Regarding the second point, a fairer question to ask is this: who pays the price? If I (Andrew Nurse) pay the price for my (Andrew Nurse) own free speech that is one thing because that is fair. If I ask someone else to pay the price for my rights and benefits ... well ... that can be fair in some instances but it is not inherently fair. Imagine if I want to buy a car. I do and so I get to drive it. If, however, you (reader) are forced to buy a car with your money that I get to drive ... is that fair? One of the concerns I have about the whole "free speech" debate is that Canadian society seems to be asking marginalized groups (LGBTQ, Black Canadians, First Peoples) to pay the price for White Settler Canadians free speech. Put in this way, you can see the issue that I am having and why I think this idea is problematic.  It is made even more problematic because historically marginalized groups are being asked to pay the price for the free speech of historically non-marginalized groups. This is odd. We are asking someone else to have *their* identity denied or to be insulted with racialized epitaphs so that *I* can enjoy free speech.

Let me spin this point out one step further: you can actually see how upsetting this issue is when we see right-wing intellectuals complaining about what the so-called "radical left" teaches and researches and complains against tenure and research grants.  Many of my friends who are moderates or center-right in their politics complain vociferously when someone says Canada is illegitimate or that Canadians should be asking First Peoples for permission to live on Indigenous land. Why? Interestingly for reasons similar to the concerns expressed by LGBTQ activists regarding the incident at Wilfrid Laurier: it denies the legitimacy of their identity. Said in other words, many of those arguing that it is a drag but marginalized minorities just have to pay the price for the free speech others enjoy, actually become quite upset when they are asked to pay the price. At the most extreme, they then start to argue against tenure and that research grants be canceled. In the US, I gather, some political right-wingers have gone even further and setup web sites where one can report supposedly unfair treatment by leftists and radicals.

As to the third point: maybe. I will confess that I don't really understand this point. There are many things in the world I find disturbing: homelessness, global warming, violence against women are three. But, exactly why learning, say, that there is a solution to homelessness is disturbing is not at all clear to me. Moreover, as a faculty member of long-standing, I work to develop a positive educational environment as does just about every other instructor I know. So, exactly why we have to upset people to educate them is not clear. Yes, history is upsetting when we teach the holocaust or the genocide in Rwanda or Jim Crow. Hence, when I teach similar things -- say, about residential schools -- I work doubly hard to promote a positive environment: to telegraph my intentions, let students know in advance about the disturbing character of the lesson that is coming, to find good news stories to integrate into the lesson (say, stories of healing and recovery), to use appropriate artistic representations (say, from artists who were in the schools and which they have made available in the public sphere), to be available to talk to students after class (say, having a discussion sessions), to provide resources for those who might need them, and the like.

I will likely now jinx myself, but in the twenty years I have been teaching about residential schools, I have not had a single complaint. I am sure students were upset. I was. Who could not be? But, no one has been upset to the point of complaining about me. No one said that I created a toxic environment. And, I think that says something ... not about me but about students. It says students are willing to accept upsetting learning if there is a point to that learning and that point is clear. In other words: if the instructor has done their job. And, this seems to me to be something different from saying "let's debate the legitimacy of someone else's identity" or "let's get a bunch of straight people together to determine whether gay people are equal."

The difference might be subtle but it is important. One can create an education that challenges students and one should, but that is different from upholding marginalization or legitimizing violence.  It is one thing to teach a difficult subject matter (wars, violence, etc.) but another thing to teach in a disturbing way, particularly as there are steps one can take (other than not teaching material) to address the matters one might want to address.

Finally, in this regard, one might ask a foundational question: what is the aim of teaching and how is it best accomplished. If one's aim is encourage, say, "critical thought," (which is a pretty standard aim), then the question one has to answer is: how is this best accomplished. Is it best accomplished in a positive and supportive learning environment or in one strewn with controversy, with upset, and disturbed students? I don't know about you folks, but I am actually at my lowest in terms of learning potential when I am frustrated and angry or when I feel marginalized.

To conclude: more needs to be said. What I have tried to do here is to contest three standard arguments used for upsetting/disturbing students that are often connected to pro-free speech arguments. I find they have few merits and many problems. They ask others, as it were, to pay our bills; they don't provide an environment conducive to critical thought, and they tend to replicate problems rather than providing solutions.

Friday, December 08, 2017

Procedures and Free Speech (Part III)

Let's backtrack. Free speech is a misreported issue and it is a politicized issue. It might have to be because it cuts to the heart of a number of important issues in modern society: democracy, various forms of expression (artistic, self, cultural), the ability to resist or name oppression and so to promote equality, the character of scholarship and education. These are, of course, all laudable goals and, I strongly suspect, they are goals to which the vast majority of Canadians aspire.

Free speech, however, as I have said a number of times, is not the right to say whatever one will whenever one wants. There are a variety of limits, which are broadly and generally accepted and should be because they make sense. Those people who argue for free speech at any cost are actually making a fake argument because they have turned an important matter of public policy, essential for democracy, art, education, into an academic debating club in which the objective is to make one's opponent look bad (I suspect often for political reasons) as opposed to seriously thinking about what free speech is and its legitimate boundaries and having a conversation about that. One-liners don't help us, in other words.

I don't want to go over the reasonable limits (contract, for example) because I've blogged on these points so many times I assume anyone who has any interest in what I am saying can google it. I'll put up a blog that reviews this point sometime in the future.

What is important here is procedure. I've been blogging about procedures because they are essential to free speech, they are essential to fairness, and they are ways of resolving problems or conflict potentially before they began. I believe that the situation at Wilfrid Laurier that I have been using as an example to illustrate my point is a case in point. You might use another term to describe my point -- say, due process -- but the point is simple: in instances where a sanction of some sort (say, a reprimand) is going to be applied in a speech situation (where the defense is going to involve a claim to free speech) (there might be other instances, but I am dealing with speech), there are rules we have to follow and if we breach these rules, the legitimacy of the sanction -- the limit to free speech -- is cast into doubt.  So far I have said that the procedures (or, processes) involve:
  • Proper orientation that establishes limits to pedagogical aids in advance of teaching
  • The tribunal (or, committee) adjudicating the case must get the rules the accused is accused of breaking correct
  • If someone is accused of an offense (say, creating a toxic environment), they must be informed of this in advance of a hearing (or committee meeting or whatever it is called), which includes reference to the specific rule (say, university rule) that they have broken
  • In cases of new faculty or teaching assistants, etc., there must be an orientation that fully informs them of institutional rules
  • The accused has the right to read the complaint in advance of the proceedings so that they  can prepare a counter argument 
  • The accused does not have the right to know the complainant, but does have the right to know the number of complaints and the process through which complaints are made in advance of the proceedings 
  • The accused has the right to counsel 
  • The judges in the case cannot also be the prosecutors 
In the case of the Wilfrid Laurier incident, there may have been enough blame to go around, as it were. I don't know and, as a thought exercise, I am assuming the guilt of the individual involved. What I am trying to say is that these rules apply regardless of an individual's guilt or innocence. 

Someone might now say: why? If someone has created a toxic environment, why do we have to go to such lengths to protect their rights? What about the rights of the people they have marginalized or whose security has been threatened? Good questions and these are not issues -- let me say this clearly -- that anyone should pass over quickly. In fact, it is of such importance that I will devote another blog to it. 

What is important here are two things. First, when imposing a limit on free speech we need to be careful in how that limit is imposed. It cannot be arbitrary and the process by which those limits are enforced needs to fair and just and must be seen to be fair and just. Because what is it stake is -- in part -- the rules by which limit boundaries are imposed on speech. If the procedures that provide for  limits -- even, I am assuming, reasonable and legitimate limits -- are themselves potentially unfair, the reasonable limits will be seen in the same light. 

Said differently, procedures of enforcement are not just an add on to a good policy. They are part and parcel of the way the policy is enforced. If our policies are meant to set a high standard -- say, the provision of an effective and positive teaching environment -- then the procedures that enforce that standard must set the same standard. If they don't, the standard itself will be called into question. 

I'll give you an example. Imagine that you go to a meeting to discover that you are accused of speeding. You are not allowed to see the record of your speeding, you were not told in advance of the meeting when and where you were speeding, you are not told by how much, you are not given the opportunity to consult a lawyer, and the crown prosecutor is the person who will make the decision as to whether or not you are guilty ... in that instance, the legitimacy of a guilty verdict -- and I would argue rightly -- be in question regardless of whether or not you were speeding. And, it would be thrown out on appeal by a higher court, calling into question the rule that had been imposed against speeding. Now, note this: there is nothing wrong with a law against speeding. I agree with it. I had young children and I didn't want people speeding through my neighbourhood. It was not safe.  Hence, I reject the "I should be allowed to drive at whatever speed I want" argument. But, the fact that I reject it does not -- and cannot -- legitimize bad procedure in enforcing speeding and, in fact, will result in court challenges that call the speeding law itself into question (potentially making speeding more frequent). 

Second, we also need to remember that rules are not about the person on trial, as it were. Or, rather, they are not only about the person on trial. They are also about you and me. They are about the innocent. We cannot assume that simply because a person is accused of something that they did that thing. This is not, I want to add, the same thing as disbelieving the victim. This is an issue in which it is vitally important to avoid a binary yes/no type of logic. How one both maintains procedures and respects, believes, and supports complainants is a seriously tricky question but it is made more tricky by a binary that gives us only two options: yes or no. If these are the only options we have, then protecting rights of accused is indeed saying "I disbelieve you" to victims, as it were. What I don't see is why these need to be the only two options. This is important because I don't see a way around maintaining proper procedures. I don't see a way to avoid the points I've suggested above and maintain the legitimacy of any sanction, even if that sanction is done with the best of intent.

I do believe that there will be conflicts around issues of speech because people will intentionally misuse free speech. They will use it to insult people, to organize hate, to call others' identities into question, to marginalize and to oppress and we cannot -- if we want to be a good and democratic society -- accept these things. Thus, avoiding all conflict cannot be out objective in establishing policy because we will not be able to meet that objective. But, I do think we can take steps to minimize conflicts and to find ways to carry on conversations that bring people together into communities of interest. One way to do that is to avoid binaries. Or, at least this is what I think.

Wednesday, December 06, 2017

Free Speech and WLU (Part II)

In my last blog, I offered a bunch of qualifications: I am not taking sides, nor should my comments be read as doing so, in the debate at Wilfrid Laurier over free speech and hate speech. The argument that I am making is procedural and, to be clear, I am not trying to single out WLU. I suspect that many post-secondary institutions have similar procedural issues. I'll try to get to the issue of why we have these procedural issues in another blog (because I don't think it is out of evil intent or neglect).

In my last blog, though, I argued several key points:

  • Faculty employing TAs must ensure proper orientation so that their TAs understand the rules of their courses, what is acceptable as teaching aids and what is not, so that everyone is working toward creating a positive learning environment (the precise meaning of which might differ from prof to prof and course to course, for legitimate reasons). In this case, this seems not to have been done. 
  • That committees sanctioning individuals for breaches of the rules have a responsibility to get the rules right, as it were. If a committee is contending that there has been a breach of Canadian law, for example, they must ensure that their interpretation of the law can hold up because the law is not, of course, simply a matter of opinion and we want to avoid "well, I think X is wrong" types of argument in which there is not way to determine the accuracy of given statements. It appears the committee interviewing the TA fell down on this point. 
  • That the committee sanctioning the TA (Lindsay Shepherd) also neglected other important matters of procedure that are essential for the effective construction of what we could argue is rule of law but which I would also argue is essential for the most effective free speech situation. These include: informing the accused in advance of the rules they had violated and allowing time to respond. Said differently, a person accused of something should not be forced to "think on their feet" during their defense. 
Moreover, I argued, these procedural points must apply regardless of our view of a person's guilt or innocence. This is elementary I recognize but the persistency of procedural rules cannot apply only in cases where we favour one or another party. That is, to say again, I am saying they must apply even if I am assuming the TA's guilt. 

I want to take this argument a step further but not by way of extrapolation. In other words, I am not going to try to get you to believe and interpretation built on your acceptance of the above contentions (if you accept them, even if for the sake of argument). I am going to try to lay three other important procedural matters that seem, as well, to have been neglected in this case. 

First, the accused must have the right to council. In my workplace, I have at right to have a union rep with me if an administrator is accusing me of something. I have the right to go to my union, to have them provide legal council, and to have them provide representation for me (have a grievance officer, in my case, take the lead in addressing the situation for me). The specifics, however, are less important that the idea. Someone accused of a serious violation of the rules (and, btw, creating a toxic environment in an educational setting is a serious violation of the rules) should not look across the table at three people unless they have their own council who can provide independent advise with regard to rule and procedure. If three people can come together to form an argument against a person ... we again have a power imbalance that is disturbing not because the TA was correct or incorrect, but because it can lead to a situation where a person who has not done anything wrong is deprived of their ability to formulate their own position through independent advise. Again, under Canadian law, we have a right to council. If a person is not unionized, it seems to me that this right is even more important because the union is not there to provide advise and support. 

Second, the accused needs to have the right to know the basis of the complaint against them independently of the person making the accusation. I understand the argument against releasing the name of the complainant. This can be a discussion for another day. But, that is different from seeing the complaint. According the recording (or, at least this is my understanding), Shepherd (the TA involved) was told she did not have the right to know who complained, could not know the number of the complainants, and was not informed of the process through which complaints were made. There is, again, an orientation problem here for TAs, and a potentially significant one, but the identity of the complainant can be protected while other important information -- information necessary for transparency and the legitimacy of decisions to sanction -- is made known in advance of the proceedings. At the least, an accused really does have to have a right to know the following:
  • The number of complainants
  • The complaint itself 
  • The process through which complaints are made
These are procedural matters. Remember, I am assuming for the sake of this argument that the TA is guilty. I am not trying to defend this person. What I am asking is this: as a thought exercise, what is the minimum requirement for a procedure to have legitimacy; that is: to be fair to all concerned. 

Think about it this way, imagine the situation were different. Imagine you were charged with created a toxic environment on campus and you were to be sanctioned by your supervisor (who was also responsible for your orientation to your job). How do you feel -- person reading this blog -- that this process should proceed? Do you have the right to know in advance of the complaint (or, will you be required to defend yourself by "thinking on your feet")? Do you have a right to know the number of complainants? Do you have a right to know the process by which complaints are made? Do you have a right to counsel? 

Third, and there are others I will address in a future blog, your prosecutors cannot also be the people deciding on your sanction. In this case, the committee that was prosecuting the TA were the exact same people who were to adjudicate the legitimacy of the complaint and determine the sanction. You can see the problem in terms of procedure, I trust, immediately. Here is an analogy. What if you went to court to discover the that the prosecutor was also the judge? What would you think your chances of a fair trial might be?

Let us take a step back. What I am saying is that the procedures followed by the committee that determined the TA's sanction were so out of whack that they were going to create problems. If not in this case (and, again, assume guilt if you want in this case), then in some future case. If we have a situation where sanctions can be leveled without people knowing the complaint against them, where prosecutors are also judges, where accused are denied right to counsel, where orientation (an explanation of boundaries and limits) does not seem to have been effectively conducted (that is, a person is being accused of breaking rules and the person who was supposed to explain the rules to the rule breaker didn't) ... well ... in this instance, we have a situation that becomes what has happened at WLU.  The issue, on the one hand, has something to do with free speech, but on the other hand, that something is different than people think.

In my next post, I will try to draw the connection between procedures and free speech. 

Monday, December 04, 2017

Free Speech, Transphobia, Hate Crimes, and Toxic Environments

Just about everyone seem to have something to say about Lindsay Shepherd and the Wilfrid Laurier disciplinary/free speech debacle. If you have missed it, I'm not convinced that there is a neutral run down "out there" but you can start here. I have intentionally avoided commenting on it because I wanted to take some time to consider my views. Heat of the moment does not work well for me and I'm actually not convinced that it worked well for anyone is the debate, discussion, competing protests, etc., that followed. I thought I would write this blog not because I have any particular desire to comment on the facts of the case, but because I have blogged extensively over the years about free speech and this seems to be yet another case of people getting things ... well ... not wrong but partially correct. I also have blogged on academic matters. I will confess I wanted to take a pass on this one because of the heightened discourse, particularly on social media. But, because this incident hit two matters of on-going concern to this blog ... well ... it seemed like a bit of cowardice to avoid it.  I have a particular view. I'll try to get it in in this blog but I might fail and have to write a multi-parter.

My view is this: the problems occurred at a procedural level. Rather than laying blame and or trying to discover that elusive boundary between free speech and personal security (both of which, btw, are Charter rights), we are better off thinking about the procedures we follow to protect speech, orient Teaching Assistants, and review cases of possible breaches of the boundaries, particularly those that include sanctions. This ultimately will not allow us to avoid the hard work of finding out what those boundaries should be, of educating people into their importance, of ensuring personal security and a positive learning environment, but I do think that they can help -- and significantly -- in cases like this. For this reason, I am going to focus on the interview/meeting between Shepherd (the TA) and the faculty and administrators involved. It is, as well, a matter that has not been discussed in significant detail in the commentary that I have read.

This blog is, in other words, a thought exercise.  As part of that exercise, I am going to ask you (readers) to assume somethings that are not in evidence.  My request here is not an indication of what I think happened. It is part of the exercise. For the sake of argument, let us assume that the TA is in the wrong. Let us assume that she is an alt.right provocateur looking to deny the legitimacy of Trans identity or suggest that this identity is open for debate by people outside this community (by which I mean I do not want to assume a reductionist Trans identity myself as part of this blog). In other words, let us assume the worst. What should then happen?

The first thing that should happen is a should-have-happened type of thing. Processes and procedures for dealing with troubling situations in the classroom need to begin before students enter the classroom. As a faculty member who often deals with complicated issues of identity, policy, expression, etc., in my classes and who supervises TAs I sympathize with the prof involved. That is a bias on my part of which you should be aware. One cannot control everything and TAs are not teaching robots that one turns loose on tutorials. This said, professors (again, not referring to any specific prof but as a point of discuss) do need to orient their TAs. They need to establish boundaries on what can and cannot be done in class. They need to be aware of what is going on in tutorials. If there were possible materials that were so bad as to create a toxic environment or a situation where a TA could cause manifest harm to a person, that needs to be brought to the TA's attention in advance of the class. There is a power imbalance between faculty and TAs. It is the prof's responsibility to set the boundaries, to indicate what materials are out of bounds, to be aware of teaching aids that will be used in tutorials, and other like matters.

This is, I recognize, time consuming. My first year as a TA, I met weekly with the prof for whom I worked and with the other TAs. That prof did not dictate what we did in tutorials, but we collectively reviewed what was supposed to happen in that week's tutorial (which was, by and large, content oriented). This is a responsible use of TAs. In this case, this prof may have done that but the first point I want to make is this: TAs must have proper orientation to the courses that they are helping to instruct and it is the prof's job to establish the boundaries that create a positive learning environment.  Since most TAs are young -- in this case not much older than the students in her tutorial -- this is all the more pressing, particularly since the faculty who met with the TA, interrogated her and were in a position to level sanctions, seemed to indicate that the age of the student in the tutorial made a difference. You see the point, if the students were too young to be able to exercise critical perspectives on their own without guidance ... and they were potentially the same age (or, in the same age range) as the TA ... orientation is needed.

Second, when a breach of rules or procedures or guidelines has occurred, you better get that rule or procedure or guidelines correct. Let us be clear: hate crimes are not acceptable. Full stop. The issue here is what happened did not fall under a hate crime according to Canadian law. It might not have been good. It might have been bigoted. It might have be identity-denying, but it did not meet the bar of a hate crime under Canadian law. So, you cannot accuse someone of something that is wrong and, again, there is a burden of responsibility that must lie somewhere. In my view, the burden lies with the individual making the charge. Why? Because the accused cannot be placed in the position of having to convict themselves. That clearly contravenes the Charter. We also need to avoid -- because it is unproductive -- a "well that's what you say"-type of dialogue. Said differently, in levelling a charge, there is a bar that has to be met. An action is not wrong because I think it is wrong. It must be wrong in fact. You can see why. If views and perspectives are the test of what is right and wrong, what happens when people disagree?

I want to be clear on this point. I am not in any way defending hate speech as an acceptable form of free speech. I've made this point over and over again in this blog and so if you think I am ... check out what I've said in the past. What I am saying is that tribunals that can sanction individuals need to operate according to procedures. This is the rule of law. What is more, we all like it and accept it. It is a foundational cornerstone of a free and democratic society (or, a society that wants to be free and democratic). In this sense, the burden of being right in terms of accusations lies with those who are making the allegation and must lie with them.

There is a really important caveat here. It not the job of the complainant to meet this standard either. In this case, and from what I can tell, the student who makes the complaint does their job: they make a complaint. There is nothing wrong with that. In fact, I complain about a lot of things a lot of the time. My colleagues and employer will back me up on that. I've been complaining, for instance, for a long time that we have done little to nothing at my institution to address Indigenous issues. There is nothing wrong with a complaint. The issue is how the complaint is handled as a matter of procedure and administration. This is where I think the serious problems occurred.  Not only were the faculty and administrator involved wrong in their efforts to apply Canadian law to the situation, but at least one faculty member -- judging from the recording -- was unsure of what university rules or regulations had been violated.  More problematic still: the TA had to ask what she was being accused of and what rule she violated.

Again, let us assume the TA was wrong. Let us assume that this was an alt.right person (I am not making a statement; she has every right to define herself) looking to make a stink. Should that change our procedures?  We might want it to, but it can't because if it does we no longer have the rule of law. We have a rule that we apply to some people and not others.   This does not mean that this TA cannot be accused of having committed a breach of the rules and having created a toxic environment or of creating a situation in which there was a potential of manifest harm to a student (a situation, needless to say, that runs counter to a positive educational environment). It is to say that:

  • The accused must be told in advance of the meeting what rules they are being accused -- by the faculty, administration, tribunal, etc. -- of having violated
  • The accusation must be correct in law (that is, one cannot make mistakes on law for what I will take to be obvious reasons)
  • The accused must know this so that they have time to mount counter arguments -- that is, to profess and explain their innocence 
  • The specific "charges" must be reiterated at the beginning of the meeting
  • The potential sanctions (whatever these might be) must also be a matter of advance knowledge to the accused and reiterated at the beginning of the meeting

The burden of meeting these standards lies *not* with the accused but the accuser (who will not be the person actually making the complaint). 

OK, I've said a great deal already and will need to break off because otherwise this blog will get to long. Part II, I guess, will be coming. What I have said is that as a thought exercise, I am assuming the worst in this situation. I don't know any of the protagonists, btw, and my thought exercise is just that. It is not my view on who is guilty and who is not. In fact, it would be counter productive to make such a statement in advance of much more knowledge and reasoning. What I am saying is that there were procedural problems that occurred. Even on the surface of it these procedural problems seem serious. I make this point not to condemn WLU. I suspect that most of our institutions have similar problems. Hence, this blog. Perhaps there are things we can do to address such problems. In the next part, I'll take this argument a step further.  

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