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. 
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