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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