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. 

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.

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.

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. 

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.