Misguided lawsuit against UBC evokes culture war nonsense

A small group of professors is suing the University of British Columbia to stop the university from engaging in “political activity.” According to the CTV story on the legal challenge (I have not seen the statement of claim), the professors object to the university’s use of land acknowledgements, its promotion of equity and inclusion initiatives, and university statements that were perceived as taking positions on the Israeli-Palestine conflict.

One can clearly get a sense that there might be ugly ideological motivations behind the lawsuit, but a less speculative and more fundamental problem is that it evinces a profound misunderstanding of what universities should be expected to exercise vis-a-vis a position of institutional neutrality and restraint.

According to CTV, the legal claim at stake is that UBC is in violation of the BC University Act, which contains a provision that universities should be “non-political”. But when one reads the Act, the relevant provision is contained in a section on “Theological colleges”, and the full provision is simply recognizing that “A university must be non-sectarian and non-political in principle.” The purpose of the section as a whole, however, is to permit theological colleges to affiliate with public universities, and for those religious colleges to continue to make provisions for religious instruction and worship, and to require religious observance. In other words, to provide an exception for a general rule of non-sectarianism.

Applying this provision to encompass the activities and statements of a public university - particularly statements that relate directly to the university mission or institutional operations - is more than a legal stretch, it is a non-starter.

This is because the idea that university communications could ever be wholly apolitical is an impossibility. Universities enjoy the institutional autonomy necessary to take policy and “political” positions on anything relevant to their operations as academic institutions (and as employers, etc.), including in lobbying government for funding or on post-secondary education more broadly.

This same institutional reality means that a refusal to acknowledge that the land on which UBC sits is not subject to treaty, and is therefore unceded territory, would be every bit as political as doing so. The litigants here are essentially complaining that the university is recognizing a legal fact that they do not happen to like.

Moreover, universities are subject to legal obligations, including human rights and employment law obligations, that quite explicitly require them to advance “diversity”, “inclusion”, and “equity”.

That the litigants have their own political preference for silence or a pre-existing societal status quo does not mean that it is possible for universities to be “non-political” in areas directly relevant to the academic mission or institutional operations.

The principle of institutional neutrality and restraint should apply more narrowly to institutional statements and communications on events not tied to the university mission. Some people react very negatively to the term ‘neutrality’, for fear it means a university should just stick its head in the sand and ignore local, national, or global events no matter how they might impact members of their community. But institutional neutrality does not mean universities should abandon their duty of care for community members, or from providing supports that have been imposed on them, like health and counselling services, etc. Nor does it relieve a university of its human rights or employer responsibilities.

Institutional neutrality is instead narrowly concerned with ensuring that the university remembers that it is a support structure for the free expression of its members - free expression is their right, not a right of the institution’s - and it is obliged to enable those members to exercise their free expression and academic freedom, including in supporting those who may feel targeted by hate or disadvantaged by structural injustice. In that vein, while political, it is emphatically not inappropriate - let alone illegal - for a university to exercise its institutional voice to defend the free expression and academic freedom of its members, to recognize its institutional existence on unceded territory, or to adopt EDI policies as an employer.

But, when universities take positions on events disconnected from the university mission or institutional operations, it often means that, essentially, the president of the university is purporting to speak on behalf of the entire collective body. This can obviously have a chilling effect on members with dissenting or minority viewpoints, and should be avoided.

This is the specific, nuanced position we took in our report for UWaterloo’s Task Force on Free Expression, and I was pleased to see my university adopt a statement on institutional neutrality and institutional restraint earlier this month, following our recommendations.

So the one point in the litigants favour applies to UBC’s statements on events like Israel’s war on Gaza, to the extent the university was doing more than showing concern for affected community members or pointing them to appropriate resources or services. If UBC adopted statements that reasonable people would see as taking a ‘stance’ on controversial matters of social, moral, or political concern, it risked violating the expressive freedom of members of its community.

But a proper understanding of institutional neutrality is not a legal claim, or at least not one plausibly grounded in the section on theological colleges in the provincial statute. It is instead a policy position, and one that does not apply to land acknowledgements or EDI policies.

UBC might do well to revisit its policies on this issue. Its 2018 statement on free expression (which can be found in the appendix to the UWaterloo Task Force report along with those of other universities across Canada), is frankly, an amorphous mess. Its authors were so concerned about 'balancing’ free expression with other values, one can read the statement and not be sure of what is permissible and what is not in many imaginable scenarios.

Although UBC - and indeed universities across Canada - should follow UWaterloo and start doing the hard work of clarifying their policies relating to the robust protection of free expression (which also entails policies governing university communications, institutional neutrality, and academic freedom), that work should not be based on this misguided lawsuit, which fundamentally misunderstands the issues involved, and threatens the spectre of a broader MAGA-like perspective on what legal limits should be imposed on academic institutions.