University presidents owe a duty of restraint when dealing with peaceful assembly

Unsurprisingly, Canadian university administrators are already proving every bit the unprincipled cowards of their US counterparts. McGill is now following the unfortunate pattern of many American universities by calling on the police to deal with the inconvenience of protesters camped out on its grounds. The University of Toronto erected barricades and “no tents” signs to prevent similar protest on its campus.

Peaceful assembly is inextricably tied to freedom of expression. As a right of protest, it necessarily includes a degree of disruption. There are clear limits. Institutions, the state, and the rest of society do not have to tolerate violence, real threats of violence, or wanton destruction of property or vandalism.

On top of that, in the university context, the institution has the authority and right to ensure that its core functions (teaching, research, and related activities) remain free from interference. The campus community should also have a general freedom of movement. And as I wrote about the so-called “Freedom Convoy” and other protests, there is also a temporal dimension - no one has the right to endlessly occupy a shared space. And the length of the limit should also be considered in light of the nature of the disruption (the Convoy, for example, occupied most of downtown Ottawa, completely shuttered businesses, stopped people from getting cancer treatment, etc).

Yet in none of the reporting I have seen from McGill - and indeed, at many US universities where the cops have swooped in - are the ‘encampments’ of protesters anything but generally peaceful. They are occupying space. They are technically trespassing. But so long as protesters are not otherwise committing crimes or interfering with the university’s ability to get on with its business, the quick reaction to call for police enforcement is repressive and contrary to the basic rights of free expression and peaceful assembly. I see nothing in the news that McGill campus buildings are shuttered or students can’t access services or write exams or anything, really, other than there’s a field of tents on campus that people find annoying, disturbing, or “hateful”.

In short, and in the absence of meaningful interference with their institution’s missions, university presidents across North America, with few exceptions, are demonstrating an appalling lack of restraint.

It is an open jurisprudential question in Canada whether the Charter of Rights applies to universities in a general sense. There is reason to think, despite precedents to the contrary, that in Alberta and Ontario, at least, where provincial ‘free speech’ regulations have been brought in and imposed on universities, that this establishes sufficient state action to make the Charter applicable here. But regardless, even if the issue is not constitutionally enumerated rights, university presidents are still spitting on rights with these actions.

It seems no mistake this is happening in relation to protests about Israel. All of the “conservative” voices who have spent the last decade championing free expression seem to have gone silent, or are now expressing their deep concern about antisemitism in the face of protests against Israel’s actions. And perhaps the left is learning, too, what happens when we cultivate a culture whose immediate recourse to hearing or seeing something you don’t like is to attempt to censor or sanction it.

Our universities lack principled leadership. Administrators fall into several camps. Some are craven enough to bow to the minimal pressure - usually from groups with power - be they donors or governments or those with a loud enough megaphone. Others lack a clear understanding of the way rights are meant to operate in a free and democratic society. Others still are making an honest effort to do their best in a situation where they - and their institutions - have failed to develop the appropriate policies and principles necessary to guide their behaviour in these contexts.

Unfortunately, the most common mistake university administrations make is forgetting that their first option should usually be to do nothing.

So let me offer some advice, as we will very likely see protests spread on other campuses.

Dear University President:

Is there violence, or is anyone in physical danger? If yes, call the police. If no, do nothing.

Are people burning or smashing your institution’s shit? If yes, call the police. If no, do nothing.

Are the university’s core operations being severely disrupted, such that classes are being cancelled or researchers can’t even get to their labs? If yes, go get your injunction. If no, do nothing.

Are people annoyed, distressed, or upset because protesters are chanting, marching, sitting around with tents, or have offensive signs/saying offensive things, but you can still answer ‘no’ to the first three questions? Do nothing.

Has an encampment been set up, are they occupying a field or parking lot, but you can still answer ‘no’ to the first three questions? Do nothing.

Oh, and so long you’re still answering ‘no’ to those first three questions, you can always try, I dunno, engaging in a good faith dialogue with protesters and other members of the campus community instead of running to the cops.