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Full text of "CAUT-Report-Israel-lobby-York-University-2008"

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REPORT OF THE AD HOC INVESTIGATORY COMMITTEE ON FREEDOM OF 
SPEECH, ACADEMIC FREEDOM AND GOVERNANCE AT YORK UNIVERSITY 

June 2008 

Introduction 

On 5 March 2005. the Executive of the Canadian Association of University Teachers 
unanimously passed the following motion: 

Thai, at the request of the York University Faculty Association, the CAUT Executive set 
up a committee of inquiry to investigate issues respecting tree speech and governance 
at York University. 

In a letter to the President of YUFA, Arthur Hiliiker, dated 10 March 2005, from Loretla Czernis, 
President of CAUT and James Turk, Executive Director of CAUT, announcing this decision, the 
specific terms of reference for the Committee w/erc also set out; 

1 . To determine whether there were threats to, or breaches of right of free expression 
and academic freedom at York University; 

2. To determine whether there were inappropriate governance practices; 

3. To make any appropriate recommendations. 

Subsequently an ad hoc investigatory committee was established and confirmed on 31 March 
2005 and in May began the large task of fulfilling its very broad terms of reference. 

Unlike most, if not all, other ad hoc investigatory committees, ours was not charged with 
examining a specific case involving one individual or event; rather, we were asked to examine 
large and complex domains-free expression, academic freedom and governance-within York 
University as a whole. This proved to be a daunting task for two volunteers receiving no respite 
from the other claims on their already more than full professional lives. Nonetheless, we 
conducted interviews with nearly three dozen faculty members and students, many lasting up to 
two hours or more, and, with selected individuals, on more than one occasion focusing on 
events that occurred primarily between 2003 and 2005, Included among those we interviewed 
were professors and students recommended to us by members of the executive of the Yori< 
University Faculty Association (YUFA) as well as individuals who responded to an open call we 
sent to employee and student groups at York, as well as lo the Y-File, York University's internal 
e-newsletter (although it should be noted that we cannot be certain how many of those groups 
publicized our call). We also received a number of written statements and collected or were 
provided with a great deal of relevant documenlation for review. While on the York University 
campus to meet with colleagues, we visited Vari Hall to gain a sense of the space and its 
acoustics. 

We do not claim that our study is exhaustive, but the evidence wo considered is substantial and 
it does allow us to set out an informed assessment of the stale of free expression, academic 
freedom and governance at York University, "these three elements are interconnected in many, 
if not most, of the events we examined, a reality that made it difficult and, at times impossible to 
separate them out for discussion and we ultimately decided that such an approach created 
artificial boundaries that could not be sustained. In fact, we concluded that episodes related to 
free expression, academic freedom and governance are itie obvious manifestations of a much 
larger effort lo re-slructure and re-direct the university, and this, in turn, is part of greater 
struggles around social and economic transformations which grip Canada and. indeed, the 
world. 



Because of the nature of our work and the emphasis we were asked to place on York University 
as a whole, we do not examine any specific event in the kind of detail normally evident in [tie 
reports of ad hoc investigjjlory committees or committees of inquiry which typically deal with the 
experiences Individuals have with employment, tenure or promotion decisions. Rather we take 
a broader, more sweeping view of events at York University over a number of years to explore 
whether there are consistent patterns of abuse to freedom of speech, academic freedom and 
collegial governance that warrant further attention from the CAUT. 

It must also be said that three difficulties arose during the course of our work and hampered our 
efforts. First of all, many of the incidents and cases drawn to our attention have been or are 
being considered elsewhere, whether through the grievance processes outlined in the collective 
agreement made between the York University Faculty Association and the York University 
Board of Governors or through the courts. While this reality certainly suggests a campus 
troubled by difficulties in the areas we reviewed, it has complicated or negated our ability to 
comment on several matters. 

Secondly, we received evidence from two untenured members of faculty, in two separate units, 
that substantively addressed matters of academic freedom and governance. While the 
professors wished to share the details of their experiences (o expand on our understanding of 
the climate at York, they did not fee! safe enough to allow us to use the information they 
provided. In fact, they feared that If they were identified, reprisals would follow and they might 
even be denied tenure. Although their cases are important and provide additional evidence 
supporting the conclusions we draw below, for ethical reasons we feel bound to honour these 
professors' requests to protect their identities and hence do not address the specific 
circumstances of their experiences because they would identify the individuals involved. We do 
mention these cases, however, because of our concern that for at least some members of the 
York community, the climate is one of fear. This points directly to questions about freedom of 
speech, the academic freedom of professors on campus and matters of management and 
governance. It also suggests that YUFA needs to play a more obvious and proactive role in the 
tJniversity and demonstrate more clearly that members can rely on their union for support. 

Our work also was hampered by the refusal of the President of York University, Dr. Lorna 
Marsden. to meet with us. Tfiree letters of invitation were sent to President Marsden (Coulter to 
Marsden, 1 May 2005; Coulter to Marsden, 23 June 2005; Coultei to Marsden, 25 October 
2005) inviting her and other senior administrators to meet with the Committee and share their 
perspectives and any documentary materials pertinent to our investigation they might wish us to 
review. Each of our invitations was declined. In May 2005. President Marsden indicated that 
"We are committed to working first with YUTA to tn/ to resolve the Association's concerns beforo 
giving consideration to participation in an external process" (Marsden to Coulter, 5 May 2005). 
On 1 1 July 2005, President Marsden responded to our second invitation by referencing a letter 
sent to CAUT President I oretta Czernis and Executive Director James Turk on 8 July 2005, 
This tetter, written by the Counsel for York University, requested: 

...that the Ad floe Investigatory Committee be dissolved or, in the alternative, stand 
down and suspend any investigatory activities in the face of and in preference to 
meaningful and good faith efforts at resolution of the issues between the University and 
YUFA. (Brooks to Czernis & Turk, 8 July 2005) 



In November 2005 President Marsden indicated il was her view that "it would not be 
aoprorr^te or me to meet with your Cornmittee, and I repeat the University's previous requests 
SZr CommTttee should stand down and take no further proceedings" (Marsden to Coulter. 
fNover^bor'S As . result, we were never able to meet with President M^rs en or other 
.onior administrators and so their views are not reflected in this report, except as they are 
re>^aed trough their actions and written documentation such as Senate minutes, med,a 
cleats and other public statements, reports and policies. The approach taken to our requests 
o meeVmqs must also be seen as providing additional evidence about the nature of he 
™an^ management style at York University. Subsequent to completion of the 

St draft of the report, in the interests of fairness, Dr .Marsden was - f'^ -^T ^ and 
sprcific findings ihe Committee was considering making (Turk to Marsden, 3 March 2008 and 
acoLnto Brooks, 28 April 2008). She has responded through her counse to say that she 
has now settled and entered into a confidentiality agreement ^X'^'^'^^l'^^lll^^^^^ 
says would make it inappropriate for her to comment (Brooks to Turk. 25 April 2008 and Brooks 

to Jacobsen, 5 May 2008). 

The questions we address in this report are not new. In (act, they were given thoughtful 
ons^eration shortly after the founding of York University. In 1968, dunng a period of ome 
turmoil on other university campuses in Nortii America, President Murray Ross appoin ed a 
Presidential Committee on Rights and Responsibilities of Members of York Un.versity to 
consider what standards and norms should govern the behaviour of faculty arid ^tudems^ 
Chaired by The Honourable Mr Justice Bora Laskm, a member of the Board of Governors, the 
Presidential Committee concluded that: 

Ihe University is a community of faculty and students dedicated to the pursuit of 
[ruth and the advancement of knowledge; and a place where there is freedom to 
teach freedom to engage in rcsearcti, freedom to create, freedom to learn, 
freedom to study, freedom to speak, freedom lo associate, freedom to write and 
to publish, (Presidential Committee, 1970, p. 2) 

In large measure the words, and certainly the substance of this statement, have made their way 
into the latest iteration of the Student Code of Conduct (York University, 2006, retrieved from 
www.vorku.ca /scdr. 

At the same time, the Lasktn Committee recognized that, 

Like any community the University must continuously resolve the problem of 
liberty and order. But whatever be the approach in other communities, Ihe 
University must in marginal cases show a preference for liberty, and risk its 
judgment in such cases lor that preference. Only in a climate of openness of 
debatfi and discourse, of unhampered assembly and association, can the 
University community survive and adapt itself to a changing wortd. The exaltation 
of order at the expense of liberty would threaten the very foundations of the 
University. (Presidential Committee. t970, p. 3) 

Althougti written nearly four decades ago. these statements specify clearly what a university is 
understood to be and what that means in terms of the balance between freedom and 
responsibility- These basic principles of free speech and academic freedom continue to be 
reiterated in various forms in policies governing the actions of members of the York University 
community. The University's Mission Statement, for example, stales, in part, that 

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We test the boundaries and structures of knowledge. We cultivate the critical intellect. 
....we value tolerance and diversity. York University is open to the world; we explore 
global concerns. ... [we are] A community of faculty, students and staff committed to 
academic freedom, social justice, accessible education, and collegial self-governance...." 
( www.vorku.ca) 

In important respects, this report evaluates the degree to which York University lives up to the 
promise of its mission statement. 

The Precipitating Event: Vari Hall. 20 January 2005 

The events leading directly to this investigation occurred on 20 January 2005, the day George 
W, Bush was inaugurated for a second term as President of the United States. The York 
University organization, Grassroots Anti-Imperialist Network (GRAIN), v>/hich is a working group 
of (he Ontario Public Interest Research Group (PIRG), organized a demonstration in ttie Vari 
Hall Rotunda. The stated purpose of the demonstration was to provide students and others in 
the York community with an opportunity to speak out against the Bush administration and io 
make links between the business interests of some members of the York University Board of 
Governors and the corporations that benefited from the policies of the Bush government- 
Estimates about [he size of the demonstration vary but there seem to liave been somewhere 
between 30-50 demonstrators listening to speeches and about a hundred or more on-lookers. 
At some point about six officers from the Toronto Police Service, 31 Division, gathered in a 
location on the periphery of the Rotunda, joining members of the York University security 
service. According to President Marsden, the police officers "were on campus in anticipation 
that they might be required for assistance in dispersing the demonstrators" (York University, 
Minutes of Senate, 27 January 2005). There is some oral evidence to suggest that the police 
officers believed they had been called in to deal witti members of the Ontario Coalition Against 
Poverty (OCAP), a community group with which the police had clashed before. 

Reports vary as to whether or not York University Security Officers made repeated requests for 
the student demonstrators to disperse. There are also questions about the extent to which the 
police officers who were present also requested or ordered dispersal Some reports suggest 
that it was only part-way into the demonstration that a police officer asked the students to 
disperse. Whatever the case, about 35-40 minutes into the demonstration the police officers 
who were present advanced on the group of demonstrators and proceeded to wrestle a number 
of them to the iloor while students chanted, "Cops off campus," At least one faculty member, 
Professor Stanley Jeffcrs, reported that he observed police officers "pushing, shoving and 
grabbing some of the sturienls" while one student was wrestled to the floor and "held down by 
hA/o policemen while a third repeatedly and violently punched the prone student" (Joffers to 
White, 22 January 2005). Video taken at the scene conlirms this general descriplion of events 
(see hltp://aiito aol.lao.ca/node/11 26). During Ihe melee, one police officer claimed that a 
student protester tried to unholsler Ihe officer's firearm and, in response to this, back-up was 
called and several police cars responded, effectively blocking off the Vari Hall Circle and thus 
impeding traffic at this point. 

Several students were handcufled and removed to a room thai apparently had been previously 
booked in Ihe Ross Building, a short distance from the Vari Mall Rotunda. Oilier students, 
concerned (or Ihe welfare ol thetr peers, followed the police to the room and began knocking on 



th^e stEs were Ji;h"dropped or dismissed and the .ludent accused of trying to se,ze a 
police officer's weapon was found not guilty of the charge. 

The administration of York University responded to the events at Vari Ha!! bV i^s'^ing a media 
release confirming that five students had been arrested. The release we.U on lo claim that. 

For approximately 40 minutes the group carried on aggressively and disrnptively 
Consistent with York's policy of non-disruption of classes, the protestors were asked 
repeatedly by York security to cease these activities. They refused and classes had to 
be cancelled. Toronto police were then brought in to address the situation. The police 
peacefully and repeatedly asked the protestors lo leave but some of the Protestors 
became violent and at least one police officer was assaulted. (York University Media 
Release, 20 January 2005, retrieved from 
http://www. v orku.ca/mediar/archive/Helcase-a SD?Rele3se^782 } 

Another media release was issued the following day and it slated that "Violent acts were 
initialed by the protestors against the police," It went on to claim that "exams were disrupted 
and some classes held in Van Hall had to be cancelled" (York University Media Release^ 21 
January 2005 rf.i>ipvpri fmm http-./ /www.vorku.ca/med ia f/archive/Release . asp ?Release-78 j A 
sub'^equent statement by the University's Vice-President of Finance and Administration, Gary 
Brewer staled that a policeman had been "hil in the head by a megaphone thrown by a 
protestor " that one protestor attempted "to remove a gun from a policeman's holster," and a 
policewoman was 'assaulted by several protestors." His statement went on to claim that 
"Classes were cancelled and examinaflons were iiilerrupted'" and this affected 650 students and 
their professors (York University Media Release, 25 January 2005, retrieved from 
h ttp://www.vorku.ca/medi ar /archive/Relea se. 3so?Relea5e=/87 ). 

The substance of these claims was immediately ctiallenged by various parties, as was the 
decision by the administration lo invite police officers to attend on campus. On 22 January 
2005, Professor Stanley Jeffers wrote to Nancy White in Media Relations indicating that he had 
inadvertently been an eyewitness to the events in Van Hall and therefore knew that "Statements 
that have been included in media releases and which appear on the York web site to the effect 
that the students were violent or initiated violence are quite simply not true and should be 
corrected- (Jeffers to White, 22 January 2005). Professor Jeffers again repeated this request 
for correction on 26 January (Jeffers to White, 26 January 2005) but without effect. As has 
already boon noted, video taken by students at the scene confirms Professor Jeffers' account 
that the police moved in on the students and thus initiated the physical confrontation. In fact, 
the high qualily video retrieved from the University's own surveillance cameras located in Van 
Hall and screened after a special meeting of Senate on 3 February 2005, also failed to confirm 
the administration claims about student initialed violence (Rahn, 2005), 

Also we could not substantiate the claim made by President Marsdcn that "a faculty tnember 
came to complain Ihat she had had to cancel her class" as well as the statement, "some classes 

5 



were disrupted and had to be cancelled due to noise" (Minutes of York University Senate, 27 
January 2005). In response to these and other similar statements from the administration, 
YUFA circulated an e-mail asking its members who were teaching in Vari Hall on 20 January 
2005 to indicate whether they had cancelled classes or had examinations disrupted- Of those 
responding to the query, approximately half of the professors teaching at the time, none 
indicated a cancellation of class or disruption of an examination. Anecdotal evidence provided 
as part of this survey overwhelmingly supports the conclusion that classes were not cancelled or 
even disturbed to any large degree (Were classes cancelled-..? Retrieved from 
http://www,v ufa,orci/freespeech/cancelled classes, html ). 

Widespread concern was expressed about \he use of police force on campus and its impact on 
freedom of expression. Jay Rahn, YUFA's Communications Officer, reported that he had 
received "many written accounts" from faculty members and that they were "unanimously critical 
of the administration's treatment [of] freedom of expression and its response to Thursday's anti- 
Bush demonstration" {Rahn to Editor, Toronto Star, 25 January 2005, retrieved from 
httpiy/www.vufa orq/freespeech/yufarespondR-html - On 26 January 2005, the Canadian Union 
of Public Employees Local 3903 Executive, the YUFA Executive, the York Federation of 
Students Executive, and the York University Graduate Students' Association Executive issued a 
strongly-worded joint statement that said, in part, 

As unions and associations representing students and workers at York and concerned 
with the level of repression of student activity and political assembly on campus, we 
were appalled by the York administration's response to this rally. As members of the 
York community we unequivocally condemn the York administration's response and the 
brutal treatment of our students by police and York security. We strongly support the 
right of students to organize on campus and io participate in political protest. 
Furthennore we wish to express our solidarity with those students who were arrested 
last Thursday. We demand that the York administration take no action against these 
students and that the charges laid against them by police be dropped. (Retrieved from 
httpV/www.yufa-orq/freespeech/ioints latement.html ) 

Various departments and faculties within York University submitted statements or petitions 
condemning the Administration's actions, and a number of faculty associations and other 
organizations including the Ontario Confederation of University Faculty Associations, issued 
open letters criticizing the decision to use police to break up a political demonstration and the 
consequent impiicalions for freedom of speech. A quickly organized demonstration for Vari ! lall 
called to stipport the students and protest police action on campus as a threat to free speech 
was attended by at least 1 ,000 students, staff and faculty. 

Considerable discussion about the events at Vari Hall seven days earlier occurred at the regular 
meeting of University Senate on 27 January 2005. In her statement to the Senate. President 
Marsden argued that there had been a pattern of class disruptions over several terms and 
reiterated the claim that classes were again being disrupted on 20 January, a claim we have 
already indicated does not appear sustainable. She further indicated that the administration had 
been aware that the GRAIN event was going to occur and was very concerned "[b]ecause the 
group in question has declared that it advocates both a confrontational attitude' and 'call to 
direct action and civil disobedience'." She went on to indicate that "one would expect people to 
disperse when asked to do so by uniformed TPS officers and we anticipated that the 
demonstrators would disperse wtieri they were asked to do so." However, she assorted, "the 
protestors refused to move, physically protested and the next actions are now before the courts 

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and will be sorted out there There can be no question that there was violent behaviour." 
Casting the decision ot the administration to call the police to campus in anticipation of a 
confrontation as the means "to protect the main purposes of the University," Marsden stated, 

The very purpose of our existence as a university is teaching and research. We 
do other things but that purpose is why we have students and why we have 
public supporl. The pursuit of teaching and research must take precedence over 
other interests and it does. It is absolutely fundamental to ttie exercise of our 
work that the academy be protected and ! intend to continue to do so. (Marsden, 
27 January 2005, Statement to Senate. York University Senate Minutes) 

Few w/outd dispute the view that the main purposes of a university are teaching and research 
but the question here is whether ttiose purposes were in any way under threat, and by whom, 
during the events that occurred in Vari Hall on 20 January 2005. We can find no eviderice to 
suggest that teaching and research purposes of York University were in any danger from a 
small group of students holding a protest in the rotunda of Vari Hall. In fact, it could be argued, 
and many would so do, Itiat the students were engaged in a teaching and learning process 
about citizenship, social responsibility and the dangers of corporate-university linkages. 

Most apparent is the danger to freedom of speech incurred by a decision lo use police officers 
to break up the demonstration. The preamble to the CAUT Po//cy Statement Concerning the 
Role of Public und Private Police Forces and Security Services on Canadian University and 
College Campuses sets out the view that 

the activities of policing agencies and security services on post-secondary 
institution campuses can threaten academic freedom. Experience stiows that this 
belief is warranted. Such activities can interfere with the rights of individual 
members of the academic staff and students, and can undermine institutions' 
obligation to foster freedom of thought, expression and intellectual inquiry without 
restriction. (CAUT, 2006) 

This is a view shared by the York University Senate which, on 27 January 2005, passed the 

following motion: 

That Senate express its disapproval of the administration's decision to invite police onto 
campus to deal with an otherwise peaceful protest. (York University Senate Minutes, 27 
January 2005) 

At a special meeting of the Senate called for 3 February 2005 specifically to discuss the incident 
at Vari Hall, an additional motion about the police presence was passed. This motion read, "that 
the Chair write a letter on Senate's behalf lo the Toronto Police Services Board to request an 
inquiry into tlie allegations of police brutality during the January 20 protest in Vari Hall" (York 
University Senate Minutes, 3 February 2005). 

The special meeting also raised additional issues directly related to matters of free expression 
and open inquiry, namely the Temporary Use of University Space Policy and Procedures and 
Ihe administration's use of communications strategics. A motion was made asking President 
Marsden "to negotiate new and workable temporary use of space provisions with Senate 
Executive, YUFA, the GSA, CUPt 3903, the YFS, and ORUs that wilt preserve both academic 
integrity and freedom of speech" but was subsequently withdrawn because the President 
agreed to establish a group to review the policy. A motion expressing "disapproval of the way 

7 



the President used the University's communications surrounding the January 20 events" was 
passed (York University Senate Minutes, 3 February 2005), 

Taken together, these two motions highlight matters which are of grave concern to members of 
the York community, namely the arbitrary use of administrative policies and procedures to limit 
and control academic freedom and freedom of expression on campus and the use of 
commuriications strategies to "re-image" or "re-brand" and market York University, Both of 
these matters are closely linked to matters of governance and who decides what, how, when, 
and why. More fundamentally they speak to the very nature of what a university ought to be, 
We will return to this discussion shortly, Wg turn now, however, to another high profile case that 
further highlights concerns about freedom of speech and governance on the York University 
campus. 

The Daniel Freeman-Maloy Case 

Daniel Freeman-Maloy, an undergraduate student, transferred from the University of Toronto to 
York University in September 2003, He did so because, in his words, he 

...was attracted to York University from the University of Toronto by the dynamism of 
York's social justice community, and this community's more rooted activists, and the 
foundations they have laid are the real basis for progressive politics at York - tumultuous 
or otherwise. (Freeman-Maloy, 2004, retrieved from httpr/Zwww.en- 
car nino.org/freesoeechvorku/mav9 2 004fr eenianmalov.html 

In this choice, he mirrored the reasoning of other students and many {acuity members wo 
interviewed who elected to study or work at York because of its reputation as an institution 
supporting politically engaged work and social justice. Once at York, Freeman-Matoy became 
an involved activist while maintaining the marks necessary lo remain enrolled in an Honours 
Political Science Program. 

As part of iiis political activism, Freeman-Maloy is involved with Solidarity for Palestinian Human 
Rights (SPHR). SPHR is a student organization Uial originated in 1999 with the merger of the 
Concordia Centre for Palestinian Human Rights and the McGiil Palestinian Solidarity 
Committee. Its mission statement states Ihat: 

SPHR is a non profit, student-based organization that advocates on a strong social 
justice platform lo uphold the rights of the Palestinian people in the face of human rights 
violations and all forms of lacism, discrimination, misinformation and misrepresentation. 

Through awareness raising, advocacy work, non-violent direct actions, solidarity 
building, and the promotion of Palestinian identity, culture and history, SPHR works to 
support and protect Palestinian human rights both locally and internationaily. (SPHR, 
2005, retrieved from http://5r3hr.orq 

Freeman-Maloy has also been engaged in supporting the efforts of the Ontario Coalition Against 
Poverty (OCAP) and has participated in a number of demonstialions for fair wages and working 
conditions wilh hotel workers outside their places of employment in downtown Toronto. 



On 28 April 2004 a leUer from the President of Yorl< University, Dr. Lorna Marsdfin, dated 21 
April 2004 and post-marked 26 April 2004, arrived at Freeman-Matoy's Barric address. In the 
Intter, President Marsden informed Freeman-Maloy that he was barred from registering at the 
Univftrsity and from attending the University's premises for three calendar years, effective 1 May 
2004. He was further informed that if he were seen on the premises of the University, he would 
be issued a notice of trespass (Marsden to Maloy [sic], 21 April 2004). 

The two specific offences that are cited in President Marsden's letter of expulsion are linked to 
Freeman-Maloy's work with SPHR and occurred on 22 October 2003 and 16 March 2004. The 
first of these was an SPHR counter-demonstration to an event called "Israeli Defence Forces 
(IDF) Appreciation Day" that v^as organized by the Young Zionist Partnership (Cohen, 2004, 
retrieved from http://wviW.eye net/eye/issue/issue_05.13.04/city/york.html). The second 
occasion was an SPHR demonstration to mark the first anniversary of the death of an American 
peace activist, Rachel Corrie, who was killed by an Israeli bulldozer as she tried to block it from 
destroying a Palestinian home in the Gaza Strip. The first of these demonstrations was 
intended, by Freeman-Mafoy's account, to contront the politics of the IDF and challenge an 
"event at which people sporting military paraphernalia congregated in one of York's principal 
public spaces to celebrate Israeli militarism" (Freeman-Maloy, 2004, retrieved from 
http://www,en-camino.org/freespeechyorku/may9_.2004freemanmaloy.htm). The second 
demonstration, which involved about 30 sludents at a mock checkpoint, ended in a 
confrontation when about 1 50 counter-demonstrators rushed the SPHR display and the two 
opposing groups ultimately engaged in a loud fracas. By Freeman-Maloy's own account, he 
and many others "spoke and chanted through a megaphone" (Freeman-Maloy, 2004, retrieved 
from htlp://www.en-amino.Qrq/freespeechvnrku/mav9 2004.fre emanma luv.htinl 

As a result of the confrontation at the second demonstration on 16 March 2004, both SPHR, the 
group that organized the demonstration, and Hillel, the group that mounted the counter 
demonstration, were suspended from any on-campus demonstrations for a week. This decision 
was protested by other students wtio saw the suspension as an intrusion on freedom of speech. 

After the 22 October 2003 demonstration, Freeman-Maloy received a letter dated 12 November 
2003 from Anne Marie Ridley of the University Complaint Contre in the Office of Student Affairs. 
The letter charged that Freeman-Maloy had used a sound amplification device without 
permission and ignored the requests of University officials to stop doing so. Referencing 
Presidential Regulation Number 2 - The Conduct of Students at York University, Ridley asked 
Freeman-Maloy to meet with her in order to respond to the concerns stie outlined. Freeman- 
Maloy met with Ridley and at that meeting they agreed to meet again after they had, 
respectively, reviewed the Regulation and spoken with York Security. II was Freeman-Maloy's 
understanding that responsibility for setting up the next meeting rested with Ridley. Freeman- 
Maloy claims he heard nothing more from the York University administration until ho received 
the letter of expulsion from President Marsden on 28 April 2004 (Marsden to Maloy [sic], 21 
April 2004). 

In that letter, Marsden cited Freeman-Maloy's atlerrdance at the "unauthorized" demonstrations 
of 22 October 2003 and 16 March 2004 and the use of an "unauthorized sound amplification 
device" as grounds for the expulsion. She also contended that: 

During the October and March demonstrations, you interfered with the proper functioning 
of University programmes and activities, contributed to the threat of harm to the safely 
and well-being of York University community members, and failed to abide by 



reasonable instructions given orally and in writing by an official of the Univfirsity 
auttiorized to secure compliance with regulations, rules, practices and procedures, all 
contrary to Presidential Regulation 2. (Marsden to Maloy [sic], 21 April 2004). 

The response from the York University community to Freeman-Maloy's rustication was swift. On 
19 May 2004 the YUFA Executive delivered a letter to President Marsden in which concern was 
expressed both with the process followed to discipline Freeman-Maloy and with the seventy of 
the punishment. This letter gently points out that while President Marsden accuses Freeman- 
Maloy, among other things, of failing lo comply with University regulations, policies and 
procedures, she, herself failed to follow the procedures outlined in Presidential Regulalions 2 
and 3 in dealing with the case. A similar point was made by the University Senate in the 
following motion passed on 27 May 2004, 

That Senate respectfully requests that President Marsden do the following: Reconsider 
and rescind her decision on the suspension of Daniel Freeman-Maloy and in doing so 
permit him to attend on campus for the purpose of pursuing his studies and his 
employment; and ensures that all disciplinary action against students is taken within the 
context of established regulations, due process and with regard to the values of the 
University. (York University Senate Minutes, 27 May 2004). 

The rationale thai accompanied the motion noted: 

This motion is based on numerous petitions, letters, and other communications 
which have expressed serious concern about the way that this case has been 
handled, especially the apparent lack of a fair and impartial hearing and appeal 
processes, the severity of the penally, and the implications for freedom of 
expression on campus. 

In their observations about process, and hence governance, YUFA and Ihe Senate were 
correct. Presidential Regulation 2. which was in force at the lime, outliried procedures for 
dealing with minor and serious infractions. Minor infractions were normally to be handled at the 
lowest fevel possible and through local mechanisms within colleges or Faculties, through local 
hearing officers, and with the use of mediative procedures, if necessary. Regulation 2 also 
noted that serious infractions, unless dealt with locally or by mediation, "shall be dealt wilh 
through the formal adjudicative procedures" and the Provost (not the President) was 
empowered to make a decision about further action. According to the Regulation, the Provost 
had several options. S/he could take no furllier action if a complaint was determined lo be 
without merit; could decide the complaint was not serious and refer it to a local hearing officer: 
could institute mediation with the consent of al! parties; could arrange for prosecution of the 
case before a Trial Panel of [he University Discipline Tribunal, established by Presidential 
Regulation 3, or s/he could refer the whole matter to ordinary civil, criminal or other legal 
processes, AssuiTiing the Provost look the same view of the seriousness of Freeman-Maloy's 
alleged inlracliun of standards of student conduct under Regulation 2, and thai mediation or 
referring the matter to civil or criminal or other processes was not appropriate in ihe 
circumstances, the correct process would have been to convene a Trial Panel and follow the 
procedural guidelines outlined in the Regulation." The guidelines are in place, the Regulation 
states, "to ensure that its procedures are as lair as possible in the context of university 
circumstances and traditions" (Presidential Regulation 2, s.3, ss. b). To meel tfiis standard the 
guidelines make provision lor full disclosure of the evidence againsl the alleged offender, an 
open hearing set at a reasonable lime and place, the right for all parties lo be represented by 

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counsel or other advocate, to call evidence, make arguments, and nross-oxamine witnesses 
giving orai testimony. Foilov^ing the conclusion of the hearing, the Trial Panel is expected to 
provide a vifritten decision, specifying what sanctions (it any) are to be administered, and what 
procedures exist for appeal. The Regulation also specifies how an appeal of the decision may 
be made to an Appeal Panel of the University Discipline Tribunal whose ruling may be further 
appealed to the President whose decision will be final and binding. 

By moving directly to expulsion, President Evlarsden acted in an arbitrary fashion and breached 
the procedures for due process and fairness outlined in Presidential Regulation 2, Her actions 
denied Daniel Freeman-Maloy. a 22 year-old undergraduate student, the opportunity to know 
the charges against him and io defend himself against those charges in an open hearing and 
with counsel, if he so desired. She brought to bear the full power of her office on a young 
student and, by expelling him for three years, issued a harsh punishment that, on the face of it, 
seems out of keeping with the nature of the offences he was alleged to have committed. 
Certainly, this was the position of 22 members of the Department of Political Science (Arts) 
where Freeman-Maloy was a student. They wrote to President Marsden urging her to rescind 
the expulsion and raising concerns about both the severity and differential nature of the 
punishment imposed, noting the implications of her actions for the principles of "academic and 
civil freedoms." In particular their letter stated: 

We are equally troubled by the severity of the punishment inflicted, which seems to lack 
the sort of proportionality one expects of fair and judicious decisions. 11 would be one 
thing if it were alleged that Mr. Freeman-Maloy had committed acts of violence. But such 
is not the case. His ostensible 'crime' is to have expressed his views while using a 
megaphone. 

The letter went on to argue that: 

The University ougtil to pride itself on being a space for the free expression of dissenting 
opinions. To be sure, democracy is sometimes fractious. But this 'inconvenience' ought 
to be tolerated in the interest of preserving our rights to free expression and assembly, 
(Albo et al. to Marsden, 9 June 2004) 

As we have already indicated, these sentiments found wide expression on the York campus and 
elsewhere. 

The CAUT itself raised questions and concerns about jurisdiction and process in letters dated 
31 May 2004 (Turk to Marsden) and 2 July 2004 (Turk to Marsden) Of specific concern were 
matters related to the source of the President's extraordinary powers and President Marsden's 
unusual decision to discuss the case with the Board of Governors before making her decision to 
expel Freeman-Maloy. Since the expulsion of Freeman-Maloy also deprived Professor David 
Noble of the services of Freeman Maloy as a research assistant and denied Freeman-Maloy the 
access to University libraries ttc required to fulfil the terms of his employment, the CAUl also 
asked for clarification of the procedures used to arrive at this decision and the source of the 
President's authority to deny Freeman-Maloy access to campus for employment purposes. It 
should also be noted that the expulsion also affected Frccman-Maloys ability to moot the 
obligations of his position as an editor of Excalibur, the York University student newspaper. 

Amidst the growing opposition to Marsden's decision, and two weeks after the Senate meeting 
of 27 May 2004, in a letter dated 10 June 2004, counsel for York University contacted counsel 



for Freetriari-Maloy, and indicalert that President Marsden would appoint a panel to re-consider 
the penalty imposed on Freeman- Maloy if he agreed lo sign a statement reading as follows; 

I acl<;nowledQe that my conduct at York University during the academic year of 2003/04 
fell below the standards expected of students at ttiat University in a number of respects. 
Specifically, I realize that statements ! made in respect of Henry Wu, a member of the 
Board of Directors of the York University Foundation, were personally threatening lu tiim. 
The demonstrations vi/hich I organized and led were conauctod in locations and in a 
manner which \ knew was not permilled by the University's rules and unnecessarily 
disrupted academic activity and inflamed confrontations. ! ignored the University's 
published rules and requests of University officials to alter my plans and behaviour, and 
to meet with them to discuss my behaviour after the fact. I understand that my 
behaviour constituted breaches of the Standards of Student Conduct sel out in 
Presidential Regulation Number 2 and fell below the standards expected of York 
University students. I am sorry for the disruptions and the other adverse effects caused 
by my actions (Counsel for York University to Counsel for Daniel Freeman-Maloy, 10 
June 2004). 

It should also be noted here that the reference to Henry Wu relates to a speech given by 
Freeman-Matoy at a demonstration about wages and working conditions at a downtown hotel 
owned by Wu and at which a unionization drive was occurring. The introduction nt this 
reference to Henry Wu and a demonstration that occurred many kilometres away from the York 
campus is enough to raise concerns about what was really driving the decision to discipline 
Freeman-Maloy and on what grounds the political activism and freedom of speech of a student 
off-campus were being policed by University officials. 

Freeman- fvlaloy refused lo sign the statement on the grounds that it contained many falsehoods 
and on 17 June 2004 commenced an action for a judicial review in the Ontario Divisional Court. 
On 2 July 2004, counsel for the University indicated to counsel for Freetnan-Maloy, that the 
University had decided to convene a Univorsity Discipline Tribunal and hold a hearing using the 
procedures specified in Presidential Regulations 2 and 3. The University then attempted to 
have the application for judicial review quashed on the grounds that a disciplinary hearing for 
Freeman fvlaloy had been sel for 21July 2004 and would provide a satisfactory alternate 
remedy. The heanng on the motion lo quash the judicial review and the counter motion to slay 
the discipdnary hearing pending a decision on the judicial review occurred on 19 July 2004. In 
her decision issued on 20 July 2004, Madame Justice Epstein dismissed the motion lo quash 
the judicial review and allowed the motion lo stay the hearing of the discipline tribunal. She 
stated that the University's "alternate" remedy was not "adequate" and Freeman-Maloy would be 
"caught in a procedural nightmare." On ?2 July 2004 the University informed Freeman-Maloy 
that President Marsden's punishment had been "vacated" and hence ttie ttiree-year expulsion 
was rescinded. Both the discipline hearing and the application for a judicial review were 
abandoned. Freeman-Maloy pursued a case of misfeasance in public office against President 
Marsden and the Board of Governors and sought damages in the amounl of $850,000 The 
matter has now been settled out of court 

As part of that process, President Marsden claimed that she was nol a public official and 
universities are not public institutions and hence cannot be sued for misfeasance. This position 
was uphold initially by a Superior Court ruling but a Court of Appeal over-turned that decision, 
ruling that Ihe President occupies a slatutory office and concluding that while "the President of 
York University is not subject to governmental control, she is in other respects subject to the 

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