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

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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

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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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