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Rights + Justice

An F Grade on Protests for University Presidents

Freedom of assembly is a right. Stop cracking down on peaceful encampments and do this instead.

Emmett Macfarlane 15 May 2024The Tyee

Emmett Macfarlane is a professor of political science at the University of Waterloo. This piece is drawn from his blog Declarations of Invalidity.

After weeks of watching the news as universities and police across North America repress and violate free expression amid largely peaceful protest, it was with a “grave” institutional voice that the University of Waterloo issued a release notifying the campus community that an encampment was established Monday.

The encampment at Waterloo is like many of the others erected to register opposition to the mounting death toll in Gaza. The protesters have built a small community of tents, moved a bunch of lounger chairs from a main quad to the hill and put up fencing.

And so the campus where I am a faculty member has become one more site for testing whether Canadian universities are truly committed to preserving and protecting freedom of expression.

Canadian university administrators are so far failing that test. Two weeks ago, McGill followed 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 protests on its campus. At the University of Alberta and the University of Calgary, police violently cleared peaceful student encampments.

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 or Alberta’s two largest universities — and indeed, at many U.S. 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.

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 and Freedoms 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, 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.

Advice for university presidents

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 facilities? 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 or sitting around with tents, or have offensive signs/are saying offensive things, but you can still answer “No” to the first three questions? Do nothing.

Has an encampment been set up and occupied a field or parking lot but you can still answer “No” to the first three questions? Do nothing.

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

Visiting UW’s encampment

Earlier this week I took some time to walk the perimeter of the University of Waterloo’s encampment — following, ironically, a meeting I attended of the ongoing university task force on free expression (we’re drafting something and nothing I write here in my own name should be taken, necessarily, as a view of my colleagues).

I spoke with a few of the protesters. They were a bit wary at first (I think, since I’m a big white guy who had been just taking some photos of the signs and tents, they were validly curious about my motives), but I asked them some questions about whether the university admin had engaged at all, about how campus security was behaving, and identified myself (including that I was a member of the task force on free expression — “Oh, yeah, we’ve heard of that,” I was told, also a bit warily).

I wished them well and told them that there were a lot of faculty on campus who would become very vocal if our university followed the prevailing pattern of trying to shut down peaceful assembly.

The scene is exceedingly peaceful. The only occupied space is a grassy hill, adjacent to the grad club. No one’s freedom of movement or access to any building is at all restricted, or even inconvenienced.

The protesters are very well provisioned with food and supplies — and in the 10 minutes or so I was there, I saw multiple people come by to drop off supplies as a show of support — but I saw NOTHING that can reasonably be described as dangerous or used as “weapons” (I was going to take pictures of the supply area but didn’t want to come off as intimidating).

In fact, if you take the opportunity to visit the scene, you are forced to wonder how any of this could possibly be taken as threatening. Senior admin officials will be pulled into meeting after meeting, campus security are on the scene to surveil the site, and no doubt there are already complaints, but none of this is doing anything — even marginally — to disrupt campus operations.

While I don’t believe anyone has the right to occupy a shared space indefinitely, if what I saw is any indication of what this encampment will mean for our campus, it is essentially a non-issue (by that I mean the protesters’ presence, not the issue the protesters are raising, which is of grave humanitarian concern), and there should be no move to forcibly remove it until that changes.

I do want to point out that I am troubled by some of the University of Waterloo messaging. For example, consider the following statement: “Special Constable Services recommends that pedestrians consider avoiding the area as steps are taken to communicate with those on site and ensure the safety of our campus.” Why? Why is it necessary to discourage people from visiting the site, and, worse, to strongly imply that there is some sort of danger here? This is a chilling statement by the university, one that it should retract immediately.

Out of fairness, I suppose I should point out that part of the university’s statement also explicitly acknowledged the rights of the protesters to engage in free expression and peaceful assembly, but I see no reason for the presence of campus security at all.

No doubt there is a fear from administration that something will change, or someone will do something, or counter-protesters will arrive and things will become a powder keg. But most of the violence associated with these protests across the continent has been the result of repressive attempts to shut them down, and I write this to publicly call on my university officials to stop reacting with fear. It is true we can never guarantee what people might do in this period of high emotions, but right now what they’re doing is the very definition of peaceful assembly.

If the institution is going to uphold the values and principles it claims to hold dear, then please just leave the protesters to it. We’ll be watching.  [Tyee]

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