Academic freedom in times of ideological polarization

In an enlightening essay on the legal and sociological implications of the issue, Jean-François Gaudreault-DesBiens, a professor at the Université de Montréal’s Faculty of Law, makes the case for an academic freedom that is fully endorsed, robust yet nuanced, in step with our ever-changing society. In his view, academic freedom, though essential, has become more fragile in our current climate. The book in question, entitled Les libertés expressives dans l’université canadienne contemporaine. Cadres juridiques et enjeux éthiques, was co-written with Léa Boutrouille, a lawyer and UdeM alumna, and published by the Faculty of Law’s Éditions Thémis. The need for nuance is the thematic thread that runs through the book.

"Nuance needs to be rehabilitated," said Prof. Gaudreault-DesBiens during an interview. "It’s no longer in fashion. Taking a nuanced view requires courage, particularly if we wish to understand the concerns of people who do not operate in the same echo chambers that we do. Social media ‘likes’ cannot substitute for rigorous thinking." He stresses that facts are important, not least when it comes to grasping the complexities of present-day debates about freedom of expression. Personal feelings, since they have no normative status, cannot serve as guidelines when decisions are made about what kinds of statements should be permitted—or prohibited—in the classroom. Still, maintaining the quality of the pedagogical relationship means that personal feelings cannot be disregarded altogether.

The authors discuss an array of legal rulings and arbitration decisions pertaining to free speech and academic freedom over the past few decades. Rarely have footnotes—all 900 of them!—made for such enjoyable reading.

Drawing on comparative jurisprudence, Prof. Gaudreault-Desbiens and Ms. Boutrouille delve into the legal norms governing academic freedom and freedom of expression in Canada before concluding that constitutional and legal protections are limited in scope. The institutional autonomy of universities is afforded no specific constitutional protections, while academic freedom is protected only in its expressive aspects, by virtue of the freedom of speech granted to all citizens.

Moreover, with the exception of the most extreme forms of speech, Canadian law protects the expression of controversial views. In this perspective, "Recognizing a right not to be exposed to potentially offensive legal content is, in our view, an exercise in futility. It is certainly a dead end from a legal standpoint, given that there is no right not to be offended. It is also philosophically dubious." As a category of subjective experience, taking offence does not constitute grounds for censoring the expression of a viewpoint.

Most of the controversies arising from the exercise of freedom of expression on university campuses have to do with legal forms of expression, hence the limits of the formal legal process when dealing with them. Ethical and pedagogical issues are yet another consideration. For that reason, the authors never lose sight of the universities’ overriding pedagogical mission, akin to an institutional compass. They quote philosopher Paul Ricœur on the topic of "responsibility towards knowledge", a goal that must always be kept in mind.

In some ways, Les libertés expressives... builds on an intellectual pursuit that Prof. Gaudreault-DesBiens has been engaged in for over 30 years (his master’s and doctoral research focused on freedom of expression and equality rights in relation to identity issues and culture wars in the 1980s and 1990s, primarily in the U.S.). He also held the Canada Research Chair in North American and Comparative Legal and Cultural Identities from 2006 to 2016.

In many cases, the conflicts roiling university campuses have been less intense in francophone institutions, although Prof. Gaudreault-DesBiens stresses that all institutions should reflect and take action. In his view, the debate over the epistemic conditions for free expression should remain open. That discussion may be ongoing, but it is rarely innocent. “On whose behalf are we speaking?”, asks the author. He goes on to echo the remarks of Emilie Nicolas in Le Devoir in June 2024: "We must listen to those who speak up, but we must also observe those who remain silent." That applies as much in minority-majority relations as it does within majority or minority groups themselves.

Prof. Gaudreault-DesBiens also points out that campus incidents are not "disembodied phenomena"; they take place in a society trending towards ideological rigidity. Nevertheless, in a media and political environment where the brash voicing of opinions is the dominant driver (rather than commentary based on well-grounded reasoning), the universities’ cultural capital is being undermined in an era marked by contempt for expert knowledge.

"Having played a pivotal role in the modern age, universities have traditionally welcomed the cut and thrust of debate. Today, however, the recognition of scientific discourse, and of the reflexiveness it should imply, is under threat. Governments rely less and less on scientific expertise. It’s very disturbing."

According to Prof. Gaudreault-DesBiens, helping students (as well as faculty members) develop the foundations of an "ethics-based dialogue" is part of the solution, however not a miracle cure. In this regard, he notes that a number of U.S. universities are now offering students specific training on the conditions underpinning effective peer-to-peer dialogue.

Les libertés expressives... is clearly a book for jurists, but also for anyone who cares about academic freedom and freedom of expression. It is sprinkled with quotations from writers ranging from Dany Laferrière and Gaston Bachelard to Naïm Kattan, Zadie Smith, Giorgio Bassani and Chantal Ringuet, all of whom bring a broader perspective to the debate. And in so doing, they remind us that, at times, words are more than just words...