(Co-written with Anver Emon, Professor of Law, University of Toronto)
Everyone can get hurt. We are complex beings, with multiple attachments, and so we naturally are offended by insults, degrading comments, and uncivil speech. If such wounds hurt, should they be the subject of penalty or public censure? For intractable disputes, it is naïve to think that speech codes can serve to dampen, or even resolve, conflict.
The latest installment in the folly of censoring speech occurred at Dalhousie University. There, student union leader Masuma Khan was in the process of being disciplined under a student speech code for ‘demeaning’ fellow students when the administration abruptly abandoned the process. More than mere free speech folly occurred in this case. We argue that student speech codes are being used to vindicate a homogenous vision of Canadian society, one that does not include a discourteous, head-scarf wearing, Canadian-born, Muslim women of Afghani heritage like Ms. Khan who is also an anti-racism activist. All sides of the political spectrum, both left and right, should join together to abandon them when used to discipline speech broadly, dissent especially.
Masuma Khan holds an elected position in Dalhousie’s Student Union as Vice-President, Academic & External. Her duties are described as being ‘responsible for the student union’s advocacy and campaigns on academic and student issues’ including tuition, debt and equity issues. Ms. Khan introduced a motion before the Student Union to boycott Canada 150 celebrations due to Canada’s enduring colonial legacy. The motion was carried with ‘overwhelming support,’ yet Ms. Khan became the target of venomous and threatening online postings, including one calling upon the Halifax-born Khan to ‘pack her bags.’ She responded angrily in a posting on her Facebook page: ‘At this point, fuck you all ... I stand by the motion I put forward. I stand by Indigenous students. ... Be proud of this country? For what, over 400 years of genocide?’ She finished off with the hashtags #unlearn150, #whitefragilitycankissmyass, and #yourwhitetearsarentsacredthislandis.
Michael Smith, a graduate student at Dalhousie, in addition to authoring an op-ed in the National Post, filed a written complaint that Ms. Khan’s Facebook comment targeted ‘white people who celebrate Canada day’ and so was ‘blatant discrimination.’ This is a confused view about what ‘discrimination’ entails. Mr. Smith and other unnamed students complained, nevertheless, that Ms. Khan’s Facebook post violated Dalhousie’s Code of Student Conduct. The University chose to proceed against her under Section C. 1(f) of the Code, which makes it an offence to ‘engage in unwelcome or persistent conduct’ that one ‘knows or ought to reasonably know, would cause another person to feel demeaned, intimidated or harassed.’ The University chose not to proceed under another section of the Code that targets discrimination. The Code includes, in addition, the contradictory disclaimer that: ‘Nothing in this Code shall be construed to prohibit peaceful assemblies and demonstrations, or lawful picketing, or to inhibit freedom of speech.’
According to Dalhousie’s Vice-Provost Student Affairs, Arig Al-Shaibah, who made the decision to proceed with an investigation, several complainants of ‘multiple intersecting identities (along the continuum of privilege)’ had come forward complaining about Ms. Khan’s Facebook post. The online post had caused them to feel ‘disrespected, demeaned, and invalidated as a consequence of [its] language and tenor.’ Because Ms. Khan occupied a ‘position of power as a student leader,’ the complainants felt her conduct would have an ‘impact on their real or perceived ability to participate in campus programs and activities, including debate.’ So as it is said of hate speech and pornography, so it was said about Ms. Khan’s Facebook post: it had the effect of chilling counter speech. As Erna Paris characterized it in the Globe and Mail, her aim was to ‘silence speech in the name of free speech.’
In their written submission to the discipline committee, the University again expressed concern about the ‘choice of language and tone’ used in the Facebook post. It was ‘understandable,’ the University argued, ‘that the Complainant who identified as White (among other identities) disclosed feeling targeted on the basis of their White identity.’ Yet, we are told that the University chose not to proceed on the basis of discrimination. It was sufficient that White students felt silenced and demeaned.
Declining to resolve the matter informally – as it would amount to her ‘apologizing for feeling the way I feel about racism,’ Ms Khan later informed the press – the complaint was due to be adjudicated by the Senate Discipline Committee late November 2017 when, under intense public scrutiny, the University abruptly dropped the matter. The Vice Provost explained her reversal as being prompted by, among other things, the ‘increasingly polarized, and in some instances, hateful’ public debate, ‘effectively undermining the very values of respect, inclusion and sense of safety we sought for our community at the outset.’
Dalhousie’s action against Ms. Khan amounted to a classic instance of censorial overreach. No good would have been served by proceeding against Ms. Khan. The opposite, in fact, was certain to occur – indeed, had already occurred. As a group of Dalhousie law professors declared in an open letter, ‘silencing political speech,’ even speech that it is ‘heated and profane,’ that is not hate speech they added, undermines the University’s mission. But there is more going on here than merely university censors misfiring.
It is hard not to think that Ms. Khan was targeted because she was deemed a threat to White Canadian students. Assumptions about her foreignness by online trolls reflected a deep-seated imaginary of who is and who is not Canadian. Those assumptions, moreover, speak directly to why Ms. Khan and others would take issue with Canada150. A history of racism against Indigenous peoples (e.g residential schools) and immigrants (e.g. Chinese head tax) together with security-minded immigration policies, all converged in this instance on the body of a covered Muslim woman whose racial difference marks her as foreign, and whose religious identity marks her as dangerous. ‘I’m the one that gets called a terrorist when I walk down the street,’ Ms. Khan advised the media.
We view the episode as an exemplar of the security-obsessed state in a post-9/11 environment in which non-mainstream politics is cast in terms of threat and security. In this security environment, Muslims are a threat to which policing must attend. This paradigm is in operation, for instance, when CSIS agents knock on the off-campus doors of university student leaders of Muslim Students Associations across Canada. In most cases, university administrators too often stand back and let CSIS do its job. The paradigm also informed the Dalhousie disciplinary action against Ms. Khan. When a Muslim student voiced a radical critique of Canada, the University’s first instinct was to police her speech in the service of an ambiguously defined campus community of ‘multiple intersecting identities.’
There is a further concern having to do with the University providing comfort specifically to their White students. The University appeared to take sides in a seemingly uncontroversial debate over whether to participate in Canada150 celebrations. It sought to comfort a segment of the student body by shielding it from critique. This is where disciplining Ms. Khan for her hashtag, #whitefragilitycankissmyass, raises the spectre of the University as a front for privileged white kids.
‘White fragility’, a term coined by Robin D’Angelo, refers to the social environment that privileges Whiteness. Such environments create an expectation of racial comfort for those identifying (or passing) as White. White fragility implies an emotional reaction, quite often defensive outrage, that reflects the lowered tolerance for racial stress characteristic of White privilege. The complaint against Ms. Khan appears to be prompted precisely by this sort of emotional discomfort experienced by White students who read Ms. Khan’s post and felt disrespected. But in a context of anti-racist activism, this feeling will always be foreseeable. In a context of White privilege, and its corresponding White fragility, anti-racism activists know too well to expect, at the least, an affective (likely hostile) reaction when they attack the status quo Whiteness of an imagined Canada.
If this is so, then Dalhousie’s Student Code of Conduct, like other student codes of conduct at universities across the country, is structurally designed to be wielded against anti-racism activists such as Ms Khan. In every case of anti-racist activism, it will nearly always be possible to assert that such activists, as the Dalhousie Code puts it, ‘ought to reasonably know’ that their anti-racism activism will ‘cause another person to feel demeaned, intimidated or harassed.’
Too often, various sides to controversial public issues seek to render their views immune to harsh critique. In University contexts, we advocate talking things out, even if it means tolerating language that some consider disrespectful. Universities should not, except in the case of genuine threats, be policing student speech. Instead, Universities should be providing a locus for speech that is unsettling, even upsetting. To provide a locus, though, is not to take a hands-off approach to dialogue. As institutions committed to higher education in operative democracies, universities are better positioned than any other to adopt pedagogically rigorous models of informed and respectful dialogue. This is no easy task, to be sure. But it is made more difficult when the very institution that has the capacity to model difficult dialogues resorts, instead, to disciplinary procedures that only exacerbate what is already a toxic and adversarial environment.
We encourage universities and academic units to not simply yield to majoritarian sentiment or indulge in adversarial procedures in an already contested public sphere. Having recourse to vague codes of conduct that ostensibly censor student speech will continue to backfire on university administrators. Consistent with their pedagogic mission and their democratic contribution, universities should, instead, adhere to a mission of vigilantly questioning authority, including the university’s own.