Free Expression on Campus: Assessing the Alberta Ministerial Directive

Posted March 25, 2021
By Dax D’Orazio

In the last provincial election, Alberta Premier Jason Kenney joined other Conservative politicians that have purportedly become stalwart defenders of free expression on campus. Details I have obtained through access-to-information requests tell a very different story. But first, some background.

In 2017, when a violent protest at the University of California – Berkeley prevented Milo Yiannopolous from speaking, then President Donald Trump responded by threatening funding cuts. Amid a raft of other campus free expression controversies across North America in the last half-decade, Canadian politicians began to pick up the same theme in their electoral messaging. Andrew Scheer made free expression on campus an explicit part of his leadership campaign, and Doug Ford followed suit when his government compelled post-secondary institutions to adopt the University of Chicago’s free speech policy (the so-called “Chicago Principles”) or face potential funding cuts.

Despite some key differences in American and Canadian legal context, the Chicago Principles have been hailed as the ‘gold standard’ for potential policy frameworks in Canada, too. Ford’s policy also compelled institutions to submit annual reports to the Higher Education Quality Council of Ontario, which now offers its own annual report to assess compliance and progress on the policy across the province. 

These developments were truly unprecedented. Given the fact that universities already have some of the most robust protections for free expression in place, the imposition of a completely foreign policy framework seemed like an overreaction to a problem that could be easily addressed without government compulsion and the threat of punitive sanctions. 

Never one to pass up what he feels is a good wedge issue, Jason Kenney followed Doug Ford’s lead. The UCP made campus free expression a campaign promise in the 2019 Alberta election and likewise used the Chicago Principles. Notably, the Alberta policy lacked explicit sanctions for non-compliance and an oversight framework like Ontario’s. During the policy development phase, Minister of Advanced Education, Demetrios Nicolaides, promised “thorough, collaborative consultation with institutions, faculty, and students in order to fulfill this campaign promise, which Albertans have endorsed.”

However, data I have obtained through access-to-information requests tell quite a different story. The data reveal how, the Alberta policy is an example of faulty policy development and implementation motivated by partisan calculations, rather than a clearly defined policy problem buttressed by empirical data and analysis. Analyses of these types of policies are crucial at the moment, especially when other jurisdictions, like Quebec and the UK, show signs of adopting similar policies and complaints about free expression on campus continue to dominate headlines and public discourse.

In my interview with Nicolaides last year, he emphasized the “consultative and collaborative” nature of Alberta’s policy. In stark contrast to this and related UCP messaging, the policy development and implementation reflects a lack of any substantive consultation or collaboration with campus communities. Internal documents reveal that the UCP’s campaign promise was set in motion with a severely limited understanding of institutional policies and practices related to free expression. 

Asked directly about the policy’s justification, Nicolaides did not invoke any specific event, but instead highlighted “elements of a trend occurring here in Alberta,” including phenomena such as students sanctioned as a result their expression and speaking events facing protests, both of which are “representative of a broader trend.” Nonetheless, Nicolaides has only cited a small handful of examples in his public commentary related to the policy, which, taken as a whole, are difficult to construe as an empirical ‘trend’ manifesting itself in Alberta. 

According to internal documents, Nicolaides was presented with a “preliminary, high-level analysis” of existing policies on May 14, 2019, less than one month after the election. The analysis was based upon publicly accessible information from Alberta post-secondary websites. Notably, the analysis begins with a strong caveat: 

“findings are not conducive to making definitive assessments of institutional alignment to the Chicago principles at this time, but rather serve as an interim understanding of the landscape of this area.”

The analysis notes that post-secondary institutions “generally appear to be committed to the principle of free speech, as demonstrated through a diversity of policies,” despite the absence of a “stand-alone policy on free speech” from every institution or a “uniform approach” across the province.

The core of the analysis is a chart that illustrates institutional alignment with the key pillars of the Chicago Principles, the ones that eventually formed the basis for their ministerial directive. It illustrates that out of a total of 26, “up to seven institutions appear to be mostly aligned to the Chicago principles, while up to 17 institutions are somewhat aligned.” Crucially, the analysis notes that direct correspondence with Alberta post-secondary institutions is needed in order to have an accurate empirical foundation for policy development:

“The ministry’s current analysis is removed from the institutional context and may lack an awareness of other institutional practices and approaches which may further ensure free speech and expression on post-secondary campuses. Post-secondary institutions are best positioned to provide their full suite of relevant policies and documents to the ministry. To ensure a full and robust understanding of post-secondary institutions’ commitment to free speech, the Minister could consult with post-secondary institutions and request submission of the documents they consider relevant.”

From all of the available evidence, this justified and reasonable advice was completely ignored. Instead, the UCP seems to have conducted policy development based upon an anecdotal ‘trend’ followed by woefully insufficient data collection and analysis. The following month, Nicolaides began implementation of the policy by meeting with the board chairs of post-secondary institutions on June 21 and with student leaders on June 25. These efforts were portrayed as evidence of a more consultative and collaborative approach compared to Ontario’s. Nonetheless, speaking notes from these engagements reveal that the Minister was simply conveying the contours of the future policy, absent of any evidence of substantive input that was gleaned as a result. Less than two weeks after these engagements, on July 4, the Ministry sent an official directive to every post-secondary institution in the province. 

A lack of consultation and collaboration aside, the ministerial directive is beset by a number of tensions that can reasonably lead one to believe that the policy was developed for symbolic, rather than substantive, purposes. First, and most obviously, preliminary ministerial analysis confirms that the policies and practices of Alberta post-secondary institutions already largely reflected the key pillars of the Chicago Principles. The lack of any direct solicitations for more data, in tandem with the decision to not institute a uniform policy across Alberta, indicates that an actual institutional alignment with the Chicago Principles was not the motivation of the UCP. 

Second, the UCP has consistently conveyed its desire to reduce ‘red tape’ in all its forms. However, their policy compelled post-secondary institutions to expend precious time and resources to conform to an essentially symbolic government gesture. Instead of soliciting more data from institutions as recommended by its own research, the Ministry downloaded the required analysis to institutions, while making the erroneous assumption that institutional policy deficiency was contributing to a non-existent problem. Ministerial advice from June 5 reflects this impetus with a desire to “limit the Minister’s exposure to controversial topics, and operational and implementation concerns that will likely be raised.” Further, the advice warned of the potential ramifications if Nicolaides had “an extensive consultation role,” which seems to have been heeded, despite being completely at odds with a self-professed desire to consult and collaborate. 

Third, there is an obvious disjuncture between the Ministry’s recognition that its directive will be limited by institutional discretion and the decision to not create a uniform policy across Alberta. Ministerial advice from June 5 conveys the fact that the policy implementation will be inherently “limited by legal and practical matters” proprietary to each institution. Arguably, this is why Nicolaides decided against a uniform policy, because it would likely be rendered inconsistent regardless, and might further have the unintended effects of being less instructive and less specific. Relatedly, ministerial advice recommended that the Minister not have a formal role in reviewing, approving, and/or enforcing policy adherence. A number of associated benefits are raised, including minimizing legal risk, preserving the autonomy of institutions, and providing the Minister with a safe distance from any potential campus controversies during policy adoption. When asked about assessing policy adherence in the future, Nicolaides made the case that institutions are “best suited to make sure that they’re reviewing the policy and there is compliance with the policy.”

Fourth, internal documents that outline the criteria for the subsequent approval of institutional policies reveal that adherence to less than half of the eight key pillars of the Chicago Principles were absolutely required. Further, the proposed criteria only stipulated adherence to two of the three to be considered for approval. Since the Ministry’s own research had earlier indicated that institutions were already ‘mostly’ (approximately 27%) or ‘somewhat’ (approximately 65%) in adherence, but the policy approval criteria explicitly allowed for partial adherence, it remains unclear to what degree the policy would tangibly affect institutional policies and practices. Further, given this clear inconsistency, and the fact that the Ministry wanted to avoid a uniform policy, it would have been much more effective and efficient to pursue a targeted approach, focused primarily on institutions that exhibited a clear deficit in policies and practices.

In sum, the public portrayal of the policy from the UCP is drastically at odds with the reality of the UCP’s own policy development and implementation.  This raises additional questions about its sincerity in addressing legitimate problems related to free expression on university campuses. 

My analysis shows that, despite claims to the contrary from the UCP and a range of commentators, government intervention, in the form of compelling adherence to the Chicago Principles, has neither been an effective, nor an efficient, public policy initiative. ‘Copycat policies’ are obviously attractive because, rightly or wrongly, existing policy frameworks have already created some momentum and new policy frameworks are likely to entail the expenditure of additional time and resources in their development and implementation. However, analysis of the Alberta policy, specifically, illustrates the degree to which replicating existing policy is unlikely to have any tangible effect aside from partisan calculations far removed from good public policy.