In 1988, the University of Waterloo (UW) banned computer newsgroups dealing with tasteless jokes, resulting in a flood of criticism. In 1994, more censorship of computer newsgroups led the late Supreme Court Justice John Sopinka to issue an extraordinary caution:
"One must ask whether it is not preferable to permit the expression and allow the criminal or civil law to deal with the individual who publishes obscene, defamatory or hateful messages rather than prevent speech before it can be expressed. Otherwise, individuals may be putting themselves in the positions of courts to determine what is obscene and what is acceptable."
In February 1998, UW -- an institution some are now calling `Censorship U' -- received yet another strong rebuke from Peter Mercer, Vice-President of the University of Western Ontario, for its heavy-handed treatment of a professor accused of racism.
Mercer warned that UW teetered on a "very slippery slope where academic freedom of expression is censored in the name of countering racism". In quashing separate penalties imposed on sociology Professor Kenneth Westhues by Waterloo's Ethics Committee and Provost Jim Kalbfleisch, Mercer stressed that "expressions of opinion are sometimes offensive, even hurtful, but that is sometimes the price of guaranteeing the free expression of ideas in the University."
Westhues' troubles began in April 1996, when a student ("R") objected to the way he had treated the concept of "bio-politics" in a sociology class. "R" complained formally to the University's Ethics Committee, alleging that Westhues had made "racist and unbalanced arguments" and that he had not defined his terms.
Although university policy requires "every reasonable effort to resolve the matter informally", the Ethics Committee insisted on a formal hearing. Westhues, believing that policy was not being followed, refused to cooperate further. The Ethics Committee then found Westhues guilty of being "insensitive", and, in a decision reminiscent of Stalinist re-education, recommended that he be required to take counselling, write letters of apology, and attend a workshop entitled "Smart Strategies for a Safe Open Classroom".
Westhues then appealed the Ethics Committee's decision to Jim Kalbfleisch, UW's Vice-President Academic and Provost. Kalbfleisch overturned the Ethics Committee's decision, but then decided to impose his own discipline.
First, Kalbfleisch objected to Westhues' failure to co-operate with the Ethics Committee. Kalbfleisch also claimed that Westhues had violated the confidentiality of the proceedings, by circulating documents that named the student and by using the student's words in a pamphlet that Westhues published entitled "The Risks of Personal Injury in Liberal Education". For these reasons, Kalbfleisch imposed on Westhues a suspension of one month without pay.
Mercer, an independent adjudicator appointed by UW President James Downey, overturned every one of these sanctions. He determined that the student's complaint was incoherent and failed to cite any grounds for believing Westhues had behaved unethically, that the process used by Ethics Committee was flawed, and that Westhues had not in fact circulated documents in violation of confidentiality. Finally, he also overturned Westhues' suspension without pay, noting that there was nothing in university policy permitting Provost Kalbfleisch to impose such an arbitrary penalty. Mercer also ordered the University to pay Westhues' legal expenses and gave Westhues a 6-month special paid research leave.
Will Mercer's strong decision in favour of free expression cause any significant changes at Waterloo? It is too early to say with certainty, although UW President James Downey coincidentally announced last week that he would not stand for a second term. But unless Waterloo acts quickly to repair its failed policies, `Censorship U' may gain a black eye it will find hard to mend.
[Prof. Jeffrey Shallit is a member of the Academic Freedom & Tenure Committee of the Faculty Association of the University of Waterloo.]