The University of Calgary recently reversed the guilty verdict of seven pro-life students who were found guilty of non-academic misconduct for setting up a display with graphic photos comparing abortion to the Holocaust and the Rwandan Genocide. The University of Calgary initially demanded that the students set up their display facing inwards so passersby would not see the images. After the students refused, the University charged and found the students guilty of misconduct for failing to follow the demands issued by Campus Security. The students appealed to the University’s Board of Governors, which found their appeal groundless and dismissed the case. The students appealed to the Alberta Court of Queen’s Bench, which ordered the University to rehear the appeal, after which the students were found not guilty.
The court decision has been heralded by some as being a victory for free speech on campus. The court ruling focused on the procedural aspect of the law rather than the substantive claim that the students’ right to free expression had been violated. The Court shied away from making any finding on the students’ right to erect the display: it directly stated that “it would be premature at this juncture” to rule on the right of students to erect the display on University property, or to force a change in University policy. Rather, the decision focused solely on the decision of the Board of Governors’ Committee denying the students their appeal hearing on the basis that it was groundless.
The Court found that legitimate grounds for an appeal did in fact exist. The suggestion that the students had no claim on which to base an appeal “is unreasonable and is set aside.” A letter sent from the Chair of the Appeal Committee to the students’ lawyer noted that the University consented to granting the students’ appeal.
It may be speculation that the University saw the light in its fallacies and reversed its previous decision, or perhaps worried about bad press coverage that could result from its perceived attack on free speech. It was not so long ago that the University of Calgary insinuated that it was firing Tom Flanagan after his infamous child porn comments. Or maybe the legal proceedings were becoming too time and resource-intensive to invest further in charging the students.
It is true that the students were ultimately allowed to continue putting up their billboard. But it was not done because of a Charter violation of free speech. Courts are generally quite deferential to the decisions of administrative tribunals. In this case, the Alberta Court noted that “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes,” the decision may be upheld.
The Chair of the Appeal Committee originally stated that the University had attempted to strike a balance between free expression and the concern for the safety of students. The Alberta lower court found this idea to be unreasonable. No evidence existed that the display caused a threat to the safety and security of students on campus. Neither did evidence exist that turning the display inwards would alleviate these concerns. The Chair furthermore failed to show that freedom of expression was considered in this decision.
In addition to these grounds, there were a number of other questions of procedural fairness that were addressed. The outcome of this entire debacle has rested not on the substance of free expression, but rather the procedures (or lack thereof) followed in reaching the decision.