John Carpay: A victory for free speech at the University of Calgary

John Carpay, National Post May 11, 2012 – 7:00 AM ET | Last Updated: May 10, 2012 6:04 PM ET

This week, in the case of Pridgen v. University of Calgary, the Alberta Court of Appeal affirmed that the Charter of Rights and Freedoms protects the free speech rights of university students on campus.

The case arose from a Facebook page called, “I no longer fear hell, I took a course with Aruna Mitra,” wherein some U of C students described their “Introduction to Legal Studies” professor as inept, awful and “illogically abrasive.” When students on the site compared the marks they received on an assignment, Steven Pridgen wrote: “Somehow I think she just got lazy and gave everybody a 65 … that’s what I got. Does anyone know how to apply to have it remarked?”

Many students in the class appealed their grades, and all succeeded in getting a higher grade. Eight months after the course was concluded, Keith Pridgen (Steven’s brother) wrote on Facebook that Mitra was no longer teaching at the University of Calgary: “Remember when she told us she was a long-term prof? Well actually she was only sessional and picked up our class at the last moment because another prof wasn’t able to do it. Lucky us.”

The University of Calgary prosecuted the 10 students who had joined the Facebook page, and found all of them guilty of “non-academic misconduct” — including students who had not posted any comments. The university accused the students of defaming Mitra with “unsubstantiated assertions,” yet refused to hear any evidence from the students about the professor. Nobody testified to deny that the professor had asserted, bizarrely, that Magna Carta was a document written “in the 1700s for native North American human rights purposes.”

The University of Calgary threatened the Pridgen brothers and the other eight students who’d joined the Facebook page with expulsion if they failed to write an abject letter of apology.

Having been found guilty of non-academic misconduct, Keith and Steven Pridgen took the university to court, which declared in 2010 that, “the university is not a Charter-free zone.” That judgment was upheld this week by the Court of Appeal.

While the ruling is a victory for the free-speech rights of university students, it is disheartening that the University of Calgary needs a court order to compel it to fulfill its own mission statement: To promote free inquiry and debate.

Ironically, the university argued that it had a legal right to muzzle the Pridgen brothers and other students in order to preserve academic freedom. In response, Justice Marina Paperny noted that academic freedom and freedom of expression are inextricably linked. Both serve the same goals: “the meaningful exchange of ideas, the promotion of learning and the pursuit of knowledge.”

Some will decry the Charter’s protection of campus free-speech rights as more government control over universities. But this complaint ignores the reality that the Charter merely follows government into domains — such as health care and post-secondary education — that the government has first taken over through legislation, regulation and funding.

Which is to say: The Charter follows the government’s expansion into new realms; it does not cause it. In these realms, the fundamental freedoms guaranteed by the Charter — religion, conscience, expression, association — serve to protect individuals from the abuses of administrators whose power stems, in large part, from government.

If universities were private, they would not be engaging in “government action” so as to invite the Charter’s application. But when the University of Calgary obtains over $600 million from taxpayers each year by claiming to be a forum for free expression for all people and for all views, it forfeits its right to censor speech it dislikes. Holding the U of C to account, as this court ruling does, is good news for students and for taxpayers.

In particular, this precedent will help the students in Ontario and Alberta who have taken Carleton University and the University of Calgary to court in regard to the censorship of pro-life viewpoints. But that is a subject for another column.

National Post

Calgary lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms, which defends the free speech rights of all Canadians.