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CAUT Bulletin Archives

December 2001

Trent Appeal Court Dissent Highlights Threat to Autonomy

Donald Theall
A dispute at Trent University — the result of years of provincial underfunding — has led to a recent dissenting opinion in the Ontario Appeals Court. This dissent should raise alarms throughout the academic community concerning further intrusions by corporations or politicians into the academic independence of Canadian universities.

In a case involving faculty members seeking judicial review of a decision by Trent University's board and president to close two of the universities five colleges, the court split two to one. What should cause concern is that the dissenting judge, Justice Sharpe, had been a highly respected dean of the University of Toronto law school. The crucial issues concern what are the actual powers of a university senate and what constitutes educational policy.

In 1906, a Royal Commission reporting on the University of Toronto endorsed the principle of universities being governed through a bicameral division of power between governing boards and faculty senates on the grounds that the history of the U of T had "demonstrated the disadvantage of direct political control." This division gave a general power of overseeing the university to the board, but reserved questions affecting educational policy for the senate.

While the U of T later abandoned the bicameral system, creating a university governing council composed of representatives from all sectors, the senate remains the body that represents the faculty and university community in most Ontario universities. At Trent, the wording of the act establishing the university in 1963 clearly empowers the senate to be a check on unbridled powers of the board in overseeing academic and educational policy. Justice Sharpe in his dissent rightly asserts that the senate must have a say in decisions altering the fundamental educational policies of the institution.

Ostensibly the problem at Trent dealt with the board wanting to divest the university of buildings in downtown Peterborough by closing two colleges. The issue became whether the colleges were an intrinsic part of the educational system and thus a question of educational policy, or merely real estate. When the president indicated the board was not prepared to commit itself to restoring the colleges on the main campus, the senate voted against the closures. This was based on Trent's college system (endorsed by its founding chancellor, Leslie Frost) being conceived as an intrinsic part of the educational experience at Trent, modeled on Oxford and Cambridge, and to a lesser extent Harvard and Yale.

This certainly established with government approval the college system as an aspect of the university's "educational policy," the establishing of which is allocated to the senate in the Trent Act. While the majority of the Court of Appeals supported the current Trent board, saying the issue was a purely fiscal one, Justice Sharpe's dissenting opinion clearly points out that changes of policy concerning the colleges is a question of both fiscal and educational policy and the senate should have had a role in the decision.

Today, rather than just the fear of political manipulation and intervention in universities, there is the added fear (as demonstrated by cases such as Dr. Nancy Olivieri and other recent ones at the U of T) of substantial corporate and political intrusion into the academic policy of universities. Therefore, Justice Sharpe's arguing that Trent's board and president exceeded their powers, and that the powers of the senate should be respected becomes the ground for a vital defence of the independence of academic integrity and freedom within the universities.

While such notions may seem esoteric to the public, they are what constitute the strength and essence of a university system which created the powerful society we currently have in Canada. Such protections have become even more vital since the events of Sept. 11, the aftermath of which has led to a legislative assault on human rights and potentially, freedom of expression.

The fiscal program of the Trent board may make administrative "common sense" in the Premier Mike Harris version of Ontario but the issue is by no means that simple. As subsequent events have unfolded, it is not even certain the board's economic planning for the changeover is sound. If the decision granting a university board sweeping powers is allowed to stand, it raises questions of what we mean by education and by an academic community of researchers and students.

In the oral arguments, lawyers for the university indicated they saw their interpretation of such powers as permitting the board to close a specific department, such as the English department, or presumably to interfere with academic freedom issues involved in the appointment or promotion of faculty members. These are serious issues and, if the freedom that has made the university an effective institution is to be maintained, the division of powers — or some unicameral form of government where the university community has sufficient representation to exercise a veto — must be maintained.

Subsequent events have indicated the board is actually engaged in closing down the college system, thus changing the educational policy and direction of the entire university. Furthermore, a rather extreme overreaction to a student demonstration against this issue and the issue of the corporatization of the university resulted in criminal charges being laid against eight young female students, who were arrested, charged and strip searched for occupying an academic vice president's office. The lack of any attempt at discussion or mediation prior to such action is contrary to Trent's traditions and its strong respect for dissent.

The controversy at Trent represents the very nature of the founding of this university and the conditions of appointment to which faculty members committed themselves. Four previous senior officers of the university — including the founding president, Thomas Symons, a Trent professor who went on to become president of another Canadian university and a third, who became a dean at a large Ontario university — supported the faculty who brought the request to the courts.

The Trent controversy is not merely a local issue. It is a threat to academic autonomy and hence educational quality and the protection of the integrity of research everywhere. The provincial government, through the attorney general, intervened before the Appeals Court and supported the Trent board and argued for awarding virtually total power to university boards. Historically our universities were made private institutions precisely in order to protect their role in education and research from external political, corporate, business or personal interests.

The decision of the professors involved in the original application and of CAUT to appeal the decision to the Supreme Court of Canada is a good beginning. It is to be hoped the higher court will carry out a close examination of the implications of the issues raised by Justice Sharpe and the need to preserve the independence of the universities of Canada, which has been asserted by such distinguished members of the Canadian academic community as Chief Justice Bora Laskin and Harold Innis.

But it also becomes incumbent on the Canadian academic community — whatever the outcome — to mount an even stronger campaign to establish the independence of our universities from external, non-academic control.

Donald F. Theall was the third president of Trent University from January 1980 to June 1987 and is currently University Professor. Previously he had been Molson Professor at McGill University where he was chair of the English department and founding director of the graduate program in communication. He is the author of a number of books including Beyond the Word: Reconstructing Sense in the Joyce Era of Technology, Culture and Communication (UTP 1995), James Joyce's Techno-Poetics (UTP 1997) and The Virtual Marshall McLuhan (MQUP 2001). He has written numerous articles in literary theory, communication, cultural studies and issues involving freedom of expression and academic freedom, the most recent of which appeared in Interpreting Censorship in Canada (UTP 2000).

The views expressed are those of the author and not necessarily those of CAUT.