The Saga of Western University’s Procedure 1.1: Why did it come, go, and will it return?
Published in Antler River Media Co-op
Republished in NB Media Co-op
(*artwork: "The boot" by Incé Husain)
On August 29th, the Western University administration imposed “Procedure 1.1: Obtaining Authorization to Hold a Demonstration”. The procedure demands that no demonstrations - including “picketing, marching, carrying signs, distribution of literature, and other related activities, usually in favour of or opposed to some action or opinion” - occur on campus without the approval of the Director of Campus Safety & Emergency Services.
Students view the procedure as stifling free speech. Faculty call it authoritarian. Legal scholars argue that it may violate institutional, provincial, and federal laws, including the Charter of Rights and Freedoms. All view the procedure as a direct response to recent campus activism for human rights in Palestine.
On September 9th, the administration said it will “pause” on the procedure due to “concerns from the community”. It states that it is “listening” to a campus community that seeks “further consultation on these matters”, and will revisit the procedure within a policy review process.
Faculty say that the procedure never underwent any consultation in the first place, a violation of due institutional process (see Consultation). They are wary that the administration will proceed by merely imposing an altered version of the same procedure, noting its harsh history with student protesters.
Here are the convictions from students, faculty, and a legal scholar that arguably led the administration to pause on the procedure.
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“The administration’s blatant attempts to depoliticize and suppress free speech and our fundamental rights to peaceful assembly will not silence our voices or diminish our solidarity”, says Alex Garcia, a fourth year psychology student and member of Western University’s Climate Crisis Coalition. “We’ve seen through history how universities are historic sites of change…We have collectively arrived at another one of these historic cruxes, in which the public opinions, understandings, and narratives regarding not only Palestine, but the Congo, Sudan, and more broadly, climate injustice, are shifting.”
According to procedure 1.1, the “approval process” for holding a demonstration involves emailing the Director details about the demonstration five business days before its planned date. This includes the purpose, location, date, time, and duration of the demonstration, the expected number of attendees, and the organizer’s contact information.
The Director will either approve the demonstration alongside “reasonable directions” for how, when, and where the demonstration should occur, or reject it if they believe it poses “undue risk”. The procedure restricts demonstrations to 12-6pm on weekdays, and prohibits their publicization until the Director approves it.
Western University’s Muslim Student Association (MSA) and Palestinian Cultural Club (PCC) released social media statements on the procedure urging its repeal.
MSA writes that they are “deeply disturbed” by the procedure, that it places “excessive and undue restrictions on student’s rights to protest and their freedom of speech”, and call on Western University to instead “work towards genuine dialogue, with all students, regardless of political affiliation”.
PCC echoes these convictions. They add that the procedure exacerbates the administration’s negative dynamic with students protesting for human rights in Palestine.
Last academic year, Western University's campus flared with demonstrations for human rights in Palestine. These included student-led encampments demanding that Western University cease its 33.6 million dollar investments in Israel’s illegal occupation of Palestine and ongoing war crimes, including genocide.
The administration criticized the encampments - with statements that were inconsistent with international law - and had unproductive meetings with student organizers.
Procedure 1.1 arrived less than two months after student encampments were dismantled. It was accompanied by “Policy 1.1.1: Prohibition of Camping on University Property”.
“The introduction of this new policy amid the ongoing genocide of Palestinians is especially concerning,” PCC’s statement reads. “These new, quickly adopted policies, coupled with the University’s disregard for active student concerns regarding Western’s investments in military contractors and other unethical practices, send a disheartening message.”
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Western Faculty for Palestine (WF4P), a group formed in spring 2024 and now comprising over thirty faculty, stood in solidarity with the student-led encampments and efforts for Palestinian liberation.
David Heap, professor of linguistics at Western University and member of WF4P, says that campus protests for human rights in Palestine have had the “harshest reactions” he has ever seen.
He explains that some students were issued provincial criminal trespass sanctions for protesting, a violation of institutional policies. A correct disciplinary procedure would have been at the institutional level with reference to the university’s code of student conduct.
“The Palestine issue garners a response which is much more severe than anything else I've seen. This response has been over the top, and (procedure 1.1), unfortunately, is part of the same pattern of a disproportionate response,” says Heap. “What does that say in the big picture? It says that Palestine is an important issue - to students, staff, faculty, to the community. And it’s unfortunately an important issue to those who want to keep the status quo - to keep our institutions invested in apartheid, invested in genocide, invested in the arms industry, and are willing to go to extraordinary lengths in order to suppress activism in this area rather than engage normally… I think (the administration) were in a hurry (with the procedure) because they were worried about the encampments coming back.”
Heap believes that future student activism on campus could shift from a disruptive nature to an informative one, such as substituting protests with educational teach-ins. These learning opportunities would sustain momentum around human rights causes, recruit those who were uninformed or wary of protesting, and lie outside the restrictive procedure.
“I think we're in a phase where we need to look at being persuasive - with students, faculty, and staff talking to each other about the divestment issue. If we’re in more of a persuasive, informative mode rather than a disruptive mode, people don't have to take risks… We can do this without violating any procedure.”
But Heap says the procedure is being challenged.
The University of Western Ontario Faculty Association (UWOFA) released a statement opposing both procedure 1.1 and the policy prohibiting camping on campus. Like MSA and PCC, UWOFA demands that the administration retract procedure 1.1 and the new policy.
UWOFA’s statement says the new procedure and policy were imposed “without appropriate notice or consultation with campus stakeholders” and considers them a “significant threat to academic freedom and freedom of expression on campus.”
It also cites the Canadian Association of University Teachers - a federation representing around 70,000 academic professionals and staff across 120 campuses in Canada - that says the procedure “undermines free expression and academic freedom by creating unnecessary barriers for peaceful assembly and expression.”
“The sensible course would be (for administration) to retract (procedure 1.1),” says Heap. “And if necessary, some of us will line up with a great deal of pleasure to have an unauthorized protest, without five days notice, without the permission of the Director of Campus Safety, without asking “can we use an amplification system”, without asking “can we stand here with this many people”, and protest this stupid policy. If that’s what it takes, I’m very confident that it will happen. I’m somewhat hopeful that… maybe they’ll see the errors of their ways and pull back on this before it gets that far.”
Heap calls the procedure “authoritarian overreach on the part of the administration”. He generally views universities as organic, idea-rich communities that don’t need regulations beyond those associated with funding and services.
“A university is a community of students, some of whom teach… we're all learning together as an aggregate. It's not a community of administrators. So, the ideal is, you should have the minimum amount of administration necessary to allow the learning, teaching, and research to happen. You don’t have to control stuff… especially not on a university campus which should be a place where you expect to encounter ideas that are challenging.”
He adds that no campus demonstrations have ever posed a safety risk. The only harm arose from the administration, who created “risk with their over-securitization of campus”.
For example, during the CUPE Local 2361 strike, the administration sealed off parts of campus with vehicles; this delayed an ambulance from reaching an individual suffering cardiac arrest.
“The only thing that has been a danger to public safety has been the barriers that the university has put up,” says Heap. “People protesting don’t present hazards to safety or to the community - they present a hazard to power. They are frightening to power because they are a sign of people's power - that people are organized enough and passionate enough to protest”.
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From a legal perspective, procedure 1.1 conflicts with Western University’s 2018 policy on freedom of expression, and Ontario government regulations that oblige universities to implement free speech policies.
The provincial laws mean that the procedure may also violate the Charter of Rights and Freedoms, which grants Canadians the right to “participate in peaceful demonstrations” and “the right to protest against a government action or institution.”
Legal scholar Michael Lynk says the legal problems with procedure 1.1 are rooted in three key issues: the policy’s imposition without prior consultation from faculty and students; the policy’s lack of reference to Western University’s 2018 freedom of expression policy; and the policy’s absence of any self-limitation in how it may be applied.
“Universities have a general right to regulate what goes on on their properties, including a demonstration,” says Lynk. “But the way in which (the procedure) is currently drafted is without limitations in terms of acceptance or denial (of demonstrations), and without reference to (Western’s) freedom of expression policy… The broad scope given by the 2018 policy, I think, overwhelms the way in which the university plans to regulate demonstrations.”
Western University’s freedom of expression policy states that “all members of the University community, including guests and visitors, have the right to freedom of expression, which includes the right to examine, represent, question, advocate for and comment on any issue without reference to prescribed doctrine. It also includes the right to criticize the University and society at large.”
Lynk says the freedom of expression policy is strong, admirable, and consistent with universities’ roles as places for ideas to circulate and clash.
Lynk adds that typical negotiations between unions and employers include restrictions on the employer’s decision-making power. For example, an employer’s procedure for granting a leave of absence states that a leave should not be “unreasonably withheld”. No such restriction is present in procedure 1.1, giving the administration virtually unlimited power.
“(Employers) ensure that there's a reasonability built into (the procedure) and that (requests) can't be denied simply on a whim or prejudice. There is nothing about that in the 2024 policy.”
Lynk believes that the most effective way of challenging the procedure is through Western University’s internal procedures. These could include the faculty association filing official grievances, a member of the university senate bringing an official motion to retract the procedure, or a campus community member filing a complaint according to the 2018 freedom of expression policy. Faculty grievances could take up to fifteen months to be addressed; senate motions could take only a few.
Lynk says that peacefully protesting on campus without authorization would also be “an interesting test case”. If the administration attempted to punish protestors, Lynk says they could seek institutional forms of protection - through the student code of conduct or faculty grievances - to challenge the policy itself.
“(Unauthorized protests) would be a form of civil disobedience, and you may have to accept consequences with respect to that. But I think, given how poorly drafted the demonstration policy is, you would likely be able to make good arguments in front of whatever forum you were charged with,” says Lynk. “I would think those (forums) would be ripe ideas for one way of effectively challenging the policy.’
If a resolution is not reached at the institutional level, the policy challenge would be brought to an impartial labour arbitrator who would issue a final decision on the procedure’s fate.
Lynk says that any arguments about the procedure violating the Charter of Rights and Freedoms would be heard and judged by the arbitrator.
The basis for challenging the procedure with the Charter of Rights and Freedoms resides in the Ontario government’s policies on free speech in universities.
“If the government issues directions to universities which they have to comply with, that would bring universities in whole or in part under the purview of the Charter of Rights,” says Lynk. “There’s an argument that, because the province, in 2017 and 2018, directed universities to all develop free speech policies, that may bring at least part of the university’s administration under the purview of the Charter. And then, it would seem there would be a basis for a Charter challenge with respect to the university procedure.”
A Charter challenge, which Lynk says might take three to six months, would pit students and faculty as applicants in the courts, and the university as the defendant. If students and faculty won the case, the courts would strike down the procedure.
Lynk says he “can’t imagine anybody looking at the (the Charter) and (the procedure) and not seeing how there are potential clashes and tensions between the two.”
Despite this, Lynk says that invoking the Charter to overturn the procedure is more likely to be successful if a demonstration has been applied for and denied according to the procedure. Without such “evidence”, the courts may refrain from making a decision.
Lynk believes that the administration imposed the procedure “entirely in response to the summer encampments”. He attests to the student-led encampments’ peacefulness and civility and says they did not warrant a new university policy.
“Despite what the university says, I don't think the (encampments) were a negative experience. There was no meaningful property destruction, people were peaceful, they didn't hinder the operation of the university, they didn't hinder the conduct of classes,” says Lynk, who had given a speech at the encampments. “They made their protest in a nonviolent and civil fashion, looking for responses from the university. I don't see that justify having a policy. If it did justify having a policy, this is not the policy.”
Ontario’s Ford government was openly unsupportive of the encampments and campus demonstrations for Palestine. For this reason, Lynk believes that the province would not intervene to support faculty and students during a Charter challenge against the procedure, even though the university would potentially be violating provincial free speech regulations.
“The Ford government was in favour of the free speech policy, but they were also in favour in 2024 of getting rid of the encampments. So they would probably be in favour of the policies that the university has come down with. I don‘t think they’d get involved.”
The University of Toronto recently issued a similar procedure on campus demonstrations. New administrative restrictions on campus protests have also coursed through universities in the United States.
Lynk expects that more universities in Canada will follow.
“Western is not the only university in Canada bringing down these policies, so I suspect we'll be seeing a lot of legal actions at university senates across the country where these policies are occurring. And the most interesting ones are going to be in Ontario where the free speech policy was established in 2018.”
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Procedure 1.1 does not apply to Western University’s affiliated university colleges, like King’s University College and Huron University College.
However, policies and procedures at Western University could be adopted by affiliate colleges merely on the premise that they exist at Western University.
“Affiliates could use Western University policies without going through consultation at King’s,” says Derek Silva, professor of sociology and co-chair of the faculty union at King’s University College. “It doesn’t mean that they would or will, but it would be very easy to get it adopted. They don’t need to draft their own policy or be the source of a grievance.”
Silva says that if King’s had adopted the procedure, faculty would have “immediately grieved”. He calls the sudden, consultation-less imposition of the procedure at Western University a “scary move to authoritarian policy-making.”
Like Heap and Lynk, he considers procedure 1.1 and the policy prohibiting camping on campus to be a direct response to Western University’s student-led encampments.
“In my opinion, I absolutely, one hundred percent, firmly believe that this is in direct response to the anti-genocide and pro-Palestinian liberation encampment that we saw take hold for sixty days,” says Silva, who had given a speech at the encampments. “And it was wonderful - it was very empowering, not threatening, not illegal whatsoever in any possible way.”
He adds that, before the encampments, he had regularly seen students on campus with hammocks, bedding, tents, and “all the things that the (administration) demonized at the encampments”. The administration had never regulated such camping on campus.
“I've been on this campus for almost a decade now. I've seen all of these things and it's never been an issue. We're seeing the university make an issue out of something that's never been an issue. We’re seeing it demonized here, and for a very specific reason that highlights Western’s complicity in scholasticide.”
Silva considers the administration’s “pause” on procedure 1.1 and the camping prohibition policy a “minor victory”. He doesn’t believe the administration will inclusively consult the community, noting how Western University President and Vice-Chancellor Alan Shepard never met with student or faculty groups most active in Palestinian liberation movements. The administration also “demoniz(ed) and defam(ed)” the Western Divestment Coalition, the student group that organized the encampments.
“I’m not sure what (the administration) will try next. Consultation should have happened in the first place, and I’m not very optimistic that any consultation will take place,” says Silva. “I’m not overly optimistic for this policy to completely go away. There may be a watered down version that comes back…it's up to folks to continue to put the pressure on if a policy like this gets passed very quickly and very silently.”
Silva considers protest to be “whatever someone in power determines is against what they want”. He calls procedure 1.1’s broad, virtually unlimited definition of protest “dangerous”. He adds that the administration would easily recruit the London Police Service to “do the dirty work” in dismantling demonstrations.
“If you allow “protest” to be defined in university policy as something very broad, which is basically whatever (the administration) determines it to be, then very soon, someone‘s going to get into trouble quite simply just for wearing a keffiyeh. Like, wearing a pin with a watermelon on it - something like that will get you in trouble. And that's scary. That's authoritarianism. That's fascism.”
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Steve D’Arcy, professor of philosophy at Huron University College, teaches a course called “Civil Disobedience and Social Protest” and authored the book, Languages of the Unheard: Why Militant Protest is Good for Democracy.
D’Arcy was “highly concerned” and “offended” by procedure 1.1. He considers it a “brazen rejection of everything that universities are supposed to stand for, including lively debate, democratic engagement, and freedom to express dissent forcefully and publicly.”
He confirmed with the Huron’s President that the procedure did not apply to Huron, but was prepared to defy the procedure at Western University alongside many professors before the administration had announced its “pause”.
“If the policy returns, we will again have to organize in defiance of its draconian restrictions,” says D’Arcy.
For D’Arcy, it is “quite obvious” that the procedure was an attempt to “de-legitimize” activism for human rights in Palestine, noting its arrival alongside the policy prohibiting camping on campus.
“The fact that the anti-protest rules were issued alongside a new “Anti-Camping” policy made it perfectly clear that protests in solidarity with Palestine were the primary target.”
But D’Arcy emphasizes that the procedure would threaten all protest activity on campus, and that all people who care about justice should unite to defy it. He predicts that the administration will attempt to reinstate some version of the procedure.
D’Arcy defines protest as a “grievance-motivated collective action” that pressurizes systems and institutions to change. It is a medium by which “alternative voices force their way into public life, demanding to be heard, and unwilling to be silenced or ignored.”
He believes that the administration wants to “minimize, and if possible, practically eliminate protest in general, and protest in solidarity with Palestine in particular.”
“Demonstrations and protests, in themselves, should not be regulated,” says D’Arcy. “What should be regulated are actions that endanger or materially harm others. But there are already policies against violence, threats, or verbal abuse against people on campus. No special policy restricting or regulating protest is necessary… nor is there any history whatsoever of protests at Western leading to violent attacks.”
D’Arcy believes that both lawful and unlawful demonstrations can have “democratic legitimacy” and “genuine civic virtue”. He shares how those who fight injustice have historically been repressed and then “vindicated by history”. Their legacy transforms from condemnation to one that “pushed society forward”, delivering crucial public service against the rails of the powerful.
“On the whole, history looks more favourably on the powerless who break the law and rebel against it than the powerful who try to insulate the status quo from fundamental change.”
He speaks highly of Western University’s student-led encampments, calling them a “model of sound civic engagement” and commends the student organizers.
“The encampment at Western was a model of sound civic engagement by staff, faculty and students, in the service of the highly important and admirable aim of trying to end the university’s complicity in crimes against humanity and war crimes. This is something to celebrate and honour. We should be asking whether the organizers of the encampments are eligible for awards and honours, not repressive and anti-democratic policy changes.” ♦
This article appeared in The Antler River Media Co-op on September 16th, 2024:
A shorter version of this article was republished in The NB Media Co-op on October 1st, 2024: