In a precedent-setting case involving brothers who criticized a prof on Facebook, an Alberta judge ruled this week that the Charter of Rights and Freedoms applies at the University of Calgary in matters of student discipline. This could mean significant changes to the way universities deal with students across the country.

The ruling stems from an appeal by two University of Calgary students who were placed on probation by the university for their Facebook postings.

The case opens the door for students on campuses to have at least some protection through Charter rights. In light of recent actions by universities to clamp down on student activities both on-campus and online, the ruling could not come soon enough.

Universities have been using their "Charter-free" status to intimidate and punish their students in an manner that raises the question: What rights do students have?

Court of Queen's Bench Justice Jo'Anne Strekaf answered the question.

The students, identical twins Steven and Keith Pridgen, each wrote one post on a Facebook group called "I No Longer Fear Hell, I Took a Course with Aruna Mitra," which was created by a fellow student in the second-year Law and Society course at the university.

That fall, according to court documents, Steven Pridgen wrote on the group's wall  "Some how I think she just got lazy and gave everybody a 65....that's what I got. Does anybody know how to apply to have it remarked?"

It was a statement Steven would eventually be punished for.

The group did not attract the attention of university authorities until nearly a year later, when, in August, 2008, Keith wrote:

"Hey fellow LWSO. homees .. So I am quite sure Mitra is NO LONGER TEACHING ANY COURSES WITH THE U OF C !!!!! Remember when she told us she was a long-term professor? 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. Well anyways I think we should all congratulate ourselves for leaving a Mitra-free legacy for future L.S.W.O. students!"

Professor Mitra filed a complaint about the Facebook group with Professor Wisdom Tettey, Interim Dean of the Faculty of Communication and Culture, on Sept. 4, 2008. The Dean quickly assembled a meeting with the 10 students who posted to the group.

Following the meeting, the 10 students were all found guilty of committing non-academic misconduct and ordered to apologize for posting to the Facebook group.

The university warned that failure to comply with the order "may result in further sanctions including, but not limited to, suspension or expulsion."

Both twins were placed on probation and they decided to appeal the ruling finding them guilty of misconduct.

Both students got legal counsel and advised the University of Calgary they wished to appeal to the University's Board of Governors, after an earlier appeal upheld their convictions.  The University denied them the ability to appeal, stating that probation for non-academic misconduct cannot be appealed to the Board.

In short, the University of Calgary took the idea that universities are exempt from the Charter to its extreme. By not granting the students the ability to appeal to the Board of Governors, the university opened the door for their successful appeal to the courts and have brought the Charter into effect at Canadian universities.

As Justice Strekaf wrote, "the University is not a Charter free zone. The Charter does apply in
respect of the disciplinary proceedings taken by the University."

Universities can no longer impose student punishments willy-nilly without due process and respect for Charter rights.

"Asn educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourablele," she wrote.

Justice Strekaf's words should hang over the desk of every university administrator.

True free speech does not exist on the campuses of Canada's publicly-funded universities - that is not in doubt. Universities are legally private institutions and immune from the Charter of Rights and Freedoms. (The Supreme Court of Canada famously confirmed this in 1990 in the famous McKinney v. University of Guelph decision)

With no legal requirement to allow for the free exchange and expression of ideas, it is not surprising that Canadian universities limit the expression of controversial or unpopular ideas.

The eternal question facing universities is not if it is reasonable to impose limits on free expression - even governments institutions, which fall under the Charter, are allowed to impose restrictions - but what those limits should be and if limiting speech is even effective.

The latest flash-point is Carleton University, where five pro-life/anti-abortion activists were arrested last week when they attempted to display large posters that show aborted fetuses beside images of some of humanity's worst acts of genocide.

The "Genocide Awareness Project" (GAP) is the source of great controversy - which is exactly the goal of the organization behind it. The "Canadian Centre for Bio-Ethical Reform" is a media-savvy organization and is fully aware of the national attention these arrests bring to their cause. (One only needs to do a Google search of their name attached to the University of Calgary.)

If they display their posters, they are often confronted by angry individuals who are pro-choice. If they are prevented from displaying their posters, they complain of censorship. More recently, universities have requested the arrest of individuals involved in GAP displays for trespassing on the private property of the institution.

Despite the unreasonable actions of the GAP group at Carleton, who were offered space on campus to display their posters in a room that people could choose to enter (as opposed to on the main quadrangle), the university is wrong to request the arrest of its students.

Universities should allow for the exercise of free speech, even when unreasonable, as long as it does not incite hate or violence.

The fact that some would counter-protest in a manner that could lead to violence should not grant the university the right to stop a protest from occurring.

Controversy provides an opportunity for learning - the university can provide a forum for different viewpoints to be expressed and provide students with the opportunity to hear from the greatest minds on the matter of abortion.

By arresting these students, the university instead co-operated with the goals of the GAP group.

A more temperate response that focused on raising the debate from the chanting of slogans and simplified comparisons would have the effect of both removing the incentive for GAP to engage in unreasonable activities and advance Carleton's mission of "the intellectual, social, moral and physical development of its members, and the betterment of its community."

Arresting students to suppress their speech is ineffective. Carleton has achieved national media attention for these students and their case. At the same time, it has damaged the reputation of the university by responding with the use of the instruments of the state, instead of with better ideas.

When the University of Wyoming cancelled a speech by William Ayers - an infamous American left-wing 1960s radical who co-founded the defunct domestic terrorist group Weather Underground - following public pressure, including from several conservative politicians, it was following a trend that I find troubling.

Dr. Ayers is a professor of education at University of Illinois-Chicago and was invited to speak in his capacity as a well-known academic.

In a statement, the University said that "safety concerns" and "the interests of the UW community, including statewide constituencies" were factors in the decision to cancel Dr. Ayers' speech.

The UW statement was eerily similar to a letter sent earlier in March to Ann Coulter by the University of Ottawa's provost Francois Houle. Both letters claim the university is committed to free speech and the discussion of controversial ideas and then continue to discourage a liberal view of what constitutes free speech.  

"Academic freedom is a core principle of any institution of higher education. But with that freedom comes an obligation to exercise free thought and free speech in concert with mutual respect and acknowledgment of broader resource and security impacts on the campus. The exercise of freedom requires a commensurate dose of responsibility," wrote Tom Buchanan, president of the University of Wyoming, in the university's statement.

Academic freedom seemed to be a secondary concern to the University of Wyoming when that freedom conflicted with community sensibilities and powerful lobbying interests.  Dr. Buchanan continued, "The University of Wyoming is one of the few institutions remaining in today's environment that garners the confidence of the public. The visit by Professor Ayers would have adversely impacted that reputation."

This is not the first time that Dr. Ayers' has been unable to make an appearance due to the political firestorm of his past. Even in Canada, last year, Dr. Ayers was turned back at Toronto Island Airport when he tried to enter the country to speak at the University of Toronto.

Though the charges stemming from his radical activites were dropped at the time, due to prosecutorial misconduct, Dr. Ayers' past is the likely reason that he has been turned away on numerous occasions when trying to cross the border.    

The Government of Canada does have legal grounds for turning away Dr. Ayers. The University of Wyoming did not.  I see a troubling trend in universities, and society as a whole, to self-censor and curtail provocative speech when facing the threat of violence and disruption by radical elements. There was a time, for instance, that public libraries would host vigorous debates. Controversy is now avoided like the plague. And people seek to shut down controversial speakers, rather than debate them.

Society's greatest achievement, the liberal democracy, is a recent innovation in the ordering of human societies. The academy has a responsibility to be the bulwark that protects it against those who wish to stomp it out of existence. To smother free speech in the name of respect (in the sense that people should not be challenged or hear "uncomfortable" ideas) is to ultimately suffocate ourselves and stop the advancement of humanity.

It doesn't matter if the speaker is from the far-left or the far-right, they must be allowed to speak when invited to public universities.

In the end, in the United States, the judiciary branch continued to serve as the guardians of free speech - a role that truly should belong to the academy - and ordered the University of Wyoming to allow Dr. Ayers to speak.  The speach occurred, without incident last Wednesday.

ASIDE: Dr. Ayers has contributed an article to the Ontario Confederation of University Faculty Associations higher-education magazine Academic Matters this month. (http://www.academicmatters.ca/current_issue.article.gk?catalog_item_id=4069&category=/issues/APR2010)

The cancellation of Ann Coulter's speech at the University of Ottawa was not a victory for her opponents, who celebrated shutting her event down last night; it is a victory for the organizers who paid for Coulter's (non)appearance.

The organizers of Ms. Coulter's Canadian tour have hit the public relations jackpot: Their tour is the lead story across America's right-wing media establishment. All the money in the world could not buy advertising with the same level of impact they are receiving from the earned media stemming from the U of Ottawa cancellation.

The American conservative non-profit organization, the Clare Boothe Luce Policy Institute, is likely going to make a fortune as donations pour in from their American right-wing base - significantly more than the $10,000 or so dollars it cost them to bring Coulter to Ottawa. (In American politics, whipping up the right wing base always results in donations.)

Conservative activist Ezra Levant benefits from making a further mockery of Canada's human rights commissions by pursuing a human-rights complaint on behalf of Ms. Coulter. (He has in the past referred to the "human rights racket" and has written a book critical of Canada's human rights commissions.)

He also stands to make a fair amount of coin from his association with Ms. Coulter. This controversy positions him to embark on an American speaking tour talking about yesterday's event, collecting a substantial speaking fee and selling his book to a new-found American audience.

Unlike the Fenians, the Clare Boothe Luce Policy Institute is unlikely to quietly return to their side of the border after decisively defeating their Canadian opponents. Within conservative movements, CBLPI has developed a strong brand from this event. This brand - combined with the war-chest they're in a position to be building from the Coulter cancellation - will enable them to form campus clubs at universities across Canada. These chapters could serve as front organizations to add Canadian universities to the right-wing speakers circuit. 

The culture wars have come to Canada.