Included in Discovery: Atlantic Education & the Law – Issue 09

Jennifer Taylor and Calvin DeWolfe

The Canadian Association of University Teachers (“CAUT”) censure process has attracted widespread attention in recent months, following CAUT’s extraordinary vote in April 2021 to censure the University of Toronto (“U of T”). CAUT censured U of T for terminating the candidacy of Dr. Valentina Azarova, who was the selection committee’s top choice for the directorship of the International Human Rights Program at the U of T Faculty of Law. While an external review concluded differently, many participants and observers believe Dr. Azarova’s candidacy was terminated because of her previous work on Israel-Palestine, after an alumnus and donor — who is also a Tax Court judge — intervened.

CAUT suspended the censure on September 17, 2021.

This FAQ-style article reviews the background to the censure and the fallout at U of T, and considers the risks for other universities.

In short, the U of T controversy demonstrates that a CAUT censure is not toothless, but can have very real consequences for the educational and professional environment of a university.

What is CAUT?

CAUT comprises “72,000 teachers, librarians, researchers, general staff and other academic professionals at some 125 universities and colleges across the country.”¹ There are multiple classes of CAUT membership,² but professionals generally join through their member associations (such as the Dalhousie Faculty Association or the Memorial University of Newfoundland Faculty Association), or by applying for individual membership.³ CAUT supports members in collective bargaining, grievances and arbitrations, issues of academic freedom, advocacy on academic employment, communications strategy, and other matters.⁴

What is “censure”?

The CAUT censure is intended to be a rare and last-resort sanction imposed against a university or college administration that, in the view of the CAUT Council, has acted “in a manner that threatens academic freedom and tenure, undermines collegial governance, disregards negotiated agreements, refuses to bargain in good faith, or takes other actions that are contrary to interests of academic staff or compromise the quality and integrity of post-secondary education.”⁵

Before imposing censure, CAUT will explore alternative mechanisms to resolve the concern, including a referral to the appropriate CAUT committee for further investigation. If these steps are not satisfactory, the CAUT Executive may recommend to Council that censure be imposed. At that point:

If persuaded that a censure is justified, the Council will pass a motion giving notice to the administration concerned that unless the dispute is resolved, censure will be imposed at its next meeting. This action will be publicized within the Canadian academic community. The Association will undertake renewed efforts to settle the dispute, and report progress to the Council. On the basis of that report the Council may decide to impose censure, which will remain in effect until the Council is satisfied that the matter has been satisfactorily resolved.⁶

A censure involves a blanket request to all CAUT members to not accept appointments, speaking engagements, distinctions, or honours from the censured institution until CAUT’s requested changes are made. Further, CAUT will publicize the censure; seek support from student organizations, labour groups, and international academic associations; and refuse to advertise positions at the censured institution.

Prior to the current U of T censure, there had only been two other censures since 1979.⁷ The last time censure was invoked was in 2008, over governance issues at First Nations University in Saskatchewan.⁸

How did the U of T censure come about?

On October 15, 2020, the CAUT Executive passed a censure motion against U of T, in response to its controversial decision the previous month to terminate the candidacy of Dr. Valentina Azarova for the position of Director of the International Human Rights Program at the Faculty of Law.⁹ Dr. Azarova was known for her early-career work on Palestinian rights, and more recent work on migrant rights and international criminal law.¹⁰

As reported in The New Yorker:

It emerged that, on September 4th, a high-level university administrator spoke on the phone with David E. Spiro, a tax judge who, individually and as a member of a wealthy family, is a major donor to the law school. Spiro expressed concern about Azarova’s work on the Israeli occupation and suggested that her appointment would damage the university’s reputation. The university administrator alerted the leadership of the law faculty, who, in turn, contacted the search committee. Soon [Dean of Law Edward] Iacobucci reversed the process of Azarova’s hiring.

The October motion advised that censure would be imposed at the spring meeting of Council, unless “satisfactory steps” were taken by U of T — like hiring Dr. Azarova for the still-vacant director position.¹¹

This left several months for negotiations to take place.

During this time, the University tried to stave off censure by retaining the Hon. Thomas Cromwell, retired justice of the Supreme Court of Canada, to conduct an independent review of the hiring situation (“Cromwell Report”). Mr. Cromwell concluded that he “would not draw the inference that external influence played any role in the decision to discontinue the recruitment of the Preferred Candidate.”¹² The Cromwell Report was endorsed by the University, but met with criticism from many corners.¹³

(A Judicial Conduct Review Panel of the Canadian Judicial Council has since concluded that, while Justice Spiro “made serious mistakes, these were not serious enough to warrant a recommendation for his removal from office.”¹⁴ Several of the complainants have now filed an application for judicial review in Federal Court.)¹⁵

On April 22, 2021, the CAUT Council voted to censure U of T, on the basis that the cancellation of Dr. Azarova’s hiring was politically motivated and a breach of academic freedom.¹⁶ The Council expressly disagreed with the Cromwell Report’s conclusion “that the donor’s call did not trigger the subsequent actions resulting in the sudden termination of the hiring process.”¹⁷

“The censure amounts to a boycott of the University,” according to Ultra Vires, the law faculty’s student newspaper.¹⁸

The University of Toronto Faculty Association abstained from the censure vote, and is pursuing two grievances of its own arising from the hiring controversy.¹⁹

CAUT maintained that censure would “remain in effect until Council is satisfied that the matter has been satisfactorily resolved.”²⁰

On September 17, 2021, CAUT suspended the censure, after U of T re-offered the directorship to Dr. Azarova.²¹ Dr. Azarova declined the offer, telling CBC News that, “In light of events over the past year, I realized that my leadership of the program would remain subject to attack by those who habitually conflate legal analyses of the Israeli-Palestinian context with hostile partisanship.”²² Nevertheless, the development prompted CAUT’s Executive Committee to pause the censure “pending a final decision by CAUT Council” in November.²³ CAUT’s Executive Committee is still calling on U of T “to resolve all the issues in the case, including explicitly extending academic freedom protections to academic managerial positions and developing policies that prohibit donor interference in internal academic affairs.”²⁴

What have the consequences been for U of T?

The censure caused significant fallout,²⁵ including:

• multiple events being cancelled and speaking invitations declined;
• the Right Honourable Michaëlle Jean, former Governor General of Canada, postponing a lecture on systemic discrimination;
• law faculty resigning from university roles, including Prof. Audrey Macklin resigning as chair of the International Human Rights Program (“IHRP”) hiring committee and member of the IHRP faculty advisory committee, and Prof. Kent Roach stepping down as faculty chair of the Advisory Group for the David Asper Centre for Constitutional Rights;
• lawyers refusing to hire U of T law students; and
• outside organizations ending their collaborations with U of T (these include Human Rights Watch; Citizen Lab; the HIV Legal Network; Butterfly: Asian and Migrant Sex Workers Support Network; the Immigration Legal Committee; the Indigenous Education Network; and Amnesty International).²⁶

Censure UofT, a group of U of T faculty members that is active on social media, maintained a list of “solidarity statements and actions” in response to the censure.²⁷

More repercussions may have ensued if the censure had remained in place during the current academic year.

How can universities manage the risks arising from the censure process?

It is in universities’ interests to avoid censure if at all possible. For this reason, universities should take the threat of censure seriously, and react proactively rather than defensively if the threat arises.

Universities may want to consider early engagement with CAUT and participation in any CAUT investigations, depending on the circumstances. For example, a complaint about an individual issue may be better suited for grievance arbitration or other processes, whereas more systemic concerns may benefit from engagement with CAUT. Universities may also wish to carefully and proactively consult with their other stakeholders, including student groups, to gauge where they stand on the issues involved and shore up support.

In sum, prevention is key — because once censure happens, it is very difficult to walk back the damage.

Conclusion

CAUT cannot necessarily enforce a censure through the courts, but that does not mean a censure is without risk for universities. The reputational cost of attracting a CAUT censure can be readily observed in the case of U of T: there are practical consequences to a censure when it comes to retaining and recruiting faculty, facilitating student employment opportunities, attracting speakers, and beyond. A censure could also have a significant financial impact, depending on how it affects enrolment and donor behaviour.

Especially in the age of social media, risk needs to be assessed holistically — through a communications and public relations lens, and not just a legal lens. It is not simply about whether a censured institution could be sued for damages, but about what might happen in the court of public opinion. In the case of a CAUT censure, the reputational risks can quickly translate into tangible negative impacts on universities, and those who work and study there.

Our Education team is always available to help clients navigate these issues.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Education group.

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^{1 CAUT, “About Us”.
2} See generally CAUT By-law Number 1 (November 2020).
^{3 CAUT, “CAUT Membership”.
4 CAUT, “Field Guide to CAUT”. 
5} CAUT, “Procedures Relating to Censure” (revised 2008).
^{6 CAUT, “Procedures Relating to Censure” (revised 2008).
7} CAUT, “University of Toronto under censure” (May 2021).
^{8 CAUT, “CAUT Council imposes rare censure against University of Toronto over Azarova  hiring controversy” (April 22, 2021).
9 Masha Gessen, “Did a University of Toronto Donor Block the Hiring of a Scholar for her  Writing on Palestine?” (May 8, 2021) in The New Yorker, [“Gessen”].
10 Gessen, above.
11 Shree Paradkar, “University teachers’ association calls for rare censure of U of T administration  over law faculty hiring scandal” (October 15, 2020) in the Toronto Star.
12 Hon. Thomas A. Cromwell, CC, Independent Review of the Search Process for the Directorship  of the International Human Rights Program at the University of Toronto, Faculty of Law (March 15, 2021) at page 6.
13 Vivian Cheng and Harry Myles, “Criticisms over the Cromwell Report Erupt with CAUT  Censuring U of T” (May 17, 2021) in Ultra Vires, [“Cheng and Myles”]. See also Gessen, above.
14 “Canadian Judicial Council completes its review of the matter involving the Honourable D.E.  Spiro” (May 21, 2021).
15 Aidan Macnab, “Judicial review sought on decision to close complaint against Justice David  Spiro” (July 14, 2021) in Law Times.
16 CAUT, “CAUT Council imposes rare censure against University of Toronto over Azarova hiring controversey” (April 22, 2021) [“CAUT censure”].
17 CAUT censure, above.
18} Cheng and Myles, above.
¹⁹University of Toronto Faculty Association, “CAUT Censure: Frequently Asked Question” (May 26, 2021).
²⁰ CAUT, “University of Toronto under censure” (May 2021).
²¹  CAUT, “CAUT calling for ‘pause’ on U of T censure after U of T reverses course on Dr. Azarova  case” (September 17, 2021) [“CAUT pause”].
²²Shanifa Nasser, CBC News, “Censure against U of T temporarily suspended after school reverses  course in hiring controversy” (September 17, 2021).
²³  CAUT pause, above.
²⁴ CAUT pause, above.
²⁵See generally Gessen, above.
²⁶ Cheng and Myles, above. See also Sarah Tomlinson, “Rye Law Prof Stands with CAUT Censure of U of T Over Hiring Scandal” (September 8, 2021) in The Eyeopener; CAUT, “University  of Toronto under censure” (May 2021).
²⁷ Censure UofT, “About Us”.