In its constitution, CFS claims that its aim is “to organize students on a democratic, cooperative basis.” It opposes the use of student codes of conduct to “oppress and/or suppress […] freedom of association.” It has even launched a campaign called “Let People Vote” criticizing the federal Fair Elections Act because it “suppresses voters” and arguing that “the government should support, not discourage us from participating in our democracy.”

But what approach does CFS take to democracy and voters’ rights when its own members wish to vote to no longer be affiliated with it? In several cases, CFS has refused to let its members vote to leave CFS until students or student unions sought court intervention. This was the case in 2010 for the University of Guelph Central Student Association, in 2011 for the University of Victoria Students’ Society, and in 2014 for both the University of Toronto Graduate Students’ Union and the Post-Graduate Students’ Society (PGSS) of McGill University.

In several cases, CFS has refused to let its members vote to leave CFS until students or student unions sought court intervention.

The referendum for postgraduate students at McGill to take place on January 15 and 16 was only scheduled after a McGill student sought intervention from the Quebec Superior Court when CFS refused to let McGill students vote. The court ordered CFS to hold the referendum, writing, “The applicant has shown that he has a clear legal and quasi-constitutional right to the holding of a referendum in accordance with Bylaw I of the CFS. Any delay in holding the referendum will clearly cause irreparable injury to the applicant’s right to no longer be associated with the CFS.”

Students should not have to seek court intervention to exercise their democratic rights and their right to freedom of association with respect to CFS. That CFS has refused to let students vote for reasons deemed invalid by Canadian courts seriously weakens its legitimacy as an advocate in favour of democracy and against voter suppression. Moreover, it damages CFS’ credibility and shows that its alleged commitment to democracy is not borne out in practice.

CFS also claims to support freedom of expression. In 2013, it has taken a position against student codes of conduct that “limit, block, or hinder a students’ [sic] right to free expression.” Additionally, in 2009, CFS-British Columbia successfully argued before the Supreme Court of Canada that policies prohibiting political advertising on the sides of buses are an unjustifiable limit on freedom of expression.

Students should not have to seek court intervention to exercise their democratic rights and their right to freedom of association with respect to CFS.

Yet in the upcoming PGSS referendum, the CFS-appointed Chief Returning Officer (CRO), whose duty is to oversee the referendum, adopted the following rules: “There shall be no campaigning at any time in a business or service owned or operated by the Students’ Union,” and “The Chief Returning Officer or his designate will not approve materials that […] refer to legal or quasi legal actions before the courts that relate to the Referendum, or to other legal or quasi legal actions.” Although challenged, these rules were nonetheless upheld by the CFS-appointed Appeals Committee.

When the rules were challenged before the Quebec Superior Court, CFS’ legal counsel defended them. The court eventually ruled (in French) that “the prohibition to refer to litigation or legal or quasi legal actions and the limit on the places where campaigning can be done violate in an unjustified manner freedom of expression in the sense of articles 3, 9.1, and 49 of the [Quebec] Charter [of Human Rights and Freedoms].”

The court further ruled that “the restrictions imposed by the CRO via the referendum rules harm freedom of expression, and this, in an unreasonable and unjustified manner […] these bans have no rational link with the objective the referendum campaign, which is about the question of continued membership of members of PGSS as individual member of CFS.”

Allowing the freedom of expression to one’s critics is the very heart of freedom of expression.

CFS will stand up for freedom of expression with regard to its own speech but will seek to limit freedom of expression when its members are seeking to leave. This approach once again demonstrates the contradiction between CFS’ principles and its practices. Allowing the freedom of expression to one’s critics is the very heart of freedom of expression, and an organization can only improve and deal with its shortcomings when it welcomes rather than limits criticism.

CFS believes there should be only “one national student organization” – CFS – rather than a plurality of organizations that students can choose from. But history has shown time and time again that pluralism, whether in expression or in association, is preferable to a single, imposed will. The notion of unity breaks down when it is not founded on voluntary choice. The strength of the student movement comes not from membership in a single organization, but from rather from the ability to debate and make choices about our interests and affiliations freely.

Jonathan Mooney is a Law student. To reach him, send an email to jonathan.mooney@mail.mcgill.ca.

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A complaint relating to this image was made under SSMU’s Equity Policy. According to the policy, SSMU equity officers are responsible for investigating complaints and making recommendations, which can include letters of apology or dismissal from a position within the SSMU. Per Section 11.5 of the policy, “Recommendations for resolution made by the Equity Officers shall be considered binding unless two-thirds of Legislative Council votes against them.”

Two weeks ago, SSMU’s VP Internal Brian Farnan sent out a message stating, in part, “The image in question was an extension of the cultural, historical and living legacy surrounding people of color – particularly young men – being portrayed as violent in contemporary culture and media. By using this particular image of President Obama, I unknowingly perpetuated this living legacy and subsequently allowed a medium of SSMU’s communication to become the site of a microaggression; for this, I am deeply sorry.”

This apology was the outcome of an investigation under the Equity Policy. According to the McGill Tribune, “The apology has received widespread attention, much of it critical.”

The use of principles drawn from the literature on CRT and microaggressions as the basis for a disciplinary code is unsound and its application represents a major liability for SSMU.

The SSMU Equity Policy can only be properly understood in the context of academic literature regarding microaggressions and critical race theory (CRT). CRT critiques liberal ideals influenced by the Enlightenment and holds that the structure, practices, and laws of modern society perpetuate white supremacy. To take one example, in a seminal article, Richard Delgado notes the well-documented lasting emotional and psychological harm of racist insults on their targets and argues that constitutional protection of racist insults under the traditional liberal value of freedom of speech harms society and perpetuates the marginalization of people of colour.

Related to CRT is the notion within the field of social psychology of microaggression, which Sue et al. define as “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward people of color.” Microaggressions communicate racism through subtle means, often unintentionally and unknowingly. The emerging literature on microaggressions suggests they have harmful cumulative effects on the well-being of those who experience them.

SSMU should be commended for adopting a policy that draws from the emerging academic literature and aims to educate members and protect disadvantaged groups from potentially lasting harm. At the same time, the use of principles drawn from the literature on CRT and microaggressions as the basis for a disciplinary code is unsound and its application represents a major liability for SSMU.

To establish a new code of discipline based on critical theory demands the uncritical acceptance of its own arguments as objective fact.

While CRT and the microaggression literature provide a compelling framework for understanding the persistence of race-based disparities in the face of legal and formal equality, it is not an exclusive or singularly ‘correct’ framework for understanding all human interaction that can serve as a basis for punishment. Indeed, these theories have attracted significant criticism and are not universally accepted even within the academic community.

For example, law professor Douglas Litowitz criticizes the CRT approach as lacking “balance, nuance, and a weighing of competing interests and accounts,” while judge and oft-cited legal scholar Richard Posner bemoans the emphasis within CRT on reaching conclusions based on narrative rather than analytical reasoning and argues that CRT demands a “one-sided” empathy.

Even writers in the field of CRT express significant apprehension about punishing speech. Law professor Robin D. Barnes notes her “[concern] about the potential consequences of punishing speech that does not relate directly to threats of violence” and suggests that in many cases the proper response to allegedly racist speech is “more speech.” Harvard law professor Randall Kennedy ruefully notes a case in which “accusers failed to describe anything [a professor] said or did that constitutes the serious sort of intellectual and moral failing that the term ‘racial insensitivity’ implies.”

Regarding the microaggression literature, psychologist Thomas E. Schacht has criticized it for “repeatedly reduc[ing] the White participant’s role in unconscious microinteractions to that of ‘perpetrator,’” while Kenneth R. Thomas criticized many of Sue et al.’s examples of microaggression and suggested a contradiction in “want[ing] recognition as being different from the majority Caucasian population, but when any conversation acknowledges that difference, the speaker is alleged to be committing a microinvalidation.” All this is to say that there remains a spirited debate within the academy about the merits of CRT and theories of microaggression, making them unsuitable as a basis of discipline.

SSMU should keep its Equity Policy and further develop those elements which aim to educate and protect members, but it must scrap the disciplinary aspects of the code.

On top of this, there is an inherent contradiction in crafting a disciplinary code based on critical theory principals. Critical theory argues that power structures, including current disciplinary modes, are mere social constructions that perpetuate cultural norms and should not be readily accepted. To establish a new code of discipline based on critical theory demands the uncritical acceptance of its own arguments as objective fact and the sacrosanct basis of a new system that must be borne by all, discounting the very notion of social construction that gives the theory life and purpose. Critical race theorists would surely find much to criticize if society were to adopt a new set of laws based on an academic theory that emerged in the 1970s – at least if it weren’t their own.

Finally, there is the issue of liability. The actions SSMU takes in disciplining its members are always subject to legal challenge, though courts will generally not interfere if due process is followed and decisions are unbiased. But the Equity Policy inverts the burden of proof so that accusation and subjective experience becomes a valid basis of discipline and it considers matters of identity, rather than strict evidence, in determining culpability. In this way, the policy unknowingly subscribes to the very principles of justice that would enable oppression by a majority group to thrive by renouncing rights traditionally guaranteed to defendants to prevent unjust persecutions. It is far from certain that courts would find disciplinary decisions made under the Equity Policy to be unbiased, and the very public nature of the disciplinary action taken in this case exposes the SSMU to significant liability for violating members’ Charter right to the safeguard of their reputation.

SSMU should keep its Equity Policy and further develop those elements which aim to educate and protect members, but it must scrap the disciplinary aspects of the code. Intellectual honesty requires making a distinction between theory and fact, and fundamental norms of equity require codes of discipline to be rigorous and self-consistent.

Jonathan Mooney is the PGSS Secretary-General. He can be reached at jonathan.mooney@mail.mcgill.ca.

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AGSEM’s March 30 GA was a bitter and acrimonious affair. Among other issues, a “special general assembly” was held prior to the annual GA without any notice to the members, in violation of Articles 21, 23, and 25 of the AGSEM constitution; the assembly was chaired by a non-member of AGSEM rather than the AGSEM president, as required by Articles 38 and 54; the chair of the assembly prohibited the auditor of ASGEM’s financial statements from making the required report to the assembly, a report which was pertinent to the constitutional changes, in violation of Article 21; the chair refused to allow members to see the financial statements or the budget prior to the vote on constitutional changes which involved new spending; and the chair refused to allow members to propose changes to the motion to modify the constitution, even though that right is guaranteed by Articles 61 and 69. In short, a bizarre mixture of good-faith efforts to ensure meeting efficiency and irrational paranoia about members exercising their rights destroyed the integrity of the assembly and left AGSEM markedly divided.

Since then, the leadership of AGSEM, many of whom were newly elected, have worked closely with members who have raised concerns about the March assembly. In difficult and stressful circumstances, and under the cloud of a potential legal challenge, AGSEM’s leaders have sought to redress the wrongs of the March GA. AGSEM’s upcoming GA is the culmination of these efforts.

At the new assembly, AGSEM’s Coordinating Committee, in a motion regarding the March GA, will acknowledge the possibility that “procedural errors took place during these assemblies” and that “members have criticized the manner in which these assemblies took place.” AGSEM members will have the opportunity to “to discuss the General Assembly of 30 March, so as to ensure that the union may go forward on a basis of unity.” By acknowledging members’ concerns and providing a forum for discussion of concerns, AGSEM’s leaders are affirming the democratic, member-driven culture essential to AGSEM’s success and taking responsibility for the faults of the March assembly. Such an approach is critical to ensure a strong and united union. Perhaps more significantly, the Coordinating Committee will be asking members to resolve, “without admission with respect to the claims of any party, that the resolutions adopted during the assemblies of 30 March 2012 be ratified and considered valid from the date of 30 March 2012.” This motion is an implicit acknowledgement of the invalidity of the March assembly due to violations of members’ rights and its passage is essential to restore AGSEM’s operation to unquestionably legal status.

There are many other positive motions coming forward at AGSEM’s September assembly. There are proposals to modify the constitution to address many of the concerns raised by the March assembly, such as ensuring proper notice is given before meetings, clarifying the quorum of a meeting, clarifying financial practices, empowering members to utilize the petition process to impeach elected officers, and certifying that members indeed do have the right to propose and amend motions at GAs.

These challenging and time-consuming efforts to address concerns and empower members would not have been possible without the tireless work, under trying circumstances, of AGSEM’s leaders on the Coordinating and Constitution Committees, including but not limited to Daniel Simeone, Sunci Avlijas, Ross Stitt, Justin Marleau, Cora-Lee Conway, and Tariq Nizami, all of whom demonstrated real leadership over the past few months.

I left AGSEM’s March 30 GA distraught and deeply worried about the future of my union. I approach AGSEM’s September 27 GA with renewed confidence that my union and its leaders are strong and principled.

Jonathan Mooney is the President of the Post Graduate Students’ Society can be reached at jonathan.mooney@mail.mcgill.ca.

Have a response or something to say? The Commentary section of The Daily prints the opinions of students who submit pieces to us. We want to hear from a variety of voices on campus. To write a response to this article or to write an opinion piece of your own, email commentary@mcgilldaily.com.

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