BY HANK REICHMAN

The question in my title is central to a report released this week by the Canadian Association of University Teachers (CAUT).  Report on the Implications for Academic Freedom in the Case of Andrew Potter at McGill University, prepared by professor Mark Gabbert of the University of Manitoba, has important implications for U.S. scholars.  “The central academic freedom issue in this case arose from the McGill administration’s claim that academic administrators do not enjoy the same protections as academics without administrative positions,” said CAUT executive director David Robinson. “It is well understood that universities have as their fundamental commitment the search for knowledge and understanding. This requires an environment free from institutional censorship against any academic.”

The full text of the 23-page report is available on CAUT’s website here, but it is worth summarizing and excerpting (without footnotes) for those reluctant to read the entire report.  The report is comprised of five sections.  The first part provides important background:

On March 20, 2017, Professor Andrew Potter, Director of the McGill Institute for the Study of Canada (MISC), published an article in Maclean’s magazine entitled “How a snowstorm exposed Quebec’s real problem: social malaise.” Reflecting on the March 15, 2017 blizzard that left hundreds of motorists marooned and led to the deaths of two by freezing, Professor Potter concluded that the mishandling of this event reflected a deeper deficit of Quebec’s “social capital.” Evidence for this he claimed to find in, among other things, data indicating levels of volunteerism, warm friendships, and mutual trust among Quebecers that were considerably lower than the Canadian average, along with the practice of restaurants encouraging cash payments as ways to avoid tax and a widespread practice of paying under the table. Quebec was, Professor Potter concluded, “an almost pathologically alienated and low-trust society, deficient in many of the most basic forms of social capital that other Canadians take for granted.”

Public reaction to Professor Potter’s article was quick to appear, and by the morning of March 21, there was a flurry of negative responses to the piece, with Professor Potter’s detractors eventually accusing him of everything from professional incompetence to Quebec bashing, racism, and hate speech. The McGill University administration was soon coping with a spate of denunciations which came in both e-mails to the University and in the press. Professor Potter’s piece had generated an emerging public relations problem for McGill. The upshot was that three days after the appearance of his Maclean’s piece and a mere eight months after leaving his position as editor of the Ottawa Citizen for appointment to the McGill post, Professor Potter had resigned as Director of MISC, though he retained the remaining years of his three year term appointment as Associate Professor.

The Potter affair inevitably raised serious academic freedom questions. Here was a case where a professor’s published work had generated public outrage which in turn led to the writer’s resignation from the directorship of a research institute. Yet, on the face of it, Professor Potter had done nothing more than exercise his right to extramural public commentary, a right that was clearly protected by the principles of academic freedom as both commonly accepted and articulated in CAUT’s policies on academic freedom. Moreover, McGill’s own Statement of Academic Freedom required the University to protect its faculty’s academic freedom against “infringement and undue external influence;” yet as the controversy developed, it became increasingly clear that the McGill administration had no intention of protecting Professor Potter’s academic freedom to publish or of defending him against public attacks. Instead, in the interest of calming the uproar and protecting McGill and MISC from public hostility, the University took the position that the protections of academic freedom did not extend to academic administrators. Over the course of several weeks, the University developed and promoted a theory of the conditional academic freedom of academic administrators which both purported to justify Professor Potter’s resignation and put other administrators on notice that their academic freedom was subject to limits. . . .

A nine-page detailed “Chronology” of the case follows.  The initial response of the McGill administration to the furor over Potter’s article came in a tweet in which the University declared that “[t]he views expressed by @JAndrewPotter in the @MacleansMag article do not represent those of #McGill.”  Shortly thereafter, Potter posted an apology on Facebook which was emailed to the press. Later that day Potter wrote the Board of Trustees of MISC apologizing again for the piece, which he said was “simply not the sort of piece I should be writing in my capacity as Director….”  Although there was nothing in that message that suggested Potter planned to resign his role in MISC, he in fact did so within 24 hours, after a private meeting with McGill University Principal [equivalent to a president or chancellor] Suzanne Fortier, the details of which remain obscure.  Fortier, however, was quick to provide assurance that Potter would retain his faculty position.

According to the Chronology, McGill administrators were aware from almost the start of the controversy that there were academic freedom implications.  These were reinforced at a meeting of the university Senate, where Fortier was compelled to clarify her position.  At that point the university’s stance was that Potter “had no claim to academic freedom protections because he had failed to indicate that the views presented in the Maclean’s piece were his own and not those of MISC.”

This didn’t quite cut it with the editors of the Toronto Globe and Mail, who wrote:

Let’s be perfectly clear: In a liberal democracy, the writing of an ill-considered magazine column is a trifling concern compared to the possible sanctioning of a university professor for writing the column in question.

Unless McGill offers a viable explanation, or Mr. Potter himself clears the air, the logical conclusion is uncomfortable: McGill professors can write whatever they want, as long as their views are palatable to Quebec’s establishment. There can be no harsher condemnation of a university. Or of a society, for that
matter.

That view was soon echoed elsewhere   In an interview Fortier attempted to clarify her views.  In that interview she argued that had Potter

“written this article as Andrew Potter [period], nothing would have happened. He wrote it as director of the McGill Institute for the Study of Canada.” She claimed that, as Director, Professor Potter was obliged to protect the “credibility” of MISC which meant avoiding taking sides and working to preserve the Institute as a centre where an interface between the academic and political world ould be fostered. Given his article, it was, she claimed, “anybody’s judgement” whether “politicians would be happy to come to an event.” She claimed that: “We have an institute that is there to promote discussions between people who come to the table with very different perspectives….It is not a role to provoke, but to promote good discussion.” In her view, it was perfectly acceptable for ordinary professors to publish work that triggers heated public disputes, but administrators did not enjoy the same freedom. . . .

The Globe and Mail interview made abundantly clear that the McGill administration was working with a version of academic freedom that saw the academic freedom of academic administrators as conditional upon the exercise of “prudence” and the avoidance of controversy consistent with the purposes of whatever unit for which they were responsible. The full meaning of Andrew Potter’s supposed earlier realization that he had failed to act in ways consistent with the “mission” of MISC now became apparent.

This position raised significant concerns among those directors of various other McGill institutes and centers, ten of whom wrote to request further clarification:

The directors were concerned, they said, not about the Potter case itself but about the possibility that “the reasons and justifications that have been offered for the University’s response may undermine academic freedom and may discourage faculty members from taking positions of responsibility, contributing to University service, and entering into public debate.” The writers appealed to the “CAUT Policy Statement on Academic Freedom” that affirmed both faculty rights to protection from institutional and state interference in their work and their civil rights to extramural speech. Notwithstanding their status as administrators, they considered themselves to be faculty members entitled to undiminished protections of academic freedom in all of their functions.

In response, Fortier reaffirmed the centrality of academic freedom at McGill, but noted that “Although University officers may not interfere with the academic freedom of academic administrators and, moreover, have a duty to respect and protect it, they also have an obligation to ensure that administrative responsibilities are discharged effectively to the highest institutional standards, in a manner that pursues the academic mission and responsibilities of the unit that they are charged with overseeing.”  She added,

Tensions or conflicts between the exercise of academic freedom by academic administrators and their obligation to execute their administrative responsibilities effectively are rare. So are tensions or conflicts between the University’s duty to protect the academic freedom of academic administrators and its
obligation to ensure effective execution of administrative responsibilities. None of these tensions or conflicts can be resolved through bright-line rules. Moreover, their resolution also depends on the nature, level, and category of the administrative responsibilities in question. Ultimately, it is a matter of judgment on the part of both academic administrators and senior university officers, acting carefully and with due regard for institutional neutrality and free inquiry.

“What was clear from all this,” Gabbert’s report concludes, “was Principal Fortier’s position that cases could arise where a concern for administrative effectiveness could trump the University’s commitment to academic freedom.”

In the report’s third section, “Academic Freedom Issues,” this position is labeled the Fortier Doctrine.  But before directly addressing that doctrine the report dismisses justifications offered by many, including Potter himself, for Potter’s removal based on alleged academic incompetence.  “From one perspective,” the report argues,

the claim that Professor Potter’s article lost academic freedom protection because it was of poor quality or mere journalism rather than academic speech is moot. The McGill administration generally maintained throughout that, had it been the speech of a faculty member without administrative duties, Potter’s piece would have been fully protected. What was at issue was, therefore, not the quality of the piece but the status of its author. Otherwise, the administration saw the article as clearly constituting protected academic speech. This view of the content of the article is consistent with the long standing principle that academic freedom protects not just teaching, research, and intramural service but extends to the right to make extramural comments on matters of public concern without fear of retaliation by the employer. This principle does not distinguish between journalistic or non-journalistic discourse, between speech that is provocative and that which is not contentious—nor, it must be emphasized, between the utterances of those with and without administrative duties. . . .

If an astronomer were to intervene in a public debate to promote astrology as a science, then questions could be raised about that scientist’s professional competence, but Professor Potter did not commit such a breach of the norms of academic speech. Professor Potter’s piece was not meant for a peer reviewed journal; and many critics saw it as at best not up to the highest academic standard. But Professor Potter was exercising his extramural academic freedom rights and operating within the acceptable boundaries of public discussion. His column did not indicate unfitness worthy of dismissal, nor did the McGill administration ever claim otherwise, at least with respect to his faculty position. That the piece was controversial and published as opinion in a popular magazine is not grounds for depriving Professor Potter of academic freedom protection for his extramural writing.

A second issue addressed in the report is that raised by the initial administrative tweet, which sought to distance the university from Potter’s views.  “The concerns arising here were the basis of questions put to Principal Fortier during the McGill Senate meeting of April 22, 2017 when Senators questioned the assumption that the University could ‘take a position on statements made by members of its community’ and noted the negative impact on academic freedom that flowed from what they called ‘selective disavowal of contentious opinions.’” In that meeting Fortier acknowledged that the initial response had created some uncertainty about McGill’s commitment to academic freedom, but stressed that “had the Maclean’s piece been attributed to Professor Potter with no reference to his position as Director at MISC, the University would not have sent the problematic tweet.”

Gabbert finds this at best inadequate:

Principal Fortier’s tweet failed to defend either the University’s autonomy or Professor Potter’s academic freedom. Principal Fortier could have used the University’s initial statement as an opportunity to take a principled position on the University’s autonomy, academic freedom and freedom of expression generally. She could have reminded the McGill community and the broader public that, as she later admitted, the default assumption is that when individual academics speak publicly they are not speaking for the University. She could have stated that the views of McGill’s faculty members are those of the faculty members themselves, which is true of everything from their lectures to scholarly publications and magazine articles to public speeches. She could have affirmed that, consequently, the University is not responsible for the views of its faculty, who in the course of their work are assumed to be exercising their academic freedom free from institutional censorship or any obligation to conform to prescribed views. She could have made absolutely clear that it is not the University’s role either to endorse or to disavow the work of its faculty. Rather, the University’s role was to create an institutional space in which such work could be freely carried out. She could have made it clear that Andrew Potter was, therefore, entitled freely to express his opinion and others were entitled to criticize it, and it was not the University’s place to interfere in that process or appropriate for others to press the University to do so.

Such a statement would have affirmed critically important principles of academic life instead of leaving the unfortunate impression that the University’s official view set some sort of standard against which the statements of Professor Potter or others would be judged acceptable. It would also have represented an attempt to enlighten public opinion about those unique qualities of university life that Principal Fortier worried were not clear to the community at large; and it would have reassured McGill faculty who were alive to the adverse implications for academic freedom of the tweet that was actually sent. Instead, McGill’s tweet left the impression that, in this particular case, the University was not supporting the views expressed, while in others it might give such support. The implication was that the University could be held to have official opinions on any which question addressed by a member of the academic staff.

The report then turns to the Fortier Doctrine itself:

The central academic freedom issue in this case arises from the McGill administration’s claim that academic administrators do not enjoy the same protections for their academic freedom as academics without administrative positions. . . .

CAUT has addressed this issue in a policy statement that clearly rejects any distinction between the protections for academic freedom enjoyed by ordinary faculty members and that of academic administrators. It describes academic freedom as “indivisible and undiminished in all academic and public settings, whether or not these settings are aligned primarily with teaching, research, administration, community service, institutional policy, or public policy.” Given its essential contribution to “the common good of society,” academic freedom may not be inhibited on grounds of such lesser principles as “management rights, commitment to a team, or speaking with one voice.” Though implicitly accepting that institutional decisions properly arrived at must be carried out by administrators and affected academic staff, CAUT policy nevertheless affirms the ongoing right of all academics, whether administrators or regular faculty, whether excluded from the bargaining unit or not, to continue to criticize a given policy or practice even while being obliged to implement it. On this view, there is no valid distinction to be made between the academic freedom rights of academic administrators and those of all other members of the faculty. Consequently, academics who serve as administrators must be able to rely on the same protections in their academic activities as administrators that they would enjoy were they in non-administrative academic positions. And that protection must be seen to cover all of their activities, both intramural and extramural, so that they are not treated any differently as administrators with respect to academic freedom than they would be if they were academic staff without administrative duties.

The fundamental point here is that the university is not a workplace like any other, where managerial conformity or corporate reputation must be maintained by gag rules that assure administrative unity of practice or discourse. Instead, the university is understood as a space where gag rules themselves must be prohibited in the interest of protecting the institution’s fundamental commitment to the search for “knowledge and understanding” which requires an environment where there is no place for “institutional censorship.”

Limiting the expression of any group of academics creates a direct restriction for some members of the university community and a chilling effect for others; hence such restrictions are contrary to the very purpose of the institution. . . .

Principal Fortier’s view of the limited academic freedom of academic administrators is in fundamental conflict with the CAUT position. The Fortier doctrine stipulates that academic administrators may be restricted in their public utterances to those that are not provocative, that do not have a negative impact on the McGill community, that are not inconsistent with the mission of the unit that they lead, that do not suggest or trigger a failure of effective administration, that do not lead to a loss of credibility for the administrator or the unit, and that cannot be faulted as a breach of the McGill mission statement’s principle of “responsibility.” In her view, academic administrators who fall short of these standards should have the good sense to resign their administrative positions and return to their primary roles as academics without administrative duties. Failing that and where, in the judgement of senior administrators, a breach of the doctrine had occurred as a result of expression which would ordinarily be protected by the principles of academic freedom, the administrator in question could be removed. Subject to such conditions, it followed that academic administrators could not count on exercising their extramural rights in the usual way; but of course even their scholarly publications and teaching, not to mention critical comments on university policy, might possibly have the sort of “impact” that could result in their dismissal as administrators. In any given case, potentially damaging public controversy might itself be taken as sufficient evidence to support a charge of administrative failure. . . .

In an attempt to mitigate the negative impact on academic freedom of her position, Principal Fortier took care to assert that the limits placed on the academic freedom of administrators as administrators would not impact on the administrators’ exercise of academic freedom as rank and file professors. Indeed, the claim was made that had Professor Potter not published under the byline of Director of MISC, there would have been no reason for him to resign. . . .

But given the fundamental propositions of the Fortier doctrine, it is simply not credible to claim that a mere change of byline would have saved Andrew Potter as Director of MISC. One need only consider that it would have taken no time at all for those who would have been outraged by Associate Professor Potter’s article to discover that he was not just Associate Professor Andrew Potter but also Director of the McGill Institute for the Study of Canada. It is not reasonable to suppose that because of the detail of a byline, Principal Fortier would have abandoned her preoccupation with institutional credibility, the MISC mission statement, the adverse impact of negative publicity on McGill and MISC, and the principle of “responsibility” that was her talisman from the McGill mission statement.56 Nor is it reasonable to suppose that she would have remained silent in the face of the resulting hue and cry or that she would have publicly defended Professor Potter’s academic freedom in the face of public outrage. Such a public outcry would have engaged all the foundational concerns of the Fortier doctrine as described here. It strains credulity to believe that the same administration that abandoned Professor Potter as Director would have both defended him as having written as Professor Potter and permitted him to remain as Director of MISC. Given the McGill administration’s position on the academic freedom of academic administrators there would be no salvation through byline. To suggest otherwise is to obscure the real meaning of the Fortier doctrine.

Looked at from this perspective, the chilling effect of the Fortier doctrine on the academic work of academic administrators becomes quite clear. Administrators will certainly be constrained in their personal academic work if they know that, should their writings or other forms of expression cause a hostile public outcry, they could be judged to have created a “negative impact” and to have failed to uphold the mission of the unit they administer. Further, as administrators they may feel compelled to refrain from acting even where their best professional judgement is that highly controversial views need to be expressed and addressed. This chilling effect will have an impact on their personal scholarly work, their public activity, and their actions as administrators. Seen in this light, the concerns of those McGill directors of institutes who wrote to the Principal on April 4, 2017 are more than justified: institute directors at McGill cannot assume that the University will hold them blameless if they publish something that the public finds provocative or outrageous and that might raise questions about “credibility,” never mind how it is signed or the venue in which it is published or spoken.

The Fortier doctrine introduces into the academic community at McGill a distinction between members who have full academic freedom and those who do not. Those who are administrators or, practically speaking, who have ambitions to become administrators are expected to comport themselves in ways that persuade senior administrators that they are not given to provocative positions that may lead to pitched battles with public consequences. Those interested in administration must presumably conform to the Fortier principles in both their academic and administrative work if they expect ever to be appointed to such positions. Once appointed, the conformity to prescribed doctrine must continue, both in their acts as administrators and, for all practical purposes, in their scholarly work as well. If the Potter case is any indication, no future Director of MISC will dare to write a controversial piece no matter how they choose to sign it.

The Fortier doctrine has a profoundly negative impact on the academic freedom of administrators, on those currently outside the current body of administrators who might be interested in making contributions to administrative work, and by implication on faculty members who participate in the work of units bound by such a doctrine. . . .  The doctrine makes it highly likely that those who become administrators will be conformist bureaucrats with little taste or capacity for the critical commentary and engagement necessary for academic life. In such an environment, the academic freedom of all academic staff is undercut, with those holding critical perspectives that run against the grain of conventional opinion or generate controversy under particular threat. . . .

Section four of the report summarizes its findings:

1. Neither Andrew Potter nor some members of the McGill administration properly understood that academic freedom protects the right of academics to extramural speech.

2. McGill’s tweet of March 21, 2017 and subsequent behaviour violated the McGill Statement of Academic Freedom’s requirement that the University’s autonomy and the academic freedom of its faculty be protected against “undue external influence,” generated uncertainties about the University’s willingness to defend academic freedom, and undercut the standard assumption that the views of individual academics were not to be taken as those of the University.

3. There is no conclusive evidence that the McGill administration put pressure on Professor Potter to resign as Director of MISC, and this report makes no finding, implied or otherwise, on that issue. What is critically important, however, is that the application of the Fortier doctrine as the Principal expressed it in her various public statements after Professor Potter’s resignation as Director of MISC, could certainly serve to justify such pressure as a legitimate prerogative of senior administrators.

4. The Fortier doctrine of the conditional nature of the academic freedom of academic administrators is contrary to the academic freedom rights of the University’s academic administrators and of all members of the McGill faculty. The doctrine constitutes a violation of the CAUT Policy Statement on the Academic Freedom of Academic Administrators and threatens the protections embodied in the CAUT Policy Statement on Academic Freedom as they apply to all faculty members at McGill.

The report concludes with the following recommendation:

It is evident that the Potter affair has created threats to academic freedom at McGill that go far beyond the particulars of the Potter case itself. What has emerged from it is the Fortier doctrine of the conditional academic freedom of academic administrators. This doctrine has imposed an institutional standard for the comportment of academic administrators that trumps academic freedom. From this flows manifest negative consequences for the entire McGill community as well as very negative implications for academic freedom in Canada as a whole. Therefore, CAUT should press McGill to adopt a clearly articulated policy that gives full protection to the academic freedom of academic administrators as outlined in the relevant CAUT policies. This language should be included in a suitably revised statement of academic freedom which would replace the current one as posted on the University website. The new language should also be included in the faculty handbook with the McGill Association of University Teachers. Should McGill fail to establish an acceptable policy, CAUT Council should impose censure.