Wesley Yang on Ideological Coups in the Decedent Universities By James Reed
Here is yet another story of intellectual suppression arising in the modern university, in Canada, but it could be anywhere. Wesley Yang, a Canadian professor of law, was subject to disciplinary proceedings merely for raising questions in class about native title and Canadian property law. The same thing could easily happen in Australia, which also has allowed traditional property law to be overthrown by Mabo and the following Native Title Act, which has given away the bulk of the country. The real issue is who is behind all of this, benefitting from it.
Today’s guest post is a Canadian law professor’s account of how declining to affirm the truth of a radical left-wing critique of law in advance of conveying the substance of existing law subjected him to university disciplinary process. The story does not derive its interest from baroque abuses of the sort that sometimes attend these processes. The professor retains his teaching post and was not sanctioned in any way. It instead reveals the quotidian process through which anodyne sounding and pro-forma declarations of commitments to “equity” and “anti-racism” become the pathway through which academic freedom comes to be annulled in practice as DEI administrators use their investigatory power to dictate what can be taught and how it can be taught. It shows how ideological succession works: install ideological enforcers within the administration whose role is to police “controversial” views (including the substance of existing law) out of circulation by labelling them harm and harassment, forcing professors to tiptoe around subjects deemed “sensitive” and inducing a much wider chilling effect. The process is the same in the US and Canada and is transforming a wide range of institutions even as we speak.
By Stéphane Sérafin
“The e-mail came in on an April afternoon, almost exactly a year ago. It was from my Vice-Dean, the equivalent of a department head at the Canadian law school where I’ve worked as a professor since 2019.
“Do you have some time towards the end of the day, so that we can chat? I must unfortunately inform you that I’ve received many comments/complaints/preoccupations with respect to your property law class in the last few days.”
I had concluded some months earlier that it was inevitable that something like this would happen. In fact, I knew immediately what the complaints were about. What I didn’t know then was whether it would still be possible to resist them, and the extent to which my university, and my law school, had already been transformed over the past few years.
As in other countries, property law in Canada is mostly a dry, technical subject. However, it is also customary for professors to include a module on aboriginal law, which ties in neatly with in-class discussions of property rights over land. It is in this module that we discuss the long-established view, still reflected in the case law, that the English Crown affirmed its sovereignty over the land that is now Canada in the 18th century. It is to this original affirmation that all other land ownership in Canada can be traced – save and except for the rights of indigenous groups, which under certain circumstances are understood to have survived, and to "encumber,” the Crown’s affirmation of its own rights over the land.
I had included a module examining this issue in my own property law class last year. Since the material raises significant controversy, and is closely connected with the contemporary practice of beginning meetings with a “land acknowledgement”, I knew with near certainty that the complaints pertained to the way I had taught it. In fact, a small group of students had already objected to the way in which I had done so, during the initial lecture. As I presented, they interjected to assert that these rules and doctrines, long recognized in Canadian law, were incapable of being justified. More than that, even, they were simply “racist” and “colonialist”, on account of the obvious historical facts that apparently mandated this conclusion without any further analysis.
Bottom of Form
My “mistake”, though I still don’t view it as such, was to push back on these narratives ever so slightly. To raise questions. As I told my students, in response to these objections, the arguments they were making rested on assumptions about the nature and role of law, assumptions generally associated with the critical legal studies movement and its progeny. Yes, the Crown’s affirmation of sovereignty was likely objectionable on many fronts, but the conclusion that it was inherently “racist” and “colonialist” was rooted in a particular interpretive lens, which was one of many that they could adopt towards the material. The conclusion therefore could not be taken for granted, without a further argument of some kind. In any case, my job was to help them understand the law as a prelude to critiquing it, or working to change it.
My assumptions about the content of the complaints would be vindicated in due course, when a formal human rights complaint was filed with the Dean a few months later. In addition to objecting to my remarks, the students in question would go on to complain that I had even allowed discussion to take place these “sensitive” issues. In particular, another student who had made an entirely correct observation – that indigenous groups frequently fought with each other prior to European contact – was singled out as having made “problematic statements”. And so the students who signed the complaint demanded that the law school act in accordance with its “commitments to the indigenous community”, by requiring that this module of the course be taught by an indigenous person, that it be preceded by a trigger warning, that faculty be made to take mandatory anti-colonialism training, and that I make a formal apology in addition to undertaking to “deepen” my knowledge of indigenous issues.
Of course, I had already decided that I would do nothing of the sort. Even before the Dean had received the formal complaint, when the Vice-Dean had initially contacted me, I had resolved to stand my ground. At that point, the Vice-Dean had contacted me as a courtesy and, I suspected, in the hope of getting me to admit to some kind of wrongdoing. But professors at our institution are unionized, and our collective agreement formally enshrines a right to academic freedom in the classroom, subject only to the requirement that we comply with official course descriptions. So instead of walking into a potential trap, I decided to forward the e-mail to a union representative.
The story I’ve just recounted is far from unique. To the contrary, stories of this sort have become quite common in Canadian universities, perhaps even more than at colleges and universities in the United States. But it is easy to forget that they were once rare occurrences. In the case of my own institution at least, it was virtually unknown prior to my joining the faculty in 2019. True, the law school had clearly leaned left politically. But in 2014, when I had graduated from the same institution, the signs of an impending capture by “wokeness,” “critical social justice,” or the “successor ideology”—what I’ll refer to below simply as “the ideology”—were minimal.
Things began to change at some point during those intervening years, between 2014 and 2019. It was then that the law school started to take steps, largely symbolic at first, that presaged the coming shift. The most important was undoubtedly its decision to commit to implementing the 28th “call to action” of the Truth and Reconciliation Commission, a government commission that had been tasked with addressing the disastrous consequences of the Indian Residential School system that the Canadian federal government had put in place in the 19th century. This was the call to action that mandated law schools in Canada to
require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
Back in 2014, the very idea that there might exist something called “Indigenous law” was on the cutting-edge of legal scholarship. Now, my law school had committed to not only formally recognizing it, but also to including it as part of a compulsory course of some sort. Virtually all other Canadian law schools had undertaken similar commitments, which slowly but surely lead to more concrete changes as well. Law schools like mine hired a slew of new indigenous faculty members and new administrative staff to support the initiative, including an “Indigenous Learner Advocate” whose role was ostensibly to help indigenous students (or “learners”, a term that appears to be favoured in education faculties and certain activist circles) acclimate to the law school environment.
Other, less widely publicized moves in the same general direction were also being made around the same time. Following the recommendations of a 2016 report, the Law Society of Ontario, the regulatory body overseeing the legal profession in Canada’s most populous province, mandated that all practising lawyers abide by a “statement of principles” outlining their commitment to “equity, diversity and inclusion.” My law school followed by adopting a similar policy in respect of its students. It didn’t seem to matter to law school administrators that a significant portion of the legal profession had objected to this requirement. While no exact numbers were ever published, a slate of candidates hoping to be elected to the Law Society’s governing body had explicitly promised to repeal it. A sufficient number were elected for the repeal to be carried, by a vote of 28-20, at an assembly of the governing body that occurred in 2019.
Like my law school’s commitment to call to action 28, I suspect that many at the law school had accepted the statement of principles precisely on the assumption that it was to remain largely symbolic. Such at least was my view of these initiatives, as late as 2019. I held no objection to the basic premise of “equity, diversity and inclusion,” which are of course vague terms amenable to multiple, competing interpretations. Nor was I opposed to the idea of adding a new mandatory class, which I was told would focus on teaching indigenous legal traditions. In fact, I had spent two years working for First Nations communities prior to joining the law school, so I had some appreciation for the value that these traditions might have as part of the first-year curriculum, whether they were properly characterized as “law” or not. The intentions were good, so to the extent that there were excesses, I was content to simply roll my eyes in private and to focus instead on tending to my metaphorical garden.
Then came the summer of 2020. Although I teach at a Canadian university, the complete penetration of American media in Anglo-Canadian culture meant that the George Floyd story was totalizing. It did not matter that Floyd had been killed by a police officer in another country, with a different history and a different set of laws governing police liability. Per the proponents of the ideology, Canada’s own systemic racism had also been exposed. Which justified mass protests in the middle of a pandemic. And necessitated that our institutions of higher learning be held to the commitments they’d been undertaking over the past few years, with the newly hired administrators often being called in to put these same commitments into practice.
Everything became more explicit. Suddenly, the Dean of the law school was sending schoolwide e-mails addressing the incident and offering support to students in need. Student groups began to mobilize, and to make demands. Many demands. One group purporting to represent black law students demanded among other things that faculty be subjected to mandatory, regular anti-bias training. And of course, the group also demanded the implementation of an anonymous complaint process, directed at both faculty and other students.
In October 2020, an adjunct professor at the Faculty of Arts used the n-word (the actual word, not the euphemism) in one of her lectures. Never mind that she used it descriptively, while lecturing on the subject of language reclamation by marginalized groups. A single student complained. The professor was then called into a meeting with her Dean, much like the one my Vice-Dean had wanted to have with me, and she was suspended from her teaching duties on the spot.
This time, a some of the professors mobilized. A group made up of members from various faculties wrote a letter condemning the way the adjunct professor had been treated. The union issued a similar statement, condemning what it suggested was an attack on academic freedom. But then the abuse started. A group calling itself the “BIPOC Caucus,” issued a reply in which it suggested that the letter by the other professors “reveals the depth of anti-Black racism in this country.” A pile-on ensued on social media.
The union walked back its initial e-mail and apologized for sending it. Another letter in support of the offending professor, one prepared by colleagues at my law school, and signed by legal scholars from other universities, was pulled before it was even published. A professor who had circulated this letter was forced to resign his position as president of the Canadian Association of Law Teachers. The Association, now under new leadership, promptly apologized for circulating the letter in question.
By the time the Vice-Dean’s e-mail arrived in my inbox, my law school, like the broader university in which it is housed, had been paying lip service to the ideology for a number of years already. My university, and my law school specifically, had professed its commitment to its tenets, and hired administrators to implement its symbolic gestures. The ideology’s adherents had then called in those promises. The next phase of the project was to attempt to reconcile these new commitments with the traditional purpose of an institution dedicated to the pursuit of truth and learning—a purpose still found in my collective agreement, which the ideology’s stringent demands of conformity obviously contradicts.
This phase was still in progress when in 2021 the Vice-Dean initially e-mailed to advise me of the complaints being made by what turned out to be a small group of students. So, when I pressured him to provide a written outline of the complaints, he repeatedly dodged the question. And when I forwarded his e-mail to a union representative and explicitly asserted my right to academic freedom under the collective agreement, he backed off immediately.
It was not yet complete when students finally filed a proper human rights complaint with the Dean, through the aforementioned Indigenous Learner Advocate, a few months later. And that is probably the only reason I was able to escape the complaint entirely, because it meant that I could still stand my ground by affirming my right to academic freedom, and there was little that the Dean or anyone else could do about it—formally, at least.
But that’s all in the past, as I’m usually reminded when I dare to speak up against the latest initiative during a faculty meeting. What about the future? What will the reconciliation of ideology and university ultimately look like? I wish I could say that it was still possible to keep my head down, in the hopes of avoiding further controversy. To be sure, I’ve tried to do so as much as possible, as I did when I cut all reference to indigenous issues from my property law syllabus this year. A tragedy, since the material is both challenging and important—especially if we really are intent on addressing historical injustices faced by indigenous peoples. Necessary, however, given that it’s become effectively impossible to touch this stuff unless you’re willing to toe the ideological line.
The trouble is that even these solutions are unlikely to carry much weight moving forward, as the reconciliation of ideology and university increasingly works itself out in favour of the former. If I still harboured doubts about this, they were dashed earlier this month when the committee that had been tasked with exploring the creation of a new mandatory indigenous law course finally came back with its recommendations. That’s because those recommendations were far worse than even I had expected them to be.
First, the new course is not to be focused on indigenous legal traditions or anything of the sort. Instead, it is to be a full course aimed squarely at “anti-racism” and “decolonization.” In short, more of an anti-tradition class, aimed at “dismantling” the traditional content of the law school curriculum, than anything else.
Second, and most disturbingly, the course is not actually to be a course—or rather, is not expected to be confined to one. The expectation instead is that, in addition to a new formal first-year course dedicated to anti-racism and decolonization, a portion of every other first-year course will now be explicitly set aside for the purpose of teaching similar ideas.
These recommendations have now been approved as a pilot project, which I can only assume will be made into a permanent fixture of my law school’s curriculum once the trial is complete. What their implementation means, effectively, is that a professor in my position, having received a human rights complaint because I dared to teach certain material in a way that did not conform to the dictates of the ideology, will now be expected to not only teach this material, but to do so in precisely the way that the ideology demands. Side-stepping the controversial material altogether, as I did this year, will no longer be an option.
So, this is how it appears that the law school ultimately resolves the contradiction. Academic freedom, to the extent it means the freedom to choose what I, as a subject matter expert, feel appropriate to teach my students, was always constrained by the requirement that I actually satisfy the description of the course I am teaching. Now it seems that the description of these courses will be changed in at least some way, to formalize what had until now been an informal practice backed up by social pressure and the threat of human rights complaints.
Having made the decision to stand my ground against these encroachments, there is only one option left for me under the circumstances. Despite the fact that my subject matter expertise covers a majority of the first-year curriculum, despite the fact that I absolutely intended to teach at least one first-year course when I was first hired on faculty, I have asked to be relieved of any obligation to do so. And that request has been granted: moving forward, I will no longer be teaching first-year courses at all.
At the same time, my decision to stand my ground against these encroachments also incentivizes me to be as public as possible about the current situation. Given what’s been going on inside the law school, and within the broader university, I have little faith that a proper conception of academic freedom will prevail from within, and every expectation that my objections will trigger further reprisals of some kind. If I am to avoid the worst of those reprisals, and if the underlying situation is to be ameliorated, then it will only happen because of pressure coming from the outside, from forces not beholden to the ideology that has now entrenched itself within the academic bureaucracy. And so it is primarily to these forces that I am now reaching out, and to which I will undoubtedly continue to reach out in the foreseeable future.”