The MacDonald Report: What Should We Expect From a Former Chief Justice and Law Students? Part 3

Preamble

When students at the Lincoln Alexander School of Law (“LASL” or “the school”) sent a controversial letter (“the letter” or “the October 20th letter”) to the LASL administration, a letter which became public, about the Israel-Hamas conflict, Metropolitan Toronto University (“MTU” or “the University”) filed a complaint under TMU Senate Policy 61, the Student Code of Non-Academic Conduct (“the Code”). The University appointed the former Chief Justice of Nova Scotia J. Michael MacDonald as the External Reviewer of the complaint. MacDonald released his Report (“the Report”) on May 31, 2024.

This is the third post of a three-part series, composed of the following posts exploring the MacDonald Report:

Part 1 (July 2, 2024): Introduction and Background, with particular reference to the students’ letter and the Code.

Part 2 (July 9, 2024): Discussion of the review process and Report’s framework.

Part 3 (July 16, 2024): Consideration of MacDonald’s analysis and conclusions, including scrutiny of the Report’s salient elements (interviews with students, whether the letter was antisemitic, freedom of speech and application of the Code) and my own Conclusion to the series.

THE MacDONALD REPORT: ANALYSIS AND CONCLUSIONS

Introduction

MacDonald’s analysis and conclusion rely heavily on his assessment of the students he interviewed. Recall that these are (for the most part) students who actually signed the letter (more accurately the linked petition) with their real names; and for the most part, they are students who in the majority (not all of them) distanced themselves from the letter in different ways. He did not have an opportunity to interview students who signed the letter but did so anonymously. And most importantly, he was unable to interview the student(s) (assuming it was a student or students, as he did) who drafted the letter. Given the importance MacDonald placed on them, I discuss his comments on the student interviews in some detail.

There is no question that MacDonald was highly affected by his interactions with the students. The interviews resulted in his gaining a great deal of sympathy for them, making it difficult, I should suggest, for him to hold them to account. Even more significantly, perhaps, it would be difficult to find students who openly signed the letter liable for breaching the Code and subject to sanctions, while those who hid behind anonymity, especially the actual drafters, escaped liability or sanctions.

In its response to the letter, the LASL administration described it as “antisemitic” (perhaps intending to water the term or the impact down by treating the letter as containing “sentiments of Antisemitism”). MacDonald therefore had to address whether it was antisemitic, since that would be a breach of the Code.

His conclusions also are a result of how he interpreted the scope given to freedom of expression as defined and narrowly limited in the TMU’s documents, as well as the government’s directive to universities about free speech. I have discussed the freedom of speech issue in Part 2 of this series but return to it below as specifically relevant to MacDonald’s conclusion that the students did not breach the Code.

Salient Elements of the Report

(The review team also spoke to or received submissions from students who had not signed the letter and other members of the LASL/TMU communities, as well, as indicated previously, external persons and organizations, both Jewish and Arab and Muslim, including Deborah Lyons, Canada’s Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism, and Amira Elghawaby, Special Representative on Combatting Islamophobia; and Harry LaForme and Mark Sandler). (Report, pp.111-133) However, because these people were not respondents, MacDonald did not take their comments into account in deciding whether the students had breached the Code and therefore I am not considering them here (Report, p.111).

One stakeholder MacDonald did not treat in any detail was the LASL administration. Despite the administration’s being blamed by some students for the furor following the public “release” of the letter (how it became public is not clear), as well as being criticized by MacDonald himself, he did not include any comments from the administration about why they sent the October 11th or 23rd email/statements.

I discuss the following parts of the Report, chosen because they are integral to MacDonald’s conclusions: the interviews with students who signed the letter; his treatment of the freedom of speech provisions in TMU’s documents; and his interpretation of the Student Non-Academic Conduct Code (influenced by his interpretation of the free speech provisions).

Interviews with Students Who Signed with Their Name

The students fell into three groups: those who read the letter, signed it and would sign it again; those who did not read the letter or read it carefully and so did not appreciate what they were signing; those who wish they had not signed this letter but stand with the Palestinians (Report, p.77).

The students discussed their life experiences: some had been born in the Middle East or South Asia or were first generation Canadians from these areas; some were Muslims and referred to the Islamophobia they believed permeated Canadian society; some had lived in war zones or suffered other trauma; for some, the suffering of their families made them feel guilt for everything they had in Canada and so they felt a need to address what they understood as injustice; in the case of others, their undergraduate education had exposed them to issues of social justice or their work experience was in similar areas; yet others had been involved in pro-Palestinian protests before or had studied the Israel-Palestine situation and considered themselves “well-versed” in the subject. (Report, pp.78-79) MacDonald concluded this portion of the report with the following observation:

A common theme that emerged from these discussions was the students’ ability to draw parallels from their own backgrounds, and to see themselves reflected in the Palestinian experience. They commonly felt it a privilege, or even a responsibility, to speak up against the violence they have witnessed against the Palestinian people. (Report, p.79)

Some students evidently believed that the phrase “all forms of Palestinian resistance and efforts toward liberation” did not include the kind of actions Hamas undertook on October 7th because these were described in the letter as “war crimes”. And they thought that the phrase was meant to respond to Israel’s actions after October 7th (that is, Israel’s immediate response to the Hamas attack, given the timing of the letter) (Report, p.87).
Almost all the students told the review team that they wanted to express solidarity with Palestinians and some related their own experience with violence with that of the Palestinians. Students believed that it was the right thing to do, to take a stand against injustice. Some thought the main point was to support a ceasefire. One student would have preferred more “context” around the Hamas attacks but signed anyway. (Report, p.82)
It seems “many” students were in first year and looking to establish connections with other students and therefore when asked to sign the letter saw this as a means to accomplish that, without thinking too much about consequences (Report, p.85).

Many students explained that the letter reflected what they had been learning at LASL about colonialism and Indigenous issues and were seeking to view the situation in Gaza through those lenses (Report, p.90). For example, “Others noted that the phrase ‘so-called Canada’ is part of the discourse at LASL, and ‘so-called Israel’ was seen as an extension of this rhetoric. One student questioned: ‘why are we only allowed to talk about settler-colonialism in the Canadian context and not what’s happening in Israel?’” (Report, p.91)

“Multiple students” explained they had chosen LASL because it presented itself as committed to equality, a different kind of legal education with the goal of producing a different kind of lawyer; however, they felt let down by the administration’s response to the letter, which they saw as a denial of the school’s claims about itself and the reasons they had chosen the school (Report, p.79-81).

For some students, the October 20th letter was “a continuation of ongoing conversations with LASL administration”, meaning the October 11th LASL email, social media posts by one administrator in support of Israel and an October 18th meeting of some students with the administration.

Some of the students drafted an extensive letter of apology to other members of LASL who had not been involved in the letter, but in the end decided not to release it as not being helpful. The Abolitionist Organizing Collective (AOC), the group responsible for sending the October 20th letter, with its linked petition, to the administration, also wrote an apology to students who had signed the letter for not being clear that it was to be distributed (it had been described as an “open letter”) and for not explaining the ramifications of signing. The AOC did not, however, retract or seek to explain any of the contents. It seems this was not widely distributed and most students did not see it. (Report, pp.92-96)

(The review team had not been able to contact the AOC. Only one member appears to have signed the letter – or only one person identified themselves that way.)

MacDonald concluded from his conversations with the students that “[a]ll told, it would be inaccurate to find, as some stakeholders suggested, that these students were “indoctrinated” or directly pressured into signing the letter” (Report, p.82). In other words, they made a choice. However, it appears many students did not read the letter in full or carefully before signing it and in retrospect, having read it, thought it would have been better had it been less aggressive (Report, pp.86-87).

MacDonald found that “these students have since reflected on the importance of careful language, and of the weight their signature holds as current law students and future members of the legal profession” (Report, p.87). Given his desire to take on a bit of a mentorship role to improve the students’ “advocacy” writing skills, this must have further impressed MacDonald and contributed to his decision not to find them accountable under the Code.

He was also careful to outline the consequences the students whose names were known had faced, both at LASL and in the legal and non-legal communities, including publication of their names, lost job-related opportunities and threats, for example, as well as loss of faith in the legal profession and in LASL (being “’thrown under the bus’” by the school) and sense of loss of the closeness of the law school community. The external review had its own negative impact, given the time students had to take to prepare their submissions and living with the fear they might be expelled even as they continued classes and prepared for exams (Report, pp.99-109).

MacDonald paints a picture of students so eager to stand for Palestine and to do what they believed to be right, that they signed the letter without doing the basic requirement of reading it or reading it fully. When they became aware of its contents, and following the blowback many of them suffered, some at least had second thoughts or would have changed specific aspects. Their post-hoc reflections appear to have had a greater impact on MacDonald than did their original support for the letter, ultimately diminishing any culpability they might otherwise have had.

MacDonald’s Understanding of Antisemitism

Was the letter of October 20th antisemitic? The short answer to this those drafting it, had he been able to find them) did not breach the Code.

As explained in Part 1 of this series, the Code is to be read with other policies. It and the other policies must “work in coordination to … confront all barriers to equity, diversity, and inclusion”, including “anti-Semitism”, “Islamophobia” and “colonialism”. On this reading, antisemitism therefore is a contravention of the community standards the Code is meant to reflect.

Most of the students were upset that the administration labelled the letter antisemitic; they did not consider themselves antisemitic and the letter did not explicitly condemn Jews, but the actions of the Israeli government (Report, pp.97-98). They – or some of them, at least — did understand, after the fact, that it was hurtful to Jewish readers. Some came to appreciate that Jewish readers read the letter as informed by their own or historical experiences (just as students had signed the letter because of their own experiences) (Report, p.88).

Since the LASL administration described the letter in its own statement of October 23rd as containing “sentiments of Antisemitism”, MacDonald had to come to grips with this contentious term. After considering several definitions of antisemitism, he adopted that which TMU’s Office of the Vice-President, Equity and Community Inclusion employs:

“Antisemitism is the manifestation and expression of discrimination against Jewish people. Antisemitism can take many forms, ranging from individual acts of discrimination, spreading rumours, stereotypes and misconceptions, physical violence, vandalism and hatred, to more organized and systematic efforts to destroy entire communities and genocide.” (Quoted in the Report, p.70)

MacDonald’s application of the definition is fundamental to his conclusion that the definition does not “necessarily” consider criticism of Israel’s government as antisemitic or “necessarily” consider that describing the Israeli government with terms from international law such as “colonial”, “genocide” or “occupation” as antisemitic (Report, p.73).

As a result, MacDonald concluded the letter was not antisemitic. It criticized Israel, it did not refer to the Jewish people or Zionism: “antisemitism involves expressing hatred towards, discriminating against, or stereotyping Jewish people or the Jewish religion”, not “criticism of actions of the state of Israel, including the military actions of Israel”.

He acknowledged “challenges to Israel can sometimes be interpreted as a call for the eradication of Israel as a homeland for Jewish people [and that] [t]he letter left itself open to that kind of misinterpretation.” (My emphasis) For MacDonald, then, the wording is the problem. Criticism of Israel’s actions, he said, is not the same as denying the existence of Israel as a country. Nor, it seems, is blaming Israel for all loss of Palestinian life on Israel or effectively legitimizing Hamas’s actions on October 7th.

Significantly, however, he fails to appreciate that the phrase “so-called country of Israel” ignores the reason for the state of Israel and the fact it exists because Jews had been exiled from most countries in which they had lived over centuries, as well as the Holocaust. He rejects the view that the various statements in the letter about Israel going to its very identity and existence as a Jewish homeland (not criticism of Israeli government actions) constitutes antisemitism.

While it is possible that MacDonald struggled with these issues, it is not evident from the Report (Report, p.141). His assessment of what constituted antisemitism is, ultimately, superficial.

The letter blatantly treats Israel as non-existent, except for being responsible for all aspects of the Middle East conflict. Not only does it ascribe no blame to Hamas, it can be reasonably interpreted to justify even its “war crimes”. To be clear, the Israeli government is not immune from criticism – nor should it be – and can in my view be rightly condemned for its actions in Gaza and the West Bank (as can certain segments of its citizenry), but to deny its existence as a Jewish homeland is no different from denial of Palestinian claims to a homeland.

(For those who want to know my views on Israel’s conduct of the war, views which underly my comments above, see my post of March 24, 2024 on my own Idle Musings blog. While the students’ letter was written soon after Hamas’s attack, much occurred subsequently. This is reflected in my March 24th post and were I writing it today, I likely would be even harsher in condemning Israeli conduct of the war, but not of Israel’s right to existence or its right to defend itself; rather, the issue is how it defends itself.)

The conclusion that the letter is not antisemitic removes a major reason it might be found to be a contravention of the Code in conjunction with other policies. This conclusion also allows MacDonald to justify his determination that the students were protected by their right of freedom of speech when they signed the letter (or, presumably, drafted it, although I come back to this at the end of this post).

MacDonald’s Analysis of TMU’s Freedom of Speech Rights and Responsibilities

The review is premised on the assumption that (for various reasons I do not consider here other than to note the nexus with government through its speech directive [see on this point, Richard Moon, “The Ontario Government Extends Constitutional Protection to University Encampments”]), the Canadian Charter of Rights and Freedoms applies to free speech rights at Ontario universities. Given the statements about free speech in TMU’s documents and the application of the Charter, MacDonald placed considerable emphasis on the free speech right in relation to whether the students’ letter breached the Code. (Report, p.66))

Turning to the policies on free speech, there is no question that this is a major value for TMU, as it should be. The TMU Senate Statement on Freedom of Speech provides that there are two reasons the University may curtail speech: when the speech is unlawful or when it curtails the speech of others. Note that there is a reference to the Charter’s limitations on freedom of speech in the Statement on Freedom of Speech and note, too, that the Statement states that the university “may act” (my emphasis) when speech is unlawful or when it prevents others speaking; it does not say these are the only circumstances (although could also mean that the university would not curtail speech even if these circumstances existed). Of course, limitations on freedom of speech under the Charter are broader than these two impacts.

MacDonald also refers to “Ontario’s August 30, 2018 directive on ‘Upholding Free Speech on Ontario’s University and College Campuses’ which, as a minimum standard, identifies these same two categories as the only avenues for limiting speech” (Report, p.137; emphasis in Report). The directive actually states, “The university/college should not attempt to shield students from ideas or opinions that they disagree with or find offensive” and “[w]hile members of the university/college are free to criticize and contest views expressed on campus, they may not obstruct or interfere with the freedom of others to express their views.” It also says, “Speech that violates the law is not allowed.”

A reasonable interpretation of these provisions of the government’s directive do not actually state that there are only two reasons when a university may limit speech, but rather than it must limit speech when the speech is unlawful or when it curtails the speech of others. MacDonald treats the wording of these limitations as if they are exhaustive and therefore, in this context, narrowly.

Notably, he does not consider as a counterpoint why freedom of speech matters; accordingly, he does not assess whether the students’ speech here is consistent with those purposes. Under the Charter, and indeed more generally, the reasons for freedom of speech are the search for truth and the societal commitment to equality and dignity, among others, and speech that only “tenuously furthers s.2(b) values, such as hate speech”, may receive a lower degree of protection (R. v. Keegstra). I note that the government’s August 30, 2018 directive is also subject to the Charter and thus its provisions have to be read in light of Charter requirements.

MacDonald’s view of the free speech policies affects how he interprets or applies harassment, the only Code provision he thinks could possibly have been breached (see below). He reviews the letter, identifying aspects that are particularly problematic or likely to cause hurt, as well as the retrospective assessments of the students the team interviewed, and the letter’s last paragraph, which attributes Hamas’s October 7th attack to “Israel’s 75-year-long systemic campaign to eradicate Palestinians” and blames Israel for all the “loss of life” in Palestine. MacDonald describes this final paragraph as “particularly concerning” (Report, p.138).
In addressing the issue of whether the students should have known the kind of impact the letter would have, MacDonald invokes TMU’s freedom of speech policy:

…this interpretation would fly in the face of TMU’s Statement on Freedom of Speech which, as noted, permits all speech on campus unless it “is itself unlawful or prevents the lawful exercise of free speech by others.” To the extent there is ambiguity in how the Statement on Freedom of Speech interacts with the Code, this ambiguity must be resolved in favour of those in jeopardy of sanction under the Code. Here, that is the respondent students, who were exercising their freedom of speech by participating in the letter. (Report, p.139)

(On limits to what I agree should be a broad scope of protection for freedom of speech, I digress to refer to a 1995 article I wrote for the UNB Law Journal, “Reconciling Valuable Interests: Or Academic Freedom as Academic Responsibility”, arising out of a free speech conference at UNB. While writing this current post, I took a quick look backwards at the article and while some of the circumstances I consider there have changed, I still agree with much of what I wrote there, about the importance of freedom of speech at universities, yet how speech must be offered through a lens of responsibility. The views there inform my consideration of MacDonald’s assessment of how free speech and its limits play out in the LASL situation.

My UNB article focuses on faculty members; however, I would argue that taken as a whole, the same could be said of students, especially in today’s context, where the opportunities for public speech are greater and student freedom in the classroom may be greater: freedom of speech is a value that must be encouraged and protected, but it must also be exercised responsibly. On the one hand, speakers and writers need to be cognizant of its impact – free speech is not a free for all — and on the other, listeners and readers must not be ready to condemn what they hear and read without taking care to understand it.)

MacDonald’s determination that the letter was not antisemitic constituted a vital aspect of his final conclusion. But it is the scope he attributed to the freedom of speech provisions, that they effectively override what might otherwise be a contravention of the Code that is crucial to his determination of whether the letter and its signatories breached the Code.

MacDonald’s Analysis of the Student Non-Academic Conduct Code

MacDonald reviewed the six stated ways the Code may be breached and decided that only one of those six is even relevant: harassment. He could conceivably have at least considered whether the students’ conduct constituted “Disrupting or Interfering with University Operations” or ”Abuse of the Code or other University Policies”. It is true that the Code provides examples of behaviour that would be breaches and the students’ conduct in signing the letter did not fit into these two. However, this should not be the end of the analysis. I discuss this further below.

Under section 6.2 of the Code harassment encompasses conduct “such as” (meaning other conduct might also constitute harassment):

Unwelcome remarks, words, actions or contact; verbal abuse; non-verbal abuse; unwelcome gestures; distributing malicious or untrue information about community members – unwanted physical or verbal behaviour that is known or should be known to be unwelcome, humiliating, threatening, or demeaning. This includes conduct that arises from, or is motivated, in whole or in part, by bias, prejudice or stereotypes of a community member or groups’ personal characteristics as defined in the Discrimination and Harassment Prevention Policy. The conduct may include a serious one-time or ongoing/repeated incident.

MacDonald concluded that participating in the letter did not constitute harassment because the harassment provision must be read in the context of “TMU’s robust policies protecting free speech” and because the students did not intend to engage in harassment: “regardless of how poorly the letter may have been drafted or how aggressive its tone, the participants did not intend to inflict the harm it caused.” (Report, p.136)

There is another way to look at this. Intention means that students knew or should have known that the contents of the letter would be “unwelcome, humiliating, threatening, or demeaning”. Many students did not know the letter could have this effect because they did not read it or read it carefully. And many admitted they should have realized in retrospect. Harassment does not require overt or deliberate intention, to the chagrin of those who make stupid or careless comments that are found to be harassment.

We do not know whether students who signed anonymously read the letter carefully or knew what they were doing . And while he could not identify them all, he surely could not avoid that the drafter or drafters knew exactly what they were doing. The tone of the letter is strident and they meant it, I suggest, to be unwelcome. At any rate, they should have known it would be or (perhaps more likely) they were reckless as to the impact the letter would have on the LASL environment.

MacDonald did not assess whether the conduct conformed to developments in harassment law, which, like discrimination law generally does not require intention. Had he done so, he might have given greater credence to the impact the letter had on other students and the school writ large.

Having said that, he did consider whether the letter created a poisoned environment for Jewish students, but given that the letter, the LASL’s administration’s October 23rd response to the letter and the public backlash all led to a hostile environment for many students at the law school, including the students who signed the letter, not only Jewish students, he declined to blame the students signatories. Since “[m]any of the respondent students are racialized and visibly Muslim women” who “[endured] the extreme and vitriolic backlash … for exercising their freedom of expression, [MacDonald considered] it particularly unfair to hold them responsible for creating a poisoned environment and thereby committing Harassment.” (Report, pp.139-140)

One cannot avoid, however, that the October 20th letter is a “but for”: but for the letter, the other events wouldn’t have occurred. (Is it possible to say the reverse, that without the other post-letter events, the letter would have faded into the background?) Were the letter a statement of recognition of the significance of Hamas’s October 7th attack, release of the hostages, opposition to extensive Israeli action (most of which hadn’t occurred by then) and a statement of support for Palestinian civilians or something similar, it would likely not have attracted the degree of attention it did.

Two weeks after Hamas’s attack, the drafters were already demanding that the LASL call for a ceasefire (one-sided only, it seems) and a Canadian arms embargo; it made no mention of the hostages. The letter was not merely a statement of a point of view on events in Israel and Gaza. Rather, it was designed to be provocative, it was designed to disrupt the administration’s approach. That in itself is not precluded from the scope of freedom of speech policies, but it is, to my mind, a different starting point.

The list of possible breaches of the Code is “non-exhaustive” and therefore MacDonald could have considered other ways in which the letter, especially its contents, was not consistent with the expectations reflected in the Code or contravened the “community standards” that the Code was intended to reflect. In doing so, he might have addressed whether the “Disrupting” or “Abuse of … other University Policies” should be read to include conduct that might not be given as examples but that are in themselves disrupting or an abuse of the policies.

For example, “Disrupting or Interfering with University Operations” involves actions “such as” “[d]isrupting or interfering with a class, examination, event, or operation; causing a dangerous situation; setting off a false fire alarm; or providing false identification or documentation”. As MacDonald points out, the students did disrupt the law school experience for themselves and others, but in his view, that form of disruption comes nowhere close to the ones listed in the Code. The disruption caused by the letter was more fundamental than the students’ law experience, important though that is: it went to the reputation of the school in the larger community.

As for abuse of the Code or other policies, one might think that a reckless and polemical letter that failed to recognize how hurtful it might be to other LASL members, particularly (but not only) Jewish members still reeling from October 7th, and was potentially disruptive of LASL, might have contravened commitments identified in the Statement of Student Rights and Responsibilities, specifically the following:

• [the right to] pursue your education in an environment that is safe, secure, and conducive to learning. Students have a right to be treated fairly and not to be subjected to harassment, sexual harassment, discrimination indignity, injury, bullying, verbal abuse, or any act of physical violence;
• The right to engage and participate in dialogue, examine diverse views and ideas….
• [the responsibility to] act in the interest of honesty, integrity, and equality by treating all members of the community, including faculty, staff and fellow students, with respect;
• [the responsibility to] consider and respect the perspectives and ideas of others, even when the student does not agree with their perspectives or ideas, provided that the speech or expression does not infringe upon personal rights and freedoms;
• maintain a safe, respectful, and inclusive community by refraining from behaviour, which you know, or ought reasonably to know

o obstructs teaching, learning, evaluation, administration, co-curricular activities or other College endeavors.
o threatens or endangers the health, safety, well-being, or dignity of yourself or another person.
o Is unwelcome or persistent (e.g. personal harassment) which would cause another person to feel humiliated, demeaned, or intimidated

The Code is not explicitly concerned with any of those expectations in other policies, but rather with “[b]ringing an unfounded Complaint with a malicious or vexatious intent; breaching the confidentiality expectations; failing to comply with the reasonable requests of a University representative; retaliating against any participant in the Code process; failing to comply with the remedies and sanctions outlined in the Code.” At the same time, the Code must be read with other rights and responsibilities. The letter infringes a number of student rights (such as the right to a “safe” environment “conducive to learning”) and it fails to observe a number of student responsibilities (such as treating other members of the TMU community and their views with respect).

MacDonald was not unaware that the list of identified ways of breaching the Code was non-exhaustive and therefore he wondered whether the student might have committed some other form of “actionable conduct”. This would have been an opportunity for him to consider how, for example, the rights and responsibilities afforded to and placed on students informed the Code. Instead, he decided that the students conduct did not constitute “actionable conduct” without taking any time to consider this possibility and therefore concluded the students did not engage in actionable conduct:

Simply put, this is a greatly flawed letter that caused significant unnecessary harm. However, the harm was unintentional. In the face of the appropriately robust free speech rights we have articulated, there is no other avenue to raise participation in this letter to the level of sanctionable conduct. (Report, p.140)

Even if MacDonald had concluded these provisions had not been breached or that it would not be appropriate to consider them as breaches of the Code (not a certainty with a full analysis), assessing the letter against these requirements would have illuminated the real harm the letter created. It would have been more revelatory of the students’ conduct in signing the letter.

I note that in contrast to his treatment of the students, he criticized the administration and castigated the legal community for their responses. For example, his discussion of the LASL administration illustrates the imbalance MacDonald brought to his review and in this assessment I am, perhaps, influenced by my experience and expectations as a former law school dean. Although clearly seeking to excuse the students on one basis or another (their carelessness, their experiential association with the topic of the letter, for example), he barely granted the administration the same deference. Ironically, he observed that the LASL administration “publicly condemned the letter without first giving the participating students a meaningful opportunity to explain themselves”, although there is nothing in the Report that suggests he sought the administration’s explanation for how they described the October 20th letter; at least, he does not include any explanation (Report, p.13).

He states that the administration’s description of the October 20th letter as having “sentiments of anti-Semitism” had a serious impact on the respondent students, contributing to the backlash to the letter: “The allegations of antisemitism, in particular, misconstrued the participants’ intentions and branded them in a manner that has resulted in negative personal and professional consequences.” (Here I note that whether the letter was antisemitic did not depend on the drafters’ or signatories’ intentions.) After blaming the administration at least in part for the consequences, he does indicate his “empathy” for their situation: “With hindsight, the reaction was understandable, albeit regrettable”. (And in this regard, I believe that most of those who responded negatively to the letter reached their own conclusions about whether it was antisemitic without prompting from the administration.)

Unfortunately, we do not have the advantage of learning why the administration sent either the October 11th email taking a middle ground or the October 23rd statement, which stated the October 20th letter contained sentiments of antisemitism because MacDonald does not include comments from the administration in the report.

MacDonald’s Conclusion

MacDonald found that no student breached the Student Code of Non-Academic Conduct. The letter was “damaging and hurtful” but it was a valid exercise of the students’ freedom of expression. Primarily, this is because he considered the Code and other relevant TMU documents, including the Statement on Freedom of Speech, granted a very wide scope to freedom of expression with prima facie narrowly interpreted exceptions to that protection.

He determined that even if sanctions were appropriate, he would not have imposed any because the students had been through enough. Time to move on.

His conclusion also reflects his perspective of the letter, which I believe is a subtext to his assessment. In the executive summary of the report, he writes,

The conclusion that the students did not breach the Code, such that sanctions are not warranted, is far from an endorsement of the letter. A later section of the report constructively critiques the letter as a piece of written advocacy in an effort to explain why, as drafted, the letter was unlikely to have the intended effect of convincing LASL administration to take certain actions in solidarity with Palestinians. (Report, p.12; my emphasis)

It is worth ending this assessment of the Report by briefly referring to MacDonald’s advice to the students, particularly the drafters, on how they could have done a better job in writing the letter:

There are at least three reasons why we thought it would be helpful to critique the letter from an advocacy perspective. First, the intent of the letter was to advocate: the drafters were urging the law school to take certain steps in response to the war in Gaza. Second, the letter came from law students, who are training to become professional advocates. Third, lawyers have professional obligations of civility and zealous advocacy, and it is important for law students to appreciate how difficult it can be to find the right balance. Although being provocative is part of student activism, the students here professed to want a dialogue and, for that reason, more nuanced and productive language would have helped their legitimate cause. (Report, p.143)

I would hazard a guess that MacDonald has never been a protestor or an activist (and I apologize if I’m wrong about that), but had he been, I doubt he would have taken at face value that the letter was meant to change the administration’s mind or convince the administration to do what the list in the linked document wanted it to do. He misperceived the intent of the letter in my view and therefore treated the intention as more benign than it was:

Overall, there was a huge gulf between what the students genuinely intended — to show solidarity with Palestinians, support a ceasefire, and encourage LASL administration to take an unequivocal stance against the war — and how the letter landed. The letter’s aggressive and harsh tone, along with its ambiguities, ultimately distracted from its goals. (Report, p.144)

This understanding of the nature and intent of the letter and the students’ explanations of why they signed it (and in some cases why they at least in part regretted it) help explain why he did not at least name the wrong here (regardless of whether he imposed penalties). By not doing so, he did not hold the students accountable for their actions.

(The remainder of the report includes recommendations to the LASL students and administration and the legal community, the two latter of which he was critical because of their responses.)

CONCLUSION

Former Chief Justice MacDonald was given an important mandate that affected the Lincoln Alexander School of Law’s students, faculty, administration and reputation, the University and all members of the University and even the legal community. Faced with assessing a letter that contained elements of antisemitism through its treatment of Israel’s existence and its creation as a nation in response to centuries of antisemitism, he chose to treat it as a writing assignment rather than a document intended, even through its title, to place LASL (not just the students who wrote or signed the letter) “solidly” on one side of a centuries long history. (Recall its title: “Lincoln Alexander School of Law’s unequivocal solidarity with Palestine and list of demands for the administration”.)

Admittedly, he was stymied in how he treated the students named in the University’s complaint because they were not the only students linked to the letter. They were students who had signed their names; their colleagues had hidden behind anonymity and the drafters were nowhere to be found. That made it difficult for MacDonald to hold the students liable or to impose sanctions on them.

Yet, that was not why he chose to find they were not accountable. Most, although not all, of those students chose to appear incompetent – signing a letter they had not properly read – rather than standing behind the letter and continuing to defend what they had done or at least (and some did do this) acknowledge that what they had done was in fact harmful. That they wanted to “do something” is understandable, although it does not appear they felt the same imperative after October 7th; what they actually did brought internal and external disruption. (I want to be clear here that I do not agree with how everyone responded to the letter, particularly treating all LASL students the same, as some external law firms and MAG have done but I also understand how they also felt the need to “do something”.)

MacDonald obviously has a great capacity for empathy, although he spent most of it on the students whose backgrounds drove them, in their explanations, to sign the letter. It is unfortunate that it was not equally tempered by the effect the letter had other members of the LASL community.

Nevertheless, the real problem with the MacDonald Report is the failure to undertake a thorough analysis of the relevant provisions in the Student Code of Non-Academic Conduct, the Discrimination and Harassment Prevention Policy, the Statement of Student Rights and Responsibilities and the Statement on Freedom of Speech. He took the easy way out in analysing these documents to the detriment of his analysis and conclusion.

It is possible that even if MacDonald had taken a more nuanced view of antisemitism and a more judicially informed consideration of the relevant documents, he would have reached the same conclusion. Had he done so, however, instead of being concerned about giving various actors, such as the LASL administration and the legal community advice or the students hints about how to write more effective advocacy, he would have been forced to come to grips with the nature of the letter and whether it goes beyond the bounds of free speech.

Most importantly, he would have been forced to set aside his sympathy for the students who contributed to the disruption of LASL at least long enough to make it clear that he considered them accountable for what they did; he may or may not have decided whether to impose sanctions on the students or on individual students, especially since the drafters might be thought of as the worst offenders. They, however, remained in the shadows, lacking the courage of their convictions, and thus beyond his reach.

One alternative would have been to treat the letter and its drafters separately from the student signatories. Although he was mandated to determine whether the students breached the Code, given the flexibility with which he fulfilled the terms of reference, he could have considered whether the letter was antisemitic and if so, found the drafters liable in absentia. Unless he considered the signatories on an individual basis, he could have decided whether everything they told him excused any liability they had in signing the letter.

And so to return to the title of this series of posts, my answer to the question “What Should We Expect from a Former Chief Justice and Law Students” is: we should expect better from both. …….

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