Academic Freedom Remains an Urgent Matter at the University of Toronto
Anver M. Emon, Mohammad H. Fadel, Ariel Katz, Trudo Lemmens, Jeffrey MacIntosh, Denise Reaume, David Schneiderman— Professors of Law, University of Toronto
Canadian Federal Tax Court Judge David Spiro was asked to do a small task that ended up having large consequences. A staff member from the Center for Israel and Jewish Affairs (CIJA), an organization on which Spiro previously served as director, asked him to contact the University of Toronto and ‘through quiet discussions’ warn ‘top university officials’ not to hire Dr Valentina Azarova to the post of Director of the International Human Rights Program (IHRP because of her academic work. Her references, which included Jewish and Israeli professors of international law, confirmed that her work on the Israeli occupation of Palestine territories fell squarely in the realm of mainstream, excellent international legal scholarship. Her scholarship, warned an unidentified professor in a memo to CIJA, rendered her ‘academically unworthy.’ If followed through, the professor wrote, her appointment ‘would do major damage to the university, including in fundraising.’ Within 48 hours and over a holiday weekend, the Dean of Law, Edward Iacobucci, subverted the process and put an end to Dr. Azarova’s career at the University of Toronto.
In his Report on this scandal, Thomas Cromwell insisted that he would make no determinations of credibility or resolve contested issues of fact. Yet he concludes, after reviewing ‘all of the relevant facts,’ that he ‘would not draw the inference that external influence played any role’ in the decision to abandon Azarova’s appointment. This curious finding rests on accepting everything the Dean of Law says as true. Cromwell sides with the Dean at every opportunity, even when the facts he details suggest that the Dean’s narrative is contested, implausible, or indefensible.
Consider, for example, the contested telephone conversation the Dean had with Professor Audrey Macklin, chair of the IHRP appointments committee and expert in Immigration and Refugee law. According to Macklin, the Dean advised he was halting Azarova’s appointment. Although her scholarship on occupied Palestinian territories was ‘an issue’, he needn’t ‘get to’ that because immigration law was the problem, despite Macklin advising him to the contrary. In contrast, the Dean claims he raised the matter of Azarova’s scholarship with Macklin but told her it was ‘irrelevant.’ Cromwell must have sided with the Dean’s story because if her scholarship were truly ‘an issue’, Cromwell could not say that the evident ‘external influence’ did not play ‘any role.’
The immigration issue is also puzzling. Relying entirely on the Dean and Assistant Dean’s accounts, Cromwell reports that the hope was to have the incoming director start by the end of September. This date bore no relationship to the academic calendar or to the specific needs of the IHRP programme. The Assistant Dean drafted an independent contractor agreement by which Azarova, who was then in Germany, could then transition to full-time employment at the University of Toronto by the time her work permit was processed. The University has used such arrangements on prior occasions. German employment lawyers advised that there was a low risk that the German government would challenge the relationship as one of employment, in which case the University would be liable to pay social security benefits for two or three months. The Dean of Law sought no advice from University lawyers, and simply concluded that the arrangement was ‘illegal’. Cromwell accepts the Dean’s characterization, and relies on it en route to concluding that donor influence played no role. Yet nothing is said about whether the contract could have been revised to resolve the concern or why the low risk of paying social security benefits was a ‘deal breaker.’ Moreover, there is no explanation why the University could not just wait an extra month or two until the candidate got her work permit. Are we meant to believe that the Dean’s stinginess, rather than external influence, placed the future of the IHRP and reputation of our law school in peril?
Just as remarkably, Cromwell excuses Judge Spiro. While proclaiming that ‘quiet discussions’ with ‘top university officials’ have ‘no place in a merit-based recruitment process,’ Cromwell characterizes Spiro’s intervention as benign. Cromwell concludes that Spiro behaved honourably — he ‘simply shared the view that the appointment would be controversial with the Jewish community and cause reputational harm to the University.’ This defies common sense. Spiro eagerly offered ‘further information’ and anticipated an update. It beggars belief that Spiro was not issuing a threat to the law school and the University that they would suffer financially with this appointment.
The University administration has rushed to embrace Cromwell’s findings without questioning his logic or acknowledging his disturbing findings of fact about the judge’s intervention and the administration’s response. None of this is a good look for the University of Toronto. Cromwell’s Report makes evidently clear that CIJA got exactly what it wanted. UofT’s Faculty of Law is now CIJA’s latest “success story”.