Criticisms over the Cromwell Report Erupt with CAUT Censuring U of T

Criticisms over the Cromwell Report Erupt with CAUT Censuring U of T

Vivian Cheng

End of term brings censure, resignations, and concerns from staff and students

CAUT Censures U of T

On April 22, the Canadian Association of University Teachers (CAUT) Council voted to censure the University of Toronto due to failures “to resolve concerns regarding academic freedom” related to the International Human Rights Program (IHRP) hiring controversy. In September 2020, former Dean Iacobucci ended negotiations with Dr. Valentina Azarova to direct the IHRP. The negotiations allegedly concluded after an alumnus raised concerns about Azarova’s academic work on Israel and Palestine. As a result of the CAUT vote, the organization’s 72,000 members were asked to decline future appointments or speaking engagements from U of T. The censure amounts to a boycott of the University. You can find the new censure guidelines by the U of T Committee for Academic Freedom and Integrity here

The CAUT threatened U of T with censure in October, after learning about the initial IHRP allegations, but provided the University with six months to rectify the situation. Since then, the Faculty of Law engaged the Honourable Thomas Cromwell to conduct an independent and external investigation of the events. The report (“The Cromwell Report”) was released on March 15 and Cromwell found that external influence was not the primary factor for rescinding the employment offer to Azarova. 

President Gertler released the University’s response to the report on March 29, endorsing Cromwell’s conclusions. However, despite the end of the investigation process, the report leaves outstanding concerns of academic freedom. Many have criticized Cromwell’s findings.

New Criticisms Over the Cromwell Report

Most recently, on April 30, Professor Jeffrey MacIntosh wrote a memo that criticized the University’s emphasis on Cromwell’s reputation as a means of demonstrating the strength of the Report’s findings. He went on to criticize Cromwell’s failure to assess the credibility of the narrative, his sole access to all of the facts, and the factual discrepancies stated in the report. 

Among other things, Professor MacIntosh states that “Without […] reform, we may be destined to repeat the sad events which gave rise to this unfortunate controversy.” You can read Professor MacIntosh’s full memo here.

Professors Joseph Carens, Anver Emon, Ariel Katz, Richard Moon, Denise Réaume, former IHRP research associate Vincent Wong, and former UN Special Rapporteur on the right to housing Leilani Farha have written individual criticisms of the Cromwell Report and the Faculty’s broader handling of the IHRP situation. 

Professors Emon, Mohammad Fadel, Katz, Lemmens, MacIntosh, Réaume, and Schneiderman also jointly wrote a letter to President Gertler outlining some of their concerns with the Cromwell Report and the President’s embracing of its conclusions. 

These concerns included the failures of U of T to: 

  1. Acknowledge the fundamental limitations in Justice Cromwell’s findings,
  2. Address the “shocking institutional weaknesses the Report disclosed,” 
  3. Reject Justice Cromwell’s conclusion that the actions of Justice Spiro were not improper, and 
  4. Dismiss two of Justice Cromwell’s recommendations that would reduce the scope for legitimate faculty criticism of administrative actions and invite further third-party interventions in confidential hiring processes. 

The letter states “it is virtually indisputable that […] Justice Spiro’s improper intervention was the “but for” cause for the termination of negotiations with Dr. Azarova” and further emphasizes “the message from the Cromwell Report and from the University’s endorsement […] is that, when faced with evidence of possible outside pressure or interference in a hiring process, we must trust that individuals in positions of power in our institution always act appropriately.” You can read the full letter here.

The CAUT also disagrees with Cromwell’s conclusions. David Robinson, CAUT Executive Director, said in a statement that after reviewing the facts for themselves, the council found it “implausible” that external influence did not trigger the decision to terminate the candidacy. 

The University’s Response to CAUT and Criticisms over Cromwell Report

Despite these concerns, the University has expressed its disappointment with the CAUT’s decision and stands by the conclusions of the Cromwell Report. The Varsity, the University of Toronto’s Student Newspaper, reported on April 23 that a U of T spokesperson said they “have apologized to the candidate for the breach of confidentiality which was not consistent with our high standards.” The spokesperson “also noted that the position in question was not an academic position, but rather a managerial one.” 

Ultra Vires reached out to Dean Brunnée for a comment on the IHRP developments, but she was unable to comment at this time. She noted, however, that she plans to keep students as informed as she can.

Professor Kent Roach Resigns from Asper Centre in Light of U of T’s Comments

In light of the University’s comments, Professor Kent Roach resigned as the faculty chair of the Advisory Group for the David Asper Centre for Constitutional Rights on April 23. In his resignation letter to Dean Brunnée, he expressed frustration over the University’s distinction between “managerial” and “academic” positions. U of T claimed the CAUT does not have jurisdiction over the IHRP issue because the position was managerial rather than academic. 

“The administration’s position misunderstands both academic freedom and the role of clinical directors at the Law School,” he wrote. He further explained that much of the Faculty’s curriculum and its “practical” opportunities were provided through clinical offerings. 

“The work done in these settings is very similar to the work that you and I do in the classroom and in our roles as researchers and advocates,” he stated. “The best that can be said about this position is it is a large bureaucracy defending its organizational chart. The worst that can be said is that it is an arrogant and elitist “ivory tower” position based on an unrealistic distinction between theory and practice.” 

Professor Roach’s resignation came one day after the CAUT censure. Following his resignation, other University of Toronto members followed suit. For example, Raed Hawa from the Faculty of Medicine cancelled his Professorial Rounds, commencing May 19, 2021. U of T Law alumna Janani Shanmuganathan also wrote a letter to Dean Brunée declining to serve as the Co-Chair on the University Tribunal.

Many professors from other academic institutions have also cancelled their events at the University. The CAUT censure, along with various professors’ comments, and Roach’s resignation demonstrate growing criticism over the handling of the IHRP situation. The controversy has even garnered international attention; on May 8, Masha Gesson of TheNew Yorker published a piece on the scandal.

Letter Petitioning Former Governor-General to Abide by Censure

Indeed, several U of T law professors and former IHRP associate Vincent Wong prepared a sign-on letter to ask former Governor-General Michaëlle Jean to abide by the censure and withdraw from a high-profile speaking engagement with the U of T Faculty of Social Work on May 10. The letter received over 300 signatures and on May 6, Jean announced the postponement of the event. 

Although Wong and other professors believe that Jean’s lecture, entitled “Seizing the Moment to Build a Movement: A Call to Action to Eradicate Systemic Racial Discrimination,” is significant, they emphasize the importance of observing the censure. 

“Censure is a rare measure that the teachers association imposes only as a last resort. The University of Toronto is the only institution in Canada currently under censure, and the first since 2008 (the previous censure having been issued in 1979),” writes the letter.

Emily Albert (1L), speaking on behalf of the University of Toronto Law Union (UTLU), affirmed  the UTLU’s unequivocal support for the censure. The UTLU is a coalition of U of T Law students who aim to use their legal education to counter the perpetuation of oppression through the law. Despite suggestions that students’ educational opportunities may be impacted by the censure, the UTLU hopes that the Faculty does not “weaponize” these concerns to protest the CAUT’s decision. 

“The chilling effect of the Faculty’s and University’s actions with respect to the IHRP hiring process and subsequent review on academics’ and students’ abilities to speak freely causes us far greater concern and professional harm than forgoing lectures from visiting scholars,” writes the letter. You can read the UTLU’s full statement here

However, not everyone shares the same criticisms. Lily Chapnik Rosenthal (4L JD/MSW) expressed disappointment over student support of the censure, saying “it appears as though many law students would rather accept the unclear findings of an opaque fact finding process [the CAUT’s decision to censure] than the careful and transparent evidence weighing of a former Supreme Court justice.”

Employers and Partners Withdrawing Support for U of T

Since the censure, the HIV Legal Network, Butterfly (Asian and Migrant Sex Workers Support Network), the Immigration Legal Committee, and the Indigenous Education Network have withdrawn their collaboration with the University. 

On May 8, U of T Professor and Director of Citizen Lab Ron Deibert announced on Twitter that Citizen Lab could not collaborate with U of T Law so long as the censure was in effect.

In the Twitter thread, he noted that the decision was not taken lightly. “We have enjoyed excellent collaboration with U of T Law and the IHRP faculty and staff, including the production of major joint reports, and have benefited [from] numerous law externships with law students working at Citizen Lab.” 

This work includes the groundbreaking “Bots at the Gate” report by Petra Molnar and Lex Gill, and the “To Surveil and Predict” by Kate Roberson, Cynthia Khoo, and Yolanda Song.

Deibert concludes by saying that he believes U of T Law will take the most appropriate path forward in restoring Azarova’s offer.

On the same day, Sherif Foda, a Toronto-based criminal defence lawyer, tweeted that he would “no longer welcome any applicants” from U of T Law until the situation had been rectified. Foda’s announcement sparked debate over Twitter on the merits of refusing job applicants from U of T Law students. Many showed support, with some like Saron Gebresellassi even following suit and announcing her Toronto firm has delisted U of T for clinical partnerships. Others, including many U of T Law students, commented that while they were in support of the censure, refusing job applicants from students misinterprets the point of the censure, which is to hold the administration accountable, not punish students.

Underlying Community Tensions

Furthermore, this issue has sparked many conversations about antisemitism and anti-Palestinianism. As stated in the Cromwell Report, Justice Spiro received an email on September 3 with a subject line that read “U of T pending appointment of major anti-Israel activist to important law school position.” 

In this email, a staff member at an organization of which he was a director — presumably the Centre for Jewish and Israel Affairs — wrote “the hope is that through quiet discussions, top university officials will realize that this appointment is academically unworthy, and that a public protest campaign will do major damage to the university, including in fundraising.” 

The Cromwell Report wrote that Spiro, whom Cromwell refers to as “the Alumnus,” had spoken by telephone with an assistant vice president for a “pre-scheduled stewardship call,” which was initiated by the University. At the end of the hour-long conversation, Spiro had “indicated that as a judge he could not become involved,” but “wanted to alert” the school that Azarova’s appointment would be controversial and may cause reputational harm. “He wanted to ensure that the University did the necessary due diligence,” wrote Cromwell.

According to Azarova’s Academia.edu page, she has “published extensively on the operation of international law in the Israel/Palestine context.” The professors who initiated the petition to former Governor-General Jean discuss this aspect of the IHRP controversy in their letter. 

“Systemic discrimination finds one of its most ghastly contemporary manifestations in Israel and the Occupied Palestinian Territories,” the letter writes. The letter further argues that even in Canada, the connections between the laws, policies, and actions that “target, dispossess, and otherwise subjugate Palestinians within Israel and the Occupied Palestinian Territories” are clear.

“The unjust and politically motivated disqualification of Dr. Azarova’s candidacy also occurs within a broader and intensifying climate of suppression.” The letter asserts that lawyers, academics, journalists, and students — in addition to other professionals — in Canada have been subjected to physical violence, professional disciplinary measures, and public condemnation by political leaders for expressing solidarity with Palestinians.

Some members of the U of T Law Community feel the IHRP controversy has led to a rise in antisemitic dialogue. 

In October, when allegations of donor interference first erupted, U of T Law’s Jewish Law Students’ Association (JLSA) cautioned the law school community in an open letter against perpetuating antisemitic stereotypes. Given the slew of updates over the Cromwell Report, incoming co-president of the JLSA Julia Gauze (2L) re-expressed concerns with the revival of antisemitism. The full statement from JLSA may be found here.

Chapnik Rosenthal also previously commented that “at both the Faculty and in the greater media tropes were utilized of wealthy, powerful Jews controlling institutions with money and power to sway internal hiring decisions.” These tropes, she said, were harmful stereotypes that could lead to a lack of safety, and even violence, for Jewish people. 

However, Albert (1L) — now from a personal lens — offered a different perspective. Albert was previously labelled antisemitic after mentioning that Spiro being Jewish was a relevant factor in the IHRP controversy as it related to anti-Palestianism. She argued that “the point of citing antisemitism or any other forms of racism are to help the people subject to that oppression. As a Jewish person, being shamed for who I am seems antithetical to citing antisemitism … I believe it’s important to hear from diverse voices within the Jewish community.”

She also expressed regret at how some of the professors have taken — what she views as — unfair critiques of being antisemitic due to their criticism of the Cromwell Report. “Some of these professors have been incredible allies of the Jewish community. I’ve seen them at events and seen them engaged with Jewish individuals in meaningful ways.”

However, she also acknowledged that her Judaism provides more protection to comment on this issue than other non-Jewish students. “I’m partially insulated from this label [of being called antisemitic] sticking or having material impacts, relative to other students who might take the same position [as me],” she stated.

Steps Towards Reconciliation

“As disappointing as it might be for certain speakers not to come [to U of T], there’s a lot of learning to come from engaging with the censure in a critical way,” Albert says. “It’s unfortunate that [this learning] has to come from advocacy towards our own faculty.” Ultimately, she hopes that grappling with the censure can strengthen the relationship with faculty as opposed to weakening it. 

If classes resume in-person in Fall 2021, Albert hopes that people will more easily find reconciliation within the law school’s Jewish community, even if consensus about this issue has not been reached.

Ultimately, the censure will be lifted when the CAUT feels that the university “has taken steps to resolve the problem.” At the moment, they feel the easiest way to do that would be to once again offer the position to Azarova, says CAUT. 

To follow more updates on the CAUT censure, you can visit the CAUT Twitter.

Ultra Vires maintains a developing and non-exhaustive list of resources about the IHRP director hiring controversy, including statements and opinions about the CAUT censure, available here


Editor’s Note: Vivian Cheng is a member of the IHRP Venezuela Accountability Project, and was previously a summer research fellow at the IHRP. Harry Myles is a member of the steering committee of the University of Toronto Law Union, a member of the IHRP Venezuela Accountability Project, and a current summer research fellow at the IHRP.

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