The perils of absolute power

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By Josh Wingrove

In a case exemplifying the battle between students and some academics, York student Daniel Freeman-Maloy has been cleared to pursue his $850,000 lawsuit against his university after his expulsion more than two years ago. Freeman-Maloy, a Jewish advocate of the Palestinian cause, was expelled in April of 2004 for his role in two contentious protests at which he faced off with Israeli supporters.

His expulsion sparked outcry from students, faculty and the community at large. York professor David McNally put it best to Eye Magazine in 2004.

“I have never witnessed such an aggressive violation of due process and basic civil liberties (on campus) … The punishment is in no way proportionate to the alleged crime,” he said.

McNally, a 20-year York University faculty member, was just one of hundreds of people to step up on behalf of Freeman-Maloy, now 22.

The decision to expel him was a unilateral one handed down by York President Lorna Marsden. She barred Freeman-Maloy from enroling at York for three years, citing two protests and his unauthorized use of a megaphone.

Freeman-Maloy isn’t going down without a fight. A Supreme Court of Canada ruling last month cleared the way for Freeman-Maloy to sue York for $850,000, citing malfeasance and libel.

It’s a precedent-setting ruling with regards to the charges of malfeasance. If a member of public office abuses his or her power to the detriment of an individual citizen, it’s called misfeasance.

The ruling means university presidents are held to the same standards as public employees. It’s the crux of Freeman-Maloy’s case. With support from the Canadian Association of University Teachers, thousands of students and individuals such as No Logo author Naomi Klein, he appears to have the upper hand in his fight against the iron fist of President Marsden.

Other universities put different power in the hands of their leaders. At Ryerson, expulsion is handled by the Academic Council Appeals Committee upon recommendation by either the faculty, the school of graduate studies or the registrar. According to the Non-Academic Student Code of Conduct, recommendations then have to be approved by the appeals committee, usually a four member board including one student.

In other words, Ryerson’s president can’t make a unilateral decision as York’s can.

President Sheldon Levy takes a different approach. University Acts don’t necessarily decide the power of an administration, he said.

“I actually think it’s the president (that decides). I think it’s more the individual in the office, the history of the institution and the organizational structure that describe the power.

“I believe in decentralization. I believe that you’ll get better decisions if they’re made closer to where the impact of those decisions are most felt,” Levy added.

Universities across Ontario take different approaches. While the University of Toronto’s Governing Council, a 50-member board, makes decisions about expulsions. The University of Waterloo, in extreme cases with legal implications, grants its provost the same power.

Only York, however, has faced such a high-profile case. Both sides claim the battle is about academic freedom. The university says it should have the freedom to give students the boot. Freeman-Maloy’s lawyer Peter Rosenthal, who was unavailable for comment, told The Globe and Mail allowing Marsden such authority is a threat to a student’s right to free speech.

Muhammad Ali Jabbar, Ryerson Students’ Union president, said there needs to be a balance between absolute power and delegated responsibility in an effective administration.

“I think Sheldon (Levy) is doing a good job of finding that balance,” Jabbar said.

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