Are Academic Freedom and Free Speech Defences to Poisoned Educational Environment - What Can Ross Tell Us about Sexual Harassment

Abstract

The author's goal is to examine the issues surrounding sexual harassment in the educational environment. Because education and research are so closely allied with freedom of expression, there will be inevitable conflicts whenever attempts are made to ensure a discrimination-free learning environment by limiting discriminatory expression. The author begins by surveying current Canadian and American jurisprudence on sexual harassment. She suggests that the Canadian test for sexual harassment should and will come to more closely parallel that in the U.S., where there is a far larger body of jurisprudence on the topic. Next, the author focuses on the Ross decision, currently on appeal to the Supreme Court of Canada. This case has raised many issues that are unique to discrimination in the educational context. The author then combines the concerns specific to sexual harassment and those unique to harassment in the educational setting. She notes that academic freedom is not opposed to, but is actually interdependant with "inclusivity" and provision of a discrimination-free educational environment. As a result, the right to academic freedom carries with it the duty to use that freedom honestly and without bias. In conclusion, the author proposes that academic freedom may be a defence to the creation of a poisoned educational environment through discrimination, but only where there is bona fide educational or research value to the impugned expression. With this goal in mind, the developing Canadian jurisprudence will have to strike a balance among the inherent tensions at play in these situations.