by The Leveller staff
Note: This article was originally published on leveller.ca on Nov. 25. To catch up with the latest developments in Ford’s attempts to dismember student groups, just wander your eyes down to the bottom of this article.The “crazy Marxists” have won! On Nov. 22, the Ontario Superior Court of Justice unanimously overruled the Ford government’s Student Choice Initiative (SCI), which made fees that support student groups on campus optional. The ruling has been hailed as a huge win for the autonomy of student unions and associated groups – The Leveller included.
The court granted the application by two student associations, the Canadian Federation of Students-Ontario (CFS-O) and the York Federation of Students, to quash the Cabinet directives of the SCI, ruling that “there is no lawful authority for the directives.”
Introducing the Student Choice Initiative
On Dec. 12, 2018, Ford’s Conservative Cabinet directed the Minister of Training, Colleges, and Universities to initiate the SCI by instructing universities and colleges to categorize post-secondary school ancillary fees as either “essential” or “non-essential” – and then give students the choice to opt-out of any non-essential ones.
The initiative was then announced in January of last year and took effect in June, when Fall term registration opened. Students could either opt-in or opt-out of what were then deemed as “non-essential” student services or groups. Originally touted as a way to save students money, the SCI policy was clearly aimed at targeting progressive voices and student-led organizations.
The Ontario government’s Student Choice Initiative was also packaged with a host of other post-secondary reforms impacting the province’s 45 colleges and universities. These included reconfiguring the Ontario Student Assistance Program (OSAP) as well as cuts to university funding and tying that funding to performance. Changes in OSAP have adversely impacted large numbers of Ontario students.
In return for a small tuition decrease, students would pay more in the long run through OSAP and lose student unions and organizations that fought for their interests through the SCI. It was a short-term bribe for long-term exploitation.
The SCI caused considerable budget cuts to student groups across Ontario. Organizations saw between a 17 to 95 percent opt-out rate that caused student layoffs, the cancellation and reduction of services, and reduced student newspaper coverage. It also caused budgeting chaos, as no group could know the percentage of students who opted out until well into the school semester.
We here at The Leveller have been a bit foul-mouthed about the whole thing, clearly feeling no need to restrain ourselves when we declared in March, “Fuck you Doug Ford — and your little minions too. Get your grubby fingers off of our student organizations!” We still stand by those fine words.
From where we stood, Ford’s Student Choice Initiative looked like an ideologically motivated attack on student groups. Ford’s Cabinet felt free to overrule the student referendums that instituted many of the fees – like the modest $1.50 that Carleton grad students voted to assign The Leveller in a 2010 referendum. For Ford’s Conservative cabinet, replacing students’ democratic choice and solidarity with a model of consumerist choice and charity was just the right thing to do – and whether or not this was even in their legal authority didn’t matter to these petty tyrants.
Fortunately, the Canadian Federation of Students-Ontario (CFS-O) and the York Federation of Students challenged the Conservatives’ presumption. They brought the case against the Ontario government forward in May, with the court hearing in October.
Rejecting the SCI’s Executive Overstep
As expressed in its ruling, the court felt that the case turned on whether the cabinet’s SCI directives were consistent with its legislated power over colleges and universities. It stated that this question “lies at the very core of the court’s role in a constitutional democracy characterized by the Rule of Law: executive action may be reviewed judicially for legality, and that is what this application is about.”
The government argued that the SCI was a policy choice not subject to the courts, and that it followed from cabinet’s authority over spending. The court found that this contradicts the laws governing universities, colleges, and student associations. Granting the Ford government the right to ignore this “would undercut the supremacy of the legislature and open the door for government by executive decree, a proposition repugnant to the core principles of parliamentary democracy,” the court ruled.
Specifically, the court explained that:
- Student organizations are not funded or controlled, directly or indirectly, by the government. There is no authority to interfere in their operation on any grounds.
- Universities are private, autonomous and self-governed. While they are publicly assisted, they are not owned or operated by the government, and there is no authority for the government to interfere in their internal operation.
This means that, overall, the government is not allowed to:
- override the mandatory membership of student organizations;
- override the democratic process under which student fees were created;
- interfere in university-to-student association agreements;
- interfere in the academic freedom of universities, of which students, and student governments, are a part of.
Just What is Non-Essential?
Both The Leveller and the Ontario court took issue with what constituted “non-essential.” The Leveller outlined all of the “non-essential” ancillary fees that Carleton students pay on an annual basis, which totaled $126.54 for 19 undergraduate groups or services, and $237.02 for nine graduate groups or services. While these amounts were relatively small compared to the average cost of tuition ($6,500-$7,000), by pooling financial resources across the student body they enabled a myriad of student services.
With no prior warning that their funding might be cut off, organizations scrambled as they came to grips with what this could possibly mean in terms of funding losses for the 2019-2020 school year. Many groups budgeted for the worst and most groups laid off staff or reduced staff hours.
In its ruling, the Ontario court outlined how compulsory ancillary fees for non-academic services at colleges and universities work. Fees fall into two categories: institutional and non-institutional revenues. The former are institution-provided services such as athletic centres; the latter are “fees approved by students in democratic processes that fund student groups including student governments, student newspapers, legal aid clinics, and student clubs and activities.”
Only the latter were considered as “non-essential,” and the court took issue with the fact that “[n]owhere in the record is it explained why student association fees are ‘non-essential’ while athletics (which are much more expensive) are considered ‘essential’.”
The only explanation provided – the court found – was contained in a Ford fundraising letter: “I think we all know what kind of crazy Marxist nonsense student unions get up to. So, we fixed that. Student union fees are now opt-in.”
The court concurred with what The Leveller has been stating all along: that the money that students may save by opting out of “non-essential” services on campuses is inconsequential with the overall costs of attending post-secondary education, and that institutional fees such as those for athletics cost significantly more than those funding non-academic groups and services.
The court put it this way:
One of the obvious flaws in this argument (that allowing students to opt out of student association fees potentially lowers the cost of their education) is that, based on the evidence before us, the amounts at issue for each student are very small relative to the overall cost of an education. In addition, the distinction between essential and non-essential fees seems arbitrary if the actual objective behind the SCI and directives is to lower the financial burden on students: athletic fees, which are roughly ten times greater than student association fees, are deemed “essential” but student association fees are not: no principled basis for this distinction was offered in the record before us or in argument.
In the wake of SCI implementation, universities had to fill the loss in a number of instances by implementing alternative services that likely came with administrative costs considerably higher than what student groups were providing. (University administrators tend to get paid a lot more than student workers, for example.)
Despite the divisional court decision signaling the death of the SCI, considerable damage has been done. Dozens of workers have been laid off from their jobs at numerous campus groups and student associations over the course of this past year. Some groups have ceased to function.
The Conservative government of Ontario has not made any comment, but the window for an appeal is still open. (The government could appeal to the Ontario Court of Appeal and from there to the Supreme Court, hypothetically.) Yet with such a unanimous decision, including strikes against them on a number of fundamental issues, the government may simply choose to concede.
Also, the court ruling specifically suggests that even if the SCI directives were directly authorized by legislation, they would then be open to “a serious Charter challenge,” in that the SCI can be “seen as a conflict over fundamental governance issues and the right to take collective action.”
The decision is clearly important for returning student funding to where it was, but the ruling could also set an important precedent for any future government intervention in student affairs.
The court has also reined in the power of the executive, signalling that the Ford government cannot simply act like an elected dictatorship during its time in office.
With the SCI quashed, it’s still unclear where things will go from here. What process do universities have to go through to undo the SCI? How long would that take? Will the SCI still be in place come January? What will happen to lost income for the Fall 2019 semester? NDP post-secondary education critic Chris Glover has called on the government to compensate all student groups for their losses.
Well, we at The Leveller say the only thing that’s truly non-essential is Doug Ford himself.
UPDATE: Ford’s frolics through the fields of executive overreach look ready to continue
Since this article was initially published in November, the Ford government has announced its intention to appeal the decision, leaving the funding of student groups in jeopardy for the foreseeable future. However, the decision of the Divisional Court is still legally binding in the meantime, as CFS-O noted in a statement calling on universities to restore the fee collections suspended by the SCI.
At least some universities have begun doing so, including Carleton University, home of The Leveller. In an email sent to students on December 18, 2019, Carleton University announced that they “will be closing [their] opt-out system effective immediately.”
The Court of Appeal for Ontario will now have to decide whether or not to grant leave to appeal, then, if leave is granted, decide on the appeal itself. Since the Ford government has not revealed the legal basis for its appeal, it is impossible to predict what the court’s decision will be. However, the unanimous nature of the Divisional Court’s decision leaves little room for maneuver for the Ontario government’s legal team.
If the decision is upheld on appeal, another possible avenue remains for the Conservatives, namely to pass legislation implementing the SCI in some form. Although the court argued that any such legislation would be open to a Charter challenge, the Ford government has already shown itself willing to invoke the Notwithstanding Clause to overrule Charter rights. There would in that case be no legal avenues to overturn the renewed SCI.
It behooves student groups, then, to build their organizing power, cultivate public support, and connect in solidarity with other groups threatened by Ford’s austerity.
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