The New Yorker, May 10, 2021
Did a University of Toronto Donor Block the Hiring of a Scholar for Her
Writing on Palestine?
Activists refer to a “Palestine exception to free speech” in North
American universities.
By Masha Gessen
In late April, the Canadian Association of University Teachers, which
unites a majority of college faculty in the country, took the
extraordinary step of censuring the University of Toronto, Canada’s
top-ranked institution of higher learning. The move amounts to a
boycott: the association is asking members not to accept job offers or
attend conferences at the school. The censure vote came at the end of a
nearly eight-month controversy, which centers on a single rescinded job
offer from a tiny program at a small school within a very large
university. The entire affair, however, resides at the precise
intersection of scholarly freedom, the place of the university in
broader political conversations, and the influence that financial donors
wield over academic institutions.
Last summer, a search committee at the University of Toronto interviewed
Valentina Azarova, a human-rights lawyer and scholar based in Germany,
for the director job of its International Human Rights Program
(I.H.R.P.), which is housed in the law school. Azarova has worked in the
academy and in the field. Early in her career, she focussed primarily on
the Israeli occupation of Palestine, writing papers on a variety of
legal issues such as the jurisdiction of the International Criminal
Court and the legal responsibilities of Israel’s diplomatic and trade
partners. Azarova’s more recent work looked at migrant rights,
structural violence at international borders, and the use of European
Union funds by war criminals.
She was an inspired choice, and she had her own reasons to be interested
in the job. Azarova’s partner of nine years, who is also a human-rights
researcher, is a Canadian citizen; his school-age children and elderly
parents live in the Toronto area. “Suddenly, these things aligned,”
Azarova told me by phone last fall. The three-person search committee
was unanimous. In August, Azarova started corresponding with the
university administration and its lawyers, negotiating the terms of her
employment and the visa, residency, and work-authorization arrangements
that she would need to make. The university wanted her to begin as soon
as possible and to relocate to Toronto by the end of 2020.
On September 10th, an assistant dean called Azarova to tell her that the
law school would not be offering her the job after all; there seemed to
be issues with finding a workable visa and contract solution. It was a
peculiar conclusion for at least two reasons. A member of the search
committee and chair of the faculty advisory committee to the I.H.R.P.,
Audrey Macklin, who is a leading immigration-law scholar, had been
confident that work authorization wouldn’t be an issue. And the
I.H.R.P., like the rest of the university, was functioning online
because of the pandemic, making the director’s physical presence almost
irrelevant. On September 14th, the dean of the law school, Edward
Iacobucci, announced that the search for a program director had been
called off for the year.
Over the next couple of weeks, Azarova, members of the law school’s
faculty, other interested parties, and, finally, the Canadian media
pieced together what had happened. It emerged that, on September 4th, a
high-level university administrator spoke on the phone with David E.
Spiro, a tax judge who, individually and as a member of a wealthy
family, is a major donor to the law school. Spiro expressed concern
about Azarova’s work on the Israeli occupation and suggested that her
appointment would damage the university’s reputation. The university
administrator alerted the leadership of the law faculty, who, in turn,
contacted the search committee. Soon Iacobucci reversed the process of
Azarova’s hiring. (I attempted to reach Spiro through the tax court and
a Jewish community organization with which he is affiliated, but he did
not respond.)
As details emerged, protest took shape. Several members of the law
faculty signed a letter opposing the decision to withdraw Azarova’s
offer, and outside scholars expressed their dismay. Macklin resigned
from her post as chair of the faculty advisory committee; the rest of
the committee followed. Human Rights Watch discontinued a program
affiliated with the I.H.R.P., and Amnesty International threatened to do
the same. Samer Muscati, the former head of the I.H.R.P., (now of Human
Rights Watch), told me by Zoom, in November, that with these losses the
program was effectively dead.
“Such an intervention in hiring due to political considerations may
undermine the project of clinical legal education as a whole,” Itamar
Mann, an Israeli human-rights lawyer and professor who served as one of
Azarova’s references, wrote to Iacobucci. He added that “it may embolden
efforts to boycott Israeli universities, as a form of retaliation for
such influence on the part of Jewish organizations. This will
doubtlessly be counter-productive from the point of view of supporters
of Israel, who I presume would like to help encourage academic exchanges
between Israeli universities and universities outside of Israel.” In
October, the Canadian Association of University Teachers started
discussing the possibility of censuring the University of Toronto.
The university continued to deny that Azarova’s offer was withdrawn
because of Spiro’s intervention. In the face of mounting criticism, it
commissioned a retired Supreme Court justice, Thomas A. Cromwell, to
conduct an independent inquiry. Cromwell submitted his report in March.
What followed resembled the release of the independent counsel Robert
Mueller’s 2019 report on Russian interference in the U.S. Presidential
election: exonerating top line, damning body text.
Cromwell wrote, “Having reviewed all of the relevant facts as fully as I
can, I would not draw the inference that external influence played any
role in the decision to discontinue the recruitment of the Preferred
Candidate.” The President of the University of Toronto, Meric Gertler,
issued a statemen leading with this quote from the Cromwell report.
Gertler expressed hope that the law faculty could move on from the
divisive experience, and, separately, sent a letter to Azarova in which
he apologized on behalf of the university “for the fact that
confidentiality was not maintained in the search process.” (Gertler’s
office proceeded to send the letter to an incorrect e-mail address,
prompting a second, effusive apology and the promise to ask the
accidental recipient of the first e-mail to delete it without reading.
The seventy-eight-page report itself, however, confirmed the facts that
had so upset Azarova’s supporters and others back in the fall. Cromwell
found that a judge and donor (Cromwell did not identify Spiro by name)
learned of the results of the confidential candidate search in an e-mail
forwarded from a professor at another institution. The subject line of
the e-mail was “U of T pending appointment of major anti-Israel activist
to important law school position.”
The e-mail urged “quiet discussions” with the university to scuttle the
appointment. During a scheduled fund-raising call with the university’s
assistant vice-president, the judge brought up his concerns, handily
summarized by one of the assistant deans: “The Jewish community would
not be pleased by the Preferred Candidate’s appointment.”
“I can’t understand how, based on the facts, one could conclude there
was no interference,” Muscati texted me after he read the report.
Vincent Wong, a member of the search committee who quit his job at the
law school in protest, last fall, said in an e-mail that Cromwell,
seeing no conclusive proof that the interference was the sole reason for
withdrawing the job offer, took the opportunity to exonerate the
university. “It is very reminiscent of a lot of human rights cases in
which, for instance, sexism or racism cannot be pointed to as the
primary factor motivating a decision (because there was no admission, no
direct slur, no ‘smoking gun’) but all the contextual factors point to
discriminatory treatment,” Wong wrote. He pointed out, too, that a
powerful white man was investigating the conduct of other powerful white
men—the university president and the law dean. “Folks who brought up the
issue (all of whom were not white men), first internally, and then as
whistleblowers to the media, are chastised in the report,” Wong wrote.
Now, he added, “Palestinian rights and international law with respect to
the Israel/Palestine situation are now demonstrably a taboo subject in
the law school.”
In Cromwell’s view, the logic of events was unsurprising and familiar.
“My conclusion is that the Alumnus simply shared the view that the
appointment would be controversial with the Jewish community and cause
reputational harm to the University,” he wrote in the report. “This
would hardly be news to anyone who had taken a moment or two to look on
the internet.”
But Mann, the Israeli human-rights lawyer, who spoke to me by Zoom from
Haifa, characterized the views expressed in Azarova’s papers on Israel
and Palestine as “very mainstream under international law: that
settlements are illegal, that the occupation cannot continue
indefinitely.” (Mann has collaborated with Azarova on topics unrelated
to Israel, such as migration law and human-rights abuses in Libya.) “I
don’t think there was any big revelation to me,” Ariel Katz, a
University of Toronto law professor who read Azarova’s work for the
first time, last fall, told me by Zoom from Toronto. “I grew up in
Israel, I read Haaretz. But I can imagine why some people who are blind
supporters of Israel would be upset—because it is upsetting, if you
consider yourself a North American liberal, to read some of those things.”
Palestine is where international human-rights consensus collides with
the North American political consensus. In late April, Human Rights
Watch issued a report stating that Israel’s actions in the occupied
territories amount to crimes of apartheid. (Earlier this year, a leading
Israeli human-rights organization, B’Tselem, made the same argument.) At
the same time, the Canadian government and the provincial government of
Ontario have officially adopted the definition of anti-Semitism proposed
in 2016 by the International Holocaust Remembrance Alliance, which
classifies a range of criticisms of Israel as anti-Semitic. The
definition was also adopted by the U.S. State Department during the
Trump Administration, and was separately affirmed by Donald Trump in a
2019 executive order specifically pertaining to colleges.
Scholars and activists refer to a “Palestine exception to free speech.”
In 2015, Palestine Legal, a U.S. organization, issued a report with that
name, documenting the systematic cancellation of on-campus events,
administrative sanctions against student groups and faculty, and
punitive scrutiny of professors who conduct research or speak about
Palestine. The most notorious case is that of the former English
professor Steven Salaita, whose offer of a tenure-track appointment at
the University of Illinois was rescinded after he wrote a series of
tweets about Israel’s policies in Gaza. (The university later paid eight
hundred and seventy-five thousand dollars to settle two lawsuits by
Salaita.) Salaita’s tweets included profanity and, most problematically,
comparisons between Israeli and Nazi policies.
By contrast, the positions that apparently led the University of Toronto
to withdraw its offer to Azarova were expressed not in tweets but in
peer-reviewed scholarly publications. Anver Emon, the founder of the
journal Middle East Law and Governance, who holds joint appointments at
the law faculty and the history department at the University of Toronto,
told me that he had been “delighted” when he heard that Azarova would be
running the I.H.R.P. “She has a range of expertise on a range of
issues—she is a unique candidate, unlike anyone I’d seen at the
University of Toronto,” Emon told me by Zoom from Toronto, in December.
“She could do the academic work, the advocacy work. It would have been
great.”
Instead of resolving the conflict, the Cromwell report has inflamed it.
At least one high-profile member of the law faculty, Kent Roach,
resigned his position as chair of an advisory group to another of the
university’s clinical programs. Seven law-faculty members wrote a letter
objecting to the university president’s calls, most recently in late
March, to move on from the controversy. Finally, rather than averting
censure by the Canadian Association of University Teachers, the Cromwell
report probably helped mobilize support for it. “Your faculty are
neither idiots nor sheep,” Ruth Marshall, a professor of religious
studies, wrote in an e-mail to the university president. “I therefore
welcome the CAUT sanction—it is richly deserved.”
The university has already had to cancel several events because speakers
pulled out in accordance with the union’s censure.
“The easiest path forward to effect reconciliation—if that is indeed the
desire of the University and the Faculty of Law—is simply to offer Dr.
Azarova the position of Director of the IHRP,” the seven law professors
wrote in their letter to the university president. “The only way to
rectify the undeniable harm done to her is to offer her this position
promptly. Only by offering her the position will the University and the
Faculty of Law unequivocally repudiate the still lingering suspicion,
which the uncontested facts of the Cromwell Report have only served to
strengthen, that the failure to give Dr. Azarova the directorship of the
IHRP was a result of improper donor influence.” (In response to my
inquiry, the University of Toronto wrote, “Demands to 'just hire the
candidate' is an oversimplification of existing restrictions; but when
the process resumes, we welcome applications from all qualified
candidates.”)
Offering the job to Azarova would probably prompt the Canadian
Association of University Teachers to lift its censure and convince
faculty and human-rights organizations to resume their coöperation with
the I.H.R.P. But such is the special status of the subject of
Palestine—and such is the influence of donors on the decisions of
universities—that hiring an excellent candidate for the job can seem the
most difficult course of action.
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