Portside

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 The censure vote came at the end of a nearly eight-month controversy, which centers on a single rescinded job offer from a tiny program at a small school within a very large university.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.)

In response to my request for comment from Gertler, the University of Toronto referred me back to the Cromwell report.

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.

[Masha Gessen, a staff writer at The New Yorker, is the author of eleven books, including “Surviving Autocracy” and “The Future Is History: How Totalitarianism Reclaimed Russia,” which won the National Book Award in 2017.]