Jewish law prof loses bid to quash TMU's decision not to discipline students who signed 'antisemitic' letter

A Jewish law professor has lost her bid to get a court to quash Toronto Metropolitan University’s decision not to discipline students who signed an open letter “condoning, if not outrightly encouraging the Hamas terror attacks on October 7 and denying Israel’s right to exist.”

Sarah Morgenthau, who complained those who signed the letter had breached TMU’s student code of conduct, took her case to Ontario’s Superior Court of Justice after an external review conducted by a retired judge determined the opposite and that the signees should not be disciplined.

“The applicant, who is Jewish, saw the open letter as antisemitic and condoning violence against Jews and Israelis,” said a recent decision from the three-judge panel.

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It notes that the open letter, from “a group calling itself the Abolitionist Organizing Collective” was released “less than two weeks after Hamas’ October 7 attacks in Israel.”

While the open letter “referred to Hamas’s ‘recent war crimes’” it also “asserted that Israel had also been committing war crimes,” said the court decision. “The letter characterized ‘so-called Israel’ as an ‘apartheid state’ and ‘a product of settler colonialism.’ It claimed that Israel was ‘responsible for all loss of life in Palestine’ and called on the (Lincoln Alexander School of Law’s) administration to issue a statement demanding that the Canadian government take certain actions, including demanding an immediate ceasefire. The authors also asked that the administration recognize ‘Palestinian resistance as fundamentally just and as a means of survival for Palestinians.’”

According to the decision, Morgenthau “considered the open letter to have instigated violent rhetoric against the Jewish community, which crossed the line into unacceptable conduct, particularly since the signatories were law students — and therefore future lawyers.”

The court declined Morgenthau’s application for a judicial review of TMU’s decision to apply the results of former Nova Scotia chief justice Michael MacDonald’s external review, which cleared those who signed the letter, to her complaint.

“I do not believe it is appropriate for the Divisional Court to intervene in the process undertaken by TMU to resolve an issue that affected the entire university community,” Justice Karen Jensen wrote in a Sept. 4 decision from the panel.

“The external review process was designed to reflect TMU’s values and its approach to conflict resolution in a collegial learning environment.”

The court heard Morgenthau was an adjunct professor at TMU’s Lincoln Alexander School of Law when 72 students signed the letter in question on Oct. 20, 2023.

“Following the circulation of the open letter, the applicant submitted a formal complaint under TMU’s Student Code of Non-Academic Conduct and the Discrimination and Harassment Prevention Policy,” said the panel’s decision.

A week after students signed the letter, TMU “announced that it would appoint an independent external expert to conduct a review of the open letter and related events, petitions, and concerns, and to determine whether any of the actions and incidents related to the open letter were in breach of TMU’s policies and procedures,” said the decision, which notes the university subsequently appointed MacDonald as the external expert.

The former judge released his external review in late May 2024.

“He concluded that none of the participants in the open letter had breached the Student Code of Conduct. Therefore, the students were not disciplined,” said the panel.

While MacDonald found “the open letter was troubling and offensive to many, the students’ participation in it, when placed in context, was nonetheless a valid exercise of student expression,” said the panel’s decision.

In his report, MacDonald indicated that the principles of freedom of expression “give wide latitude for students to apply their experience and learning, and to experiment with written advocacy. The standard is not perfection. Students are entitled to make mistakes, and even cause harm, without necessarily facing sanctions.”

The retired judge pointed out that the students who signed the open letter had “been under the jeopardy of this review, subjected to a barrage of threatening hate mail, their personal information has been doxed, and they have likely lost existing and future professional opportunities. It’s time for them to move forward in their legal education and their professional careers.”

MacDonald also “found that the open letter was not antisemitic because it did not refer to Jewish people or Judaism, nor did it explicitly or implicitly equate Israel’s actions with those of Jewish people, whose views do not necessarily align with those of the state of Israel.”

Just over a month after his report landed, TMU informed Morgenthau “that it would not be proceeding with the investigation of her complaint because it had determined that the MacDonald Report and the External Review had fully and appropriately addressed the substantive issue raised in the complaint,” said the decision, which notes TMU told Morgenthau she couldn’t appeal that decision.

She applied for a judicial review of TMU’s decision not to proceed with her complaint.

“In the present case, the panel declined to undertake judicial review because it is not appropriate for this court to second guess TMU’s decision not to discipline the students who participated in the open letter,” said the decision.