Per jus ad justitiam. Through law to justice. So reads the Latin phrase on the regal crest of Osgoode Hall Law School. I have always understood that phrase quite literally—the law ought to be used to pursue justice. There are some, however, who seem to interpret it to mean that our understanding of the law ought to inform our understanding of justice. This puts the cart before the horse—and it is rather disheartening that I need to point out that horses cannot push carts.
The impassioned debate that accompanied the recent strike at York University perfectly exemplifies this backwards reasoning. And now that the passion has died down, there is no better time to assess that reasoning from a detached, impartial perspective.
Letters to the Dean, articles in the Obiter Dicta, ceaseless Facebook debates—they all started with an assumption about what is the just or fair response to the strike, and then made a desperate appeal to the legal principles that seemed to support their view.
Those who opposed the strike made it no secret that their position was driven primarily by self-interest: they wanted to finish classes and move on to summer jobs and articling. We get it.
But it is those who support the strike who more readily adopt the backwards reasoning I have described. They say that their position has justice on its side. And yet, I have not found a single moral argument in favour of CUPE 3903’s position, their decision to strike, or Osgoode’s decision to accommodate those who support the strike. Indeed, I suggest that the pro-strike position is not obviously just or moral. Let me explain why.
1. The pro-strikers have failed to give a moral argument for their positions
There are two arguments that I saw frequently adopted by those who supported the strike. The first argument held that because there is a constitutionally protected right to strike, we should support CUPE 3903’s decision to strike. By any measure, this is a bad argument. First, the fact that a right is constitutionally protected does not imply that it should be protected. In the United States, there is a constitutionally protected right to own a gun; we should still be able to discuss whether gun ownership should be constitutionally protected.
Moreover, the fact that one has a constitutionally protected right does not mean that one should exercise that right. I have a constitutionally protected right to run for public office. That does not mean it would be a good idea for me to exercise that right. Finally, the fact that people are exercising a constitutionally protected right does not mean that others should support that action. If an anti-abortion group holds a legal protest, that does not mean I should support that protest—even if I support their right to do so. So the first pro-strike argument clearly fails.
The second oft repeated argument said that we should not cross picket lines because doing so would necessarily undermine the union’s position in collective bargaining, and thus its ability to have its demands met. This is also a bad argument. First, it is not necessarily true that striking is integral to a union’s ability to effectively pursue good faith collective bargaining. Unlike strikes against private employers, this is a public sector strike against a provincially-funded institution. As such, there is clearly an alternative path for recourse: applying pressure to the provincial government.
Moreover, even if striking were essential for the union’s ability to pursue good faith collective bargaining, the argument presupposes that we do or should agree with the union’s position. For instance, suicide bombers may be right in claiming that killing civilians in public places is the only way to achieve their aims. But if we do not agree with their aims, then their actions are certainly not justified. As I argue in the next two sections, there may have been good reasons to not support the union’s demands.
2. Meeting all of CUPE 3903’s demands exacerbates the problem
At first glance, CUPE 3903’s demands sounded perfectly reasonable. In general, they wanted to improve wages and working conditions for contract faculty, as well as reduce tuition and improve working conditions for graduate students. These are certainly worthy aims.
But we should not forget that the problems that the contract faculty and graduate students face go well beyond York University. Across (at least) the English-speaking world, there is a shortage of academic jobs in virtually every discipline; at the same time, graduate students are working increasingly long hours with dwindling financial support. If universities are to be successful in producing valuable research and offering quality education, these problems must be addressed.
If York University were to meet CUPE3903’s demands, however, these problems would likely be exacerbated. The academic job market is heavily overcrowded—the supply of academics far outstrips the demand for them. The only way to fix that is to increase the number of undergraduates (thereby increasing the demand for professors), or to reduce the number of PhD students looking for academic work (thereby reducing the supply of prospective professors). Increasing the number of undergraduates (at least in any substantial way) would be very difficult given the aging population and the already high rates of undergraduate enrolment (at least in most English-speaking countries).
The more practical solution is to reduce the supply of professors. But the union securing its demands for reduced tuitions and improved working conditions for graduate students would further incentivize students to pursue graduate studies at York University. This risks further overcrowding the academic job market, leading to a larger proportion of unemployed and under-employed academics.
CUPE 3903 also wanted York University to improve the wages and benefits of contract faculty members. The University doing this would likely reduce its capacity to hire new faculty members, since York’s budget for faculty salaries is presumably limited. This would further reduce the number of available academic positions, making it more difficult for recent PhD graduates to find academic work.
Of course, this is a simplified picture of the long-term effects of meeting the union’s demands. Ultimately, what happens will depend on what other universities do—what kinds of faculty positions they offer and what kinds of graduate benefits they can provide. It also depends on how governments choose to fund universities. And it depends on how, if at all, the demand for an undergraduate education will change in the future.
These are big questions with no easy answers. But they are clearly important. And rather than concoct a haphazard solution through employment contracts at a single university, we need a comprehensive, national (or perhaps international) solution—a solution that engages universities, governments, and unions. Perhaps this is unrealistic or too ambitious. But a genuine concern about contract faculty, graduate students, and the quality of undergraduate education demands this kind of solution. Any effort to address these problems solely in employment contracts within a single university ignores the systemic roots of the problems, and will likely only exacerbate them.
3. CUPE 3903’s decision to strike risks causing more harm than good
Would it ever be morally acceptable to kill fourteen people to save one? Hopefully, everyone answers this question with an obvious “no.” Would it ever be morally acceptable to harm fourteen people to benefit one? Again, I would expect most people to answer “no.”
Yet, in a simplified sense, this is exactly what happened in the recent strike: the interests of 52,000 undergraduate students were being compromised at the expense of the interests of 3700 contract faculty and graduate students—a ratio of about fourteen to one. Other things being equal, then, the strike would cause more harm than good.
Those who supported the strike would presumably reject this claim. But to reject it, there must be some other relevant facts that make the interests of the union’s members outweigh those of the undergraduates. But it cannot be because of the positions of the parties affected by the strike. By any possible measure, the union’s members are better off: they are highly educated, earn an income, and are organized. None of that can be said about the undergraduate students.
It also cannot be because of the nature of the interests at stake. The union’s members were demanding, for contract faculty, increased salaries and job security, and for graduate students, reduced tuition and improved working conditions. The undergraduates, on the other hand, are mostly unemployed and almost certainly in considerable debt. They are not working towards an exclusive graduate degree or a highly sought-after academic career; instead, they are pursuing a degree that is now the minimum requirement for achieving any sort of upward socioeconomic mobility in Canada.
Perhaps these arguments are too shortsighted. As the union itself has argued, in the long-term, improved conditions for its members will result in improved learning conditions for undergraduates. But this sounds like the stuff that trickle-down economics is made of. How exactly will undergraduate education improve? Presumably, they would get more feedback and attention from professors and TAs. While these predicted changes sound like benefits, do we have any evidence that it will result in a more enjoyable experience, better grades, a better understanding of course material, an improved ability to think critically, or better job prospects?
Furthermore, will the supposed benefits to undergraduates be enough to compensate them for the losses they have suffered because of the strike? A 1999 article by a York University sociologist shows that, during the 1997 strike, the total financial loss to full-time undergraduate students due to interference with summer jobs was $12 million. There are also considerable non-financial losses: expired visas for international students, cancelled summer plans, and an incredible amount of stress due to the uncertainty surrounding finishing classes and pursuing part-time and summer work. Though the current strike ended before most of these losses were realized, it is nonetheless an important factor to consider during any strike.
Will the supposed benefits to undergraduates be cost effective in light of the many other disadvantages of being an undergraduate student at York—like its commuter culture and (relatively) rampant crime? Perhaps it would be cheaper for the University and for its undergraduates to invest in other projects that could more effectively improve the undergraduate experience. Without concrete answers to any of these questions, I cannot see why we should accept the union’s claim at face value—especially when it is very clearly in the self-interest of the union’s members to purport it.
4. Osgoode’s accommodation of those who support the strike is unfair
The administration’s decision to accommodate those students who refused to cross the picket lines is either bad policy, or, it is arbitrary and unfair. This is because the decision is actually based on a more general principle: Osgoode should make accommodations for students who, because of deeply held personal or political ideologies or beliefs, disagree with a policy decision of the school such that continuing to participate in academic activities would violate their ideology or belief.
To adopt this principle clearly would be bad as a matter of policy. Almost immediately, it brings to mind the York University student who refused to attend class because his religious beliefs prohibited him from working with female students. Though York accommodated that student, many people were highly critical of the decision. Indeed, there are countless policy and financial decisions made by Osgoode or York with which students strongly disagree; for example, its partnerships with firms that work with companies in the Alberta oil sands. Clearly, the university and the law school should not be making accommodations for all of their policy decisions.
If Osgoode’s decision is not based on this general principle that would apply to all situations, and is instead based on the much narrower principle accommodations ought to be made for students who disagree with this (not any) decision of Osgoode (that is, to resume classes). If this is the case, such accommodation starts to look not only arbitrary, but also unfair.
Understandably, there are students who believed very strongly in CUPE 3903’s decision to strike. But why should that particular political and philosophical position be given preference over other positions? Why is the union’s cause so important that the law school is willing to accommodate students who support this cause, but not accommodate students who oppose exploration in the Alberta oil sands? The decision to privilege one political or ideological position over another (by virtue of offering those who hold it, and not others, accommodation) is both arbitrary and unfair.
In a comparative context, the union’s cause does not seem sufficiently important to warrant the law school’s accommodation policy. A number of students referred to the strike, either disparagingly or approvingly, as a “social justice” issue. That may be so, but on the scale of social justice issues, I cannot see how this issue does not fall somewhere near the bottom in terms of priority. As we should all recognize, the opportunity to pursue graduate studies and a career in academia is an incredible luxury. Most people will never enjoy a career so intellectually satisfying and so socially important.
But justice does not demand that we help people achieve their dreams; justice demands that we help the worst-off members of society. This means working on issues like homelessness, unemployment, global poverty, war and genocide, animal abuse, and environmental degradation. Students, like myself, have spent incredible amounts of time thinking about, writing about, and working on (one side or the other) of the strike. This seems like a waste of time when we remember the serious injustices that continue unabated all across this city, country, and world. How can we possibly pat ourselves on the back for making easier the lives of those who live in the global top 1%?
Where do we go from here?
I have tried to outline some moral arguments against the recent strike by CUPE 3903. My purpose, however, has not been necessarily to convince others to adopt my position. Rather, I am simply trying to point out that the pro-strike position was not the undeniably just and moral position that its proponents suggest. There are complex factual and moral issues at stake in this debate, and rather than simply adopt the position that is ideologically comfortable—a kind of intellectual peer pressure, I suppose—it is important that we think critically about these issues. This means being open to the possibility that one’s initial position is wrong. If we want to work through law to justice, we should first make sure we are right about what justice demands of us.