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Peter MacKinnon: University of Alberta should be applauded for resisting affirmative action

Affirmative action — by whatever name it is known — is discriminatory

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Proponents of EDI too often overlook or downplay its essential feature: it is discriminatory and contrary to section 15(1) of the Charter and its equivalent in provincial human rights codes. Promoting diversity sounds better than practicing discrimination, but the two have gone hand in hand in our universities and other public settings. As the Post’s Tristin Hopper observed: Canadian universities have engaged in race-centric hiring and admissions, and in some cases, race-segregated student spaces and events.

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The question is not whether racial, gender or other attributes can be taken into consideration in faculty appointments and student admissions. The whole person — the entirety of a person’s life and experience, including their personal identities — may be relevant in these decisions, though they should depend on individual cases, not on identities, per se.

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The question, rather, is how far one can go in permitting what would otherwise be unlawful discrimination in the name of affirmative action. The answer in Canada is “very far.” Recent examples include academic jobs or clusters of appointments from which some applicants — straight white males in particular — are barred; institutional requirements that applicants pledge support for EDI; student admissions pathways committed only to non-whites or persons of other group identities; quotas for designated groups in Canada Research Chair appointments and research council awards; and lounges or other student spaces set aside only for people of colour.

Affirmative action finds support in reported experiences of identity group members and in some human rights tribunals. Their starting point is not discrimination; indeed their narratives typically avoid the subject. They appear to see affirmative action as the trump card that sets aside the right to equality and freedom from discrimination.

Now — at last — one of our universities is signalling willingness to address these issues. This move does not result from a clear change of heart by University of Alberta’s senior administration; in the words of president Bill Flanagan, “For some, the language of EDI has become polarizing, focusing more on what divides us rather than our shared humanity. Some perceive an ideological bias at odds with merit.”

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For others, this writer included, the concerns are more fundamental. Affirmative action — by whatever name it is known — is discriminatory. Its practice, though constitutionally permissible in this country, should be marked by strict conditions that ensure the least possible intrusion on the right to equality and freedom from discrimination.

The University of Alberta will encounter obstacles, whether in insistence by some that EDI must continue, or in promises by others — notably University of Ottawa professor Amir Attaran — to seek defunding of the university if it follows through on its promise to end discriminatory hiring practices. Attaran will find no support in Alberta, though, perhaps, from some in federal agencies which will aggravate cleavages already apparent in our country.

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In 2023, the Supreme Court of the United States declared affirmative action unconstitutional, citing in its reasons the failure of universities to adhere to conditions put in place 60 years earlier. Canada will not follow suit, though we should expect to see challenges to its wide practice in this country, and conditions on its usage: the broader the scope of affirmative action, the narrower the purview of equality and freedom from discrimination.

Our rights to equality and freedom from discrimination were hard-won and must be protected against those who would undermine them.

Peter MacKinnon has served as president of three universities and is a senior fellow of the Macdonald-Laurier Institute and the Aristotle Foundation.

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