TMU hires former chief justice to review law school students’ open letter on Hamas attack, Israel

Lincoln Alexander law students' open letter led to controversy and more open letters

TMU hires former chief justice to review law school students’ open letter on Hamas attack, Israel

Toronto Metropolitan University has appointed retired Chief Justice of Nova Scotia Michael MacDonald to lead an external review of an Oct. 20 open letter from 74 TMU law students condemning the law school administration’s public statement on the ongoing violence in the Middle East.

The letter followed the surprise Hamas attack on Oct. 7 that killed more than 1,400 Israelis and other nationals, while law firms, universities, and other organizations were publicizing statements condemning the attack and expressing sympathy for the victims. The letter, from the Abolitionist Organizing Collective and other law students, said the signatories condemned any statement that “denies or shifts away from the narrative of colonialism” or “equates the struggle of the oppressed with the acts of their oppressor.”

The letter condemned any organization that “only condemned Hamas’ recent war crimes” but said nothing of “the historic and ongoing war crimes committed by Israel.” The letter also said Israel was not a country but a “brand of a settler colony” and that the Hamas attack was “a direct result of Israel’s 75-year-long systematic campaign to eradicate Palestinians.” The authors requested that the school release a new statement by Oct. 27.

The Lincoln Alexander School of Law responded on Oct. 23 by disavowing the open letter, saying they “unequivocally condemn the sentiments of Antisemitism and intolerance expressed in this message” and that the “law school acknowledges the immense pain and damage that this letter has caused.”

TMU has hired MacDonald as an “independent expert to undertake a thorough, judicious review,” the school said. MacDonald will examine whether the open letter breached the Student Code of Non-Academic Conduct and, if so, what response is appropriate.

MacDonald was one of the three commissioners in the Mass Casualty Commission examining the 2020 mass killing in Nova Scotia. He was appointed to the bench in 1995 and served as Chief Justice of Nova Scotia and Chief Justice of the Nova Scotia Court of Appeal from 2004 to 2019.

“I am concerned about an investigation that functions as a PR exercise for the university, rather than a principled analysis that respects academic freedom and free expression,” says Joshua Sealy-Harrington, assistant professor at the Lincoln Alexander School of Law. “I'm also concerned about whether or not this review will be conducted with actual expertise about the meaning of antisemitism.”

“The TMU letter is not hateful, nor is it antisemitic. Conflating criticism of Israel with antisemitism is a well-worn strategy used by supporters of Israel to silence critique – a strategy, I note, which makes it harder for people to challenge antisemitism, a form of racism I personally abhor.”

Sealy-Harrington says he hopes the review process is “committed to a principled analysis,” drawing on the expertise of scholars and activists who can speak to the weaponization of antisemitism and the misrepresentation of antisemitism to suppress criticism of Israel and delegitmize Palestinian resistance.

“I'm not terribly hopeful that that will happen,” he says. “But if it is going to be a principled analysis, then that expertise will lie at the very heart of what the review is meant to investigate.”

In the wake of the Oct. 7 attack, family lawyer and counsel and chair of MacDonald & Partners LLP Gary Joseph wrote in Law360 of his decision to sever ties with his alma mater, Osgoode Hall Law School, over its failure to publish a condemnation of the attack. He wrote that he will no longer participate in continuing professional development programs or alumni events because Osgoode has lost its “moral authority to teach young lawyers.”

“I am pleased that the TMU has appointed an extremely well-respected jurist to review the issue,” Joseph told Law Times. “However, I would be happier if the appointment and the defined terms of his review had been the subject of consultation with the leaders of the Jewish legal community before the appointment was made.”

“I hope that the appointment was not an attempt to remove the issue from the front pages and bury it behind the wall of ‘we must await the results of the inquiry now underway,’” he says. “With absolutely no disrespect to the learned justice appointed, there is an air of politics in the step taken by TMU.”

TMU president and vice-chancellor Mohamed Lachemi said that the school believed a formal external review was the best way forward because of the impact the open letter had on TMU community members, the school’s partners, and its stakeholders.

“We are extremely grateful to Mr. MacDonald for offering his guidance and expertise, and we look forward to receiving his determinations,” said Lachemi.

The TMU open letter was met with a wave of condemnation from the legal profession. Following the backlash, another open letter emerged, which now has the signatures of 653 lawyers, law professors, and other academics. The Open Letter to the Legal Community on Pro-Palestine Speech was produced in response to the “pervasive repression of speech and scholarship on Palestinian liberation” and the threat of job loss and academic sanction faced by students and lawyers for “advocating against Israel’s atrocities in Palestine.”

The letter’s authors said they were concerned with statements from lawyers, law firms, and law schools that conflate solidarity with Palestinians and criticism of Israel as antisemitic and conduct disqualifying them from studying or practising law. The authors said lawyers are advocating on social media to blacklist students and lawyers who support Palestine, are contacting employers to encourage them to fire lawyers for their pro-Palestinian advocacy, and are bullying and defaming those who voice support for Palestine or attend public protests. The signatories commit to not discriminate against anyone for “speaking out for justice and freedom for Palestinians.”

“There have been myriad career consequences for expressing solidarity with Palestine, which should alarm anyone in general, but especially as the death toll in the Gaza genocide surpasses 10,000 people,” says Sealy-Harrington. “The fact that people are experiencing career consequences for opposing that is very alarming.”

“We reject the notion that it is antisemitic, hateful, or illegitimate to contextualize the October 7th, 2023 attack,” the letter's authors said. “Similarly, we reject the notion that it is antisemitic, hateful, or illegitimate to express support for Palestinians in the face of ongoing Israeli apartheid and genocide.”

The organizations which have signed on to the letter include the Arab Canadian Lawyers Association, the British Columbia Civil Liberties Association, and Canadian Lawyers for International Human Rights.

“This chilling effect on freedom of expression and academic freedom has the hallmarks of a new McCarthyism,” the authors said. “A failure of those of us in the legal profession to voice our opposition to this conduct will only accelerate the erosion of the very protections that make dissent – and therefore democracy – possible. It is vital that the space for scholarship, speech and activism in defence of basic human rights be preserved.”

Another response to the initial TMU open letter came from the Legal Innovation Zone, which operates out of the university. This open letter said that the Oct. 23 response from TMU condemning the initial open letter was inadequate, and was signed by various legal tech founders, including the founders of Vaultie, CiteRight, MinuteBox, BorderPass, and Goodfact.

“The words expressed in the response carry little weight if the school does nothing to stand behind them,” said the letter. “A more robust and substantive response is warranted – one that is supported by actions rather than words alone.”

The 23 undersigned founders, representing 16 companies, said they were reevaluating their relationships with TMU and the Lincoln Alexander School of Law, and said they hoped the school would take further action that “clearly demonstrate what it means to be intolerant of Antisemitism and statements that promote violence, terrorism, and hate.”

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