Hanes: It seems the courts can only do so much to protect English institutions from overreach

Montreal Gazette

a day ago

By
Shock waves rippled across the globe last month when U.S. President Donald Trump slapped a ban on international students at Harvard University, part of his escalating war against America's oldest institution of higher learning.
Harvard fought back and the courts granted a reprieve to 6,700 international students attending one of the world's most prestigious universities, including 700 Canadians.
But it's clear Trump has it out for Harvard in particular as he seeks to remould American universities to prevent them from spreading supposedly 'woke,' leftist ideology and challenging his administration's undercutting of democracy. He has withdrawn billions in grants and research funding, arrested international students or revoked their visas, threatened universities' tax status, and interfered with diversity, equity and inclusion initiatives.
It's a terrifying blow to academic freedom — an attack intended to weaken a powerful institution, driven by political motives and petty resentments.
Closer to home, it's hard not to notice parallels with how Premier François Legault has been treating Quebec's English universities. His efforts to hobble them started well before Trump returned to office and his methods are more subtle. But some of the consequences are similar.
In 2023, his government without warning announced the doubling of tuition for out-of-province students, a move disproportionately affecting McGill, Concordia and Bishop's universities. While the amount was eventually lowered to 33 per cent and Bishop's got a partial exemption, English schools were later told they had to ensure 80 per cent of their graduates attain an intermediate level of French to graduate. The government also said it would claw back a portion of international student tuition from English universities and redistribute it to francophone institutions.
The stated objective of these punitive measures was to protect French.
Government ministers blamed English-speaking university students from other provinces for anglicizing downtown Montreal while also lamenting they leave Quebec after they come here to study, instead of integrating and paying taxes. The fee increase seemed intended to make students from the rest of Canada feel unwelcome — and knock the English schools, McGill in particular, down a few pegs.
Business leaders, most French university rectors, Montreal Mayor Valérie Plante, academics, student groups and an advisory committee reporting to Higher Education Minister Pascale Déry all denounced the tuition hike, warning it would hurt the economy, academia, scientific research and the vitality of the higher education ecosystem.
It went ahead anyway.
McGill and Concordia launched a legal challenge while their revenues, recruitment and reputations suffered.
In April, Quebec Superior Court overturned the tuition fee increase and the onerous French requirements for out-of-province students, calling them 'unreasonable.'
This week, Déry's office announced the Quebec government won't appeal the judgment that used words like 'unfounded,' 'fuzzy,' 'erroneous' and 'incoherence' to describe the factual basis (or lack thereof) justifying the manoeuvres.
Yet instead of emerging chastened, the Legault government has been emboldened.
Déry's office confirmed she intends to double down on the tuition increase while also emphasizing that Quebec is under no obligation to guarantee students from outside the province access to its universities.
Time will tell what the latter chilling statement really means. But in the current context, it sounds ominous for McGill and Concordia. What looked like a partial win may end up amounting to pyrrhic victory. Or maybe more like Groundhog Day.
The Legault government may simply plan to go back to the drawing board to figure out how to do what it intended in the first place, this time in a way that passes legal muster. It's making a generous interpretation of the judgment — taking it as constructive criticism rather than a stern rebuke.
Quebec Superior Court Justice Éric Dufour struck down the tuition hike and French requirements, but he mainly found fault with 'poverty of evidence' and contradictory arguments for failing the test of 'reasonableness.'
'It's true that discretionary power warrants a lot of room to manoeuvre and that the court must grant the minister all the latitude to act. Restraint is required when it comes to decisions based on political choices,' Dufour wrote. 'But as important as discretion is, the minister must nevertheless demonstrate that it's being exercised in a reasonable manner, that's to say in this instance, with respect to existent and founded facts.'
It's a ruling largely based on administrative principles. The judge steered clear of bigger questions pertaining to rights that were raised in the case because the technical flaws made them moot to the ultimate outcome.
These include McGill's argument that the tuition hike for students from other provinces violated its equality rights on the basis of language. Since the judge left these matters unanswered, perhaps this will give the universities recourse in the future.
Because the fight seems destined to continue with a government that has a track record of trying to diminish English institutions, be they school boards, colleges, hospitals or universities.
The battle may even ramp up if the government looks to meddle in the composition of the student bodies.
All Quebec universities are reeling from a drop in enrolment from international students because of changes to both federal and provincial policy. Their higher tuition helps make up for government underfunding and is essential to conducting scientific research.
The crackdown on international students may be part of a Canada-wide plan to rein in the surging number of temporary immigrants, which has contributed to the housing crisis. But in Quebec, it's also part of a broader effort to reduce immigration for the purposes of protecting the French language and culture.
Legault has made it no secret that he considers anglophone students from the rest of Canada a threat to French, too.
The use of the word 'access' by Déry's office with regards to students from other provinces suggests a toughening of Quebec's stand and a sharpening of previous complaints about Quebecers having to 'subsidize' the education of young people from the rest of Canada. This portends ill for McGill and Concordia's efforts to attract the best and the brightest, since many of their students come from elsewhere in the country.
It appears the courts can only do so much to protect English institutions from political leaders who read encouragement into rulings that should leave them embarrassed, and who have no qualms about trampling constitutional rights to achieve their aims, invoking the notwithstanding clause to shield laws that otherwise would be struck down.
It gives new meaning to the slogan on the novelty T-shirts often sold near the Roddick Gates during frosh week: 'Harvard: America's McGill.'