On October 17, 2013, an email to the Students’ Society of McGill University (SSMU) listserv was sent out including the phrase “Honestly midterms get out of here” and a link to a .GIF showing a clip from the Tonight Show with Jay Leno. The clip contained footage from a Barack Obama press conference that had been digitally altered to show the president leave by aggressively kicking a door.

A complaint relating to this image was made under SSMU’s Equity Policy. According to the policy, SSMU equity officers are responsible for investigating complaints and making recommendations, which can include letters of apology or dismissal from a position within the SSMU. Per Section 11.5 of the policy, “Recommendations for resolution made by the Equity Officers shall be considered binding unless two-thirds of Legislative Council votes against them.”

Two weeks ago, SSMU’s VP Internal Brian Farnan sent out a message stating, in part, “The image in question was an extension of the cultural, historical and living legacy surrounding people of color – particularly young men – being portrayed as violent in contemporary culture and media. By using this particular image of President Obama, I unknowingly perpetuated this living legacy and subsequently allowed a medium of SSMU’s communication to become the site of a microaggression; for this, I am deeply sorry.”

This apology was the outcome of an investigation under the Equity Policy. According to the McGill Tribune, “The apology has received widespread attention, much of it critical.”

The use of principles drawn from the literature on CRT and microaggressions as the basis for a disciplinary code is unsound and its application represents a major liability for SSMU.

The SSMU Equity Policy can only be properly understood in the context of academic literature regarding microaggressions and critical race theory (CRT). CRT critiques liberal ideals influenced by the Enlightenment and holds that the structure, practices, and laws of modern society perpetuate white supremacy. To take one example, in a seminal article, Richard Delgado notes the well-documented lasting emotional and psychological harm of racist insults on their targets and argues that constitutional protection of racist insults under the traditional liberal value of freedom of speech harms society and perpetuates the marginalization of people of colour.

Related to CRT is the notion within the field of social psychology of microaggression, which Sue et al. define as “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward people of color.” Microaggressions communicate racism through subtle means, often unintentionally and unknowingly. The emerging literature on microaggressions suggests they have harmful cumulative effects on the well-being of those who experience them.

SSMU should be commended for adopting a policy that draws from the emerging academic literature and aims to educate members and protect disadvantaged groups from potentially lasting harm. At the same time, the use of principles drawn from the literature on CRT and microaggressions as the basis for a disciplinary code is unsound and its application represents a major liability for SSMU.

To establish a new code of discipline based on critical theory demands the uncritical acceptance of its own arguments as objective fact.

While CRT and the microaggression literature provide a compelling framework for understanding the persistence of race-based disparities in the face of legal and formal equality, it is not an exclusive or singularly ‘correct’ framework for understanding all human interaction that can serve as a basis for punishment. Indeed, these theories have attracted significant criticism and are not universally accepted even within the academic community.

For example, law professor Douglas Litowitz criticizes the CRT approach as lacking “balance, nuance, and a weighing of competing interests and accounts,” while judge and oft-cited legal scholar Richard Posner bemoans the emphasis within CRT on reaching conclusions based on narrative rather than analytical reasoning and argues that CRT demands a “one-sided” empathy.

Even writers in the field of CRT express significant apprehension about punishing speech. Law professor Robin D. Barnes notes her “[concern] about the potential consequences of punishing speech that does not relate directly to threats of violence” and suggests that in many cases the proper response to allegedly racist speech is “more speech.” Harvard law professor Randall Kennedy ruefully notes a case in which “accusers failed to describe anything [a professor] said or did that constitutes the serious sort of intellectual and moral failing that the term ‘racial insensitivity’ implies.”

Regarding the microaggression literature, psychologist Thomas E. Schacht has criticized it for “repeatedly reduc[ing] the White participant’s role in unconscious microinteractions to that of ‘perpetrator,’” while Kenneth R. Thomas criticized many of Sue et al.’s examples of microaggression and suggested a contradiction in “want[ing] recognition as being different from the majority Caucasian population, but when any conversation acknowledges that difference, the speaker is alleged to be committing a microinvalidation.” All this is to say that there remains a spirited debate within the academy about the merits of CRT and theories of microaggression, making them unsuitable as a basis of discipline.

SSMU should keep its Equity Policy and further develop those elements which aim to educate and protect members, but it must scrap the disciplinary aspects of the code.

On top of this, there is an inherent contradiction in crafting a disciplinary code based on critical theory principals. Critical theory argues that power structures, including current disciplinary modes, are mere social constructions that perpetuate cultural norms and should not be readily accepted. To establish a new code of discipline based on critical theory demands the uncritical acceptance of its own arguments as objective fact and the sacrosanct basis of a new system that must be borne by all, discounting the very notion of social construction that gives the theory life and purpose. Critical race theorists would surely find much to criticize if society were to adopt a new set of laws based on an academic theory that emerged in the 1970s – at least if it weren’t their own.

Finally, there is the issue of liability. The actions SSMU takes in disciplining its members are always subject to legal challenge, though courts will generally not interfere if due process is followed and decisions are unbiased. But the Equity Policy inverts the burden of proof so that accusation and subjective experience becomes a valid basis of discipline and it considers matters of identity, rather than strict evidence, in determining culpability. In this way, the policy unknowingly subscribes to the very principles of justice that would enable oppression by a majority group to thrive by renouncing rights traditionally guaranteed to defendants to prevent unjust persecutions. It is far from certain that courts would find disciplinary decisions made under the Equity Policy to be unbiased, and the very public nature of the disciplinary action taken in this case exposes the SSMU to significant liability for violating members’ Charter right to the safeguard of their reputation.

SSMU should keep its Equity Policy and further develop those elements which aim to educate and protect members, but it must scrap the disciplinary aspects of the code. Intellectual honesty requires making a distinction between theory and fact, and fundamental norms of equity require codes of discipline to be rigorous and self-consistent.

Jonathan Mooney is the PGSS Secretary-General. He can be reached at jonathan.mooney@mail.mcgill.ca.