Faced with the lengthening strikes and the prospect of losing their semester – and thus having their graduation and their entry on the job market delayed – students at many of Québec’s CÉGEPs and universities have turned to the courts and have been seeking, and obtaining, injunctions forcing the schools to get back to teaching the courses they are registered for. The injunctions tend to prevent the student “strikers” from blocking entry to their schools and otherwise disrupting classes. The injunction obtained by a student in a technical programme at the CÉGEP de Saint-Laurent is, I understand, fairly typical. Other injunctions, aiming directly at student protesters, have been obtained by universities.
The law, explained for example in the CÉGEP de Saint-Laurent decision, is quite clear. Student associations do not have the same status as trade unions. They are not entitled to impose their “strike” votes on their members, as trade unions are. Students contract for education services, and pay, however little. They are entitled to have the classes they contract and pay for. They suffer great prejudice if they lose their semester. The protesters, on the other hand, can still protest if they feel like it, despite the injunctions.
Yet the courts’ stepping in to apply the law and grant these injunctions has produced an outcry, including from lawyers. The argument is that what’s going on is a “judicialization” of a social conflict; that the courts are improperly stepping in to resolve political questions. This is the issue I want to address today. What is the distinction between legal and political questions? And is a wrongful “judicialization” affecting the student protests in Québec?
In the United States, there is a “political question doctrine,” pursuant to which courts should decline to resolve certain issues if there is good reason to believe that their resolution is entrusted to the political branches of government (i.e. the executive or the legislature) rather than to the judiciary. Beyond this general statement, however, the “doctrine” is a mess. There is little agreement about what the courts do with the political question doctrine, or what they ought to do.
Canadian courts have never recognized a “political question doctrine.” There is, however, a poorly-defined notion of “justiciability,” which suggests that some questions might not be fit for judicial resolution. The test the Supreme Court has formulated is “whether a sufficient legal component to warrant a decision by a court.” In addition, I believe (though I don’t have room for a demonstration here) that the Court tends to stay its hand in certain cases where political uncertainty makes the relevant facts very difficult to figure out.
But the phrase “political questions” can of course have a broader – you might be inclined to say ‘more natural’ – meaning. It might refer simply to questions with political significance, questions that are part of public debate. No one in Canada actually believes that courts should, or can, keep away from all questions “political” in this broader sense. Could Québec try to stamp out Communism? Could Parliament create a federal securities regulator? What rights should people suspected of terrorism have? Those, and countless others, are political questions in the broader sense, but there is no question that the Supreme Court was entitled to rule on them.
There is no question the issue of the ability of a student association to force the closure of a school and prevent all students from attending classes for the duration of a “strike” is political in the broader sense. But that is not a sufficient reason for the courts not to address it. Is it political in the narrower sense of not being justiciable? Clearly not. There is a “sufficient legal component” to the dispute. There is a statute regulating student associations and setting out their rights. There are contracts between students and their schools. The dispute is about the applicability of legal rules; it is very much a legal dispute, however politically controversial its outcome. Any criticism of the courts on the ground that they are overstepping their role is groundless.
Now the criticism might also be addressed to the students who bring claims to courts, rather than to the courts which accept these claims. This strand is very strong in Jean-François Lisée’s post on the subject, attacking the “triumph of individualism” in the actions of those who “retain a lawyer and make their individual right prevail over collective deliberation.” This claim is about, and stands or falls on, issues of political philosophy rather than law, but it seems convenient to address it here.
The claim is that it is morally wrong for the students to go to court in order to go to class, that there is some sort of duty on the students’ part to forego enforcing what they believe – not without reason – to be their legal rights in order to make way for the greater political right, the will of the majority. For this claim to be persuasive, those who make it need to show that the student associations have the political legitimacy (for we know they do not have the legal entitlement) to impose their will to their individual members; that they are, in effect, political communities. (I’m putting to one side the problem of the difficulty of justifying such legitimacy even for actual political communities!) I would love to hear from those who think that this is so. I do not, and do not see how this claim can be defended. Membership in student associations is transitory; the members, by and large owe and perform no services for each other or for any common goals; they have no common past and no common future. What is it that makes them into political communities? Note, too, that real political communities, including Canada and Québec, allow their members to challenge their collective decisions in court. They often (though admittedly not always) entitle those disproportionately harmed by their collective decisions to compensation or to accommodation. Those things, in my mind – and I suspect for a lot of us – are relevant to issues of political legitimacy. Student associations do nothing of the sort, because they lack the necessary institutions and mechanisms. Are their claims vis-à-vis their members so strong that they don’t need them?