Report finds donor’s influence not a factor in law school hiring controversy

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The University of Toronto Jackman Law Building

Donor interference has been ruled out as the reason a controversial scholar was denied an appointment at the University of Toronto law school.

In a lengthy report released March 29, retired Supreme Court Justice Thomas Cromwell said immigration problems, not a Jewish donor’s objection to Valentina Azarova’s history of anti-Israel writing, scuttled her hopes of a job as director of the school’s International Human Rights Program.

Cromwell was hired by the university to probe allegations David Spiro, a judge on the Tax Court of Canada, used his family’s influence as major donors to the university to stop the appointment.

In his 78-page report, Cromwell said after probing all the facts of the case “I would not draw the inference that external influence played any role in the decision to discontinue the recruitment of (Azarova). The inference that such influence played a role in that decision is the basis of the concern about academic freedom but, as I see it, that inference is not justified.”

The allegation that money over-ruled cherished values of academic freedom and merit-based hiring stirred strong feelings at the university and its law school. One result is that Spiro is now being investigated by the Canadian Judicial Council, the disciplinary body for judges. As well, a motion is before the governing body of the Canadian Association of University Teachers to boycott appointments and conference presentations at U of T. There have also been labour grievances filed by the university’s faculty association.

In his report, Cromwell said Azarova was one of 140 applicants for the post of director of the human rights program last summer. By fall, she had emerged as the preferred candidate of the hiring committee and negotiations started to set the specific terms of her appointment. The university also hired an immigration lawyer to clear her entry to Canada.

By the fall, however, Cromwell said immigration issues meant Azarova would not be able to take up the position when the university needed her so a firm job offer was never made.

“There has been a good deal said in the public domain about the University withdrawing an accepted offer. As I see it, no offer and acceptance in the strictly legal sense of those words were ever exchanged,” he wrote. “As far as I can tell, this is a situation in which advanced negotiations were abruptly halted, not a situation in which an accepted offer was rescinded.”

Those negotiations ended, however, shortly after the university’s assistant vice-president held a call with Spiro, described as a normal “reach out to donors” discussion. Toward the end of that talk, Cromwell said, Spiro “indicated that as a judge he could not become involved but that he wanted to alert the University that if the appointment were made it would be controversial and could cause reputational harm to the University and particularly to the Faculty of Law. He wanted to ensure that the University did the necessary due diligence.”

Rather than an effort to block Azarova’s appointment, Cromwell wrote “my conclusion is that (Spiro) simply shared the view that the appointment would be controversial with the Jewish community and cause reputational harm to the University.”

Cromwell also wrote it’s clear from his review of the facts that members of the selection committee, and law school dean Edward Iacobucci, knew of Azarova’s controversial anti-Israel writing, but the dean decided he didn’t have to deal with that issue because the immigration problems meant Azarova could not be hired.

Cromwell concluded that rather than caving to the demands of a wealthy donor, the U of T needs to tighten its policies to protect the confidentiality of applicants.

“(T)here is no suggestion that I am aware of — and I have seen no evidence — that there was any failure to observe `existing University policies and procedures’ in this search,” he wrote. “That said, my view is that the University’s policy and procedure framework for this search was unclear and not well known by some of the participants.

“(T)here were several instances in which the confidentiality of the search process was not respected. However, my review of the relevant University policies has led me to think that the nature and extent of the obligation of confidentiality in the search process need clarification and emphasis. Moreover, the nature of the University’s obligations to protect personal information and how that affects the conduct of those working on its behalf, and the constraints it imposes on administrators (particularly in this case, the Dean), need to be better understood by the University community.”

Cromwell called the university’s response to allegations of donor interference “muted and undetailed,” a failing he found fed some of the concerns around the allegations of improper influence.

“The Dean wanted to provide more detailed information to the IHRP Faculty Advisory Committee. But the legal advice that he received – and which I have reviewed — discouraged him from doing so on grounds of confidentiality and protection of privacy. Looking at all of the fact(s) as I understand them, I would not draw the inference that the Dean’s decision was influenced by improper considerations resulting from (Spiro’s) inquiry.”

Among his recommendations, Cromwell suggests selection committee members be required to sign non-disclosure agreements. He also recommended the university “re-affirm that attempts by anyone – lobby groups, corporations and donors – to block, prevent or disqualify an applicant in a hiring process on the basis of the candidate’s religious or political views, scholarly or other public work or social activism must be firmly rejected…”

University president Meric Gertler welcomed Cromwell’s report as “a turning point for the community” and promised to implement all of its recommendations.

“In light of Mr. Cromwell’s analysis, it is clear that in certain aspects of the search process, including the need to maintain confidentiality, the University’s current best practices were not consistently observed. In other instances, it is apparent that the University had not clearly articulated or conveyed its policies,” he wrote. “We accept and will implement all of Mr. Cromwell’s recommendations.”

Cromwell also recommended the university needs to engage in a “reconciliation process” to heal the “deep wounds” caused by the controversy. Gertler said he has already started that process by writing to Azarova personally to apologize for the confidentiality breaches about her application.

Jim Turk, director of Ryerson University’s Centre for Free Expression, said he was “taken aback” by some of Cromwell’s findings, especially that law school dean Iacobucci did nothing wrong in ending the hiring process after Spiro’s talk with the university advancement official.

That conclusion, he said, was “generous to the point of being implausible.”

“By that time they were clearly in the process of offering her a job, the process was very far along,” he said. “Everything changed after the Spiro call. Before that the dean had not been engaged enough to even know the name of the candidate, but after that suddenly everything changed and he is in it up to his elbows.

“Suddenly, after that phone call, everything became important to him,” he added.

In a statement, B’nai Brith Canada welcomed the publication of the report but said it did not go far enough.

“However, while we understand the limited scope of Mr. Cromwell’s review, it is unfortunate that he did not address Dr. Azarova’s very controversial and biased record of advocacy against Israel, which we believe disqualifies her from the position as director of an international human rights program at U of T Law School.”

Cromwell’s report can be found at Independent Review of the Search Process for the Directorship of the International Human Rights Program at the University of Toronto, Faculty of Law.

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