The TMU Law Students’ Open Letter – The Turmoil It Caused Has Reared Its Ugly Head Again
- Mark Sandler
- Oct 12
- 7 min read
Few of us can forget that less than two weeks after the Oct. 7, 2023 massacre, 74 law students at TMU’s Lincoln Alexander Law School signed an open letter that denied the very existence and legitimacy of the State of Israel. It claimed that “‘Israel’ is not a country, it is the brand of a settler colony.” It maintained that “So-called Israel has been illegally occupying and ethnically cleansing Palestine since 1948” and declared solidarity with “all forms of Palestinian resistance and efforts toward liberation.”
In response to the outcry over the letter, the law school issued a statement distancing itself from the sentiments expressed in the letter. It stated that it “unequivocally condemns the sentiments of antisemitism and intolerance expressed in this message.” It also observed that statements that seek to promote or justify violence directly contravene its values and acknowledged the immense pain and damage that this letter has caused.
The letter – and the ensuing turmoil – has again reared its ugly head. Ten of the 74 signatories recently launched a lawsuit against TMU, alleging defamation, discrimination and other causes of action based, in large part, on the school’s characterization of the students’ letter in its initial response. The Statement of Claim relies on an external review conducted by J. Michael MacDonald, retired Nova Scotia chief justice. Mr. MacDonald was retained by the school in November, 2023 to report on whether the students breached the school’s code of conduct, and if so, what sanctions should be imposed.
The Statement of Claim asserts that the MacDonald review “exonerated” the signatories of the October 20 letter. It also asserts that the school’s statement created an anti-Palestinian, anti-Arab and Islamophobic environment on campus – an assertion quite remarkably divorced from the reality at the school, including the university’s notoriously toxic environment as it affects its small, vulnerable Jewish population.
MacDonald’s report, relied upon in the Statement of Claim, is deeply flawed in a number of ways.¹
But even so, it exposes the hypocrisy of this most recent lawsuit.
MacDonald concluded, in effect, that the students came close, but did not breach, the school’s code of conduct. MacDonald wrote that the letter’s language “could be seen as justifying the Oct. 7 attacks.” One section could “reasonably be read” as minimizing Hamas’s role in the terror attacks, making it particularly concerning and, “at the very least, … misguided.” He found that many of the school’s Jewish students experienced an “intimidating, hostile, and offensive” study environment “for a variety of reasons of which the letter was a significant one.”
Nonetheless, he wrote that the letter was not antisemitic, largely because the harm it caused was unintended. According to his report, a number of signatories acknowledged to MacDonald the harm to their Jewish colleagues who “did feel threatened, offended, or unsafe” as a result of the letter’s content. Some drafted an apology, though it was never circulated. They acknowledged that Hamas’s actions constituted war crimes, although admitted the letter could have made this clearer. After all, the letter also expressed solidarity with all forms of Palestinian resistance and efforts at liberation.
MacDonald was legally entitled to conclude that some students lacked any antisemitic intent. This was relevant to whether they breached the code of conduct or should be sanctioned. However, he was not legally entitled to conclude that the letter was not antisemitic. The law has long recognized that statements may be (and often are) antisemitic or racist or homophobic in their effect, despite being unintended. Equally problematic, more than half of the involved students refused to speak to MacDonald or even identify themselves confidentially. He was in a poor position to evaluate their intentions or role. We simply don’t know what they intended. We only know what they signed.
MacDonald accepted that the letter “left itself open” to the misinterpretation that it was calling for the eradication of Israel as a homeland for Jewish people. (Frankly, I have great difficulty seeing how Israel’s characterization as a “so-called” state and the denial of its nationhood can reasonably be interpreted as anything other than a call for its eradication.)
So fast forward to what is now happening. Ten signatories appear to be unequivocally endorsing their original letter without qualification or regrets.
There is no mention of MacDonald’s rebuke of the letter’s contents. Or how the sentiments expressed could be seen as justifying the October 7 attacks. Or how the letter was, at the very least, misguided. Or how it contributed to an intimidating, hostile and offensive environment for many of the schools’ Jewish students. Or how some signatories he spoke with were apologetic and acknowledged the harm their letter had caused.
The Statement of Claim not only contains no acknowledgement of how flawed and harmful this letter was, it states that MacDonald “exonerated” the signatories. We cannot know what these 10 signatories said to MacDonald given the lack of transparency around that issue. But would MacDonald have accepted that all signatories acted with no intent if they had expressed pride in the letter and how it was written, rather than remorse for how its points were made?
MacDonald did state that TMU should not have condemned the sentiments of antisemitism and intolerance expressed in the letter without first hearing from the students. This criticism was misplaced given the objective content of the letter, the acknowledged harm it caused and more specifically, its impact on Jewish and other students and faculty. In my view, TMU had an obligation to immediately call out these statements when they were made, especially when the law school administration had previously counselled the law students to address the events of October 7, 2023 and its impacts with “humility, empathy, respect and professionalism.” These entreaties were rejected by the signatories and at least one faculty member, who took them instead as unacceptable neutrality from the school.
That being said, the letter objectively viewed, should have been condemned. At a minimum, it could reasonably be regarded as antisemitic in its effect, if not its intention. Moreover, TMU effectively adopted the MacDonald report upon its release, however ill-advised, reinforcing the lack of merit of a lawsuit tethered to the school’s failure to resile from its earlier statement. (Incidentally, it is reported that the school’s statement has since been removed from its website.)
More importantly, the allegation that the school’s statement has brought about a culture of anti-Palestinian racism at the school is untrue. The real problem at TMU is its failure to protect Jewish students. This statement of claim appears to be pursuing a political agenda, unencumbered by an accurate portrayal of the school’s culture or environment.
MacDonald cautioned that his report was designed to be sensitive and contextual and not meant for quick reactions on social media or elsewhere. He pointed out that his report was far from an endorsement of the students’ letter. As earlier indicated, he described it as misguided “at the very least” and as a “significant” contributor to the “intimidating, hostile, and offensive” study environment for Jewish students. Perhaps he foresaw how his report would be misused. I and others certainly did – and said so at the time.
At least one faculty member described the report upon its release as an “unambiguous vindication” of the students and their supporters. This new statement of claim describes the report as an exoneration of the students.
Not really.
Even acknowledging the robust scope of protected speech, MacDonald failed to find misconduct because the students didn’t intend to say what the letter could reasonably be interpreted to have said.
Although many members of the Jewish community were justifiably appalled at the letter’s contents and angry at those who could sign it, some of us accepted that some of the signatories were merely foolish or careless in signing on to that letter. Several of us urged the school to provide a safe space for signatories who wished to disassociate themselves from the letter they signed. That never happened.
I have low expectations for how the school will now respond to the current lawsuit. I hope that it will defend the school’s right to make the statement it made following the public dissemination of the students’ letter. It is ironic that the plaintiffs and their lawyers, who purportedly object to the suppression of free speech, have no difficulty taking measures to punish the school for the exercise of its free speech, based on an objective assessment of the students’ letter. But the school may instead capitulate and for all the wrong reasons. Doing so will reinforce how vulnerable Jewish students will continue to be at the school.
One final point. It is a point I have made many times. Students are entitled to advocate for Palestinian self-determination. They would be surprised at how many Zionists, Jews and non-Jews see Palestinian rights as compatible with Zionism and a two-state solution. They are entitled to robustly criticize Israel, its government, its policies and conduct of the war, whether they are right or wrong. However, they are not entitled to demonize all Zionists without distinction. “All Zionists off campus”, “All Zionists are racist, evil and genocidal” are antisemitic hate-filled messages. Holding Canadian Jews collectively responsible for the conduct of a foreign government is also antisemitic.
There has been too much marginalization and demonization of Jews and Zionists on TMU’s campus. To date, TMU has failed to meet its obligations to protect Jewish students under its care. This failure has been fully documented.² The lawsuit by 10 student signatories provides the school an opportunity to re-calibrate its approach to the issues it faces.
If the school takes adequate measures to prevent abusive, discriminatory behaviour against people just for being Jewish, just for being Israeli, just for supporting Israel’s right to exist, anything is possible. They are entitled to be free from being targeted, as are all members of TMU’s community, including of course Palestinians, Arabs, and Muslims. People are entitled to divergent views on the Middle East conflict and its resolution, as long as they do not engage in intimidation, indoctrination, or antisemitic or otherwise discriminatory speech or conduct.
MacDonald’s report cited, with approval, a national respectful dialogue initiative of the law community in response to the TMU students’ letter. As a key part of this initiative, we followed the spirit of a joint statement by Muslim and Jewish law students in Ottawa. Respectful dialogue and the firm rejection of extremism and hatred represent paths to reconciliation. MacDonald got that part right.
Endnotes / Additional Resources
About The Author
Mark Sandler, LL.B., LL.D. (honoris causa), ALCCA’s Chair, is widely recognized as one of Canada’s leading criminal lawyers and pro bono advocates. He has been involved in combatting antisemitism for over 40 years. He has lectured extensively on legal remedies to combat hate and has promoted respectful Muslim-Jewish, Sikh-Jewish and Black-Jewish dialogues. He has appeared before Parliamentary committees and in the Supreme Court of Canada on multiple occasions on issues relating to antisemitism and hate activities. He is a former member of the Ontario Human Rights Tribunal, a three-time elected Bencher of the Law Society of Ontario, and recipient of the criminal profession’s highest honour, the G. Arthur Martin Medal, for his contributions to the administration of criminal justice.