Are student strikes legal ?
This text, from the Association des juristes progressistes (Progressists Jurists Association), explains the question of legality of student strikes:
The student strike is not a simple boycott: history and perspectives
By l’Association des juristes progressistes
Whereas the number of strikers against the tuition hike has surpassed 290 000 across the province (if we include the strike on March 22nd 2012), it is important to note that the management of certain universities, like McGill, Concordia and Université de Montréal, are sending notices to their students in which they allege that the concept of strike is limited to workers under the Labour Code (R.S.Q., chapter C-27). Consequently, they qualify the movement as being a simple boycott and allege that professors should give the classes despite the strike votes taken by the student associations and threaten students with academic reprisals in case of absence or omission to give in papers.
Beyond constituting a political intimidation tactic that comes from parties that are far from being neutral in this debate (it is important de remember that the Conférence des recteurs et des principaux des universités du Québec is a staunch supporter of the hikes), this directive is based on important historical errors and is contrary to the spirit, if not the letter of the Canadian Charter of Rights and Freedoms (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11) as well as Charter of human rights and freedoms, (RSQ, c C-12).
Firstly, it is important to note that the right to strike was not created by the Labour Code. It existed long before the enactment of this law as it originates from the working-class struggles of the 19th century. An international phenomenon of contestation, the right to strike was elevated to the rank of fundamental rights on an international scale through its recognition in the International Covenant on Economic, Social and Cultural Rights, dating from 1966, which was ratified by Canada.
Moreover, this pressure tactic, which sits at the crossroads between the right to freedom of association and freedom of expression, was used in numerous instances in modern democracies to achieve goals that went beyond labour conflicts. Accordingly, authors Guy Groulx and Jean-Marie Pernot confirm that: “ During the whole of 19th and 20th centuries, the strike is imbedded within a profound need for democracy, for social democracy”. They underline that the issues raised by strikes often go beyond “purely professional” motives and bring up as examples the anti-fascist strike of February 12th 1934, the massive insurrectional strikes for the Liberation, the 1958 strikes for republican liberties, the 1961 strikes against the Alger coup d’état, etc. The authors conclude that: “ In these contexts, the strike is no longer just a product of modern democracy; it is also a guarantor of political democracy – which explains why it was long banned in most dictatorships (…)”.
As for the more specific concept of the student strike, it can be traced as far back as 1443, at the Université de Paris. At that time, students went on strike to oppose the application of the crown’s criminal law to members of the university community. More recently, in the 20th century, many examples of student strikes emerged in various countries. In Haiti, students were the first group to rise against the dictatorship of François « Papa Doc » Duvalier. They first protested against martial law as well as an antidemocratic electoral law that were both imposed in 1949. They also protested against the fraudulent elections of 1950. Having been subjected to violent repression by the state, they went on strike in 1960 in order to obtain the liberation of their comrades who had been arrested by the Duvalier Gestapo.
Elsewhere in the world, we cannot forget the events that transpired in May 1968 in France and that began with a student revolt. Also in France, more recently, there was the struggle against the now infamous “contrat de première embauche” (the contract for the first-time worker), which also began by student strikes in universities and which succeeded in getting the government to rescind the project. More recently, there was a student strike in Chile to denounce the privatization of the education system under Pinochet’s dictatorship.
In Quebec, the strike appeared in the 20th century as the main tactic in support of the student movement’s demands. The first recorded strike was a one-day stoppage that happened in 1958 in order to abolish student fees and give accessibility to higher education. This strike, which united 21 000 students, was followed by the famous three-month sit-in in Duplessis’ office by three students from University de Montréal. The general strike in the fall of 1968 that followed aimed to achieve the democratization of teaching methods and institutions, the creation of a second French-language institution in Montreal as well as greater access to education (through a tuition freeze and loans and bursaries). This strike ended successfully with regards to most of the demands and led to the creation of UQÀM. Another strike concerning the payment of student fees lasted five weeks in 1973. In 1974, yet another strike was called to denounce the so-called aptitude tests for university studies, which were abolished a month after. The strike continued despite this, taking on the loans and bursaries scheme. The scheme was enhanced as a result. Other strikes happened in 1980, 1983 (in conjunction with the common front and also for the enactment of a law concerning the recognition of student unions, which was done), 1986, 1988, 1990, 1996 and finally in 2005. Let us not forget that this last strike, having united 230 000 students at its peak, ended with the government agreeing to not only bargain with at least a part of the student federations but also to reimburse the 103 million dollars that it wished to convert into loans.
As such, student struggles and more specifically student strikes are not a recent creation. And contrary to what is alleged by the management staff of certain institutions, these strikes are not a “boycott” but real strikes in the working-class sense of the term. Indeed, this false conception is derived from an erroneous view of the student, who is seen as a “client” obtaining a service from a company, which in this case, would be the university (or CEGEP). However, the student is not a client, he/she is a worker, albeit an intellectual one, who contributes, through his/her learning and academic participation, to the collective knowledge of society. Moreover, we can distinguish a strike from a simple boycott through its goals and its scope. In this case, we do not aim to “boycott” one or more educational institutions. We suspend our participation and intellectual contribution in order to obtain concessions on the part of the government which is in charge of managing, at least in part, the conditions of our education. In that sense, the movement is much more similar to a workers’ strike. The situation could be different and more in line with a boycott if say, for example, after the strike, students decided to stop applying to McGill and offer their intellectual effort elsewhere because of its stance during the strike.
We should note that these institutions have been quite reticent in applying these directives until this day, no doubt due in part to the resistance from professors and adjunct professors that refuse to become instruments of this repression. Moreover, many other institutions recognize the legitimacy of the movement from the onset and cancel their classes outright and/or bargain strike protocols with the student unions (ex: UQÀM, UQTR and the Faculté des lettres et sciences humaines from Université Sherbrooke).
Another element to consider is An Act respecting the accreditation and financing of students’ associations (RSQ, c A-3.01), enacted following the student strike of 1983, which was clearly modelled after the Labour Code in many respects. Indeed, section 4 of this law, which guarantees the right of every student to belong to the students’ association of his choice and to take part in setting up the association, to participate in its activities and administration, is a very close copy of section 3 of the Labour Code which recognizes the same right for workers. Moreover, the accreditation of a student association makes it the sole representative for the students, much like the accredited union under the Labour Code. Finally, even though this law does not provide for a strike, it does not prohibit it either.
Consequently, we are of the view that student strikes are an essential part of the right to freedom of association in the student realm. As such, we are of the view that the unjustified repression of the right to strike would be in violation of our Charters.
We are also of the view that imposing academic reprisals against students by reason of their participation in a strike could constitute discrimination based on their political opinions. In a society where we accommodate (and rightfully so in our opinion) religious views by allowing, for example, for holidays and breaks for these reasons, it would be completely unreasonable and unfair to penalize students for voicing their political opinions, especially when they are expressed in the midst of such a mass movement. And this is even more surprising considering this repression would emanate from universities, which are supposed to be at the forefront of democratic and legal developments.
Finally, as jurists, we wish to remind all that despite appearances, a right is not created through legislation but won through political and social struggle. And to keep it, we have to use it. As such so, we would like to say to the students: Long live the right to strike. And through it, long live democracy.
Association des juristes progressistes
L’Association des juristes progressistes, founded in 2010, is an organization of lawyers, law students and workers from the legal system, dedicated to defending rights and putting the judicial to task in order to assist the struggle for social justice and end inequality.
 La Grève, Groulx et Pernot, 2008, « La Grève » Presses de la Fondation nationale des sciences politiques, Paris, p. 10.