Law360 Canada (September 14, 2026, 1:20 PM EDT) --

Faisal Kutty

Justice Mary Lou Benotto’s recent review of Toronto Metropolitan University (TMU) contains disturbing accounts of antisemitism. Jewish students, faculty and staff describe harassment, concealing their identity and feeling unsafe. Those accounts should be taken seriously, and TMU has an obligation to address them.

But it does not follow that the professional standing of TMU’s Lincoln Alexander School of Law should be put at risk.

A group of Ontario lawyers recently submitted a motion asking the Law Society of Ontario to withdraw the law school’s accreditation, beginning with the next entering class, unless TMU took sufficient action in response to antisemitism.

The law society has now ruled the motion out of order because it was filed after the deadline. More important than the procedural ruling, however, is what the LSO said about the substance of the issue.

In its response, the law society noted that the Benotto report is a university-wide review and “does not focus on the Lincoln Alexander School of Law or its accreditation.” It said TMU, as a self-governing institution, should be given an opportunity to complete the process now underway through the task force chaired by Bob Rae. Only after TMU has completed and acted on that review will the LSO consider whether further steps are warranted within its mandate.

That is a sensible approach. It also raises a larger question: how far should a law society’s public-interest mandate extend into the governance of the university in which a law school happens to operate?

The Benotto report did not separately investigate Lincoln Alexander School of Law or find that it discriminates against Jewish students. Indeed, the motion itself acknowledges that the report is university-wide and does not expressly find that the law school, standing alone, is inherently antisemitic.

Proponents of the motion nevertheless rely heavily on the Supreme Court of Canada’s 2018 decision in Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33. Carl Irvine, one of the lawyers who signed the motion, has argued publicly that the TWU precedent is “on all fours” with the present situation.

It is not.

Trinity Western proposed a law school at a private Christian university where students and faculty were required to comply with a mandatory covenant prohibiting sexual intimacy except within heterosexual marriage. The law society refused to approve the proposed law school. The Supreme Court upheld that decision, accepting that the law society’s statutory public-interest mandate allowed it to consider equal access to legal education, diversity within the profession and the harm caused by the covenant.

The important point is what the regulator was responding to: an institutional rule imposed by the university itself that directly governed the people who could attend the proposed law school. Nothing comparable has been identified at Lincoln Alexander School of Law. There is no admissions rule excluding Jewish students, no discriminatory covenant and no finding by Benotto that the law school operates a discriminatory program. The allegation here is quite different. It is that TMU failed adequately and consistently to respond to antisemitism and other misconduct across the university. That may represent a serious failure of university governance. But it is not the regulatory problem that confronted the law society in Trinity Western.

The proponents’ strongest response is that the distinction between a discriminatory institutional rule and a discriminatory institutional environment should not matter if the practical result is the same: members of a protected group are discouraged from attending the law school. That argument deserves to be taken seriously. But it also demonstrates how far the proposed principle would extend Trinity Western.

The distinction matters because accreditation and professional recognition are powerful regulatory tools. The law society plainly has a legitimate interest in legal education and entry into Ontario’s profession. Trinity Western also confirms that its public-interest mandate is not confined narrowly to academic standards.

But it does not follow that every serious failure by a university becomes an accreditation issue for a law school located within it.

If that principle were accepted, its implications would extend well beyond TMU. Suppose a university failed adequately to respond to Islamophobia. Should the professional standing of its law school be placed at risk? What about serious anti-Black or anti-Indigenous racism? Or a failure to address anti-Palestinian racism?

Those examples do not minimize antisemitism. They test the proposed principle. If the accreditation of a law school can depend on whether its parent university has adequately addressed discrimination and political conflict across campus, it is difficult to identify a principled stopping point.

I would oppose those efforts for the same reason.

There is an additional problem in this case. Some of the measures the motion would have TMU implement involve questions of academic freedom and political expression over which there is genuine disagreement.

Benotto recommends that TMU adopt the controversial International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism as an educational and policy framework and recognize that discrimination against Jews can manifest through opposition to Zionism.

At the same time, she declined to recommend formal adoption of the Arab Canadian Lawyers Association’s definition of anti-Palestinian racism, in part because it incorporates what she regarded as contested historical, political and ideological propositions.

Whatever one thinks of those conclusions, this is not an area in which there is a single uncontested approach.

There are at least three prominent contemporary frameworks for addressing antisemitism in relation to Israel and Zionism: the IHRA working definition, the Nexus Document and the Jerusalem Declaration on Antisemitism. A 2022 peer-reviewed review article in Nordisk Judaistik/Scandinavian Jewish Studies examines precisely these competing approaches. They overlap considerably in identifying traditional antisemitism but differ in important respects over where criticism of Israel and Zionism crosses the line into antisemitism.

Those differences matter here.

IHRA states that criticism of Israel comparable to criticism of other countries is not antisemitic. But its illustrative examples include denying Jewish self-determination by claiming that the existence of Israel is a racist endeavour and applying double standards to Israel.

The Jerusalem Declaration was developed in response to concerns about IHRA and presents itself as an alternative intended to provide clearer guidance while protecting freedom of expression. The Nexus Document likewise recognizes that criticism of Israel and opposition to Zionism can become antisemitic, but does not treat either as inherently so.

The disagreement, in other words, is not between people who take antisemitism seriously and people who do not. It includes Jewish scholars, antisemitism researchers and organizations committed to combating antisemitism who disagree about where the boundary between antisemitism and political criticism should be drawn.

Recent legal scholarship raises an additional concern. In Defending Jews from the Definition of Antisemitism, University of Haifa law professors Itamar Mann and Lihi Yona argue that expansive legal definitions tying Jewish identity to Israel can harm not only Palestinians and their supporters, but Jews themselves. Their argument is that such definitions risk institutionalizing one conception of Jewish identity — one tied to Zionism — while marginalizing anti-Zionist and non-Zionist Jewish traditions. They go so far as to argue that this can amount to the state deciding how Jews are expected to understand and express their own Jewish identity.

Importantly, Mann and Yona do not deny that anti-Zionism can be antisemitic. They expressly acknowledge that attacks on Zionism can implicate Jewish identity and therefore have the potential to become antisemitic. But, as they put it, recognizing that potential “is not proof in itself that it is necessarily so.” The relationship therefore requires examination rather than having its outcome predetermined by an institutional definition.

Their argument goes further. If opposition to Israel or Zionism is treated as presumptively antisemitic, the underlying assumption may become that being Jewish necessarily entails being Zionist or supporting Israel. Mann and Yona point to an uncomfortable tension here: the idea that Jews necessarily support or represent Israel resembles the very stereotype of collective Jewish identification with Israel that IHRA itself recognizes can be antisemitic. In their account, an effort intended to protect Jews can therefore end up narrowing Jewish identity and marginalizing Jews whose religious, ethical or political commitments lead them to reject Zionism.

Kenneth Stern provides another important example. Stern, the lead drafter of the predecessor text that eventually became the IHRA definition, has repeatedly warned against transforming what was developed as a tool for identifying and monitoring antisemitism into a campus speech or disciplinary code. He has argued that such use can threaten academic freedom and chill political expression.

The law society need not decide which of these competing approaches is correct. There is a serious and unresolved debate about antisemitism, Jewish identity, Zionism and political expression, including among scholars and organizations committed to combating antisemitism. Benotto’s recommendation necessarily enters that debate. The professional standing of a law school should not become a means of pressuring its parent university toward one side of it.

Recent American litigation illustrates that concern.

In Students for Justice in Palestine v. Abbott, a federal district court in Texas considered university policies incorporating the IHRA definition and its examples pursuant to a state executive order. The court concluded that incorporation of that particular definition constituted viewpoint discrimination because it labelled specified positions about Israel as antisemitic. The court did not hold that universities cannot combat antisemitism or that IHRA is itself unlawful. The constitutional problem arose from using a particular definition and its examples in regulating political speech.

American First Amendment doctrine does not govern the Law Society of Ontario or TMU. But the case illustrates why a Canadian professional regulator should hesitate before allowing the professional status of a law school to become connected to its parent university’s adoption of a contested definition of political expression.

Consider the reverse case. If Palestinian lawyers argued that TMU’s refusal to formally adopt the ACLA definition of anti-Palestinian racism demonstrated a sufficiently serious institutional failure to justify regulatory action against its law school, the same concerns would arise.

I would oppose that as well.

The issue is not whether antisemitism, Islamophobia or anti-Palestinian racism should be addressed. They should be. The question is whether law school accreditation is an appropriate mechanism for resolving disagreements about how a university defines and regulates them.

The law society’s own response points toward the answer. It emphasizes that TMU and the LSO are separate self-governing institutions. TMU should be held accountable for matters within its responsibility. The law society should act when matters properly engage its own mandate.

There is, however, one aspect of the LSO statement that deserves closer attention. It properly describes the experiences of antisemitism documented in the Benotto report as “deeply concerning” and says they “must be taken seriously.” Yet when the statement turns to Palestinian, Arab, Muslim and pro-Palestinian members of the TMU community, it refers only to concerns raised by “other groups” about “discrimination and related issues.”

That is an odd asymmetry in a statement expressly framed in human rights terms.

There should be no difficulty naming antisemitism, anti-Palestinian racism and Islamophobia. Recognizing one form of discrimination does not diminish another. A consistent human rights approach should be capable of acknowledging all of them while leaving room for legitimate disagreement about how each is defined.

That distinction between discrimination and political disagreement is especially important at universities. Jewish students should be protected from antisemitism. Palestinian, Arab and Muslim students should be protected from anti-Palestinian racism and Islamophobia. Threats, intimidation and harassment should be dealt with regardless of the identity or politics of those responsible.

Universities must also remain places where people can disagree — sometimes fundamentally — about Israel, Palestine, Zionism and Palestinian nationalism without political disagreement automatically becoming prohibited discrimination.

The law society has so far taken the right approach. It has not dismissed the serious concerns raised by the Benotto report, but neither has it accepted the proposition that those concerns presently justify action against TMU’s law school. The more difficult question will arise after the Rae task force completes its work. The LSO has expressly left open whether further steps might then fall within its mandate. When that time comes, Trinity Western should not be read more broadly than its facts and reasoning justify. The law society’s public-interest mandate is broad, but it is not without limits. Serious problems at a university do not automatically become accreditation problems at its law school.

Maintaining that boundary matters not only for TMU. It matters for the proper scope of professional regulation and for the independence of universities themselves.
 
Faisal Kutty is a lawyer, law professor and writer focusing on constitutional law, international law, Islamic law, national security, and law and religion. His work appears regularly in Newsweek, the Toronto Star, Lawfare and other publications.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.