Why I think that Trinity Western University should have a certified law school

Given my recent series of posts regarding the biblical teaching on matters LGBT, and my support for gay marriage, you might be surprised that I believe that my old employer, Trinity Western University, should be granted a law school. If you are surprised, then you are confusing what I happen to believe to be true about a certain theological matter with what I believe should be the flexibility that the state permits in matters concerning freedom of religion.

But first a little history. I was a business professor at TWU, and for most of that time the Dean of Business & Economics, from 1978-84 and from 1987-1999. For most of my time in its employ, I argued that TWU spread itself a bit thin, given its resources, by trying to offer as many majors as possible to attract students. If TWU wanted its graduates to make a difference, I suggested, it should throw its resources into the disciplines that have the greatest impact on Canadian society.

My conviction was that three societal institutions, more than any other, shape the Canadian social contract: the courts, the media, and public education.  Consequently, I was a major supporter of the development of the Education program. I urged the university to beef up the Communications major to make it more career oriented by switching it from the Humanities faculty to the Social Sciences. I thought that we should actually teach students how to be journalists and broadcasters just as we taught others to be nurses, teachers, chemists, and accountants. And I argued that we needed a law school, which would fit very nicely with the university's strong core of liberal arts and sciences.

As time went by, others picked up the law school torch and ran with it. And now it is almost within the university's grasp. I couldn't be happier. But the good ship TWU has sailed into very heavy seas as it attempts to navigate the law school proposal through to completion.

The issue against which the university's application has floundered is not new. Its attempt to be certified as a teacher training centre ran into similar opposition, based on what used to be called its Community Standards statement, now its Community Covenant agreement. The university takes the position in that Covenant that the only place for sexual intimacy is within the context of marriage. If it had stopped there, it might not have had the trouble it is now encountering. Perhaps such an expectation would have been viewed as quaint or Victorian or some other dismissive adjective but not otherwise objectionable. But the Covenant goes on to define marriage as between a man and a woman only. This is the point where all hell broke loose.

That statement is seen as discriminatory against gays. There is no doubt that it is. My goodness, the old Community Standards statement that I was asked to sign every year also discriminated against dancers and drinkers, two prohibitions it has finally dropped to save most of its faculty and students from certain rule-breaking. You can read the present covenant at http://www.twu.ca/governance/presidents-office/twu-community-covenant-agreement.pdf.

The gay issue is the cause célèbre these days, the litmus test of societal acceptance. This is understandable, given how profound the bias against gay Canadians has been historically, and how hard they have had to fight for equal rights in areas the rest of us take for granted. But even as recently as two decades ago, the stance that TWU takes today attracted little of the widespread and intense criticism it is now experiencing. Had this present level of concern for gay rights been the same in the 1990s, I wonder if TWU would have achieved the approval of its highly successful Education and Nursing programs. However, that was then, and this is now.

But lets look at the matter of discrimination practically (I don't claim to be able to argue legally). Firstly, any student can attend TWU who meets its admissions requirements--a policy that is no different than that of any other Canadian institution of higher learning. It discriminates against those with low grades, but everyone accepts that this is appropriate given the reasons that universities exist. Being less academically proficient is not accorded any Charter protection :-).

Secondly, every university and college has rules, and expects them to be obeyed. Try getting away with plagiarism, for instance, and see where it gets you. There are cultures where copying the thoughts and words of others (and even works of art) without citation is considered normal and completely acceptable. This "copying" shows respect and is seen to honour the original speaker/writer/artist. Students from such cultures (and I taught many myself) are rather mystified with our view on that matter. But strong sanctions against plagiarism, as North Americans define it, prevail.

[You could accuse me of an apples and oranges argument here, comparing plagiarism with homosexuality. All I am trying to illustrate is that rules that reflect an institution's opinion regarding appropriate behaviour are the norm in universities, even when these rule make no sense, or appear to be discriminatory, in another country or culture. Students enrolled in Canadian universities aren't asked to believe in all the rules, but they are required to obey them. Therefore, a student from a culture that does not share our view of plagiarism, should s/he be found guilty of such here, could experience discipline up to, and including, expulsion from the university for behaviour that would be rewarded in their own country.]

Thirdly, Trinity Western's hiring practices discriminate in that the university employs only Christian professors (along with administrators and support staff) who can sign the university's evangelical statement of faith, although they do allow for flexibility on how certain theological issues are viewed. The faculty over the years has been drawn from every shade of Protestantism, plus Roman Catholicism and the Orthodox Church. There is an affiliated Roman Catholic college on the campus.

But this discriminatory hiring policy is legally protected; i.e., TWU is not viewed as illegally violating human rights legislation by hiring only Christians. Here is how this plays out.

Freedom of religion is an important part of the Canadian Charter of Rights and Freedoms, in fact, the first right mentioned:

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

• (a) freedom of conscience and religion;
• (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• (c) freedom of peaceful assembly; and
• (d) freedom of association.

If freedom of religion means anything, it must mean that one can practice one's religion without fear of state sanction. The tricky part, of course, is that some forms of religious faith can be highly eccentric, and even harmful (e.g., the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints in Bountiful BC). But traditional, orthodox beliefs, such as TWU's definition of marriage, have not historically been seen as an obstacle in allowing faith-based institutions to participate in mainstream society, this despite the following further Charter provision:

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(While sexual orientation is not mentioned in so many words, it has received ample protection in subsequent legislation at both the federal and provincial levels.)

The way in which this balancing act (freedom of religion on the one hand, equality before the law on the other) is accomplished in the hiring process goes something like this:

Bona Fide Occupational Requirement -- As an employer, you may lawfully discriminate, based on an otherwise prohibited ground, if you can prove legitimate business reasons. However, you must be able to demonstrate that the workplace rule, policy, standard or criteria relied upon is a "bona fide occupational requirement."

The Supreme Court of Canada has established a three-step test for determining that what seems like a discriminatory standard is instead a bona fide occupational requirement (BFOR). In order to prove that the standard is indeed a BFOR, the employer must demonstrate:

1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

(Source: https://www.go2hr.ca/articles/bona-fide-occupational-requirement)

So, we have a university:

• that defines itself as faith-based, founded by a mainstream evangelical Protestant denomination (the Evangelical Free Church), that hires only Christians to do its teaching, a legally protected practice.
• that is a full member of the Association of Universities and Colleges of Canada.
• that admits students of all races and faiths. For obvious reasons, the majority are drawn from the Christian tradition, as these would be most attracted to studying there. But a large minority attend for reasons that have nothing to do with the university's faith position. Curiously, openly gay students also attend TWU (See my post at http://www.whollystretch.blogspot.ca/2014/03/leviticus-lives-in-few-places-and-for.html). I wonder if their views on the law school have been solicited by the university's critics.
• that has developed a behaviour code that the university believes best reflects what its faith teaches. Students are not told that they have to believe it, but only that they must follow it.
• whose students routinely rate it at the top of various rankings with respect to its quality of teaching, etc. 
• whose faculty earns many academic awards, including Canada Research Chairs.
• that has lasted over 50 years without any government funding.

It's "flaw" appears to be a definition of marriage (with which I profoundly disagree), at which few countries would bat an eye (including our immediate neighbour to the south), but which runs afoul of some lawyers in Canada on the basis of their understanding of the proper application of the Charter of Rights and other relevant legislation (and quite possibly their personal moral views as well).

It would be impossible to demonstrate that the position that TWU takes on marriage or gays in any way warps or biases its graduates, whether in law, teaching, nursing, coaching, running a business, or any other endeavour in which they may subsequently be involved. In fact, there are countless examples to the contrary. Just this past weekend I attended a conference of BC school trustees where I met a school district superintendent who is a TWU graduate. He and I discussed the current imbroglio in which his alma mater finds itself. I suggested that it was unlikely that his employer, colleagues, or students would feel that he should not have been placed in his important position because of some taint that could come from his undergrad institution. The very idea made him laugh.

Here's my bottom line. It can certainly be argued that there are gays who could not attend TWU either because they are in a same gender marriage or because they find the university's position too repugnant. I suppose, in theory, a same-sex married student could attend TWU provided that s/he agree to remain celibate while enrolled. But practically speaking, that is a non-starter.

I agree with these arguments. But on the other hand gays are not compelled to apply. There are many, many other universities and law schools in Canada that gays can attend, all with lower tuition. And there are openly gay students, as I mentioned above, who choose to attend TWU despite any reservations they may hold.

I recognize that what I have just said about gays is probably what institutions such as Bob Jones University in the U.S. south said about admitting non-whites in the 1960s and 1970s. Therefore, I am personally uneasy with even suggesting that it is valid to argue that gays can just go elsewhere. Why I make it anyway is that theological convictions about homosexuality being suspect are still widely held in evangelicalism (and Roman Catholicism) among laypeople, clergy, and academics. The evangelical world is a large one in North America. While the idea that gays are Hell-bound by definition has thankfully become a minority position, the belief that gay sex is outside God's will and that gays should remain celibate still dominates. TWU is one of Canadian evangelicalism's largest and most important institutions.  Therefore, Trinity's view on the matter is still highly relevant as far as freedom of religion issues are concerned. 

I guess I have to ask the critics, what did you expect of a university that defines itself as evangelical faith-based? That it would not act like one? That it would be indistinguishable from public universities in every respect? And who created the exceptions to human rights legislation, along with bona fide occupational requirements upon which the university relies for hiring, in the first place? The lawyers that comprise the Supreme Court of Canada. Now that the exceptions have been legally provided, are institutions supposed to be pushed to the margins for using them? How is that freedom of religion? That of the Parti Quebecois, perhaps, but hopefully few others. 

Students who do attend are taught by highly qualified academics and receive, if the rankings mean anything, a first-rate education. Its student body is as diverse as the students I taught for several years at the Univ. of British Columbia. TWU's students have ample opportunity to evaluate both their own convictions, and those of the university, just as I did as a Queen's University undergrad.

The university's courses and programs (including several graduate degrees) meet all required standards of any Canadian university. The university's graduates can be found in all of the professions, including medicine, teaching, university professorships, accountancy, scientific research, politics--and many are lawyers. Despite whatever stereotypes or conspiracies that some of TWU's critics might believe, TWU students are taught primarily how to think, not what to think.

Should that not satisfy the state? Or has the mindset that the Parti Quebecois displayed with their discredited secular charter taken hold in the law societies?

Do I wish that TWU would reconsider their views on gays and same-gender marriage? Absolutely. Ardently. It is an area in which the church has been mistaken for a long time, just as it once was regarding women, non-white races, and interracial unions. But I didn't get to where I am on the gay issue overnight. I'm 66 and it's only in the last ten years have I seriously addressed the matter. It is still in the relatively recent past that conservative Protestants generally have begun to reconsider long held views on homosexuality. A little patience is in order, provided that evangelicals put an honest effort into objectively considering the newer arguments.

But do I think that while they re-examine their position, they should not be allowed to run genuine university programs and professional schools, including a law school? Absolutely not. Freedom of religion is far too important for that.