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Blog September 27, 2017

Supreme Court to Decide if Doctrine is Good for You

Late this fall, the Supreme Court of Canada (SCC) will decide if graduates of Trinity Western University’s proposed law school can use their TWU law degree to proceed to the bar. The SCC’s decision will have broad and serious implications, well beyond whether TWU’s graduates can practice law.

The case has come to the SCC because some provincial law societies have been (and remain) unwilling to recognize TWU legal credentials. Their main argument is that TWU discriminates against students or faculty who are active, practising homosexuals. TWU has religious objections to homosexuality. One of TWU’s leading arguments is just that: all of this comes down to religious preference and religious practice and religious freedom.

On the other hand, for many Canadian lawyers, it is unacceptable that TWU’s proposed law school should be accredited: if justice is a blindfolded goddess dispensing justice to all without regard to irrelevant differences (sexual orientation, for instance), then how could TWU run a “law” school? For TWU’s statement of principles, and its Community Convenant, openly announce that the sexual orientation of students, faculty, and staff is a basis for deciding student admissions, faculty hiring, and staff appointments.

Then there’s the question of academic freedom at TWU: is TWU a “university” in the way Windsor or McGill or UBC is? Does TWU provide a “free environment” for teaching and research, inhibited only by the limits imposed in/by the disciplines and the academic profession? Is it a place where academic self-government is practised and assured? Is it a place where uninhibited social-political commentary and academic debate can go on without fear of administrative intervention or limitation? Can a TWU staff person freely criticize administration policy, including policy on sexual orientation?

If the answer to even one such question is “no,” then you might wonder if TWU is at all a university. Yes, TWU has a provincial charter; and yes, it’s a member of Universities Canada. But consider TWU’s declaration of belief and principle:

Obeying the Authority of Scripture

Trinity Western wholeheartedly embraces all the Bible teaches in regard to faith, ethical commitments, and way of life, believing it to be the ultimate standard of truth and hope….We believe the Scriptures, both Old and New Testaments, to be the inspired Word of God, without error in the original writings, the complete revelation of His will for the salvation of men, and the Divine and final authority for all Christian faith and life….As a final, finished product the biblical scriptures are “without error” and can be relied on with full confidence as an authoritative guide to God’s message of salvation and the manner of living appropriate for Christian people….

Scripture will be of little value if it does not govern how we live out our lives both as individuals and as a corporate body. Therefore we gladly embrace it not only for our doctrinal commitments, but also for our daily lives. All that Scripture teaches in regard to our attitudes, behavior, and ethical commitments, must be wholeheartedly believed and lived out among us.

The statement mentions “our daily lives.” True to its word, TWU has converted its general statement of principles into a detailed guide to daily life, on-campus and off-campus. That “guide” is the TWU “Community Covenant Agreement.” All TWU teachers, students, and staff must subscribe to it, even if they may express reservations about such matters as Biblical inerrancy.

As an aside, it is well worth noticing that in many public universities, religious colleges have been teaching and serving for decades. Often the work goes on through Catholic, Protestant, or Orthodox institutions “federated” with the larger public university in which they find themselves. Their faculty members work under the provisions of a collective agreement. They have the assurance of academic freedom, just as the vast majority of publicly employed university teaching staff do.

But TWU is unlike public religious institutions. TWU does not ensure the academic freedom of teaching staff. Although it has a policy called “academic freedom,” TWU makes no assurances to those who go astray. If they become sexually active outside of marriage, or if they announce in the Globe and Mail a public case for women’s rights in reproductive health, or if they say loudly they cannot abide (tolerate?) the TWU administration’s tone, policy, preferences, and plans—then they are on their own. TWU has a partially documented history of disciplining faculty members and students who have gone astray in various ways.

So what does academic freedom mean, according to TWU? Here’s a key sentence from the TWU policy on academic freedom:

Trinity Western University is committed to academic freedom in teaching and investigation from a stated perspective, i.e., within parameters consistent with the confessional basis of the constituency to which the University is responsible, but practiced in an environment of free inquiry and discussion and of encouragement to integrity in research. (my emphasis)

This is reminiscent of Peter Abelard’s superb Sic et non, the great scholastic treatise of 1121 that shows how you can believe X and not-X at the same time, yes and no, black and white, or (if I might put a contemporary gloss on poor Professor Abelard) how unwise it is to believe anything without adequate evidence and reason. Freedom yes, but within the close, loving embrace of “the confessional…constituency to which the University is responsible.” Sic et non.

The TWU description of intellectual life and academic freedom isn’t without its attractions. It calls for kindness and considerate behaviour, building on a particular description of the Christian worldview. But the “parameters” mentioned in the TWU policy are, when you come right down to it, an assertion of religious (i.e., Biblical) “truth,” a truth seen as overwhelming and “prior” to any other possible truth.

Here it is worthwhile to remember the Oxford Dictionary of British and World English definition of “indoctrination”:

The process of teaching a person or group to accept a set of beliefs uncritically.

It is hard not to conclude that TWU’s academic freedom policy is, at least in part, an excuse to indoctrinate. If so, then…there is good reason to side with the British Columbia, Ontario, and other practising lawyers who want to deny accreditation to TWU’s proposed law programme.

Now we wait to see how the SCC will look at the matter. Will the Court “go wide” when it makes its judgement? Will it ask what academic freedom means at TWU? Will it try to see if that sort of freedom is really possible in a place like TWU (a religiously-oriented school)?  

Or will the SCC do what President Kuhn of TWU says it should? Will the SCC agree that TWU plans to offer a nuts-and-bolts law degree, practice-oriented, but offered within the TWU framework (see the quotation above, “Obeying the Authority of Scripture”).

A large problem in the TWU appeal at the Court is simply this: the big questions (about education, the university, academic freedom, and indoctrination) could be lost in the plethora of arguments about jurisdiction and about religious freedom(s) under §2 (a)-(d) of the Charter—the “Fundamental Freedoms” section.

Now, it isn’t entirely wrong to see the TWU affair as a matter mainly for (a) lawyers, (b) religionists, and (c) members and supporters of the LGBTQ community. The appeals ask the Court to find a balance between the rights of religiously minded people who want to do things their own way in a private setting, and the rights of people whose sexual orientation is not approved by those religiously minded folks. They also ask the Court to settle a kind of “family fight” over who runs the legal profession, and how university-level legal education must be connected to the practice of law.

One might say the struggle is about faith, power, sex, and the law. And stop there. After all, life is short. Why make a complicated matter more difficult?

Yet the TWU debate comes down to a discussion of universities—what they are and what they do, academic freedom, the public interest. It’s at least possible that TWU is not such a place. If TWU prescribes a doctrinal answer to questions that arise in research, teaching, and daily university life—and here we are talking about all possible questions—then the SCC may want to ask whether the appeals of Nov. 30-Dec. 1 are really “on topic.”

After all, TWU is one more case in a long and predictable list. The SCC’s calendar and dockets for October, November, and December offer a mix of commercial litigation, cases of libel and press freedom, problems in family law, criminal matters, labour relations, penal regulation, jurisdictional quarrels (among public and private bureaucracies, courts, and so on). Each one gets a day or a half-day of the SCC’s attention in public hearings. One has access to factums presented at court, and afterward to verbatim transcripts of proceedings.

The TWU hearing is set down for 2017 November 30-December 01, two full days. This generous investment of court time is understandable, considering the Trinity Western University [TWU] proposal for a school of law at its main Langley campus has reopened large questions about legal education and the legal profession across the nation. The thing is, the TWU case can be decided much as all those other matters will be decided—without necessarily worrying about matters of definition (like the questions asked a few paragraphs ago).

The SCC’s own summary of the case as it plays in Ontario leaves the impression that the SCC is well aware of the public interest, the problem of indoctrination, and the question of academic freedom—but concerned to keep the region of argument (and eventual judgement) as precise and narrow as possible:

The respondent Law Society of Upper Canada (“LSUC”) denied accreditation to the law school of the applicant Trinity Western University (“TWU”). TWU is a private post-secondary institution in British Columbia that provides an education founded on evangelical Christian principles. TWU’s approach to community development was expressed in a Community Covenant, a code of conduct that encouraged or discouraged certain behaviour based on evangelical Christian notions of Biblical teaching and morality. The covenant prohibited sexual intimacy that violated the sacredness of marriage between a man and a woman….TWU did not prohibit admission to lesbian, gay, bisexual or transgendered (LGBTQ) students, and the covenant prohibited any forms of discrimination or prejudice. However, TWU did prohibit admission to its law school if a student refused to sign the covenant. Because of TWU’s convenant, the LSUC’s Benchers voted to refuse its accreditation in Ontario. On judicial review, the court held that the LSUC was entitled, in the exercise of its statutory mandate to act in the public interest, to refuse to accredit TWU’s law school based on the discriminatory nature of the community covenant. The reviewing court found that although the decision breached the freedom of religion rights of the applicants, TWU and its representative student (“TWU et al.”), the LSUC had engaged in a reasonable and proportionate balancing of the Charter protections at issue. Therefore, the reviewing court concluded that the LSUC’s refusal decision was reasonable.

In a second day of hearings, the British Columbia version of the matter will be presented. BC’s “benchers” (the legally recognized governing board of the profession) opined that TWU should be accredited. Its members disagreed. That internal dispute is one of the matters on which the SCC will rule. 

Here’s a short, incomplete listing of thinking and opinion stimulated by the TWU case these past two years, in the press, on the web, and in the lower courts. Tucked away in the hundreds of articles and blog entries already available, four themes recur: 

  • the lawyers are worried, understandably, about professional self-government and self-regulation. 
  • the LGBTQ community fear the prospect of a Canada where “religious freedom” becomes an excuse for discrimination and downright oppression (TWU are merely the shock troops in that battle, judging by the published debate so far; beyond the immediate conflict are many more battlefields, all about to be enlivened if the SCC goes the “wrong” way).
  • the Fraser Institute (and the British Columbia Civil Liberties Association) take the same “freedom-fighting” line they did in 2001 (during the BC College of Teachers case)--encouraged by a flare-up of neo-rightist academic and community opinion. They will look to see if the SCC has “caved in” to liberal-left demands for protection of the LGBTQ minority. At York University, at Ryerson University, and at the University of Toronto this past winter—as at Berkeley, Yale, and hundreds more in the USA—there are dramatic enactments and re-enactments of the struggle. Although the SCC is unlikely to be distracted by all of this, it is a distraction in the public debate about TWU and its just desserts.
  • Some commentators say the TWU case is about the place and power of private institutions in Canada’s political structure. They hope the SCC will come down (hard) on at least two major questions: (i) whether private universities and colleges should have a right to prepare candidates for all the professions, with the lightest possible provincial or federal regulation, (ii) whether the country could be Balkanized, with some regions open to privatized legal training, and other regions…not, and (iii) whether confessional associations (for example, the Christian Lawyers Association—yes, there is one and it’s alive and well) might have a reliable way to influence the professions—who gets in to them, and how the professions are managed.

In the welter of ideas on this list, one wonders which ones will appear in final judgement. This may be the year when the SCC decides to wade directly into the very wide, very large question of what it is to be a university.

TWU does not say it is in the business of teaching dogma. But its policy makes it hard to conclude otherwise. Indoctrination might be great fun for the indoctrinators, but maybe not so much fun for the indoctranatees (excuse the neologism). Already we are well past discussions about “how to administer the local law society.” 

Folks who want to live the research-teaching life at TWU are faced with hard facts: at TWU the indoctrinatory fun never stops (in part, that is the very point of TWU); it’s a place where discrimination against minorities is justified by an appeal to religious freedom; it’s a place where administrative discipline is potentially (and occasionally actually) severe if one wavers from the true path.

If TWU prevails at the SCC, or prevails in part, there’ll be university teachers at TWU (and then, later, at other places in the country) who can’t safely criticize whole branches of university policy; who dare not publicly teach and heartily recommend a secular understanding of history, science, and politics--even if the evidence points that way; and as for students who act on their tastes and proclivities in matters of the heart (and the gonads), life will be difficult indeed. 

Is doctrine good for you? Hardly.