Monday, December 23, 2013

Why Trinity Western Shouldn't Be Allowed a Law School

Last week, Trinity Western University (TWU) in British Columbia obtained the preliminary approval of The Federation of Law Societies of Canada for their proposed law school.

What's the Deal with TWU?

TWU has had its share of controversies.  It's a Christian institution, which isn't unusual, but the relatively controversial feature of it is that it requires its students to commit to abiding by a Christian lifestyle while attending TWU, including - most notably - abstaining from "homosexual behaviour".

TWU denies that this becomes a "gays need not apply" rule.  They insist that homosexuals are welcome to attend, provided that they promise not to engage in homosexual acts while enrolled.  Likewise, they deny that this set of rules is in any way oppressive, because students agree to follow it up front.  If they don't want to follow those rules, they can go somewhere else.

That sounds a little disturbingly like the "If the person agreed to it, what's the problem?" that you hear so often from employers in workplace law contexts.  If the employee agreed to accept less than minimum wage, what's the problem?  If the employee agreed to a discriminatory dress code, what's the problem?  If the employee came into work knowing that the conditions are unsafe, what's the problem?

The reality is that the, "If you don't like it, go somewhere else" argument is significantly discriminatory, being a de facto barrier for most openly homosexual students, and ignores the underlying rationale for contemporary human rights.

Nonetheless, in most academic contexts, TWU's argument still holds water.  There are lots of post-secondary institutions out there, and TWU's only real claim to fame is its religious values.  It's a small school, enrolling about 4000 students, and while it's generally well-reputed academically (aside from some controversies about academic freedom), it's not a school that you absolutely need to attend if you want to get a top job in a particular field.  (By contrast, think about the University of Waterloo's reputation for computers.  If UW started excluding a given group, the result would be that that group would be excluded from top jobs in the computer industry.  TWU has no comparable fields.)

Within British Columbia, the biggest three schools are UBC, UVic, and SFU, with a combined student population of about 110,000.  (Not to mention the variety of other smaller schools around.)  So for a small private Christian school with 4000 students to create a barrier against homosexual students's not going to be a big deal.  Because the simple fact is that they're not largely going to have any reason to want to go there anyways.

What's Different About a Law School?

First, understand that law school admission remains an exclusive process.  And, if you want to become a lawyer, it's mandatory to attend an approved law school.  There aren't many law schools, and they don't take many students, and the take-away is that law school admissions are the gatekeepers to membership in our legal system - nearly all lawyers and judges in the country had to get through this process.  (I said 'nearly' because there are a handful of foreign-trained lawyers able to satisfy the regulators that their legal training is adequate to let them practice law in Canada without further training.  A small exception.)

Not just anybody can open up a law school.  There are approvals to be obtained from the Federation of Law Societies, the Provincial Law Society, and from the Province.  Within the last several years, a number of Ontario schools expressed interest in establishing a new law school - Waterloo, Laurier, Laurentian, and Lakehead.  Lakehead Law opened up in September, and to the best of my knowledge none of the other schools are getting one, in part because there are already too many law school graduates to be absorbed into the lawyer market.

So simply being able to have a law school makes a University part of a pretty small and hard-to-enter club.  Which raises the question:  Why TWU?

In British Columbia, there are two law schools:  UBC and UVic.  UBC Law admits about 180-190 students per year; UVic Law admits about 110.  In other words, in the entire Province of British Columbia, about 300 people start law school every year.

TWU's proposed law school will admit 60 students per year - a 20% increase in current Provincial enrolment figures.  With a 20% increase, one expects law school admission to be relatively easier.

But, for homosexual students, less so.

Because, while a straight student might compete for 1 of 360 spots in the whole Province, a full sixth of those will be effectively closed to active homosexual students.  It is very easy to imagine a scenario where a homosexual person falls just shy of the UBC and UVic admission criteria, yet who may nonetheless be more qualified than the lower echelon of TWU students, and therefore gets excluded from law school admissions in favour of less-qualified straight candidates.  That is the core of the problem.  A law school that effectively excludes homosexual students will have the result, in the present market, that it will be easier for straight people than gay people to obtain a legal education.

Clearly, there's a threshold at which we could not tolerate this kind of exclusion.  Hypothetically, if both UBC and UVic reorganized themselves into Christian institutions with this discriminatory practice, then it would completely bar practicing homosexuals from obtaining a legal education (or, for that matter, most educations in general) in B.C.  This would be intolerable.  If UBC alone did so, that would still have the effect that the lion's share of post-secondary education spots are closed to homosexuals.  Clearly not acceptable.  I would argue that a 1/6 share of the market is still far too high to allow to maintain such an exclusionary practice.

Let me also be clear on one point:  My objection has absolutely nothing to do with quality of education.

Some people find it alarming that a sixth of the lawyers in B.C. moving forward will come from a school that openly discriminates in a way that is deeply offensive to some very fundamental constitutional principles.  Will lawyers and judges come out of TWU not caring about equality rights?

Personally, I consider this to be a different question.  One worth asking, but the answer is not a foregone conclusion.

During my undergraduate degree, I was enrolled at St. Jerome's University, a Catholic University-College which was federated with the University of Waterloo.  I took many of my courses at SJU, but others on main campus.  I had excellent instructors at SJU in English, Sociology, and even Religious Studies, but I regretted the philosophy courses I took there, because they were taught on such an overtly religious bent that it felt more like going to church than going to class.

This is why it's worth asking the question, and worth ensuring that the curriculum and instructors are in line with our expectations of Canadian legal education.  But that's not impossible to do.

Near the end of my time at SJU, through some rather unfortunate circumstances, SJU's philosophy department was reduced from 3 professors to essentially zero.  One retired; another passed away from cancer; another had become ill and taken an indefinite leave of absence.  The retired instructor came back to teach on a part-time basis, but SJU was basically required to reconstitute their entire philosophy department, and I became aware of an internal controversy - to secularize or not to secularize.  I argued in favour of secularization, that a non-secular education in philosophy was...not really an education in philosophy.  (Friends of mine countered that, for those of us who wanted a secular education, there was a large campus right across a creek.)  One of my favourite English professors - a fellow who insisted we read the bible, not for religious reasons, but rather because it was an important underlying text for most English literature - was part of the committee, and argued strongly along the same lines I did, and I believe that this argument won the day.

All the other courses I ever took at SJU, even ones centered on religious matters, were taught from balanced and neutral perspectives.  Likewise, one of my favourite 'main campus' professors taught a similarly balanced course, though in his personal life he was a devout Catholic.  The point is that a religious school can provide a quality education.  (Though, truth be told, I can't fault anyone for being reticent about their potential legal education when they take the position that it's okay because people who don't like it can go somewhere else.)

The Legal Framework

In general, under human rights legislation, religious schools are okay.  There are exemptions and exclusions allowing for meaningful religious education.  That's fine, so it's unlikely that a complaint under B.C.'s human rights legislation would have much potential.  (Qualifier:  This is a Provincial matter, and I'm not licensed in B.C.  Take my comments on the point with a grain of salt.)

The Charter, however, is another matter.  Ordinarily, for a private university like TWU, the Charter of Rights and Freedoms would have no application.  However, legal licensing is performed through a government-established monopoly, and the establishment of law schools is a function of that monopoly.  While the Charter can't be said to directly constrain TWU, it absolutely does govern all the bodies that TWU has to go to for permission to establish the law school.

It would not surprise me to see a judicial review application of the approval of TWU Law, on the basis that approving the school offends s.15(1) of the Charter without justification.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

No comments:

Post a Comment