In the last issue of Ultra Vires was an article entitled “The Wright Man: An Evangelical Law School Has no Place in Canada” by Louis Tsilivis. While a legitimate concern was briefly raised by the author of whether Canada needs another law school, this is not what the Federation of Law Societies in Canada will be determining, nor what the Canadian Council of Law Deans (CCLD) wrote a letter opposing with regard to Trinity Western University’s (TWU) law school proposal; the Federation exclusively reviews whether an applicant has the ability to offer a quality legal education. With that said, that TWU can offer a quality legal education is unequivocal.
In the spirit of full disclosure, I, like numerous students currently studying at law schools across Canada, graduated from TWU. Hence Canadian law schools already recognize that TWU provides a high enough level of education that they admit its grads. TWU is also frequently recognized in various national comparisons. For example, 2013 marked its seventh consecutive year receiving an A+ in Quality of Teaching and Learning in The Globe and Mail’s Canadian University Report, an accomplishment no other university has achieved. TWU also consistently tops categories with Maclean’s, as well as was in the top three Canadian universities for all five categories in the recently released 2012 Canadian University Survey Consortium. There is no evidence to suggest that the same quality would not extend to a law school should the proposal be approved.
The CCLD, and Tsilivis, raise an issue that has already been legally settled. In his article, Tsilivis misquoted the provision being contended in TWU’s Community Covenant; it appears under the category of acts a “community member will voluntarily abstain from” and reads “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Hence this policy applies to pre-marital sexual intercourse regardless of orientation. Tsilivis also does not mention that the Covenant includes refraining from prejudice, harassment or any form of verbal or physical intimidation. It restricts students in other ways, too, like prohibiting pornography, gossip or the use or possession of alcohol or tobacco on campus. All of these activities could result in academic discipline.
Every university sets standards for conduct. Indeed, every community sets standards for conduct. Signing TWU’s Community Covenant is a voluntary act, part of accepting the offer of admission and choosing to join this private community. The term “covenant” is used because it is not meant as a legalistic document, but rather for its Biblical meaning: a covenant is an agreement that brings about a relationship of commitment between God and His people. Homosexual students are able to, and indeed do attend TWU openly without being expelled or facing academic sanctions as is suggested – in fact several have come forward supporting the school since this controversy arose. One such student, Bryan Sandberg, appeared on the Early Edition of CBC on January 28, 2013 defending the Covenant as “ideals” the community is entitled to hold and while he doesn’t agree with the one provision, he is willing to abide by it. When asked about the school’s atmosphere, he spoke of “a powerful acceptance” that has surpassed his expectations. As a fact, there are homosexual students, students of other faiths, or no faith that attend TWU. These students are not forced to subscribe to Christianity, or TWU’s theology, but they are expected to uphold the values of the private community while members of it.
As Tsilivis notes, TWU has already been to the Supreme Court of Canada on this precise issue when it sought accreditation for its School of Education and was initially denied because of a provision related to homosexuality in its Community Standards. Tsilivis raises two points in relation to “Trinity Western v College of Teachers“ (sic) that I shall deal with in turn: (1) whether this case would be decided similarly today; and (2) whether a higher standard exists for accreditation in the legal profession.
First, the suggestion that the Supreme Court’s decision in Trinity Western University v British Columbia College of Teachers may be held differently today is ludicrous. It was just over a decade ago, in 2001, that an 8-1 judgment was reached in TWU’s favour. This holding was that a program for accreditation needs to be evaluated on its merit and that a private religious institution may hold discriminatory policies that impact the conduct of students and faculty. The majority judgment notes “there is nothing in the TWU Community Standards, which are limited to prescribing conduct of members while at TWU, that indicates that graduates of TWU will not treat homosexuals fairly and respectfully.” They drew a distinction between belief and conduct and found the Community Covenant does not violate federal or provincial law. Unless we have a serious problem of judicial activism, the holding would stand.
Secondly, how exactly is law different from any other position that interacts with the public, such that it makes going to a public school necessary? TWU currently graduates teachers, nurses, MBAs who inevitably work with persons of all sexual orientations. Why is it that having a Community Covenant is fine for those professions, but not for law? Alternatively, what is it about law that somehow by studying at a public school, Christian students can then receive legitimate accreditation? Unless the assumption is that we will become “enlightened” and our ideology changed by going to a public law school (which would speak to an adverse environment), Christians who may or may not hold the same theology as TWU, are already attending law schools and form part of the legal profession. If a commitment to Biblical principles means a private institution cannot teach law, then one can infer no Christians should be part of the legal profession. Private beliefs, however, do not preclude one’s ability to learn public law. The law is not “anti-gay,” so it won’t be taught as “anti-gay.” In order to be a degree granting institution at all, TWU has to abide by general academic requirements and this is what is currently under review by the Federation of Law Societies of Canada. That doesn’t mean legal education at TWU would be the exact same as public schools.
Where TWU will differ is in focus, discussion and elective courses that are offered. While I’ve had three professors mention they are atheist and one call religion senseless, for example, the professors at TWU will of course be Christian. Furthermore, they will have courses that appeal more to a certain segment of students – like their proposed specializations in Charities Law or Entrepreneurial Law. I also suspect there will be a strong focus on social justice and leadership, and less emphasis on Bay Street. This program won’t appeal to all students, not even all Christian students but it will strengthen legal education by expanding it. It’s an option in the United States and it should be an option here.
Finally, I shall turn to how the discussion surrounding TWU’s law school proposal demonstrates Canada’s current lack of institutional diversity. The discussion is one intensely driven by ideology, not legality since a commanding 8-1 Supreme Court already ruled on this matter. Canadian law deans put forward a prejudicial intimation that a Christian university is not capable of offering a quality education. This is reflective of the fact that universities are not a neutral space. This is not to say I have felt overly oppressed at the University of Toronto, but I do understand why I was warned to keep my mouth shut before arriving (…clearly I listen well). It has been made clear there is currently a monopoly on legal education in Canada, and yet our nation prides itself on its toleration of diversity. The Federation of Law Societies of Canada has the expressed mandate of assessing whether an institution would be capable of offering a curriculum that fulfills the national requirement; it does not have the authority to assess admission policies or behavioural standards. As previously stated, TWU is consistently recognized for its high quality of education that would inevitably extend to its law school. While we may idealize law, it is no different from any other field where Christians, and TWU graduates, serve the public everyday.
The level of ideological opposition this private institution has faced during nearly every stage of its 51 year development is representative of the tenuous position religious freedom and higher education holds. It’s ironic since rather than seek accommodation, this religious group is actually offering to absorb the costs of their beliefs through private education. There are a lot of legal behaviours that TWU discriminates against, but rather than exclusion it’s about bolstering what it views as an ideal Christian community, which is exactly why it’s private. So either we scrap private education altogether which isn’t likely, or, as long as the proposal fulfills the prescribed academic requirements, TWU’s law school should be approved. Given our nation’s celebrated mosaic and tolerance for diversity, an evangelical law school should have a place in Canada.
