Discriminatory Practices

Kevin Boonstra January/February 1998 Trinity Western University (TWU), an institution of higher learning in Langley, British Columbia, was founded by the Evangelical Free Church of Canada (EFCA) in 1962 and incorporated as a nonprofit society. In 1969 the British Columbia legislature enacted the Trinity Junior College Act constituting TWU as a body corporate with the object of providing university education "with an underlying philosophy and viewpoint that is Christian."

Because of its Christian character, members of the TWU community--faculty, staff, and students--agree to maintain biblical standards of conduct. These community standards include, but are not limited to, refraining "from drunkenness, use of profane language, harassment, all forms of dishonesty, including cheating and stealing, abortion, involvement in the occult, and sexual sins, including premarital sex, adultery, homosexual behavior, and viewing of pornography." The community standards also contain admonitions to treat everyone with respect, to show compassion, to edify others, and to demonstrate unselfishness.

TWU has since 1985 conferred Bachelor of Education degrees on graduates. As with all TWU degrees, the degree is widely recognized by both Christian and non-Christian institutions. However, in order for teachers to be qualified to teach in British Columbia's public schools, graduates are also required to complete a final year of accredited professional teacher education (a teacher education program). TWU has developed such a program for its teaching students and was looking for its accreditation by the British Columbia College of Teachers, the body charged by the government with this responsibility.

The BCCT sent various committees and teams to assess TWU's application. With the exception of minor suggestions for the improvement of the program, each committee and team recommended its approval. The council of the BCCT, however, introduced a new criterion, a "nondiscrimination requirement," and denied the application. After an internal appeal, and after obtaining up to three legal opinions, the BCCT still refused to approve TWU's teacher education program, deciding on June 29, 1996, that "Trinity Western University's appeal in regard to the college's denial of its application for approval of a teacher education program be denied because the council still believes that the proposed program follows discriminatory practices which are contrary to the public interest and public policy, which the college must consider under its mandate as expressed in the Teaching Profession Act."

The "discriminatory practices" were directed at the community standards' requirement that students, staff, and faculty to refrain from "homosexual behavior." The BCCT decided that because staff, students, and faculty at TWU were not permitted to engage in homosexual behavior, its program was necessarily discriminatory and therefore not deserving of public approval.

If the BCCT's decision went unchallenged, the repercussions for TWU and other private religious universities could be devastating. All of TWU's academic programs and degrees are fully recognized. The school also maintains a number of professional schools that enjoy accreditation from the relevant governing body. For example, TWU's nursing program is approved by the Registered Nurses Association of British Columbia (a body similar in nature to the BCCT). If the BCCT can deny the accreditation of TWU's Teacher Education Program and therefore deny certification to teachers graduating from it, other accrediting bodies could do likewise--which could turn a well-respected academic university into a small theological college simply because the beliefs of its founders and members are not politically correct.

Because the BCCT exercises state authority, its decisions are subject to constitutional scrutiny. In October 1996 TWU filed a petition in the British Columbia Supreme Court for judicial review of the BCCT's action. TWU alleged many errors of law and jurisdiction as well as breaches of natural justice. One of the jurisdictional errors alleged was a breach of the religious freedom guaranteed in the Canadian Charter of Rights and Freedoms (the "Charter"), which dates back only to 1982, when then Prime Minister Pierre Trudeau oversaw the repatriation of the Canadian constitution from the United Kingdom. For the first time the Canadian constitution contained explicitly guaranteed fundamental rights and freedoms. Section 2(a) of the charter dictates that "everyone has the following fundamental rights and freedoms: (a) freedom of conscience and religion. . . . " However, the charter also contains a clause limiting the application of the fundamental rights and freedoms contained therein. Section 1 states: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as can be demonstrably justifiable in a free and democratic society."

Whenever a court finds that the government or some statutory delegate has infringed a charter right, the state can argue that the objective it seeks sufficiently justifies the infringement. The state must further show that the means adopted are rationally connected to the objective and impair the infringed right as little as possible.

Although no Canadian jurisprudence allows an artificial entity such as TWU to challenge administrative action on the basis of religious freedom, individuals can present that challenge. A TWU education student, Donna Lindquist, added her name as a copetitioner for this purpose--a technically necessary and symbolic move, clearly demonstrating whose rights were being impaired. Thousands of students attend TWU every year because it offers higher learning in an atmosphere that supports their personal religious convictions. The BCCT decided that students like Donna Lindquist could not complete their formal academic and professional training at TWU because some of their religious beliefs do not fit the majoritarian view of a "tolerant" society.

The BCCT purportedly made its decision on the basis of its statutory mandate to protect the public interest. The Council of the BCCT felt that the community standards, with the prohibition on homosexual behavior, were discriminatory. The BCCT also stated, in both the actual decision and in subsequent reports, that it was seeking to set public policy. The BCCT claimed that its decision protects the integrity and values of the public school system. The rationale is that its refusal to approve the TWU program was needed in order to protect students and specifically, homosexual students from the bigotry and intolerance that TWU graduates would likely bring to the classroom.

In fact, the BCCT relied on the British Columbia Human Rights Act and the charter to argue that the values enshrined in those documents prohibit discrimination. The argument is that freedom from discrimination is in the public interest, and as such, any insti-tution that discriminates must not be supported or approved by any public body. Thomas Berger, counsel for the BCCT, argued: "In considering any application for approval of a program of teacher education, the Council may consider whether the program will produce teachers who are academically qualified, who are possessed of a sense of professional responsibility; and who are competent, and who will be perceived as representing society's fundamental values and who will provide a supportive environment for all students. In doing so, the Council may consider whether the institution promotes discrimination against persons entitled to protection in accordance with the fundamental values of our society."

"It is not unreasonable to conclude that teachers who believe that homosexuality is sinful and opens the gateway to perdition may not be perceived as upholding the fundamental value of protecting all students from discrimination and would not provide a supportive environment for all students."

The BCCT decided that students emerging from a program founded upon evangelical Christian principles will not represent "society's fundamental values" and should therefore be kept out of the public classroom. In effect, the BCCT is advocating the ghettoization and marginalization of evangelical Christian teachers. They are allowed to be educated and maybe to teach in private schools, but their program will not be publicly approved and their teachers will not be permitted to teach in public schools.

Religious beliefs prohibiting homosexual conduct thus comes into direct conflict with a statutory body's view that no institution looking to obtain a government benefit (i.e., accreditation of a teacher education program) can espouse beliefs contrary to its view of the public interest. Because Canadian society is quickly embracing the homosexual agenda, "heterosexism" and "homophobia," as found at TWU, precludes educating public school teachers. Public policy and the public interest demand that this be so, says the BCCT.

Of course, one could ask, Whatever happened to individual rights and freedoms?

Although TWU argued breaches of other charter rights, the main constitutional thrust was religious liberty. Even though the charter prohibits state interference in freedom of thought, belief, opinion, and expression (section 2[b]), and freedom of association (section 2[d]), it also prohibits discrimination based on inherently personal characteristics, including sexual orientation (section 15). TWU argued under these related rights, but the basis of all of the constitutional arguments is religious freedom. The expression punished was religious expression, and the association hindered was based on common religious precepts. These other constitutional arguments were important in their own right and had the potential to set unique Canadian precedents.

Nevertheless, the religious freedom issue in this case is perhaps the most pertinent. The leading Canadian case on freedom of religion is Regina v. Big M Drug Mart. The case involved a Sunday-closing law (the Lord's Day Act), which Big M Drug Mart contravened. Even though the store did not break the law on the basis of religious principles, the Supreme Court of Canada allowed a challenge of the law based on a breach of section 2(a) of the charter. Justice Dickson wrote: "One of the major purposes of the charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices."

With respect to freedom of religion specifically, Justice Dickson held: "The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest that belief by worship and practice or by teaching and dissemination."

In Canada freedom of religion means the right to believe and the right to practice one's religion. The Supreme Court of Canada struck down the blue law as being an unjustifiable limitation on people's freedom of religion. In doing so, the court set precedent for the interpretation of religious freedom.

TWU argued that it's a religious institution with a primary mission to equip Christians to serve God and people throughout society. The education available at TWU is based on a Christian worldview. Students generally attend TWU because of their personal religious convictions. Yet because of the expression of their religious convictions with respect to homosexual behavior, a state benefit was denied them.

In effect, the BCCT was requiring the abdication of the religious beliefs of the TWU community in order to accede to TWU's application. The BCCT's decision eliminates the rights of TWU's education students to participate in public school education unless they first attend a public university whose program, in academic and professional content, is not significantly superior. The BCCT has interfered with and constrained religious belief by deciding that maintaining certain beliefs may be the basis on which the state can deny equal treatment.

Donna Lindquist, as the representative of the TWU education students, gave evidence that she attends TWU because of the commonly held religious convictions of that community. The act of attending TWU was governed by her religious beliefs. Yet the BCCT penalized such attendance by denying students the ability to be educated in the institution of their choice. This penalty is based solely on the religious beliefs that bind the community.

TWU admitted that the state has a legitimate interest in the structure and efficiency of public school education, which includes the training of public school teachers. However, this interest cannot allow the state to refuse to acknowledge a qualified program because the members of the deciding body (or the majority of society) disagree with the religious precepts of the program. There was absolutely no proof that graduates of a TWU program would bring bigotry or intolerance to public school classrooms.

As is often the case in Canadian constitutional cases, the BCCT utilized American precedent to define religious liberty. The BCCT relied heavily on the case of Bob Jones University v. United States. Bob Jones University was a private religious university that forbade students to date and marry interracially. These policies were based on the religious precepts of the university community. The IRS denied tax-exempt status to Bob Jones University because racial discrimination was against U.S. public policy. The United States Supreme Court held that the IRS had the mandate to consider the public interest and to deny tax-exempt status because of an aversion to the religious precepts of the institution. The case, involving the refusal of a government agency to grant a public benefit because of disagreement with religious beliefs, is clearly compelling precedent for the BCCT. It is not, of course, binding on the Canadian courts.

The BCCT further argued that no infringement of religious freedom had occurred, because TWU remains free to teach what it desires regarding homosexual behavior. The BCCT argued that TWU's rights to believe and teach have not been violated and that, according the words of Justice Dickson in Big M Drug Mart, no one has been coerced to affirm any religious belief. The BCCT resorted to utilizing the American case of Employment Division v. Smith, in which the Supreme Court of the United States held that it was not an infringement of religious liberty to prohibit the ceremonial use of peyote. The BCCT promoted the Smith and Bob Jones cases to argue that government agents do not infringe religious freedom when they forbid some conduct or prohibition contrary to the "public interest" as defined by the majority.

The BCCT's argued that it had absolute discretion to accredit a teacher education program and that it was protecting society by denying the TWU application. Even if this denial has a detrimental effect on a religiously based group, the denial was justified by the protection of the integrity of the public school system. The fallacy is that the beliefs of those at TWU were never linked to any conduct that could reasonably be seen as detrimental to the public school system. So what was the BCCT protecting the public from, other than religious beliefs with which it disagreed an unjustifiable infringement of section 2[a] of the charter.

The TWU case could have an enormous impact on religiously based institutions and charitable foundations in Canada. If able to deny a public benefit to a private organization based on a disagreement with the religious beliefs of the organization's members, the state will have found an indirect way to control and limit beliefs and opinions that do not meet majoritarian approval. For instance, the tax-exempt status enjoyed by Canadian religious groups could disappear for a group if it refuses to accept leaders who are practicing homosexuals and is thereby "discriminatory." Although this result is unlikely in the short term, it is a direct analogy to the TWU-BCCT dispute.

In September of 1997 the British Columbia Supreme Court rendered its decision in Trinity Western University v. British Columbia College of Teachers: it ruled in favor of the school. Writing a relatively narrow opinion that didn't deal with some of the larger religious liberty questions involved, Justice W. H. Davies denied the validity of the BCCT's assertion that students at the school, because of the community standards, would be intolerant of homosexuals.

"Briefly stated," the opinion said, "the position of the BCCT is that it is entitled to conclude that graduates of TWU will be intolerant because they must promise not to engage in homosexual behavior while at TWU, and this requirement is couched in language which calls such behavior 'sinful.' Such a premise is inherently flawed because it requires many unfounded assumptions."

In short, the court ruled that there was no evidence that TWU students, because of the standards, would be intolerant and thus endanger "the public interest," as the BCCT claimed. Thus the court, finding the decision to deny accreditation was made "without any reasonable foundation," ordered "the matter back to the council and [directed] it to approve TWU's Teacher Education Program for accreditation purposes. . . ."

Though TWU was a victory for religious liberty in Canada, no doubt, as long as religious values clash with cultural norms, the problem will not go away. For now, however, students at TWU will not be denied a government benefit solely because they attend a school that forbids "homosexual behavior."

And in a society that prides itself on freedom, it's hard to see how the outcome could have been any other way.

Kevin Boonstra is a lawyer with Baker Newby in Abbotsford, British Columbia.

Footnotes

1 S.B.C. 1969, c.44 (later amended to change the name and make TWU a full degree-granting institution).
2 Ibid., s.3(2).
3 Biblical references omitted. (Italics supplied.)
4 The British Columbia Supreme Court is the lowest superior court in the province. All appeals go to the British Columbia Court of Appeals from which cases appeal to the Supreme Court of Canada.
5 The test is known as the Oakes test as it was first enunciated by Chief Justice Dickson in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200.
6 B.C. College of Teachers Report to Members, vol. 8. No. 1, (Fall 1997).
7 Now the British Columbia Human Rights Code, R.S.B.C., 1996, c. 210.
8 Chambers Brief of the Respondent, p. 27, par 80.
9 Ibid., p. 40, par. 123.

10 TWU and Donna Lindquist advanced arguments that the BCCT's decision breached freedom of religion (s.2[a]), freedom of expression (s.2[b]), and freedom of association (s.2[d]). They also argued that the BCCT's decision was discriminatory and thereby contravened section 15 of the charter.
11 Egan v. Canada (1995), 124 D.L.R. (4th) 609 (S.C.C.).
12 [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321.
13 Ibid., p. 354 (D.L.R.). (Italics supplied).
14 Ibid., p. 353 (D.L.R.).
15 As the law was enacted for religious purposes, the court found that the infringement was immediately unjustifiable under section 1 of the charter.
16 In R. v. Edwards Books and Art (1986), 2 S.C.R. 173, 35 D.L.R. (4th) 1, the Supreme Court of Canada stated that the purpose of section 2(a) of the charter is to ensure that the state does not interfere with personal religious beliefs.
17 This is also the underlying rationale behind TWU's freedom of association argument.
18 Ross v. New Brunswick School District No. 15 (1996), 133 D.L.R. (4th) 1 (S.C.C.). This case involved a public school teacher who publicly avowed anti-Semitic teachings outside of school time. Because of the inextricable link between the integrity of the school system and public school, Justice La Forest of the Supreme Court of Canada upheld the teacher's dismissal. For the basic principle, see also R. v. Jones, (1986) 2 S.C.R. 284, 31 D.L.R. (4th) 469, p. 593.
19 The state's legitimate interest in protecting the public school classroom relates to arguments attempting to justify the infringement of religious freedom under section 1 of the charter.
20 Since the charter dates back to only 1982, U.S. precedent is often consulted, and often ignored, in the interpretation of the provisions of the charter.
21 461 U.S. 574, 76 L. Ed. 2d 17, 103 S. Ct. 2017 (1983).
22 494 U.S. 872, 108 L. Ed. 876, 110 S. Ct. 1595 (1990).

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Article Author: Kevin Boonstra