In a controversial decision, the B.C. Supreme Court has ruled that the B.C. College of Teachers cannot refuse to certify the teacher education program at Trinity Western University (a private and privately funded university) just because TWU has a discriminatory code of conduct.
This code forbids student and faculty to engage in biblically condemned behaviour, including homosexual behaviour. The College had argued that because TWU’s code of conduct discriminates against lesbians and gay men, accrediting the program would be against the public interest. The college also said that it was reasonable to anticipate that TWU graduates would be biased in dealing with gay or lesbian students. Currently TWU education students are required to take their final year under the auspices of Simon Fraser University, with exposure to secular values.
When TWU asked for a judicial review of the decision, the BCCLA intervened in the case. We were ably represented by Tim Delaney, a lawyer with the firm Lindsay Kenney, who donated his time and expertise to prepare and argue the Association’s case.
In its ruling the Court agreed with the arguments of TWU and the BCCLA that the College’s authority to act in the public interest does not mean it can refuse to accredit TWU’s teaching program solely because TWU’s code of conduct discriminates against homosexuals. The expression in the public interest in the College’s enabling legislation is limited by the purpose for which the College was created—to ensure that teachers are well qualified and that teaching programs have an appropriate curriculum, adequate library resources, and so on. It does not extend to making human rights judgments.
The Court did acknowledge that TWU’s code of conduct s relevant to the College’s assessment of TWU’s teacher education program. In fact, the College’s Program Approval subcommittee had review TWU’s program with specific attention to the issue of TWU’s code and the ability of TWU graduates to work with colleagues and students from diverse ethnic and value backgrounds. The subcommittee was satisfied, and recommended to the College’s Council that the TWU program be accredited.
Furthermore, the College had access to any evidence that TWU graduates now teaching in the schools had exhibited bias against gay or lesbian students. Apparently, either it did not bother to look for such evidence, or there was none.
Accordingly, the Court found the College’s claim that TWU graduates might be more likely to discriminate against homosexuals to be “without any reasonable foundation”.
Even though based on administrative law—and thus not engaging the Charter protections for freedom of speech, religion and association—this is an important ruling.
It is implicit in the Court’s decision that only a human rights body or a court can judge whether an institution is violating human rights law. For a state agency such as the College to deal with human rights issues, it must have evidence of discrimination which falls within the agency’s mandate—in this case, the ability of TWU graduates to provide a welcoming learning environment for all students.
Citizens in a democratic society must be able to create private institutions, and limit membership to those who share their beliefs, without being disadvantages by a state agency simply because of the content of those beliefs, no matter how abhorrent the views may be to the rest of society.
The College has indicated that it will appeal the decision.