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Association Not DiscriminationAssociation Not Discrimination

Association Not Discrimination

A B.C. faith-based school’s dismissal of a teacher for sexual conduct contrary to its standards is neither shocking nor discriminatory, notes Ottawa constitutional lawyer Albertos Polizogopoulos. In fact, he says, it’s protected by Charter of Rights rulings that date back to 1984.  

Albertos Polizogopoulos
5 minute read

This week, news broke about a teacher at Surrey Christian School in British Columbia, being asked approximately two years ago to leave her position because she was cohabitating with her partner. The implication of the cohabitation, and there was no denial of it, is that she is engaged in pre-marital sexual intimacy with her partner.

The problem, from the school’s perspective, is that she, along with all other teachers, agreed to abide by community standards consistent with Christian teachings on morality and ethics. The controversy, or at least what some are trying to paint as a controversy, is that she lost her job because of what she does in her private life. Some argue that she is being discriminated against.

The reality is that this is not a new or unique situation, but in fact is something that is both quite common and legally protected.

The important consideration in this analysis is that Surrey Christian School is precisely what its name says it is: a Christian School. It is not a public school that is neutral or secular on religious issues. Because of that, it is also not neutral or secular on moral and other issues. Indeed, in addition to teaching religion and theology, an important characteristic of being a faith-based school is that you approach and teach all subjects through the religious lens associated with your religious affiliation.

It really all boils down to the philosophy underpinning the educational institution. If you’re a Christian school, you provide a Christian education in a Christian environment. If you’re a Muslim school or a Jewish school, then you provide a Muslim or Jewish education in that type of environment. And part of a religious education includes moral or ethical education that aligns with the religious teachings and traditions with which you are affiliated.

Again, this is neither new, unique or controversial.

In fact, this is why many (if not most) parents choose to send their children to a faith-based school: because they want moral, ethical, social and other non-academic topics to be approached in a manner that is consistent with their religious worldview. There is no real controversy related to a morally neutral teaching of geometry. Civic virtues or health sciences and physical education, however, might be more sensitive and may indeed cause some parents concerns.

With that framework in mind, is it really a shock or surprise that the schools who exist to provide a specific faith-based education in a specific faith-based environment would require their teachers to subscribe and adhere to that religious tradition? It certainly is not if you’ve been paying attention.

Teachers being let go or asked to leave a school because their personal lives are either inconsistent or in direct conflict with the views of the school is actually quite common. There have been multiple legal cases brought in this vein, and they all end in the same way: with the court or tribunal confirming that this is not discrimination but rather association.

A Christian school which requires its teachers to be Christian is not discriminating. It is a legal right that religious organizations and communities have and exists to promote freedom of association and freedom of religion. The first major and still leading case on this issue is Caldwell v. Stuart from 1984. It involved a teacher in a Catholic school whose contract was not renewed when it was discovered that she had married a divorced man. In the Catholic tradition, divorce is prohibited and so by marrying a divorced man, the teacher had disregarded Church teachings. This might, to some, sound trivial. But if your job requires you to deliver Catholic education in a Catholic environment to Catholic students, including transmission and dissemination of the Church’s teaching on marriage, asking you to actually subscribe to Catholic doctrines is not so unreasonable. In fact, the Supreme Court of Canada, in Caldwell, found that adherence to Catholic teachings is a bona fide occupational requirement for Catholic school teachers:

“The school’s special nature and the unique role played by the teachers through example in attaining its legitimate objects were essential to a finding that religious conformity was a bona fide qualification.”

This concept of teachers playing a special role in the broader development of children is not unique to faith-based schools. There have been multiple cases where a teacher in a public school has had a teaching position terminated because of activities outside of the classroom.

In 1996, the Supreme Court of Canada released its decision in Ross v. New Brunswick School District No. 15, which arose out of a human rights complaint filed by a parent against the school board because of anti-Semitic comments a teacher made outside of the classroom and outside of his work. The local human rights tribunal ordered that he be removed from the classroom. The Supreme Court acknowledged that his freedom of expression was violated by the order, but that it was reasonable because teachers play such an important role in the development of children:

“Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly upon the community's perception of the ability of the teacher to fulfil such a position of trust and influence, and upon the community's confidence in the public school system as a whole.”

The same is true for teachers in faith-based schools. Teachers are inextricably linked to the integrity of the school system and, in the religious context, the integrity of the school system includes the religious character and ethos of the school. A faith-based school where the faculty members engage in conduct that is in direct conflict with the religious beliefs of the religious community is no religious school at all.

So when a faith-based school limits its hiring to people who share its religious views, it is not discriminating against teachers who do not fit the mould it has set, at least not in a manner that fits within the legal meaning of “discriminate.” Instead, the leadership of the school has determined that by hiring co-religionists, they are associating with like-minded individuals for a specific religious purpose and to serve a specific religious community.

An equivalent, and in fact quite timely example, would be if a member of a particular political party stopped believing in the party’s platform, policies and philosophy. Would it be discriminatory for the NDP, for example, to expel a member who believes there is no need for trade unions and who promotes right-to-work legislation? Would it be discriminatory for pro-choice advocacy group to terminate an employee who had a moral conversion on the issue of abortion and became pro-life?

The reality is that as a country, we recognize the need and importance of having individuals and communities associate for a common purpose and under a common set of beliefs or characteristics. For the parents who send their children to Surrey Christian School, that common set of beliefs includes the traditional Biblical view of sexual ethics: that sexual intimacy is reserved solely to the confines of a biblical marriage between one man and one woman. While that view might be a minority view or even an unpopular view, it is a mainstream view within religious circles and remains legally protected.

Is it really unreasonable for the school, which instructs its students on moral and ethical issues in a manner consistent with Christian principles, to require its teachers to live by those principles? Some might call it discrimination but in Canada, the Courts call it freedom of association.

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