Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged united states
From campus to court: church and state clash again south of the border
0520 days
by noahsarna
in Uncategorized
Campus activism makes for interesting court decisions. Traditionally, universities have served as battlegrounds for major social issues confronting not only students but the rest of society. Often, these disputes spill out of the classroom and into the courtroom, where student affairs expose fundamental questions about what rules should restrict or direct a nation’s centres of higher learning.
For decades, the major court decisions in North America arising from campus events have generally stemmed from left-wing activism. Recently, however, religious groups have approached the courts to address instances of perceived injustice suffered at the hands of administrators or student politicians. In Canada, an anti-abortion group, Youth Protecting Youth, has made headlines because student governments have taken steps to restrict its ability to voice its message on campus with the same rights and privileges as other student clubs (see here for a previous post on the subject).
Similar confrontations are occurring south of the border – and the decisions keep on coming. Here is a recent post explaining one example. Yesterday, Inside Higher Ed, an impressive online source for news and opinion involving higher education, ran an interesting article on a recent judgment from a high level appelate court in the US, ruling that the University of Wisconsin at Madison improperly refused to fund activities of a Roman Catholic student group, placing unconstitutional limits on activities that included worship. The central issues seems to have been whether the university could refuse to grant funding with respect to such events, or whether it had to consider them to be in the same category as an other extracurricular activities.
Although the constitutional background is quite different in the US and Canada, it is fascinating to watch the types of issues and arguments that are raised by parties on the various sides of these disputes and, more importantly, to see how courts are reacting to them. Recent cases in the US have shown that courts have been fairly supportive of religious student groups claiming discrimination.
The cultural authority held by religion has waned considerably over the past decades to the extent that now religious groups are increasingly being made to feel, particularly on campuses, as the targets of prejudice. As social attitudes towards religion continue to shift, and religious student groups establish a growing presence on campuses with the support of affiliated communities elsewhere, we should expect courts to spend even more time piecing apart the basic question of what role religion should play within public educational institutions.
U.S. Supreme Court to hear claim of religious student group denied recognition because of university non-discrimination policy
0658 days
by noahsarna
in Uncategorized
Should a university recognize and allow funding for a student group that requires its leaders to abide by a strict personal code that includes limits on sexual orientation?
Tomorrow – April 19 - the U.S. Supreme Court is scheduled to hear oral arguments on precisely that issue with respect to CLS v. Martinez. This is the background to the case. The University of California Hastings College of the Law is a top-ranked American law school. The Christian Legal Society (CLS) is an organization of Christian judges, lawyers and others with more than 150 law school chapters. In the 2004-2005 academic year, the Hastings chapter of CLS applied for recognition as a student club and was rejected. The CLS sued Hastings, claiming that by Hastings’ denial of recognition the school violated the CLS’ “expressive association, free speech, free exercise, and equal protection rights” under the American Constitution.
The school’s position was based primarily on two documents: the CLS Statement of Faith, and Hastings’ non-discrimination policy.
All officers and voting members of CLS must sign the national CLS Statement of Faith, which provides:
Trusting in Jesus Christ as my Savior, I believe in:One God, eternally existent in three persons, Father, Son and Holy Spirit.God, the Father Almighty, Maker of heaven and earth.The Deity of our Lord, Jesus Christ, God’s only Son, conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.The presence and power of the Holy Spirit in the work of regeneration.The Bible as the inspired Word of God.
On the issue of sexual orientation, for greater clarity the national CLS passed a resolution in 2004 expressly prohibiting adultery and “homosexual conduct”. In contrast, Hastings’ non-discrimination policy provides as follows:
The University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admissions, access and treatment in Hastings-sponsored programs and activities.
The basic legal issue in this case is whether the CLS is suffering religious discrimination (as the CLS claims) or whether it is seeking special permission to violate the non-discrimination policy (as Hastings claims).
Although much about this case is specific to the U.S., many of the arguments apply in the Canadian context, specifically to the debate involving pro-life groups on campus. As a result, even though a decision of the U.S. Supreme Court will not bind universities or student societies when dealing with such circumstances, it will highlight the unique tensions at play and may encourage a Canadian court to advance in a particular direction if a similar case comes before it.
Should Canadian universities ban sex between faculty members and undergraduate students?
0666 days
by noahsarna
in Uncategorized
Yale University’s alumni magazine reported last week that Yale faculty members are prohibited from having sexual relationships with undergraduate students, even those they do not teach or supervise in any way. The ban was put into the faculty handbook in January:
Undergraduate students are particularly vulnerable to the unequal institutional power inherent in the teacher-student relationship and the potential for coercion, because of their age and relative lack of maturity. Therefore, no teacher (see below) shall have a sexual or amorous relationship with any undergraduate student, regardless of whether the teacher currently exercises or expects to have any pedagogical or supervisory responsibilities over that student.
Violations will lead to disciplinary actions.
There has been a debate surrounding this policy for several decades. Those in favour of the ban argue that a university has the duty to protect students in loco parentis (i.e. a quasi-parental role), and sexual relationships with faculty members (even those that have no supervisory element) usually end poorly for the student because of the imbalance in power. The flip side is that students and faculty members are adults, and where there is no conflict of interest it would violate the autonomy of individuals to tell anybody who they can and cannot sleep with. It seems to boil down to the university’s duties to students versus the rights of students and faculty members.
There was an interesting article in Salon.com a couple of years ago, discussing how this ban grew out of court decisions finding schools responsible for on-campus sexual harrasment.
It is a dangerous business telling an employee that he or she cannot engage in sexual relationships with members of a large defined group. I wonder what would happen if Yale took disciplinary action against a prof who dated (and, for the sake of argument, ended up marrying) someone who happened to be doing an undergraduate degree at Yale in an unrelated area. Suppose further that the student was older than the prof.
As the Globe and Mail reported a couple of days ago, Canadian universities have avoided any such ban, which would represent a legal minefield. A conflict of interest is one thing, they say, but forcing faculty members to stay away from students because of a quasi-parental role is a whole different issue. Besides, the argument goes, in Canada we already have sexual offence provisions in the Criminal Code, which prohibit sex (and related conduct) with anyone under 16.
Without any reason to change that tune, it is not reasonable to expect the ban to cross the border.
