Universities Canada By-Law: A Wolf in Sheep’s Clothing

Universities Canada’s (UC) Board of Directors proposed a new by-law for adoption at its October 2016 Membership Meeting that discriminates against faith-based universities. Framed in benevolent language, UC’s proposal is anything but. UC is the club that all universities want to be a part of. It claims to be “the voice of Canadian universities, at home and abroad.” It provides university presidents “a unified voice for higher education, research and innovation.” When UC speaks, government listens.

Consider how benign the by-law reads:

“With respect to all institutional policies and practices, the institution affirms its commitment to equal treatment of all persons without discrimination, and without limitation, on the basis of race, religious beliefs, colour, gender, physical or mental disability, age, ancestry, place of origin, marital status, family status, sex, and sexual orientation.”

Upon first reading you have to say, “What’s wrong with that? It seems straight forward. Being against discriminatory universities is a good thing.” Indeed, that is the disingenuous part of the UC proposal – it sounds harmless, it looks harmless. But it is far from harmless. It is a sophisticated mechanism to ensure that the small number of faith-based Canadian universities are not able to remain true to their moral convictions if they are UC members.

Notice that the by-law refers to “religious beliefs” – human rights legislation uses the term “religion” or “creed”.  The courts recognize freedom of religion to include two aspects – belief and conduct. A person/community has the right to believe and act on that belief subject to reasonable limits. UC only recognizes the right to religious belief and is not at all interested in the right to exercise those beliefs. In other words, they do not have much patience for universities carrying out their faith in practice on their university campus.

The Universities Canada enforcement policy will not permit the use of “bona fide occupational requirement” exemptions in human rights legislation. This is the most amazing aspect of the whole issue – you have to waive your rights under legislation that is meant to protect you! To understand what that means you need to know that Canadian human rights protections allow religious organizations (and other cultural groups) to discriminate (for example, in its hiring practices) to maintain their identity. Our legislatures understood that if religious universities were to continue as such they must be able to ensure that their staff, faculty, and student population are active participants and followers of their religious community. A faith-based school is no longer faith-based if those on campus are no longer following its faith in practice.

UC’s “anti-discriminatory” jargon wraps itself in a blanket of “inclusiveness” when in reality it is an attempt to conceal anti-religious bigotry. Consider the following: 99.9% of the constituent members of the Universities Canada will have no problem with this by-law because it only affects the very few faith-based universities. If the only impact is negative against faith-based universities it is no longer about equality. It is about exclusion. Simply put the by-law seeks to expunge the religious schools from the club. It says, “You are not wanted.”

Philip Landon, Vice-President, Governance and Programs at UC sent a circular to the membership noting that UC has “been considering this complex and challenging issue for some time.” Why would it be so “complex and challenging” if 99+% will have no problem with the by-law? I suggest it was “complex and challenging” because they want to do indirectly what they cannot do directly – that is, to get rid of faith-based universities from their membership. Indeed, the complexity comes from the fact that, as the Supreme Court said in its decision to allow a Sikh boy to wear his kirpan to school, religious tolerance is a foundational principle of our democracy. UC has found it challenging to craft a policy that would be laser sharp to exclude the faith-based universities and yet maintain that they mean no harm. That takes skill, a lot of work, and time.

All of which UC had, as Landon noted. Developing and adding the “non-discrimination criterion” to UC’s “by-laws has been the focus of careful and in-depth discussion by the Board, Governance Committee and membership over the past six years.” And it included “an expansive, respectful and thoughtful dialogue, moderated by former Supreme Court Justice Frank Iacobucci.” It was “on the agenda of the Governance Committee eight times, and the focus of Board discussion seven times,” and he assured the members that “throughout this time…communications with the presidents of the member institutions most concerned by this potential change remained regular and open.”  (Emphasis added.)

While the communication was “regular and open” the fact remains faith-based universities will, if this by-law goes through, have a very difficult time being able to become a member of Universities Canada, or if a current member, remain so. That is not only unfortunate it is a rejection of the principle of religious tolerance. That should concern everyone. For assuredly as the religious communities are not tolerated today we can expect that there will be others tomorrow.

Why should faith-based universities be concerned about UC membership? First, membership in UC is seen by many organizations as a benchmark for other privileges. For example, a university student athletics program will not be able to compete in university sport leagues unless the university is a UC member. Therefore a faith-based university will lose its ability to attract athletic students. That is a huge loss. Second, according to UC’s T3010 (being its annual return filed with CRA) it distributed $16.5 million in 2015 in scholarships and grants to universities across the country; third, UC membership makes it easier for graduates of faith-based universities to have their degrees recognized by graduate programs in other Canadian universities; finally, UC receives some $6.8 million/year from the federal government making it a quasi-government actor.

To see another prominent actor in the public square limit the full participation of religious based universities is disconcerting. It is offensive in our society that a religious community has to constantly be on guard, looking over its shoulder for the next attack. Members of Universities Canada would do well not to vote for the proposed by-law. Faith-based universities, simply living their faith in compliance with Canadian laws, ought to be welcomed not excluded from the sisterhood of universities that claims the inclusive moniker “Universities Canada.” UC would do well to heed the Supreme Court in 2001, “The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.”