Tuesday, March 25, 2014

York University, Gender Equality, and Religious Accommodation

Some things are downright upsetting. The recent debate at York University about whether or not to accommodate a male student, of unspecified religion, who requested accommodation on the grounds that his religion prevented him from interacting with female students is a case in point. For those who are not familiar with this story, you can find some information at this link: Gender Equality.

I teach a course at Mount Allison University called "The Character of Canadian Democracy." Last week we were discussing this incident, its relationship to rights and democracy, and how the university administration should have responded to the student's request. I want to credit my students for drawing this issue to my attention and for the respectful and productive discussion we had of this issue. I promised a couple of them that I'd offer a longer -- and hopefully more considered -- response in my blog than I had time for in class. I've written this blog to fulfill that promise and, hopefully, to open up another line of discussion of this issue. I will warn you in advance that this is the longest blog I have written. The points under consider, I think, merit a longer treatment but if I try your patience with its length, I apologize in advance. I will address this issue in a number of parts. First, I'll review the facts of the case, as I understand them and explain what accommodation is, giving some examples of how it is practiced. Second, I'll present a test that I think can address this specific case and perhaps have wider application. Third, I'll draw some conclusions. To preview my argument: the logic in which I have engaged leads me in a direction that I personally would not want to go. I'll argue that the requested accommodation might have more merits than people generally think.

Accommodation

From what I gather, the facts in the story are fairly clear. A male student is taking a course, most of which is conducted via correspondence. Part of the course assignment, however, required that students meet in person. The faculty member in question is a respected scholar, whose work I have read over the years, enjoyed, and found insightful. The student in question (again, no specific religion was mentioned) asked for "accommodation." Accommodation is a process whereby a particular student is exempted from a given assignment for some legitimate reason. Usually, this reason is illness or some other serious personal or family issue and usually some other assignment is substituted. For example, imagine a situation where a student had been unable to attend class for several weeks owing to a serious illness. The faculty member might, in that instance, ask the student to write, say, several short reviews of assigned readings in order to make up for an attendance and participation grade. Another example relates to ability. My wife has a visual impairment. She was accorded extra time to write exams.

There is nothing unusual in accommodation. It is a common practice at just about every educational institution of which I know. Its goal is to address learning on a human level and keep a level playing field. The basic principle is this: a student should not be penalized owing to circumstances beyond their control, say becoming ill. Periodically, students will ask for accommodation of one sort or another on other grounds. This could include English-language proficiency (asking to use a dictionary), among other things. Only once have students asked me for accommodation on religious grounds. A final exam in one of my courses fell on a religious holiday. Several students asked if they could write the exam early so as to travel home and participate in a religious service with their families. I had no trouble with this and, in coordination with our Registrar's Office, scheduled an early exam for the students in question. To the best of my knowledge, however, it is unusual  to ask for accommodation of the sort for which this student was asking: to be exempted from part of a class because it required participating in in-person exercises with students of the opposite gender. The student in question asked if a different type of assignment could be  completed in lieu of participation in an in-class exercise that involved female students.

What happened? The faculty member said "no." He did not view this as legitimate grounds for accommodation as the course requirements had been clearly explained at the beginning of the course; nor did he want to send a message that sexism was legitimate grounds for accommodation. This case went through various appeals and, eventually, the University administration sided with the student. They argued that because this course was large correspondence based, it was fairly easy to accommodate the student in question. They also wanted to be sensitive to the student's religious views. York has a reputation (deserving or not, I do not know) of accommodating religious difference. Hence, the administrators in question likely viewed their decision to accommodate this students as consistent with York's history and current practices (altho' I do speculate here).

Testing Accommodation

The question is this: should this student have been accommodated? Is sexism -- however justified -- legitimate grounds for accommodation? My students' views were, by and large, consistent with general public commentary on this issue. Their answer was "no." They viewed this as a case of competing rights and acknowledged that each individual has a right to practice their religion without interference from the state. But, they contended, this student know the rules of the course, elected to take it, and cannot impose his sexist views on the rest of the class. Such an imposition, they suggested, runs a serious risk of naturalizing sexism which will hurt women. I am simplifying their discussion (which was very sophisticated) but this is the jist (as I remember it) of what was said. Generally, public commentary has tended to echo this view: gender equality is "non-negotiable." People have a right to practice their faith and the state should defend that right but they do not have a right insist that public institutions (or, semi public in the case of universities) violate Charter commitments to equality and to equal benefit of the law: the right to practice one's faith is not the right to discriminate against other people.

This is a good argument and we should, as a society, pay close attention to it. I am a religious person myself and I often become quite upset when I see people justifying -- perhaps rationalizing is a better word -- their own prejudices or the views of the culture in which they live on religious grounds. I usually speak about Christianity in this regard and I have, for example, commented in the past on the shaky theological underpinnings of Crandall University's anti-gay policies. In addition to the self-evident reason, then, for being upset at such a request for accommodation (sexism and its violation of a Canadian commitment to equality), I also become upset at the way God is conscripted into the service of views that are, at the very best, iffy in terms of their scriptural foundations. Such sexism, for instance, I've found in Christianity is usually the product of cherry-picking passages from The Bible, reading them out of context, all the while ignoring other parts of the same book.

As I worked through this issue, however, I found something else to be disturbed about, or rather two things. First, this is an easy target. It is easy to become upset at a religious minority asking for an accommodation that violates most of our values. There is no benefit, I decided, in "piling on." Such a request is upsetting and so makes an easy point of critique because very few people are likely upset by re-assertions of the importance of equality. I decided that I would write on this subject only if I had something else to say because, otherwise, I did no service to public discourse. I simply repeated what most of us already thought and, perhaps, won a few brownie points along the way. Second, I engaged this issue in the context of a class on democracy and so it provided an opportunity to think about how we approach issues in a democratic society. One of the things I told my students by way of a very partial conclusion, about open debate in a democratic society is that it might lead us to draw conclusions that we don't really like. It might lead us to defend actions that we ourselves would never do. And, it might lead us to policy decisions that we find anathema.  This is the situation in which I find myself with this case.

My key point to my students was that I did not like the discourse of "competing rights": which trumps? religion or equality? I did not like it because it had become too easy. It is a common discourse and different and perhaps idiosyncratic cases are crammed into an analytic framework that is not always appropriate. Upon closer examination, I argued, what is presented as a conflict of rights might not be. We need a new way of evaluating these cases because a democratic society should be about reasoned discussion that responds to the merits of individual instances (in addition to everything else democracy is about). I suggested to my students that another way of looking at this situation might be to pose a multi-part test in the manner of the way the courts pose tests for specific rights claims. What might this test look like. It would include several parts. The burden of the rest of this blog is to lay out this test, suggest that it provides a different way of thinking about conflicting rights, and suggest that, ultimately, the student in question (a) did nothing wrong in asking for accommodation and (b) should be accommodated.

The test I propose takes involves questions:

First, what constitutes harm to gender equality?  Can a single instance damage the broader social commitment to gender equality? In answering this question, I believe that it is the responsibility of the state to promote and maintain Charter values. The burden of promoting gender equality, in this regard, (and, I believe both the gender equality is right and that there is a burden to promote it) falls on the state and not individuals or specific religions. We might set specific standards for ourselves, argue that gender equality is important in our churches, etc., but the burden of promoting falls on the state (whether or not the state takes this burden seriously is another matter).  I take this point to be fairly clear: it is the state's job to uphold, maintain, and enhance Charter values. It cannot religate this job to civil society (even while we can congratulate and support those in civil society that take it seriously). But, even more than this, we need to ask: how are women harmed if this student is accommodated? They might be, but we need to define this harm specifically. This is what feminists in the past did. They showed how inequality hurt specific women (women earned less than men -- and still do, btw -- suffered violence they did not need to suffer, were shut out of jobs for which they were qualified, etc.). For us to argue that this request harms women, we need to show how. It might and if so, someone can explain it to me, but the first point of the test is important because it states that people are not abstractions. They are real and so the harm done to them needs to be specified in real terms. In this case the question becomes this: how are female students in this course harmed by this student's non-participation in an in-class exercise?

Second, does the request for accommodation impose a special burden on an institution and, if so, what is the extent of that burden? Is it reasonable? All requests for accommodation impose a burden on institutions. To set an early exam for students, I needed to write another exam, find a room in which the students could write, and arrange to have the exam proctored. The fact that a request for accommodation imposes a burden is, then, not in itself a ground to reject that request because if we did we would be rejecting the idea that there is a social responsibility to level the playing field, address circumstances that are unforeseen, or promote equality. The question is not the burden, the issue is its extent. And, again, we need to deal with the specifics of the case. Does this request pose an unreasonable burden on York University, say one that it cannot address through normal channels or one that requires expenditures so high as to hurt other aspects of its mission?

Third, Is the request related to an "insular minority" (that is, a defined self-identifying social group) or is it the product of individual prejudices? We have the right, under the Charter, to think what we will. But, there is no burden on the state or institutions or individuals under the Canadian constitution to accommodate my individual proclivities. Thus, for instance, I might happen to believe that green is an evil colour and people should not where it. I am exaggerating to make the point but I trust you see. This is my personal view of the colour; not a cultural practices embedded in a social group. It is legitimate and, I would argue, required to accommodate disabled students or to schedule early exams for students for religious reasons. It not legitimate to argue that I only like to write exams on days that begin with S so … I need to be accommodate because my Canadian Studies exam falls on a Monday.

This is a tougher question to address than one might think because it involves some discussion of what constitutes, say, a Christian or a Jew or a Muslim, etc. And, since neither Christians, nor Jews, nor Muslims agree on that, we will have a very difficult time answering the question. What we, therefore, need is a guide and that guide is likely composed of two things if it were being considered by the courts: (a) expert opinion (not everyday opinion but expert opinion) and (b) history. If a practice is grounded in history, there might be legitimate reason to accommodate it, all other things being equal. There is, for instance, little theological rationale for holding the Christian sabbath on Sunday. Yet, this is widespread and longstanding practice which has become part of the practice of Christianity.

Fourth, is the requested accommodation serious? In other words, is individual involved serious about his or her religion, in this case. In my wife's case, her request for accommodation was serious owing to a disability. Requests that are frivolous, intended to mock institutions, or intended to try to manipulate the system so as to gain unfair advantage are, I would contend, off limits. They should not be accepted and I take this point to be self evident. Imagine a hypothetical situation.  A student might request accommodation from me because, they say, they are of Christian heritage. I have an assignment due on Monday and this imposes an unfair burden on them because, being of Christian heritage, they cannot work on Sunday and so have less time to complete the assignment than a secular student. Believe it or not this might be a fair request. But, I discover that the student is (a) accurately presenting their heritage but (b) that they ignore their heritage. They might be Christian but they don't keep the sabbath and instead spend the day working at a p/t job (like a bunch of my students) and partying and playing video games. In this case, their request is not legitimate because it is based on the serious observation of their faith. The test in this instance is the behaviour of the individual.

Fifth, was the request legitimately made; that is: was it made correctly. Did the individual in question do the proper paperwork, as i t were?

Sixth, to what extent are alternatives available to the requested accommodation? In other words, is the requested accommodation the best way to address the individual's concerns. For example, imagine another hypothetical situation: is this individual request that women and men not be allowed in the same classes? In this case, we might argue that the remedy is out of proportion to the need that is supposedly being addressed through accommodation, it imposes unusual and extreme burdens, and will entail manifest -- and easily documented -- harm to female (and, likely male) students.

There are two other ethical principles that we might want to keep in mind:

1) To what extent should a majority impose its views on the minority if we are dealing with a case where there is an absence of material harm? Said differently, if we cannot demonstrate that female students in this class are harmed by the requested accommodation, should we reject it because we disagree with it? It might be easy to say "no" to this question but we can all likely think of examples (and, fairly quickly) where our easy "no" becomes problematic. Imagine a situation where a minority group believes that it is legitimate to *not* educate children of a different ethnic heritage. We might never convince them that their views are wrong but we should not stand idly by and say "well, we can't impose our views on a minority -- free speech, free thought and all -- so we will do nothing and accept what they are saying."

2) The application of the law should be broad and generous. In other words, the law should be "on the side of angels." Its operation should work in a way that promote equality and the good; not in a way that detracts from it.

Argument

Let's put some of this together. As I look over this case, I realize that I do not have all the facts. If I missed something, correct me if I am wrong. Remember, too, that my original argument was that in a democracy we may end up countenancing behaviours or views that we personally find objectionable. We do this because others don't find them objectionable and we are looking for a way to accommodate diversity in a way that respects difference.

When I look over the various questions I have posed as a test, I find that the student did nothing wrong in requesting accommodation. That is his right. Having a right to request accommodation does not mean that that accommodation need be honoured. In fact, in some instances -- say, if the request is frivolous or manipulative -- it should not be. But, requesting accommodation should not be limited in advance of knowing what the accommodation is and what it might entail. Thus, while we might find certain requests disturbing or illegitimate or even dangerous, we should not impede the right of individuals to make those requests (again, even if we are going to decide that they should not be honoured after we have assessed the case).

In addition, I find that there is a stronger argument that can be made for this specific request than might appear on first blush. The test I posed it not intended to find some sort of math. I am not trying to say which has the better argument in a rights in conflict situation, let's add up the pros and cons and go with whatever side has the most points. Instead, it is an effort to break down the argument into specific and testable points that would allow us to find a way to honour diverse rights at the same time. I might have failed, but that is my objective.

The test suggests that it might indeed be difficult to demonstrate material harm to the female students in the class through the absence of this male student from a group exercise. It is possible that he could have added to their knowledge of the subject at hand but it is far more likely that the prof is the person who will add the most to their learning. No one is suggesting that accommodation involves removing the prof from the class or substituting a different prof. What we are talking about is the absence of one student from a specific exercise. For good or ill, this actually happens all the time in my classes. We had a discussion exercise on Monday and not all students were there. The discussion might have been richer for them being there but that is a counterfactual argument that is difficult to demonstrate one way or the other.  Said differently, it is very difficult to demonstrate that the female students in this class suffered material harm from the accommodation request. They may not have liked the request. I can't speak for them but I would likely have found it insulting and belittling. I would have found it offensive. But, that does not mean that their education suffered.

Likewise, we cannot demonstrate that this request imposed a special or unusual burden on the institution. Indeed, submitting an alternative written assignment is a standard mode of accommodation that I use a number of times each year for students who cannot attend a discussion exercise. Since this course was conducted largely via correspondence, the burden is even less. There is, in other words, no cost imperative that hampers the education of other students (their access to faculty or resources, say).

Is the request serious? I simply don't know. For the sake of argument -- so we can have this discussion -- let us assume so, but let us also remember that requests for accommodation cannot be frivolous, manipulative, or mocking. Said differently, if the objective of this request was to offend women, it should be ruled out of bounds. But, does it relate to an insular minority, a religious group that can demonstrate that they adhere to and practice this particular form of sexism and that the distinctions between drawn between men and women are not conscious efforts to marginalize women by other means. For instance, some people object to Muslim women wearing head scarves and veils and find that sexist. I personally know Islamic women, however, who wear their scarves out of choice. Thus, we might find certain religious practices disturbing and offensive and sexist but we also need to preserve the right of women to make their own choices. That is, after all, what feminism is all about.

The truth of the matter is that in this case I don't know because there is not enough information on the public record, as it were, for me to assess this situation and I am by no means an expert in religion. The key issue, however, it seems to me is not whether or not this individual believes that their religion says they cannot attend class with women but how they interact with women as part of their daily life. If the individual involved were request accommodation but they worked, say, with women five days a week, participated in meetings with women as part of their work week, ate lunch and chatted with women on breaks at work … the case for accommodation would weaken. In other words, allowing that this person believed what they said in making their request but also was saying (by their practice): I practice my religion at school but not at work or on the soccer pitch or at the golf club or whathaveyou, their case becomes weaker since the seriousness of their commitment to their religion is being drawn into question: they are cherry-picking their observances.

Are there alternatives to this accommodation? This question is not really relevant but the key here is what the legal principle of least intrusive remedy. It runs like this: when we go to fix a problem, we should do so in a way that imposes the least disruption. In this case, I think this student met this test. They were not asking for changes in composition of the class, the instructor, its location, or matters of that sort. They were asking for a change in the way they participated in the class; everything else remained as it was. And, to the best of my knowledge, the student has made their requests properly.

Conclusions:

Let me sum up with reference to the ethical principles I enunciated earlier. I would accommodate the student. Ultimately, I would do what my institution told me to do since I actually don't have the final say on accommodation. But, if the people who do at Mount Allison told me to accommodate the student I would. If they told me not to … well, I like my job and I'd do it. But, if it were left to me, I'd accommodate this student. Why? Assuming that this individual is serious in the way I've defined it above, and assuming that this is a case of a specific group and not an individualized and idiosyncratic perspective, I'd try to find a way to include them in my course. I do not see how the female student in my class would have been materially harmed by this request nor is the general objectionableness with which I find the request sufficient for me to deny it. The request imposes no special burden on me or my institution. Nor does it change the requirement of the state to promote gender equality. The breadth and generosity of the law should lead us to look favourably on requests for accommodation of difference, particularly in instances where others are not being harmed.

There is another important consideration: does this accommodation serve to establish a precedent? Does it in some way legitimize -- and so help to reinforce -- sexism in Canadian society? This is the shakiest part of the argument I am putting forward. One request by itself does not reinforce sexism although it might help to reinforce sexist behaviour. I would contend (if asked) that Harper's government did more to advance sexism by changing the mandate of Status of Women than did this request but that might not be the point. The fact that someone else has done something worse does not make an action that I take or countenance legitimate. This is something to which we would need to pay attention, but I will venture a speculative conclusion: I don't think so. Indeed, the public discussion of this incident has done a great deal the other way. It has allowed us to state publicly and repeated that we support equality and equal benefit of the law.

My conclusions, therefore, are brief:

1. There is not illegitimate about this student making this request. I don't like it, I suspect you don't like it (you and I don't even have to defend it), but the request in and of itself is not out of bounds.

2. The case is more complicated than we might think. We need to avoid the temptation to take aim at any easy target -- an offensive request -- and work through the potential grounds on which this request could be honoured.

3. The request has more going for it than we might at first think. It is difficult to demonstrate that other students in the class suffered harm from it; it imposes no special burden on the institution.

4. If the request is sincere and consistent with this individual's religious practices (and provided that those practices are not harming women or infringing their autonomy) -- and not frivolous or manipulative -- then … weight is added to the request.

I cannot, of course, say what the final determination will be in this case. What I can say is that I would be tempted, if it were me, to accept the request and provide accommodation. I would not stop there. I'd likely try to engage the individual involved in a discussion of the merits of their perspective. I'd likely try to convince them that they have more to gain -- spiritually, intellectually, etc. -- from an integrated classroom. But, that would be subsequent. I'd likely honour the request.

My conclusion, I fully recognize, is likely unpopular. And … good. It should be.
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