Experts had reservations about TWU law school plan; Panel cited 'clear willingness' by evangelical Christian university to resolve issues

By Stanley Tromp, The Province [Vancouver, B.C], 18 Aug 2014

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An expert legal panel hired by the B.C. government to advise on whether to approve a religious-based law school expressed serious reservations about major aspects of the plan, yet eight months later the government approved the school anyway.

Trinity Western University, an evangelical Christian institution in Langley, applied to the B.C. ministry of advanced education in June 2012 to establish a school of law.

According to Freedom Of Information documents obtained by The Province, the legal panel's "serious reservations" included concern about the proposed law school's academic freedom, the breadth of its world view, teaching of legal skills and course quality.

A 26-page Report Workbook from the panel of five law professors from across Canada warned that a proposed introductory first-year course was "destined to fail," and said there was "evidence that grads will not be able to get jobs."

"The curriculum as described in the written materials does not set out in a comprehensive way what the overall learning objectives are," the panel said.

"The proposal says very little about the importance of an understanding of the theory of law." The special review panel - consisting of law professors David Percy, University of Alberta; Joost Blom, University of B.C.; Anne Pappas, Thompson Rivers University; Bernard Adell, Queen's University and Jeffrey Berryman, University of Windsor - visited TWU and interviewed university officials before writing their report for the Ministry of Advanced Education's Degree Quality Assessment Board (DQAB).

None of the panellists could speak to The Province because their contract with the government bound them to confidentiality.

On breadth of world view, the panel wrote: "Whether or not a lawyer holds a Christian world view, he or she must be able readily understand and respect a diversity of world views, and respond to the needs and rights of people with all sorts of perspectives and experiences. Any ... program must make a sustained effort to give students the intellectual background that will help them deal with and effectively represent people and organizations with whose views they may profoundly disagree. TWU should be asked to work out and articulate much more clearly how the proposed program will do that."

On the positive side, the panel noted: "There was a clear willingness on the part of the TWU representatives with whom we met to see these issues resolved."

A key point raised by the panel was that TWU would be unable to meet the quality standard for hiring faculty if it maintained its demand that all faculty members sign the university's covenant and faith statement.

The school's covenant includes a pledge to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman" - a demand that critics say violates the Canadian Charter of Rights and Freedoms.

The special review panel hired to assess TWU law school

"It is virtually certain, in our view," the panel wrote, "that requiring law students to sign the Community Covenant would have a similar detrimental effect on the diversity of the law student body, and it may also have a detrimental effect on the academic quality of those students."

TWU had pointed to admission policies of law schools at U.S. universities with religious affiliations. But the panel said TWU's approach was more extreme. The authors noted that such American Law Schools, unlike TWU, had no blanket exclusion of those not sharing their religious views, just a preference to hire those that did.

The report also warned: "To the extent that experiential learning is to form part of the courses, TWU seems to us to underestimate seriously the time and resources that are needed to do a good job."

Other criticism included observations that TWU's program would be more "rigid" than any other Canadian law school program; that it was very scanty on criminal law; that it would offer only a "light dusting of aboriginal law" and "no separate legal research course;" and that "family law (is) not required."

Yet, the panel noted, it had mandatory courses on wills and real estate management, which no other Canadian law school does.

The panel's report was delivered to the provincial government, who advised Trinity Western of the concerns, and recommended changes.

TWU's letter of response, which was not available under FOI requests, stated how it would implement some revisions, including a change in faculty requirements. The university agreed to a compromise whereby it would waive the marriage and sex covenant for sessional and adjunct faculty, who do not have the status of permanent employees.

This revision, and others including creation of a family law course, satisfied the approval board, and Advanced Education Minister Amrik Virk granted approval for the school.

TWU president Bob Kuhn said there were 10 standards to meet in the panel's report, and TWU met or exceeded the standard on five of them. Kuhn said the university told the ministry how the other concerns would be addressed.

"TWU was not required to respond to every general comment, finding or concern expressed by the panel," Kuhn said. "However, where the panel determined that the proposal would meet the particular Degree Program Review Standard if a condition was met, TWU provided a response to the ministry indicating how that condition had been, or would be, responded to."

On concerns about the community covenant, Kuhn said it is critical to note that the panel concluded in this area that the TWU proposal "meets or exceeds (the) standard" for its admission and transfer arrangements."

"We would also note that there is no evidence whatsoever that the Community Covenant would have a detrimental effect on any aspect of academic quality. The evidence would in fact indicate the opposite," Kuhn said.

Asked about the criticism that the curriculum appeared short on theory, Kuhn said the report seemed to flow out of a very traditional view of legal education. "Our desire is to create a unique and innovative program that will address some of the challenges facing the legal profession, as identified during the consultation process," he said.

"The School of Law at TWU will provide students with a strong theoretical understanding of the law. However, through mentoring, skills training and participation in pro bono legal clinics and other practicums, the goal of the School of Law is also to thoroughly prepare graduates for the practice of law."

On academic freedom, TWU told the law professors' panel that its faculty would be free to challenge doctrine and pursue any line of scholarly inquiry.

The panellists responded: "We cannot assess whether this assertion is true in actual practice," and said TWU's claim was "clearly inconsistent" with its covenant and statement of faith.

The panel noted that many academically respected church-affiliated institutions in the U.S., such as Brigham Young University, hire faculty of other religious faiths. The panel said TWU's hiring policy would be acceptable "if it were modified to follow the principles" of such U.S. universities.

The panel worried "whether the faculty members would truly have the academic freedom needed to do teaching and research at the high level that prevails in Canadian law schools." They said there would be "a bar to intellectual diversity if faculty need to sign statement of faith."

TWU answered the panel's concerns, but its replies were blanked out by the ministry's FOI director.

In an addendum to the experts' report, Adell and Berryman said they "would go slightly further" than the other panellists.

They did not deny TWU had a legal right to enforce its community covenant, but said: "Discrimination on all sorts of perfectly legal grounds would have detrimental effects on the quality of a faculty. ... If a religiously affiliated university had a religious basis for totally excluding black, Jewish or Muslim students or faculty members ... we can only imagine that such discrimination would be widely seen as a critical obstacle to the establishment of a credible law school.

"And of course it can no longer be argued either in fact or in law (if it ever could) that discrimination against homosexual relationships is not discrimination against homosexuals themselves."

The TWU proposal is embroiled in lawsuits, and the members of the B.C. Law Society members have set a meeting for Sept. 26 to debate whether its members should overturn their governing board's approval of the TWU plan. Toronto human-rights lawyer Clayton Ruby and others are suing the B.C. government over its approval of the TWU law school, on behalf of prospective law student Trevor Loke, who is gay.

Timeline

April 2012 - Trinity Western University senate and board of governors approve law school proposal

June 30, 2012 -

TWU submits their law school proposal to B.C. government for approval

Dec. 18, 2012 -

Minister of Advanced Education refers TWU's application to the ministry's Degree Quality Assessment Board for consideration

March 26, 2013

- Expert review panel of five law professors, appointed by Assessment Board, visits TWU, writes report setting conditions for TWU to meet

May 17, 2013 - TWU writes responses to panel's conditions

June 10, 2013 -

Assessment Board approves TWU proposal

Nov.-Dec. 2013 -

TWU president Bob Kuhn writes to MLA Rich Coleman and Advanced Education Minister Amrik Virk, asking for law school approval

Dec. 16, 2013 -

Federation of Law Societies of Canada gives preliminary approval to TWU proposal

Dec. 18, 2013 -

Virk announces B.C. government approval of TWU proposal

Feb. 19, 2014 -

TWU signs Terms and Conditions for Ministerial Consent

April 2014 - B.C. Law Society benchers (the board) vote that TWU is entitled to status as an approved faculty of law

September 2016 -

Canada's first Christian law school expected to open

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