APA Petitions: DeRose, Contracts & Practices
Now, Keith DeRose has written a letter to the APA found here. His letter is a moderate attempt at providing the APA with a way forward. His approach is moderate because it involves the APA enforcing their anti-discrimination policy against Christian universities without claiming the Christian policies are illegal or immoral. DeRose asks that Christian universities who advertise in ‘Jobs for Philosophers’ are branded in the following way:
The schools would indeed be marked, but the precise and accurate way to express how they would be “officially” “branded” is as: engaging in unethical discrimination on the basis of sexual orientation.
DeRose’s concession reminds me of the steroid controversy in baseball. Though they are not exactly analogous scenarios DeRose’s solution reminds me of placing an asterisk next to the records of baseball players who were associated with steroid use. However, DeRose wants to remain agnostic about whether these schools have actually engaged in discrimination. He even admits that he does not know if the schools actually use their policies to fire faculty found guilty of homosexual behavior. As DeRose says in a footnote:
My own views here are very complicated and in many places unsettled, often involving multiple levels of evaluation (what’s right policy given certain broader goals vs. whether those broader goals are themselves justified, etc.) and I didn’t want to muddy the waters with them, especially since I haven’t looked into the important details of these policies and how they’re practiced in the schools in question.
So, DeRose’s moderate proposal involves marking schools as “engaging in unethical discrimination on the basis of sexual orientation” without knowing whether they have used their conduct policies to engage in such discrimination. This proposal is akin in intent to placing an asterisk next to all records accomplished by all baseball sluggers who played during the steroid era. It is akin to saying that these players might have engaged in such activity, so their records should be regarded under this assumption. Such branding is to exist in spite of soild evidence that such players have ever engaged in steroid use. It is guilt by association without proof of guilt. Christian universities are to be similarly branded, as “engaging in unethical discrimination on the basis of sexual orientation” without proof of such activity. Perhaps there is a better way to look at this situation.
The best way to view a conduct policy is as a contract. If the contract in question is discriminatory, then the question is how Christian schools should be advised to revise their policies? I have briefly discussed these possibilities in a post found here. The best way forward for the APA is bound-up with the best way forward for Christian universities. Branding the contract as discriminatory is not the same thing as branding the practices as discriminatory unless the universities use their contract to discriminate on the basis of sexual identity. This amounts to a contract/practice distinction.
On both sides of this discussion people are operating under the assumption that a discriminatory contract begets discriminatory practices. This brings up some questions. How seriously are social contracts taken? Are Christian conduct policies on par with legal contracts? Are the contracts legally binding or merely a contract of understanding that one will be a virtuous member of the Christian university community? Is signing the contract necessary for employment? Has employment been denied solely on the basis of someone not signing the contract?
My intuition concerning this entire hubbub is that a big deal has been made of nothing. Not because discrimination on the basis of sexual orientation is not a big deal, but because it has not been established that Christian universities take these contracts seriously and systematically apply them in making hiring and firing decisions. The way forward needs to be made not for the APA in isolation of Christian universities. Instead, the APA needs to provide a way for Christian universities. Perhaps this would include a grace period for the universities to revise their contracts or otherwise produce evidence against discriminatory practices. DeRose’s proposal is like giving the university a “time-out” without setting terms for what it required to avoid a “time-out” in the future. Do Christian universities need to secularize their contracts, produce evidence of not applying contracts to discriminate on the basis of sexual orientation, or can Christian universities continue to operate as Christian universities by requiring of faculty a standard of conduct consistent with Christian principles?
However, DeRose wants to remain agnostic about whether these schools have actually engaged in discrimination.
I believe I am clear that they have engaged in discrimination — and also that their policies are unethical according to the APA non-discrimination policy. What I’m not clear about, and actually doubt, is whether these policies are illegal and whether I think they’re immoral.
Oops, mistake above: What I mean to say I’m doubtful of is that the policies are illegal. As to whether I think they’re immoral, that depends on a lot of details I don’t have.
The end of the above comment should be:
What I’m not clear about is whether these policies are illegal and whether I think they’re immoral. I actually doubt that they’re illegal.
It is not clear to me how you are sustaining an unethical/immoral distinction. You clearly want to brand the universities as “engaging in unethical discrimination,” but you also want to remain agnostic as to whether such unethical discrimination is immoral. Do you want to say, “what they have done is unethical, but I’m not sure if this type of unethical discrimination is immoral?” What extra must the universities have done to fall into the immoral camp? If you cannot make this distinction it seems like your distinction is better served by an “intro to ethics” distinction between law and morality. The universities engaged in legally unethical policies, but it is not clear whether such policies are immoral. But, this is not what you want because you hold that it is doubtful whether the policies are illegal. Again, it seems most reasonable to invoke the contract/practice distinction. It seems you are condemning the contract as unethical, but unsure whether the practices employing the contract are immoral. If this distinction holds then it backs up my original post: that such policies may be “contracts of understanding” that are rarely enforced in practice.
I intended to use “unethical” and “immoral” interchangeably. The distinction I was drawing (or trying to!) was between what’s ruled unethical (or immoral, if you prefer) by the APA policy, versus my own opinion as to what’s unethical/immoral.
It is sad to see DeRose and so many others misread this anti-discrimination policy. “Discrimination” is an emotionally charged word. It is for this reason, I think, that DeRose and other petitioners persistently overlook the distinction between rational discrimination and unethical discrimination.
Although discrimination against, say, the blind, women or blacks is typically a case of the latter form of discrimination it is not always so. Bus stations will not hire blind drivers, advertisers for mens apparel can insist on male models and movie producers can insist on white actors to play the roles of, say, KKK members. These are cases of discrimination in the former rational sense.
These petitioners need reminded that anti-discrimination policies are intended to promote rational hiring practices, not to armbar employers into irrational hiring. If a feature of an applicant (even their lifestyle) interferes with successful job perfomance, employers are entitled to take that into account. By neglecting the distinction that I offered above, anti-discrimination policies are twisted into mandates for enforced foolishness.
To be an educator at a Christian college is to take up the duty of promoting the values and principles of that institution. It is NOT a duty of these schools to bring defeat their purpose by hiring faculty whose behavior conflicts with what it is their vocation to promote. Foolish actions are not a morally obligatory (not even for Christian employers) and anti-discrimination policies where never intended to make them such.