A LETTER TO THE AMERICAN PHILOSOPHICAL ASSOCIATION BOARD OF OFFICERS

Dear Colleagues:

The current policy of the American Philosophical Association (APA) regarding the inclusion of advertisements in Jobs for Philosophers (JFP) is as follows:

The American Philosophical Association rejects as unethical all forms of discrimination based on race, color, religion, political convictions, national origin, sex, disability, sexual orientation, gender identification or age, whether in graduate admissions, appointments, retention, promotion and tenure, manuscript evaluation, salary determination, or other professional activities in which APA members characteristically participate. At the same time, the APA recognizes the special commitments and roles of institutions with a religious affiliation; it is not inconsistent with the APA's position against discrimination to adopt religious affiliation as a criterion in graduate admissions or employment policies when this is directly related to the school's religious affiliation or purpose, so long as these policies are made known to members of the philosophical community and so long as the criteria for such religious affiliations do not discriminate against persons according to the other attributes listed in this statement. Advertisers in Jobs for Philosophers are expected to comply with this fundamental commitment of the APA, which is not to be taken to preclude explicitly stated affirmative action initiatives.

The APA Board of Officers expects that all those who use the APA Placement Service will comply with the letter and spirit of all applicable regulations concerning non-discrimination, equal employment opportunity and affirmative action.

There is now a petition, authored by Charles Hermes and posted at <<http://www.petitiononline.com/cmh3866/petition.html>>, asking that the APA "either (1) enforce its policy and prohibit institutions that discriminate on the basis of sexual orientation from advertising in Jobs for Philosophers or (2) clearly mark institutions with these policies as institutions that violate our anti-discrimination policy" and claiming that Azusa Pacific University, Belmont University, Bethel University, Biola University, Calvin College, Malone College, Pepperdine University, Westmont College, and Wheaton College have hiring policies that count as discriminatory under the APA's guidelines. The petition makes clear that its view is that any institutions that adhere to hiring standards that require those hired to commit to refraining from engaging in homosexual acts count as engaging in discrimination on the basis of sexual orientation. Thus, it is the position of the petitioners that the APA should either bar all such institutions from advertising in JFP or mark such institutions in JFP as engaging in 'unethical... discrimination.'

We have no reason to doubt that these petitioners are, by and large, motivated by justice. Gay and lesbian philosophers are, as are gays and lesbians generally, regularly subjected to grave injustice. It is also indisputable that, among the perpetrators of this injustice, some have been Christians and Christian institutions. And of course, like all of us in society more broadly, Christians need to reflect on the way that they contribute to these injustices, and how they are to be halted and rectified.

But the content of the petition is not this claim about how some Christians have contributed to, and even continue to contribute to, such injustice. The petition claims that the hiring policies of these institutions are instances of that injustice, and that such policies are in violation of the APA’s norms, and thus that the institutions that follow these policies should be sanctioned by the APA.

It is these last two claims — that these institutions’ hiring policies are in violation of the APA’s norms, and that the institutions that follow these policies should be sanctioned by the APA — that we here call into question. We who have signed this document are not of one mind about the normative privileging of traditional marriage, and of the rejection of sexual activity outside such marriage; nor are we of one mind about the wisdom of these schools’ requiring a commitment of faculty to conduct their sexual lives within that understanding. But we are of one mind that the APA’s policy is not appropriately applied against these schools, either by excluding them from JFP or by marking them as in noncompliance. We will offer several considerations in favor of our position. Not all of the signers agree with each of these arguments, or have the same assessment of their force. But all of us agree that these are serious arguments, relevant to the controversy at hand, and that some set of them is sufficient to show that the APA should continue its present policy of accepting and publishing ads from these institutions. (We should also note that these are our views individually, not necessarily the views of the institutions at which we work or otherwise hold positions of responsibility.)

The starting point is to note the harm that invoking the APA policy against these Christian colleges would involve. To ban these schools from JFP is to preclude these institutions from a valuable point of access to job-seekers, and it is to deprive job-seekers of the standard and reliable way of becoming informed that these schools are hiring. To mark these schools as noncompliant is to assert of them that they are engaging in 'unethical . . . discrimination.' It is for the APA to brand them as at worst bigoted and at best beyond the pale, morally speaking, in their hiring practices. This is a serious claim, and its importance not to be trivialized.

In order to justify either banning from JFP or marking as beyond the pale those institutions that have as a condition of employment the signing of an agreement, or covenant, that precludes sexual activity outside traditional marriage, it would have to be shown that the APA policy does apply to those institutions — that is, that they are engaging in discrimination on the basis of sexual orientation — and that the result of their falling afoul of the APA policy should be that they are sanctioned either by exclusion or by marking.  But there are strong reasons against both of these claims.

First, there are reasons to believe that these institutions are not engaging in discrimination based on sexual orientation.  The policy lacks a definition of discrimination. We suggest that it is plausible that satisfaction of any of the following conditions is sufficient to constitute discrimination, but satisfaction of at least one of them is necessary: (a) intentional targeting for burdening of the protected class; (b) burdening that is motivated by animus against the protected class; (c) burdening of the protected class that is disproportionate and not adequately justified.  But none of these is satisfied in the case of the sexual conduct requirements at these Christian colleges. (If there is an alternative understanding of 'discrimination' not here considered under which these schools do discriminate, we ask that the defenders of the original petition bring it forward and defend its acceptability.)

(a) Those with a particular sexual orientation are not targeted.  Employment is conditioned on one’s willingness to refrain from sexual conduct outside of traditional marriage; it is compatible with the satisfaction of this condition that one be of any sexual orientation, and no particular sexual orientation would be sufficient to meet the condition.

(b) There is no institutional animus toward those who are homosexually oriented; or, to put it more guardedly, no evidence at all of institutional animus toward those homosexually oriented has been brought forward.  The norms of sexual conduct of the institutions in question are broad, reaching to various sorts of sexual conduct, both homosexual and heterosexual, and appear to be generally enforced as written. (If defenders of the original petition have evidence that these institutions' policies are being enforced in a way that provides evidence of institutional animus, we urge that they put it forward.)

(c) What will generate most contention is whether there is unjustified disproportionate burdening.  Defenders of these schools’ policies will note that adherence to their policies on sexual conduct is justified by the job description, which is to contribute to the living of a Christian life in a specific sort of educational community.  This way of life does in fact place different burdens on people; no doubt those who are homosexually oriented are burdened in a way that those heterosexually oriented are not.  But we think that it is important that in the context of US discrimination law, and even in the context of the APA’s own norms, there is some deference given to the religious character of the institution — that these are schools that adopt the requirements for the conduct of their communal life from what they take to be divine revelation, and it is explicitly allowed by the APA policy for schools to make adherence to the faith statements of these schools, statements that include moral claims about the ordering of individual lives and communities, a condition of employment.  When we add to this the fact that one's adherence to a certain faith affects what one counts as a 'burden' and what personal and social meaning those burdens have, it is, at best, an extraordinarily contentious claim to hold that these schools discriminate in the sense of placing a disproportionate burden without adequate justification. To put it another way: for the APA to defend the claim that there is unjustifiable burdening, the APA will have to endorse officially a certain disputed view on the ethics of marriage and human sexuality, and commit itself to the falsity of any view, secular or religious, that disagrees.

Second, there is reason to think that even if one is convinced that these schools' conditions of employment fall afoul of the APA policy, the APA should not proceed against them either by banning them from JFP or by marking them as beyond the pale. 

(a) It is worth noting the obvious point that it has been the perpetual practice of the APA since the adoption of this policy to include such ads.  The suggestion that the APA is somehow inconsistent in not invoking its policy and sanctioning these schools is made harder to sustain given the fact that there was no hint, even when the adoption of the policy was fresh, that sanctions were called for. To say that it is clear that the APA's policy applies to these schools and should be enforced against them requires the claim that the very officers of the APA that adopted this policy, after debate as to its meaning and application, either disregarded what they knew that their own freshly-adopted policy requires or were ignorant of the clear application of their own policy.

(b) It is also worth noting the 'legislative history' of the policy, which suggests that the policy was adopted without expectation of sanctions for noncompliance, and which entirely leaves open whether any such policy would have been adopted had such sanctions been attached.  Proceedings and Addresses of the American Philosophical Association63(5):26 recounts the October 1989 Board of Officers meeting and discussion of a proposed policy whereby the "APA will not accept for publication or posting" job listings that would exclude people "for reasons of race, ethnicity or gender." It was noted that "sexual preference" was not included.  After discussion it was "evident that such a statement would require careful drafting and revision before formal adoption would be appropriate."  In 64(5):11, it is reported that at the October 1990 meeting,  the Board of Officers approved for publication in JFP the APA's first 'Statement on Nondiscrimination' (which is the first paragraph of the current statement), which it did "following extensive discussion of the desirability and function of such a statement, the differing circumstances of hiring institutions, and the rapidly changing legal and social background."  The adopted statement contains an expectation that departments will comply, but without any provision for APA action in cases of alleged non-compliance (as had been in the original 1989 proposal).  This strongly suggests that the Board of Officers considered a policy of refusing allegedly discriminatory ads and then rejected it. At the very least, it seems plain that at this point imposing sanctions on those institutions perceived to violate the APA's norms involves a revision of its policy rather than a mere application of it.

(c) One might allow that even if the perpetual practice of the APA has been not to sanction perceived violations of the standard and that the legislative history of the policy suggests that sanctions for violating it were not authorized, nevertheless the APA should now change course.  But even if one views these Christian schools as wrongheaded and as engaging in policy-forbidden discrimination, it is open for one to nevertheless think that these schools should not be sanctioned by the APA.  The policy is worth having in place for its expression of condemnation of those clear cases of discrimination on which members of the APA, a large and diverse organization, can reasonably agree.  But when there is reasonable disagreement on the application of a rule, there is good reason for the APA to stay its hand and not engage in exclusion of an institution or official marking of it as beyond the pale. 

This final point should be elaborated.  The APA is a diverse association marked by deep pluralism.  Its members can rightly expect that the APA will respect the deep differences among them in judgments about how it is reasonable for individuals to live and for communities to organize themselves, and it is far from clear that the suggested change in course does respect those differences.  It has been correctly claimed by some who argue for the change in policy that any such respect has its limits: the APA of course would not respect colleges the common life of which was built on racist norms.  In our view the appeal to this argument highlights what is involved in excluding or marking as beyond the pale the job advertisements from these Christian colleges.  There is no serious reasoned disagreement on racist norms; the APA can rightly feel free to speak on behalf of its members to condemn any such.  What would be involved in changing the APA’s policy with respect to these Christian colleges is that the APA would be taking an official stand, speaking on behalf of all of its members, on what are still matters of deep and reasoned controversy among them: whether so-called traditional marriage has any privileged normative status and whether sexual activity outside such marriage is morally suspect.  For the APA to take such a stand would be a grave error and an injustice.