Monday, April 6, 2009

Son of the APA's Anti-Discrimination Policy

In comments, anon 5:31 hits the nail on the head:
I think much of this debate is misplaced. The petition isn't about whether or not it is correct for Christian universities with certain beliefs to discriminate on the basis of sexual practice, or whether or not it is legitimate for Christian universities with certain beliefs to require faculty to adhere to a denominational code of ethics. The petition makes no claim about these things.

The issue is whether or not a philosophical organization committed to protecting homosexuals from discrimination should warn job-seekers about such policies. And that's a clear no-brainer. Of course the APA should warn job-seekers about discriminatory policies.
--Mr. Zero

Addendum: So, if you're going to be in Vancouver on Thursday, you should attend the business meeting and lend your support to the petition. Once again, that's 4/9 at 12:00 noon in the President's room.


Soon-to-be Jaded Dissertator said...

Yes sir.

zombie said...

I concur. Christian universities, and the APA, are private organizations. The former may discriminate against whomever they like if they like. The APA can censure/stigmatize/finger wag, etc. if they like. And they ought, you ask me. I'm wagging my finger right now.

Philosopher for Hire said...

Or, one could say it's simply a matter of the APA being requested to enforce its own policies. /shrug

Led Zep said...

I posted the gist of this on the other thread as well, but since you reposted anon 5:31...

It's not just a matter of warning; the petition does commit itself to the view that these institutions are violating the APA's discrimination policy. And the request is that either the policy be revised or the APA should censure the relevant institutions. If somebody wants to warn people that (surprise surprise!) Biola is a very socially conservative Bible college, then they are of course free to do so. But Murphy, at least, has argued that the view that the petition is committed to is quite possibly false. That is, it is quite possibly false that the policies in question do in fact violate the policy. So it won't do, at least with respect to Murphy's argument, to just bypass that concern by talking about "warning."

Anonymous said...

I thought the proposed "*" also represented some sort of censure, and not just a benign indication of a certain morally neutral hiring practice. Am I wrong?

Anonymous said...

Uh, no: even private organizations do not have full liberty to discriminate against whomever they like. That's what we have anti-discrimination law and statutes.

Perhaps the relevant questions is how far can private organizations go in discriminating? It seems to be one thing that a Catholic school employs only Catholics, but can they exclude candidates based on race or sex (no) -- and if not, why would they be permitted to exclude based on sexual orientation (they aren't)?

So for those schools with discriminatory policies that are illegal, the APA not only is at liberty but also has some kind of moral obligation to flag them as such (censureship).

Why is the debate more complicated than this?

Anonymous said...

If it is just about informing, it wouldn't require the declaration that these schools are acting unethically, in the company of places that practice race discrimination. The policy would just require schools to make candidates aware of covenants, etc. that they would have to enter into. A lot of people on the petition side move rapidly between calling this merely about passing along information (and who could object to that?) and putting the bigots in their place.

Anonymous said...

I've said this elsewhere, but I'll say it again. It strikes me as very unlikely that a critical mass of APA members believe that the policies they've created forbid discrimination against those who engage in homosexual conduct and yet failed to do so by using the terminology that they did and adding that clause about policies that violate the spirit of the APA's anti-discrimination policy. Yet, this seems to be Prof. Murphy's position. It strikes me as a rather implausible view.

If I were a lawyer representing a company operating in a state that made it illegal to discriminate on the basis of sexual orientation, I'd surely advise my client that it would be unwise to fire an employee on the grounds that they were known to engage in homosexual sex when not at work. I think we all know full well who would win that court battle and that's because we all know full well how the laws would be interpreted. And, because we all know full well what people mean when they make a law that says that you can't discriminate on grounds of sexual orientation, I think it's asinine to pretend that the things that the rest of the world mean and what the members of the APA intended to convey isn't what they conveyed.

Anonymous said...

The APA isn't bold enough to put bigots in their place. Leadership continues to be weak. Look at the bang-up job it's doing for due-paying members, a key revenue stream.

Best you can hope for is having the APA think of the censureship as an informative/descriptive signal with no normative/moral content. But, for the job seeker, seems to do effectively the same work as calling them bigots, doesn't it?

Mr. Zero said...

the petition does commit itself to the view that these institutions are violating the APA's discrimination policy.

That's because they are. The policy states clearly that sexual orientation cannot be a hiring criterion, even when the institution and the criterion have a religious basis.

Suppose you were an openly gay philosopher who has struggled with his homosexuality, finally come to accept it, and are now pursuing a happy relationship with a wonderful person. If you're like that, Biola won't hire you. Why not? Because you're an openly gay philosopher who has come to accept his homosexuality and are not pursuing a happy relationship with a wonderful person who happens to be the same gender as you. I don't see why this is complicated. Keith DeRose has more.

And the request is that either the policy be revised or the APA should censure the relevant institutions.

Yeah. So the petition itself doesn't take a stand about the moral status of this behavior.

If somebody wants to warn people that (surprise surprise!) Biola is a very socially conservative Bible college, then they are of course free to do so.

Well, that's not what the warning is. The warning is that Biola engages in what the APA (antecedently) considers to be unethical, discriminatory hiring practices. But the petition doesn't have to take that stand; the petition points out that the APA has already taken that stand.

And seriously, ask yourself: if the hiring practices at Wheaton, Biola, et al. don't count as discrimination on the basis of sexual orientation, what would count as discrimination? What these colleges do is to make abstinence a job requirement for those whose sexual orientation is such that they may find happiness and sexual fulfillment only in homosexual relationships.

You could argue, as Filosofer did in the previous thread, that sexual fulfillment is not an important component of happiness. I would say, yes it is, and normal people think it is. And even if it's not and it's weird to think it is, that doesn't matter because they still only require homosexuals to be celibate and who are they to tell me how important sex should be to me?

Led Zep said...

Anon 9:41
That's a fair point, and that's in fact why some places (like a certain Catholic midwestern one with a famous football program) don't have a anti-discrimination policy with respect to sexual orientation, even though they claim to be open to hiring those of a homosexual orientation. So yeah, in terms of setting yourself up for a lawsuit, certainly one wouldn't want to rely on something like Murphy's case. But it seems to me entirely reasonable to think that the APA, which has an interest in being a big tent for the profession, should not hold so harsh a standard as an institution afraid of a lawsuit might. And Murphy, again, seems entirely aware of that, as you might expect from a competent philosopher of law. He's basically saying that it is arguable that the policies in question don't violate the policy, when you apply criteria modeled on US anti-discrimination law - that's certainly not to say that these policies would be "safe bets" against an adverse ruling in a place that outlawed discrimination based on sexual orientation. Another reason the standard you introduce is not straightforwardly applicable is that the APA doesn't define discrimination in its policies (which is why Murphy has to construct an operating definition based on analogous laws) - and since the APA doesn't provide the kind of guidelines that more detailed legal definitions and precedents would in the case of an actual law, then it's not ridiculous at all to think that it should take seriously its interest in giving the benefit of the doubt to the institutions in question.

Mr. Zero said...

oops, typo.

Led Zep said...

Mr Zero, you said,

"And seriously, ask yourself: if the hiring practices at Wheaton, Biola, et al. don't count as discrimination on the basis of sexual orientation, what would count as discrimination?"

That's easy: implementing any policy that reserves the right to discriminate, in hiring and retention decisions, based on sexual orientation, without reference to activity or chosen lifestyle. (I'm not saying this is the ONLY kind of policy that would count as such, but you just asked for an example.)

That's exactly why the question of burden is the relevant one - because these policies don't target orientation (in the narrow sense of "target"), but in requiring a certain kind of life, they impose burdens differently on people with different sexual orientations. The question Murphy raises is what kinds of considerations can be appealed to in determining whether the burden is substantial, and whether it's justifiable or not. And again, that seems like exactly the right question. It seems obvious to you that there is not available justification for imposing this kind of differential burden (I take it that's why you say you don't see why this is complicated), but if it's allowable to appeal to the institutions own faith tradition or mission in articulating such a justification, then are you prepared to argue it out in terms of, say, Scriptural exegesis, the virtues of charity and chastity, and Christian tradition? As Murphy said in one of the Leiter posts, I'm eagerly awaiting an APA panel on the topic. Not. And if it's not allowable to appeal to such resources, then why not? Because only "public reasons" will do in this context? Hmmm ... that seems, again, like a pretty substantive commitment on the part of the APA, which has an interest in representing and including not only those institutions which hold diverging views on "public reasons," religion and public life, the requirements of civil society, etc.

As to the question of "unjustified disproportionate burdening" itself, I do not subscribe to Filosopher's view that sex is not an important component of happiness. And I agree that normal people think that it is. But I don't think "sexual fulfillment" is an easy or straightforward concept, nor one that can be uncontroversially articulated in isolation from a certain culture, tradition, or way of life. Nor do I think that it is crazy to think that in some cases the overall human good is to be pursued by sublimating sexual desires rather than fulfilling them. I don't know how these institutions justify, or would justify, their policies in this respect, though it probably has to do with their attitude towards Scripture, etc. I think I would disagree with these justifications. But I don't think they need be predicated on the claim that sex is just not that important, or that it's no big deal to have certain people required to be abstinent. Nor, importantly, need it be predicated on the claim that homosexual orientation itself is evil in God's sight or anything like that.

I think it's important that the APA has already decided that discrimination on the basis of sexual orientation is wrong. But I think it's also important that one can't just assume on that basis that the APA is already committed to the view that any view that takes heterosexual marriage to occupy a certain normative status is therefore wrong, and one certainly can't just assume that the APA has already decided that nobody could hold those views in a rationally respectable fashion. The APA has already decided that discrimination on this basis is wrong, but pluralism about institutions demands that this not be immediately conflated with the position that the view that homosexual sex is wrong is completely devoid of rational plausibility. And note that Murphy's argument doesn't depend on endorsing the view that homosexual sex is wrong. He's just claiming that for the APA to endorse a position on this would be contentious and would badly serve the APA's pluralistic interests. And notice that it's not something the APA has already decided on. That's why Murphy's argument matters: because if he's right, then for the APA to take this step is not just for it to affirm what it has already decided, but for it to additionally commit itself to the view that nobody could have a justification for thinking that homosexual sex is wrong and including that in a code of conduct binding on employees. And that's why I think it's important not to dismiss his argument out of hand and act as if this doesn't commit the APA to anything additional.

Let me put it this way: either Murphy's right and "internal justifications" can be relevant in determining whether these policies impose an unjustified burden, or he's wrong, and only something like "public reasons," or justifications independent of the relevant faith community or tradition, will do. In either case the APA, by censuring these institutions, will be committing itself to something stronger than its original policy on discrimination and sexual orientation. If Murphy's right, and internal justifications do count, then the APA is taking a stand on matters like: the relative authority of Scripture and tradition; charity, tolerance and chastity as Christian virtues to be harmonized, etc. That doesn't sound so much like something the APA should be doing. On the other hand, the APA could say that internal justifications don't count, but then it's officially endorsing a certain view on public reasons, religious convictions and public life, the limits of pluralism about distinctive communities within civil society, and the relationship of rationality to civil society and the groups within it. In either case the APA is committing itself to something substantial, over and above its original policy. By this argument, if you think it's obvious that the APA would not be committing itself to anything substantial over and above its original policy, that's only because you take as obvious a certain view of the relationship of rationality to civil society and the more distinctive communities within it. (I'm interested to know what you all think of the argument in this paragraph. Please comment.)

And I don't think it will do in this context to just say, "who are they to tell me how important sex should be to me?" So far as I can tell, nothing in the APA's policy amounts to a blanket requirement for institutions not to have some code of conduct that in fact presupposes a certain acceptable range of how important sex is to its members. In fact the discussion of faith-based institutions seems to go in the opposite direction, towards tolerating something like this. (You might think, pretty reasonably, that institutions should generally err on the side of respecting the privacy of their employees in such matters. I agree. But our judgments regarding the general intrusiveness of these kinds of institutions are not what's at stake.) The policy is about sexual orientation, not about the general right to privacy or to determine one's own life priorities. If someone working at a faith-based institution decides that sexual fulfillment, say by having lots and lots of sex, is absolutely the most important thing in human life, and decides to air this publicly, then it's quite possible for that person to fall afoul of some of the job requirements, and for those requirements to be perfectly conformable to the APA's policies.

Anonymous said...

So, basically what you are saying is that Biola would never hire Ludwig Wittgenstein, no matter how impressive a philosopher he is. Poor Ludwig. Poor Biola. So, what does this have to do with the APA?

Anonymous said...

5:31 here. I've certainly read Murphy's letter, and I'm aware that what Murphy says does directly address the issue. But, frankly, I just don't take Murphy's argument seriously. I think it's pretty straightforward that the colleges in question violate the APA's policy. The reason is basically what has already been said in the discussion, namely, that if sexual orientation were ever a legal category of protection at the federal level, no judge alive would take an employer using Murphy's argument seriously. The Christian colleges in question are free to argue that they have good reasons to practice discrimination against those who are homosexual, but I don't see them plausibly arguing that their actions do not constitute discrimination.

On another note, a few people seem to not take the 'warning job-seekers' part of the petition seriously, but I do. Here's why. An average JFP has around 450 jobs (this year's joke market aside), and many people are applying to 60 or 70 of them. Digging up this information takes time, and some colleges probably don't put it on the frontpage of their website. When I apply for a job, I reasonably assume that I'm not being ruled out because of something about me that I take as none of the hiring party's business. If that's the case, I think the employer's burden is to warn me.

Popkin said...

Led Zep, unless you can show that your arguments (or Murphy's arguments) couldn't be used to defend the claim that the APA shouldn’t censure religious schools that refuse (on religious grounds) to hire non-whites or non-males or non-capitalists (etc, etc), why should anyone take anything you say seriously?

Anonymous said...

Consider this analogy:

Imagine that a new university is created by the Ku Klux Klan. It asserts a right to refuse "colored" (black, brown, yellow, green, whatever; what color are Jews?) applicants and job candidates on religious grounds, i.e., its religion condemns such persons. Or if it's permissible to only condemn behavior, then KKK University claims a right to reject anyone who does not embrace the "white" race and renounce ties and affinity to other ethnic groups.

Now, if your position is that a university such as Biola is legally (and morally?) permitted to discriminate against homosexuals, then wouldn't you be committed to saying that KKK University may also discriminate in the way it does, under the same cover of religion? If not, why not?

Platowe said...

If anyone thinks that the policies of right-wing religious institutions do not violate reasonable standards of what constitutes a moral life, at least with respect to what not just is broadly permissible from the judgmental perspective of that view, but what more narrowly should also be judged as a moral life that is accorded negative rights of freedom from interference, and accorded a positive right of tolerance as accepted practice without undue prejudice--then I do not see what one should think makes such policies qualify as being truly moral (unless one rejects negative rights of noninterference and some positve rights of tolerance--can you say "Taliban"?). Adherence to religious traditions with modest internal consistency is insufficient to justify the morality of such differential claims against the harm/evil/wrongfulness/depravity/ and the like of things they oppose by mere declaration. They must show why intolerence and rejection or certain actions/behaviors are correct. Scriptural citation is circular and philosophically insufficient for this purpose. And we await something beyond the equally circular Thomistic reification of anthropomorphic purpose to convince us otherwise as well. I have said it before: will the APA stand with moral reason, or not? If not, then perhaps the APA should openly embrace a stalwart postmodernist rejection of objective moral values.

Anonymous said...

Thread hijacker here: The word in << >> is Last, not Lasi.

Mr. Zero said...

Led Zep,

one can't just assume [...] that the APA is already committed to the view that [... taking] heterosexual marriage to occupy a certain normative status is [...] wrong*

I don't think that's the APA's view. As I read the policy, the APA doesn't have a view on the normative status of heterosexual marriage. The APA's policy is, the heterosexualness of the candidate's marriage cannot be a hiring criterion (de facto or de jure), because any such criterion unfairly discriminates on the basis of sexual orientation.

In response to your boldface paragraph, I say that the "internal reasons" why the schools refuse to hire practitioners of homosexual sex don't matter. I don't say that there couldn't be any such reason that would matter--I don't rest my case on a failure to imagine--I say that the actual reasons don't matter.

I see what you're saying about pluralism, but I think it actually works against you. Rawls's first principle of justice is that each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Viewed in this light, the APA's stand is that the colleges may have whatever moral views they like, but the enforcement of a heterosexual-marriage-or-abstinence criterion for employment goes too far and would be unjust.

And it would be equally unjust for Homosexual U to enforce a homosexual-sex-or-abstinence criterion. And it is important to note that are there no such places. And it is very important to note that if there were any such places, the conservative christians would be very upset about it.

the APA could say that internal justifications don't count, but then it's officially endorsing a certain view on public reasons, religious convictions and public life, the limits of pluralism about distinctive communities within civil society, and the relationship of rationality to civil society and the groups within it.

Yes, although I don't think the APA's policy entails anything about whether certain views about homosexuality are rational. The policy just says that it is unfair to allow such views to affect hiring practices. This is a substantive view about the application of principles of justice to certain situations, but that view just is the anti-discrimination policy.

The same policy prohibits discrimination based on race. This doesn't represent strong claim that racism is irrational; it represents the weaker (though still strong) claim that hiring practices that constitute racial discrimination are unfair.

the APA is committing itself to something substantial, over and above its original policy

I disagree. The APA's policy might entail or be based on the above-mentioned view about the limits of pluralism, but this view is clearly the right one when it comes to discrimination on the basis of race and gender. What's mildly controversial is the application of the policy in protection of gay men and women. But this use of the policy can be defended by appeal to the very principles of pluralism that you seem to cite.

Although conservative christians have the right, in a pluralist society, to be depressed about what I describe as progress in the gay-rights movement, they have a responsibility in a pluralist society to respect the rights of gay men and women to live openly, pursue their conception of the good, have access to society's institutions, and be free from discriminatory hiring practices.

The stuff about "who are they to tell me how important sex should be to me?" was really directed at Filosopher; perhaps I shouldn't have included it in a reply to you. I didn't intend to paint you with that brush.

*Let me know if you think my snipping was unfair.

Anonymous said...

i'm interested to hear what the results of the meeting are. but i have to say, many of the arguments about this i have seen border on the silly. discrimination against homosexual and queer people has long been based on a willingness to confuse action and identity. persecution of homosexual and queer and gender-nonconforming people has often been done through sodomy laws, which do not, in terms of the specific wording of the law, target sodomy as practiced between same-sex partners rather than opposite-sex partners. but somehow sodomy between opposite-sex partners was never taken seriously as a target of the law. janet halley's book on this subject pretty much covers it. or, in conclusion, of course one can make the claim that sex just isn't that important, when you're not being targeted for discrimination or worse for the kind of sex you're having. that's what privilege looks like. christ.

sometimes i think that we are underserved by the tools of philosophy in approaching these issues.

Inside the Philosophy Factory said...

I'm still unclear about what the petition is supposed to accomplish.

If the goal is to change the hiring practices of these kinds of institutions, is there any hope for success?

Further, if the hiring practices changed the culture of the college would be slow to change -- and thus folks hired after the hiring practices changed would find themselves in a very difficult situation. I think this is the worst of the possible outcomes, as the GLBT person may have turned down other offers, moved etc... into a situation where they find out they are not fully welcome.

If the goal is to somehow "flag" institutions that discriminate, then I'm not sure what that will accomplish. I've applied for positions at a place similar to Biola and Wheaton (Bethel University, St. Paul). I declined to complete the application because it asked invasive questions I wasn't comfortable answering.

I would be utterly shocked if a GLBT person began completing a similar application and failed to recognize the undertones of a similar application. This would quickly lead them to realize that either a) the job isn't worth the trouble or b) they stand little chance of being hired if they answer some quesitons honestly.

Either way -- I don't understand what the petition hopes to accomplish. Perhaps the idea is that the GLBTcandidate would realize which applications would not be well-recieved?

Led Zep said...

Mr Zero

Thanks for your response - and it was certainly not unfair. On reflection, I think the argument (in bold face type) in my earlier post went too far, and the question you posed for it was the right one. That is, that argument that I proposed doesn't really allow one to distinguish between the case in question and your examples about non-whites, non-males, non-capitalists, etc. The mistake, I think, was for me to say that the APA should never be in the business of appraising what I described as "internal justifications." But if that's right, then there's little hope of distinguishing the policies in question from a policy prohibiting, say, interracial marriage. I think you're right to say that some "internal reasons" could be relevant, in principle. And I think it's there that I would have to make my case: that is, I would have to argue that there's in fact a reasonably compelling and "live" tradition of inquiry into how we ought to live, according to which there are norms of sexual ethics that are related (not, however, deduced from!) the reproductive purpose of sexuality. (Yes, I said "purpose", Platowe, and there's no reason to think that the purposiveness of biological functions is always just anthropomorphic projection; see Hannah Ginsborg on Kant's Third Critique for a characterization of the distinctive kind of normative lawlikeness characteristic of such functions, and, in a vastly different milieu, David Armstrong's (negative) discussion of "physical intentionality" (George Molnar's term) with respect to the new essentialists' metaphysical treatment of dispositions. I concede, however, that the typical invocations of Thomism are seriously inadequate in providing anything like a proper acknowledgment of, say, the last one and a half centuries in biology.) And given that I don't share the view on the authority and interpretation of scripture that's characteristic of conservative Protestant denominations, and moreover I don't think that such denominations typically have a consistent view on the normativity of reproductive purpose vis-a-vis sexuality, I don't know that I really have anything more to say about those policies in particular. I do think, nonetheless, that a policy like these could be defended, and that a censure of these particular policies which doesn't at least implicitly allow that some such defensible policy might be forthcoming at some point would be problematic.

Mr. Zero, thanks for your helpful responses - I appreciate the time you've taken to address my points carefully.