The Age this morning reported on religious groups mobilising to fight possible changes to anti-discrimination law, which could force religious organisations, including private schools, to end otherwise-prohibited discriminatory practices against people who do not share their beliefs or lifestyles.
In this dispute, I favour religious freedom and believe the current exemptions to anti-discrimination law should be retained.
But ANU academic Margaret Thornton raises a possible complicating issue:
“I think that if private schools receive money from the state, as they do, they should be subject to the law of the land, they should not be able to claim all these exemptions,” she said.
But this kind of argument has huge implications for government’s broader financial relationships with civil society. Should taking any government money give the state total control? (And state governments are minor funding sources for private schools.)
Others on the left certainly don’t think so. A couple of years Clive Hamilton and many others rejected the argument that government funding of NGOs or universities gave the government more than very limited control.
The government has huge legislative power, but in its contractual or quasi-contractual financial relationships it should behave like any other commercial player: it’s entitled to get the service it paid for, but not to take broader control over the other party to the contract. If schools are not willing to sell sacrifice of their religious beliefs or practices, they should not be forced by the financial relationship to do so.
This kind of limiting principle is in the state’s interests as well. If they try to control everything they touch, people won’t deal with them.
Thornton’s argument is a red herring. If religious and cultural freedom is important, we should retain it regardless of the financial relationships some organisations have with the state. If discrimination on sex or lifestyle issues is such a large problem we should not allow exemptions even for organisations that take no government money.
Andrew Norton 
It’s complicated when it could be considered that a non-governmental organization is acting as an agency of government, rather than just receiving funds to carry out non-profit activities. The outsourcing of job placement activities is a case in point for “acting as an agency of government”.
There were faith-based agencies doing the job-placement activities. They were not allowed to discriminate based on the private beliefs, race, etc of the people sent to them.
An example of the extra obligations of an organization acting as an agency of government is the increased level of privacy protection required (e.g. adherence to the minimal requirements for privacy protection that apply to government rather than those applying to businesses).
There is a difference between accepting direction from an executive (what I perceived to be the major part of the argument about universities), and needing to accept the procedural standards applying to the non-executive agencies of government.
It isn’t that much different from the curricular demands of non-government schools if they wish to receive government funds: they must teach mathematics, they cannot teach children that 3+2=99.
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Yes, Thornton’s argument seems deliberately misleading. One might just as well argue that there should be no funding for organisations that pay junior rates of pay, because they are taking advantage of provisions in the law that allow them to discriminate lawfully on the grounds of an employee’s age.
Religious institutions ARE subject to the law of the land. The point at issue is whether or not the law should be amended to remove their partial exemption and that should be discussed without introducing irrelevancies like state aid.
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..it should behave like any other commercial player: it’s entitled to get the service it paid for, but not to take broader control over the other party to the contract.
But that’s certainly not how other commercial players always behave – for example advertisers routinely threaten or act to withdraw their business from media enterprises around matters of ethics. If someone’s taking your coin, then your voice carries some weight in all of their business decisions.
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Dave – While I think the private schools should have taken a much tougher stand against national curriculum, it is within the scope of what the government is part-buying from private schools, which is education. They are not supporting other aspects of the school and should have no control over it flowing from their purchase of something else.
Operating as an agency of goverment may be a different situation, and in the job network the various organisations that took on contracts would have been aware of the content of the contract and their clients would not object. With schools, the situation is different: rewriting the the contract against the objections of the schools and likely the parents.
Caf – I’m not sure that advertisers do that very often (apart from governments unhappy at their media coverage I can’t immediately think of an example), but I think there is a difference between market pressures and coercion.
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Caf: As a former major advertiser, over about 30 years, I never saw or heard about that actually happening. Lots of grumbles but that’s all.
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Well here’s a recent example.
Another example is “ethical investment” trusts.
I don’t think it’s that unreasonable – it’s just the government deciding that the product it wants to buy is “education provided to all comers” rather than just “education”. Whether that choice is good policy is a political debate that can be had, but I think the choice itself is open to us.
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Part of the issue for religious organizations is that secularists don’t understand their philosophy. There is an assumption that there is different segments of the operation, some bits of which are religious and some functions which are not. That’s not the way many (if not most) religious groups see themselves.
Christian groups would often pray at a staff meeting (I know this sounds like a bizarre concept to the non-religious). If you work there, you need to be able to say Amen. You have to agree with the mission/objectives.
A lot of this debate seem to be focusing on religious schools and receiving government funding. The consequence of pulling government funding is that they would drift further from the main stream and become more fundamentalist (since the hurdle of parental commitment would be raised). Alternatively, a heap of schools close, and a lot of activist parents would start trying to change the government school system to reflect their values and beliefs (see many US school districts).
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Caf – A recent example described as a ‘first’. Actually I don’t think it is a great example. Presumably advertisers think very carefully about whether a given program reaches their target audience and any negative associations that program may have, though given the bland nature of most of what appears on Australian TV I doubt that latter concern is an issue too often. If the entire channel was boycotted over one show that would be a good example.
The issue is more the monopsony power of the state. Such power often leads to abuses, and this would be an example (not that governments are actually making this threat; it is only being suggested by a left-wing academic).
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M that’s a false alternative. The choice is not between funding schools that discriminate or not funding them; it’s between allowing schools partial exemption from the law that applies to everyone else or removing that exemption. As Andrew’s post and my earlier comment note, the issue of funding is a complete red herring.
The general principle of EEO laws is that employers can discriminate on grounds that are genuinely related to someone’s capacity to undertake their duties. If an institution can demonstrate persuasively that a certain ideology is a desirable attribute TO UNDERTAKE THE WORK TASKS, then they can discriminate on that basis.
As I understand it, religious institutions cannot demonstrate that link persuasively, or at least not always, and therefore they have been given explicit exemption from the laws that would otherwise apply. For example, an institution might sincerely believe its workers need to be antagonistic to Asians to do their work properly but even if they do, they have to comply with anti-discrimination laws regardless. No such requirement applies to religious institutions that insist employees subscribe to their dogma. They therefore enjoy privileged status, much like indigenous organisations that are permitted to discriminate against non-indigenous job applicants.
In other words, religious institutions have been treated as a special case and the issue is whether that treatment is justified. If it is, they should continue to receive it. If not, it should be stopped. The same issues would have to be resolved even if they received no government funding at all.
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Just to be clear – I believe indigenous organisations SHOULD receive the exemption I referred to in my last comment but the matter should be revisited periodically to see if it is still justified. All exemptions from ANY general law should stand or fall on their own merits and be subject to regular review.
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Ken thanks that was a good clarification about the capacity to undertake duties. My point is that a lot of religious groups consider almost all tasks within the organization to require certain ideology/beliefs to be able to undertake duties.
e.g. all teaching positions involve pastoral care of students
My point about not funding schools was the likely consequences. Alternatively if you “force” them to employ all comers they may well shut (over time) since a key foundation of such organizations is that all staff hold a core set of beliefs.
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Yes I think that’s correct M and it’s a consequence people have to face up to when they want to introduce behavioural controls such as EEO. Opportunistic exemptions to accommodate influential pressure groups don’t seem to me to be a sound approach to public policy although others will no doubt see them as pragmatic compromises necessary to achieve a bigger social objective.
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Ken thanks that was a good clarification about the capacity to undertake duties. My point is that a lot of religious groups consider almost all tasks within the organization to require certain ideology/beliefs to be able to undertake duties.
e.g. all teaching positions involve pastoral care of students
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I was agreeing with Andrew until M started talking… Andrew says that the government should only place restrictions on the ‘education’ part of education funding, and not the ancillary activities. M says that some people see religious attribution as so fundamental that they are part of those core activities. Then isn’t conditions placed on education funding fair and reasonable?
Let me put it this way: if the government is paying to get maths taught, then they shouldn’t be involved in the RE class, yes? But the government is proposing to remove a restriction on how maths is taught.
The original post is simply saying that if we are paying for maths teachers, maths teachers shouldn’t be discriminated against.
“I think that if private schools receive money from the state, as they do, they should be subject to the law of the land, they should not be able to claim all these exemptions,” she said.
I think this rings true. If we’re paying for maths classes, we should say that religious schools get no discrimination exemptions for the teaching of math classes. We can still let the schools discriminate for staff who are in a pastoral role. That maintains their freedom to teach RE how they like.
If the schools insist that they need to discriminate in order to teach maths, I can see that religious freedom should enable them to do this. However should we really be paying for that maths class?
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The difficulty is that for a school trying to create a particular ethos a maths teacher is not just a maths teacher. They are also there to set an example and perhaps to provide pastoral care within the context of a particular faith. So long as some competent person is there to teach maths, the government should not specify anything else about the employment relationship with that person.
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Andrew you’re couching the argument as if the government is considering singling schools out for special rules in how to employ teachers. That’s not the case at all. The parliament (not the government) has established certain rules that cover ALL employers. Religious institutions have a limited exemption. Taking away the exemption because it is not justified is simply treating the institution exactly the same as 99% of other employers in Australia.
The exemption stands or falls on whether there is something so unique about religious belief in education that it should over-ride the principles of equal employment opportunity that the community applies to virtually every other workplace. Now if you believe that the state has no business telling employers how to conduct their employment relationships that’s a legitimate argument but it’s an argument against the whole EEO legislation. It has no special application to schools and religion.
Similarly lomlate when you write ‘If the schools insist that they need to discriminate in order to teach maths, I can see that religious freedom should enable them to do this’, you’re arguing against the whole concept of EEO, unless you can make the case that religious freedom should be privileged over other belief systems.
Why should some employers be able to discriminate on the grounds of religious belief when the law specifically proscribes this for the general population? Why not also say discrimination on the grounds of race is prohibited except in places where they really feel strongly about race, in which case we’ll let them do it? It suggests that the concept of EEO is supported only insofar as it doesn’t upset any powerful interest groups too much (like the freedom to discriminate against kids – certain large corporations scream to the heavens when anyone suggests removing that exemption, and consequently it remains).
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From SSRN, a recent relevant paper in a US context: Religion in the Workplace: A Report on the Layers of Relevant Law in the United States (Comparative Labor Law & Policy Journal, Vol. 30, No. 3, 2009) that might contribute to the debate – particularly the last bit.
Two chunks from the abstract:
This article reports on the thick layers of law applicable to claims of religious exception to public and private employment workplaces in the United States. It reviews the Supreme Court’s First and Fourteenth Amendment salient holdings, distinguishing public sector (government) workplaces, and the extent to which legislative bodies may and may not oblige private employers to “accommodate” religiously-asserted requirements.
At the end of that review, the author then poses his own question to challenge the reader’s intuitions on this subject, namely, this: what makes “religious” objections so special or different that they shall be specially privileged, while other kinds of objections are not?
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“Should taking any government money give the state total control?” Not sure why you equate expecting them to obey the law like everyone else with “total control”.
I actually agree with the government on this one. Paying religious (or other) schools to provide eductation exclusively in any sense is not a public good. It also constitutes public funding promoting one group at the expense of others. I’m sure you’d be against that in terms of subsidies to specific businesses or industries Andrew, so surely religions and non-profits more generally as well?
In any case, we can have religious freedom without the taxpayer bankrolling them.
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