Rather than continuing to apply the Lemon Test the Court should rely on an accurate account of the founders’ understanding of the Establishment Clause.
In my previous post, I laid out the two new principles flowing from the recent decision of the National Labor Relations Board (NLRB) in the matter of labor-union organizing at Pacific Lutheran University.
The NLRB may now, as per its December 2014 decision, regulate religiously affiliated colleges and universities heretofore considered outside its jurisdiction.
Secondly, the Board has established narrow criteria under which faculty at a religiously affiliated, or in fact any other, college or university can be considered “management.” In so doing, it has facilitated the formation of labor unions in higher education.
Full-time faculty have, as I had noted, generally been regarded as “management” for the last three decades, in the wake of the Supreme Court’s NLRB v. Yeshiva University decision of 1980. Yeshiva recognized and attempted to take account of the traditional faculty role in institutional shared governance. As I also noted, the case was decided by a vote of 5 to 4, and the issue that so closely divided the Court speaks to the ways in which colleges and universities are, or are not, comparable to businesses.
In 1980, the Yeshiva Court struggled with this issue. Its decision recognized that, while we have come some distance from the medieval university, where “the faculty were the school,” nonetheless, “traditions of collegiality continue to play a significant role at many universities”—so much so that, at many institutions, faculty play an important, if not necessarily determinative, role in deciding the character of the institution.
“To the extent the industrial analogy applies,” the decision went on,
the faculty determines within each school the product to be produced, the terms upon which it will be offered, and the customers who will be served. The Board nevertheless insists that these decisions are not managerial because they require the exercise of independent professional judgment. We are not persuaded by this argument.
The majority recognized the limitations of its analogy. In other words, education can’t simply be regarded as a product. Students aren’t simply consumers. Hence care must be taken in considering whether higher education is comprehensible in terms of the labor/management model characteristic of contemporary business.
The dissent, written by Justice William J. Brennan, did not find it so difficult to make an analogy between businesses and universities:
What the Board realized—and what the Court fails to apprehend—is that whatever influence the faculty wields in university decisionmaking is attributable solely to its collective expertise as professional educators, and not to any managerial or supervisory prerogatives. Although the administration may look to the faculty for advice on matters of professional and academic concern, the faculty offers its recommendations in order to serve its own independent interest in creating the most effective environment for learning, teaching, and scholarship. And while the administration may attempt to defer to the faculty’s competence whenever possible, it must and does apply its own distinct perspective to those recommendations, a perspective that is based on fiscal and other managerial policies which the faculty has no part in developing. The University always retains the ultimate decisionmaking authority . . . and the administration gives what weight and import to the faculty’s collective judgment as it chooses and deems consistent with its own perception of the institution’s needs and objectives.
For Brennan, a college or university’s business and educational concerns are sharply separable, with the former being the bailiwick of the administration and the latter that of the faculty. To assume much, if any, continuity between the medieval university and its modern counterpart is, he wrote, to wear a “rose-colored lens” that distorts an accurate “perception of the Yeshiva faculty’s status.” Inveighing against “an idealized model of collegial decisionmaking,” he went on:
The university of today bears little resemblance to the ‘community of scholars’ of yesteryear. Education has become ‘big business,’ and the task of operating the university enterprise has been transferred from the faculty to an autonomous administration, which faces the same pressures to cut costs and increase efficiencies that confront any large industrial organization. The past decade of budgetary cutbacks, declining enrollments, reductions in faculty appointments, curtailment of academic programs, and increasing calls for accountability to alumni and other special interest groups has only added to the erosion of the faculty’s role in the institution’s decisionmaking process.
Looking backward from the NLRB’s Pacific Lutheran ruling to Yeshiva, it’s tempting to argue that, whatever the state of higher education in 1980, the facts now seem to be increasingly on the side of the dissent. Leaving aside whether we should favor what is in effect an administrative reversal of a judicial decision, “on the merits,” so to speak, Brennan and the other dissenters may have the better argument.
I have argued in another setting that the logics of the marketplace and education are different. We can’t plausibly assume consumer sovereignty in an educational setting, where the students can’t be presumed to know what they need. Indeed, if we do speak un-ironically of the educational marketplace, we end up endorsing sophistry, with “teachers” who seek to maximize their income by telling potential consumers (it’s hard to call them students) whatever they want to hear. Colleges that create programs in order to generate revenue and professors who offer classes and teach them in a certain way in order to maximize enrollments are, strictly speaking, engaging in precisely this kind of sophistry, however much the hard economic realities of maintaining an institution might be alleged to excuse this behavior.
In this respect—just as in the matter of politically correct expressions by Lutherans, Roman Catholics, Jews, or other religiously affiliated educators who expect to maintain their distinctness from secular American institutions—U.S. colleges and universities have brought on themselves the prospect of faculty unionization under NLRB supervision. Whether the unionization of higher education will produce better results than we have seen in elementary and secondary education remains to be seen. Don’t count me among the hopeful.
This returns us to the first principle enunciated by the Board in December 2014. It found, as I said, that Pacific Lutheran University wasn’t sufficiently religious to avail itself of a free exercise exemption from regulation under the National Labor Relations Act. Whatever the relationship between the university and its sponsoring denomination, the former, in its public presentation, seemed willing to cast as wide a net as possible in recruiting potential students. The same could be said of faculty recruitment, where considerations either of academic excellence (understood in an essentially secular or professional manner) or adequately serving its market seemed to subordinate religious requirements.
In these respects, Pacific Lutheran is hardly unusual. Many colleges and universities that were once closely tied to their denominations have moved toward the secular mainstream, becoming increasingly hard to distinguish from their secular and public counterparts. This story has been told quite well and at great length by George Marsden and James Tunstead Burtchaell, so I will not repeat it here.
But it is worth noting that the diminution of the religious role in American higher education has worked in tandem with the growing role played by the state. There is a lesson here. Those of us who advocate limited government often assume that the market functions more efficiently to enable individuals to achieve their own good. I will not quarrel with this contention so far as it goes, and with the aforementioned caveat regarding education.
My point is that we have seen, time and again, a willingness not just on the part of governmental actors, but on the part of those who could be said to inhabit the private sector, to welcome state intervention in the market.
By itself, the marketplace may not be able to resist the extension of state power. However, the market as part of a rich web of social relationships, including churches, social clubs, colleges, and universities, may well have more strength to stand against governmental regulation. In that case, we aren’t just using whatever means happen to be at our disposal to pursue our personal goods (as may be true in the market), we are acting as participants in institutions that give our lives meaning and purpose and that put us in non-instrumental relationships with others.
We’re less inclined to place a price on our participation. We’re less inclined, too, to welcome external supervision from which we might personally benefit. And we’re more inclined to accept the kind of authority that ought in some measure to be implicit in the teacher-student relationship.
In sum, the more we are prone to speak—as I said, un-ironically—of an educational marketplace, the harder it is to resist state regulation of colleges and universities. Then, too, as a practical matter, given American culture and history, the smaller the role of religious denominations in the running of colleges and universities, the more likely it is that the market—followed inexorably by the state—will loom large in our educational and pedagogical lives.
However we might wish to speak of educational autonomy or academic freedom, our practical choice may be between pursuing these over against the church, or pursuing these over against the state. Given the extraordinary coercive power of the latter, I’m inclined to take my chances with the former.
 It is indeed a separate question whether the NLRB should extend its jurisdiction over universities where the law is silent. In the Yeshiva decision, Justice Powell had the following to say:
There is no evidence that Congress has considered whether a university faculty may organize for collective bargaining under the Act. Indeed, when the Wagner and Taft-Hartley Acts were approved, it was thought that congressional power did not extend to university faculties because they were employed by nonprofit institutions which did not ‘affect commerce.’