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Why Higher Education Needs Religious Liberty

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Observing from afar the clamor over Indiana’s new religious freedom law, we in higher education are especially attuned to how that state’s colleges and universities have responded.

First, some background. The Indiana law differs in modest, but I think, important and helpful ways from its federal counterpart, the Religious Freedom Restoration Act of 1993. RFRA, which was passed by an overwhelming bipartisan majority, has since been replicated by a number of states—including, by the way, Illinois, with then-State Senator Barack Obama joining all his colleagues in favor in 1998.

There has been plenty of commentary about why so many people have reacted so negatively, but let’s zero in on where Indiana’s college and universities, mostly through statements by their presidents, have come down. The universities were quick to repudiate any support of discrimination and to affirm their commitment to inclusivity. The president of Indiana University, Michael A. McRobbie, said that his institution “remains steadfast in our longstanding commitment to value and respect the benefits of a diverse society.” Butler University President James Danko insisted on “the importance of supporting and facilitating an environment of open dialogue and critical inquiry, where free speech and a wide range of opinion is valued and respected” and “reaffirm[ed] our longstanding commitment to reject discrimination and create an environment that is open to everyone.”

A more laconic and unsigned statement from Notre Dame “reiterate[d] our commitment as a Catholic university to maintaining a community where all are welcome and valued, to combating unjust discrimination wherever it occurs, and to respecting all rights, including, but not limited to, the foundational right to the free exercise of religion.”

The question I would ask the leaders of these institutions, and their more or less like-minded peers across the nation, is how they make a place for religious believers in their diverse and inclusive campus communities. That they don’t discriminate against them in admissions or hiring goes without saying. (At least it should, but there is at least anecdotal evidence that some religious faculty, especially those who are theologically or morally conservative, don’t exactly feel welcome at elite institutions.) But what about the associational life of the campus? Are student groups, like the Christian Legal Society and Chi Alpha, able to govern themselves in accordance with their own principles, requiring adherence to creedal statements and/or behavioral standards, not necessarily of their members or those who attend their events, but of their leaders?

Religious freedom doesn’t just consist in being able to pray when you want or study Scripture on your own time, but also to join together with coreligionists for worship and fellowship. While it’s unlikely that many colleges simply prohibit such religious association, a number do place obstacles in its way, using their antidiscrimination rules to decertify groups that hold their leaders to faith-based standards, thereby making it more difficult for their members to live their faith.

Does enforcing these sorts of anti-discrimination rules really “create an environment that is open to everyone”? Does it really “respect the benefits of a diverse society”? Do students who wish to conduct their faith lives in this way really feel welcome on campuses where they’re told, in effect, that their honest wish to gather together with others, under the leadership and teaching of fellow believers, is a kind of discrimination? And if religious students are marginalized and made to feel unwelcome in this way, is “a wide range of opinion” really “valued and respected”?

Leaving behind the ivy-covered walls of a particular campus, let’s turn to the wider higher education community. May institutions that hold their employees to creedal or behavioral standards, like Gordon College, continue to be free to conduct their affairs as they feel called to do? Or do they risk losing their accreditation or tax-exempt status if they remain steadfast in their adherence to traditional religious teachings?

If the clarion call of antidiscrimination is used to delegitimize such institutions, we run the risk of diminishing seriously the diverse array of institutions that has long been regarded as one of the signal strengths of American higher education. This would be a loss, not just for the students who would blossom in such a setting, but also for the country’s intellectual life, as the distinctive perspectives nurtured and articulated on campuses that are self-consciously out of tune with the dominant public and intellectual opinion would no longer effectively be able to test competing views developed elsewhere or to be tested themselves. The fabled “marketplace of ideas” would become more homogeneous. Pervasive thinking that seems reasonable could, unchallenged, devolve into mere prejudice.

It was disappointing to see only one institution—Notre Dame—affirm “the foundational right of the free exercise of religion.” It was, for the most part, easy for the college presidents to say what they said, insisting upon nondiscrimination and inclusivity, as this is consonant with the loudest voices in today’s debates. But higher education and its leaders should challenge us to think harder and more complicated thoughts. They should bear in mind and take to heart what DePauw University Brian W. Casey said in his statement:

As president of a university, I must do all I can to ensure that the free exchange of ideas is both protected and nurtured. I would not want any statement from me to chill discussion on DePauw’s campus on any issue.

Religious freedom is an integral part of our nation’s moral, civic, and intellectual life. Those of us in higher education would do well to remember that.

Reader Discussion

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on April 08, 2015 at 12:15:31 pm

Who’s freedom is it anyway?

Libertarians tend to regard the individual as the locus of public policy and freedoms, and regard freedom of religion as akin to freedom of conscience: something that an individual exercises as a manifestation of her internal (and perhaps divinely-inspired) drive. Policies designed to promote this concept would be designed to reduce the degree of influence experienced by the individual from the state or any other individual – other than the influence of speech and contract.

Others conclude that religion is something exercised by a collective, or by a leader on behalf of a collective. Thus Knippenberg asks rhetorically:

Are student groups, like the Christian Legal Society and Chi Alpha, able to govern themselves in accordance with their own principles, requiring adherence to creedal statements and/or behavioral standards, not necessarily of their members or those who attend their events, but of their leaders?

People with this view conclude that the state (or university), in defending individual conscience from undue influence, is in fact interfering with the group’s/leader’s freedom of religion.

Imagine if the police arrest a Native American bringing a load of peyote to a Native religious ceremony, and he argues that he is entitled to transport the substance as a manifestation of his religious liberty. Now imagine that the police obtain copies of the guy’s Facebook posts declaring his view that Native religious ceremonies are a farce, and he only attends in order to get high. Should courts evaluate his religious claim based on his group affiliation, or on his statement of individual perspective? Where does religious freedom reside?

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nobody.really
on April 08, 2015 at 12:19:02 pm

Of what does freedom consist?

May institutions that hold their employees to creedal or behavioral standards … continue to be free to conduct their affairs as they feel called to do? Or do they risk losing their accreditation or tax-exempt status if they remain steadfast in their adherence to traditional religious teachings?

If the clarion call of antidiscrimination is used to delegitimize such institutions….

Does protecting a person’s/group’s “freedom” entail granting that person/group the power to compel access to accreditation, tax-exempt status, subsidized use of university facilities, association with the university, and a lack of “delegitimization”? I see three categories here -- government largesse, university/student body largesse, and reputation – each with its own considerations.

GOVERNMENT LARGESSE: In Agency for International Development v. Alliance for Open Society International, the Supreme Ct. held that there are limits on the strings the government may attach to its largesse. Perhaps this means that in extending any specific kind of largesse, government must act to optimize its narrowly-defined bona fide purposes for that largesse.

This interpretation would pretty much eliminate Affirmative Action as a compulsory part of government hiring/contracts. The narrowly-defined reason government hires or enters into contracts is presumably to secure services or goods of a given kind; advancing racial equality is an afterthought.

Similarly, it would eliminate the IRS’s policy of withholding tax-exempt status from racist educational institutions such as Bob Jones University. The narrowly-defined reason government grants tax-exempt status to universities is presumably to promote education, and Bob Jones University presumably does that. (Aside: Observe the range of institutions that get tax-exempt status – and those that do not. The arbitrariness of these lists demonstrates a viewpoint discrimination that is so attenuated from any bona fide governmental purpose as to amount to the Establishment of Religion. In short, we should dump tax-exempt status and institute equality before the (tax) law. If government then wants to subsidize something, let it do so directly and explicitly.)

What is the narrow purpose in accrediting schools? Perhaps this is done to demonstrate that they provide adequate process (or results?) to comply with mandatory attendance rules, or to justify some kind of government certification, or something. Again, it is not clear that accreditation is done for the narrow purpose of fighting discrimination, and so arguably accreditation should not be withheld merely because an otherwise-qualified school discriminates.

UNIVERSITY/STUDENT BODY LARGESSE: What is the narrow purpose of subsidizing student groups? Presumably it is to provide students with a diverse range of opportunities. That said:

1. If the funds for the subsidy come from students, then arguably students should exercise how the funds get spent – not some third party. You may regard the Pope’s views as dogma and earnestly wish that some authority would compel you to comply. But instead, government strives to free you from this kind of compulsion, leaving you with the freedom to embrace the Pope’s views or not – whether you like it or not. Universities should do likewise.

2. Imagine if a school decides to give funds to a given group leader because the group’s charter says that the leader must be a “Christian.” Does the school wish to make the call about who qualifies? If there’s a dispute, does the school want to be in the position to adjudicate it? Wouldn’t the school rather have a nice, clear procedural dispute-resolution process – such as an election?

3. Finally, the Establishment Clause would seem to bar public schools from giving funds directly to a religious leader explicitly for the promotion of religion. Such a school would want to wash its hands of how these funds are allocated. And one way to do so would be to place the discretion in the hands of students. (Compare to state funding of religious schools via privately-directed vouchers.) Again, student elections would seem to be a very practical remedy.

REPUTATION: Clearly people and groups want to be perceived by others as legitimate, and may want to associate with a university. Just as clearly, others do not have to accede to those wishes. Religious students and groups have free speech rights – but so do university officials and universities.

That said, university officials and universities might choose to withhold their opinions, and may encourage others to do so, if they think doing so might encourage a broader diversity of views expressed on campus. Thus, they might choose to take steps to make the campus environment more accommodating to religious groups. And they might choose to take steps to make the campus environment more accommodating to women and ethnic minorities: discouraging hate speech, policing accusations of sexual assault, encouraging trigger warnings, discouraging micro-aggressions, encouraging sensitivity to privilege, etc. Some people will regard these kinds of accommodations as an erosion of the more general libertarian norms that are presumed to prevail in academia. Ironically, some of these people are quite religious.

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nobody.really
on April 08, 2015 at 13:50:31 pm

Leaving behind the ivy-covered walls of a particular campus, let’s turn to the wider higher education community. May institutions that hold their employees to creedal or behavioral standards, like Gordon College, continue to be free to conduct their affairs as they feel called to do? ….

If the clarion call of antidiscrimination is used to delegitimize such institutions, we run the risk of diminishing seriously the diverse array of institutions that has long been regarded as one of the signal strengths of American higher education. This would be a loss, not just for the students who would blossom in such a setting, but also for the country’s intellectual life, as the distinctive perspectives nurtured and articulated on campuses that are self-consciously out of tune with the dominant public and intellectual opinion would no longer effectively be able to test competing views developed elsewhere or to be tested themselves. The fabled “marketplace of ideas” would become more homogeneous. Pervasive thinking that seems reasonable could, unchallenged, devolve into mere prejudice.

It was disappointing to see only one institution—Notre Dame—affirm “the foundational right of the free exercise of religion.” [H]igher education and its leaders should challenge us to think harder and more complicated thoughts.

So here’s a more complicated thought: What if there’s no such thing as a neutral perspective from which to judge other perspectives (and universities)?

Gordon College holds its employees to behavioral standards. Guess what? We all hold each other to behavioral standards. The different between Gordon College and Duke University is not the existence of behavioral standards; it’s the content and explicitness of those standards. So if we acknowledge that Gordon College is going to enforce certain behavioral standards (“conservative Christian”), we should acknowledge that Duke will do so as well (“contemporary political correctness”).

Admittedly, here is one distinction between “secular” and “doctrinal” schools: If you can demonstrate to a secular school that it is, in fact, behaving in a manner to promote a given world view – by hiring disproportionate share of progressive professors, say – the school might be motivated to moderate its behavior. In contrast, demonstrating to a doctrinal school that it is behaving in a manner to promote its given world view would presumably not motivate a change in that behavior.

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nobody.really
on April 08, 2015 at 17:28:44 pm

" If you can demonstrate to a secular school that it is, in fact, behaving in a manner to promote a given world view – by hiring disproportionate share of progressive professors, say – the school might be motivated to moderate its behavior."

.Really? - fat chance of that, don't you think?

" If you can demonstrate to a secular school that it is, in fact, behaving in a manner to promote a given world view – by hiring disproportionate share of progressive professors, say – the school might be motivated to moderate its behavior."

Hey, but not to worry; just sue and you will more than likely have an opportunity to, say, be the first Muslim to head up a student chapter of the Jewish Students League, or the first Wiccan to preside over the student Rosicrucians. There is no telling what some clever judge or hearing examiner may come up with as an equity solution.

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gabe
on April 08, 2015 at 19:11:42 pm

Nobody:

Re: Peyote; Isn't this the reason why we have the RFRA laws in the first place. Scalia, when confronted with the issue of a Native American, arrested for, and then claiming a religious exemption for peyote, elected to not delve into the *sincerity* of the adherents belief and insisted that the State should maintain (or erect?) a certain neutrality regarding "sincerity / firmly held, etc" and instead would not recognize the efficacy / propriety of such State / Judicial examinations.

In response to this, Congress enacted RFRA, followed by many states. In a sense was not RFRA(s) a means of skirting this issue of individual *sincerity* - heck, maybe even institutional sincerity - and substitute some other means of protecting both speech / conscience and anti-discrimination laws.
I am not certain if a) the individual perspective is reviewable / justiciable, b) the institutional one is 1) capable of review / determination or 2) is even subject to review in most current RFRA's.
Rather, the various governments are attempting to limit State action that may impair religiously held - impelled beliefs irrespective of sincerity. Like the rest of us, I suspect that they do not care to enter a can of worms as it may be rather unappetizing. While avoiding the can of worms, they may have inadvertently moved all parties a little too close to the fire. After all, what is "substantially burdened."

Clearly having a Jihadist as a Vice Chairman of a Jewish Student Group is burdensome; is putting a Two Grooms statue on top of a cake, as well?

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gabe
on April 08, 2015 at 19:17:50 pm

Fair enough.

Not sure about value of student elections!
Are you suggesting that a student election should determine if one is Christian (or Jewish) enough? - or that students should determine the applicability of vouchers?

Surely you jest - or are you simply being esoteric?

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gabe
on April 08, 2015 at 20:25:32 pm

Not sure about value of student elections!

Are you suggesting that a student election should determine if one is Christian (or Jewish) enough? – or that students should determine the applicability of vouchers?

Surely you jest – or are you simply being esoteric?

Let me clarify.

Universities provide resources – money, access to campus facilities, the right to advertise their association with the university – to “student groups.” It has recently come to light that the adult leaders of InterVarsity chapters would claim the right to pick the student leaders, or at least to reject certain students for failing to meet the leader’s religious test. As a practical matter, this would give the adult leader control over the group’s resources. This poses any number of legal and practical problems, implicating the university in religious discrimination.

Option One is for the university to stop treating the group as a “student group,” since students don’t actually exercise any control. Students could still continue to meet – but without the benefit of university subsidies or official sanction.

Option Two is for the group to simply elect their own student leaders. This alleviates all kinds of problems. The outcome of an election is clear, governed purely by procedures, not the substantial merits of the candidates. And voters are allowed to discriminate on pretty much any basis they like, and their discrimination cannot be imputed to the school. This is akin to vouchers: The state faces limits on giving money to Catholic schools -- but the state can give a voucher to a parent, and the parent can give the voucher to a Catholic school, without violating the Establishment Clause or otherwise creating undue entanglements.

Plenty of student groups – including Jewish, Muslim, and atheist groups – have no problem with Option One. But for whatever reasons, InterVarsity does. Ultimately this isn’t a fight between InterVarsity and universities. It’s a fight between InterVarsity’s membership and InterVarsity’s management, which does not want to let its members have any control. Thus on some campuses InterVarsity no longer qualifies as a student group. At Bowdoin, they now have their own off-campus building – which seems to be working for everyone.

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nobody.really
on April 08, 2015 at 20:31:26 pm

Whoops: I meant to say that plenty of student groups have no problem with Option Two, having their members elect their student leaders.

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nobody.really
on April 09, 2015 at 10:11:21 am

OK, makes sense; my error for reading "students" as the general population of students.

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gabe
on April 09, 2015 at 12:13:48 pm

http://www.nationalreview.com/corner/416706/catholic-college-now-refuses-play-gordon-college-maggie-gallagher

And then there is this, which I suppose shows that the religious schools are ALL very religious and insular and protective of their respective doctrinal assertions.

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gabe
on April 09, 2015 at 14:24:57 pm

For anyone interested, here is another take on this from the folks at Nomocracy in Politics:
1st one quote from essay:

"....Yale law professor Stephen Carter: “Democracy advances through dissent, difference, and dialogue. The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic”

http://nomocracyinpolitics.com/2015/04/09/searching-for-pluralism-in-a-postmodern-age-by-anthony-deardurff/

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gabe
on April 09, 2015 at 14:35:05 pm

Oops, must have "half"-heimers as I forgot this quote which along with quote above gives a fair presentation of the argument and one I could live with.

" “The minimal constraints of peaceable assembly leave us with racists, bigots, and ideologues. They also leave us with difference. Peaceable assembly forces us to confront more honestly questions of what it means to live among dissenting, political, and expressive groups”

Heck, kiddies, we are always going to have knuckleheads amongst us - let us learn to live / deal with them.

Would Nobody agree?

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gabe
on April 09, 2015 at 16:07:52 pm

"RFRA, which was passed by an overwhelming bipartisan majority, has since been replicated by a number of states—including, by the way, Illinois, with then-State Senator Barack Obama joining all his colleagues in favor in 1998."

You mean the one with explicit protections for LGBT people? You know, the one that Indiana didn't have?

If you can't even be intellectually honest with your readers about what this law does, I'd hate to be in your class. Are you on Rate My Prof?

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Richard Maloney
on April 09, 2015 at 16:37:13 pm

1. It's often the case that nobody agrees with gabe -- and more so all the time.

2. That said, are we striving to maximize the variety of speech within society or within every institution in society? Is the US educational environment richer if all universities embrace the same norms? Or if U Chicago embraces ruthless meritocracy, the Ivys embrace political correctness, military academies embrace gung-ho authoritarianism, Catholic U embraces Catholic dogma, Brigham Young embraces LDS dogma -- and students get to choose where to go? Diversification and specialization may make the individual narrower, but society broader.

3. Imagine a college administration wants to promote the broadest range of speech on campus. The quoted text suggests that embracing free speech norms with racists, bigots, and ideologues would achieve this end. And that's been the dominant theory among opinion-leaders since the Enlightenment -- that is, among people who have demonstrated a capacity to thrive in that environment.

But empirically, is the really the best way to get the broadest range of views expressed? Research suggests that free speech norms have the practical effect of discouraging members of the least dominant groups from participating in public dialogue. In these environments, the voices most likely to be heard are the boldest and most dogmatic.

In short, if the goal is to provide the student body with the broadest range of ideas to consider, we might want to be open to the possibility that free speech norms do not, in fact, achieve this end. Yes, barring cross-burnings will discourage a kind of speech. But permitting cross-burnings will discourage other people's speech.

It's nice to imagine we live in a world without trade-offs between desirable goods. We don't. Any speech policy you adopt will have the effect of discouraging some kind of speech. Decide which kind of speech you most want to facilitate, and set your policies accordingly.

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nobody.really
on April 10, 2015 at 10:37:17 am

It is often the case that gabe agrees with nobody - hah!

Another good exposition.

Only thing I am not fully in agreement with is:
"Research suggests that free speech norms have the practical effect of discouraging members of the least dominant groups from participating in public dialogue. In these environments, the voices most likely to be heard are the boldest and most dogmatic. "

Initial statement is certainly correct as a general proposition. However, the conclusion may not be when one considers that given the current hysteria regarding LGBT, etc., it may be a stretch to say that the least dominant groups are not able to participate. Is not the claim to being "dominated" at root of the LGBT call for statutory protection and secondly, can it truly be said that simply because the "boldest and most dogmatic" groups represent the dominant group(s)? It may be that in this (and other) case, the *dogmatic* have discouraged the *dominant.*

Just the give and take of civil(?) society, I suppose!

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gabe
on April 10, 2015 at 11:53:07 am

[C]an it truly be said that … the “boldest and most dogmatic” groups represent the dominant group(s)?

No, you’re right, and I didn’t mean to say that. I meant to suggest that this was a dynamic among both dominant and subordinated groups.

Thus, I didn’t mean to say that free speech norms will suppress all black voices. I meant to say that the voice we’ll hear will be the voice of Malcolm X – not because his voice is most representative of black perspectives, but because his brand of militancy best resists the informal pressures that would silence the other voices. Efforts to create forums in which a broader range of voices are heard may help elicit less militant perspectives from members of subordinated groups – AND from members of the dominant group.

[I]t may be a stretch to say that the least dominant groups are not able to participate. Is not the claim to being “dominated” at the root of the LGBT call for statutory protection….

Good point! And again, this raises questions about the nature of free speech norms. To elicit lesser-heard perspectives it may be useful to create subcultures in which those perspectives become the dominant perspective. Thus, the norms that dominant university life may not be the norms that dominate life outside the university. The norms that dominate any one university may not be the norms that dominate universities in general. And the norms that dominate any one class within a university may not be the norms that dominate that university in general.

Archetypically, the norms that prevail in a Black Studies class will be more solicitous of the perspectives of black students than of white students. These norms will tend to discourage participation by white students, but encourage participation by black students. Is this a terrible, self-indulgent exercise? Or is it akin to a laboratory in which we create circumstances that may differ from the prevailing environment (hotter, colder) in order to explore dynamics you can’t observe in the prevailing environment?

That said, at least among the young, the norms that subordinate homosexuals may well be weaker than the norms that subordinate fundamentalist Christians. Now, if you subscribe to the notion that Free Speech norms should prevail regardless, you don’t care: You accept whatever speech results from those norms. But if you subscribe to the view that we may want to adjust the environment to facilitate the exposition of less-heard perspectives, then you may need to be attuned to which perspectives are, in fact, heard less. After all, colleges long ago shifted from Affirmative Action for female students to Affirmative Action for male students, given the gender ratios in the applicant pool. Perhaps we’ve crossed another threshold.

I’m reminded of Monty Python’s Dennis Moore sketch [Part I] [Part II], in which a Robin Hood character must confront the fact that he has vastly overcompensated the poor at the expense of the rich, culminating in the observation, “[B]limey, this redistribution of wealth is trickier than I thought.” True, social engineering is an imperfect business. Fortunately, it doesn’t have to produce perfect results – just results better than the status quo.

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nobody.really
on April 10, 2015 at 16:53:55 pm

Nobody:

re: your last series of comments above:

Yep, agreed.
I would prefer that the natural interchange amongst peoples *allocate* free speech distributions rather than attempt to mandate a certain allocation. As Monty Python says, this redistribution stuff is pretty tricky!!!!

BTW: We really do need to get our monitors checked - this synchronicity is getting pretty scary, don't you think?

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gabe

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