Garvey on Endorsement, Graduation Speakers, and Student Groups

Here is a thoughtful, extended comment by my friend and Catholic University of America President John Garvey on an issue with special salience at around this time of year–graduation speakers.  John uses the occasion to offer some broader thoughts on the concept of “endorsement,” which has been so important to the Supreme Court’s Establishment Clause jurisprudence.  In particular, he considers the question of the “public meaning” of an official act by a university–whether of a religiously affiliated university conferring an honorary degree on a public figure, some of whose views the school holds as anathema, or of a public university refusing to grant recognized status to a student group whose views it holds as anathema (e.g., the situation in CLS v. Martinez).  I was happy to see that John raised and discussed two documents that we read together in my Catholic Social Thought and the Law class, Ex Corde Ecclesiae and the United States Conference of Catholic Bishops’ Catholics in Political Life.

The piece is also very much in tune with the arguments from institutional pluralism that John advanced to great effect a few years ago as AALS President.  You should sit down with a cup of tea and enjoy the whole piece.  Here is a selection:

When a school stages a commencement program, it is a participant in the free market of ideas. Institutions can participate in that market just as individuals can. Think of the intellectual movements we associate with particular universities: the Chicago School of Economics, the Yale School of Literary Theory (Jacques Derrida), the Cambridge School of the History of Political Thought (Quentin Skinner, J.G.A. Pocock, Peter Laslett), the Oxford Movement of Anglicans to the Catholic Church (John Henry Newman, Gerard Manley Hopkins, Ronald Knox), the Wisconsin Tradition in Legal History (James Willard Hurst, Lawrence Friedman, Robert Gordon).

Universities promote intellectual movements like these by hiring certain faculty and not others, by attracting graduate students interested in certain fields of study and not others, and by sponsoring lectures and conferences on certain subjects and not others. It’s the same with commencement programs. If Michigan State wants to deliver a message about the unfairness of affirmative action, it might invite Ward Connerly. If the Catholic University of America wants to deliver a message about the sanctity of life, it might invite Cardinal Timothy Dolan.

When Montana State invites a minister to lead its graduates in prayer, it too is acting as a participant in the market of ideas. Even though it’s a public institution, it can stake out almost any position it likes. It is under no obligation to give equal time to competing ideas. (The president of the United States is a public official, and we expect him to promote an agenda.) Because it’s a public institution, though, the people have ultimate control over the messages it delivers. And in this matter of praying, the people have taken the position (in the establishment clause) that it can’t promote religion. It is a good thing to recall that God is with us in all our affairs; we should begin every undertaking by blessing his holy name. But we don’t want the government and its agencies superintending our devotions.

It would be a mistake to suppose that this rule (don’t endorse prayer) is an impediment to academic freedom. On the contrary, it is an exercise of academic freedom. In the world of higher education there are different schools of thought on the subject. Americans take one position. The English take another. At Oxford University commencements the Vice Chancellor touches master’s and doctoral candidates on the head with a Bible and admits them to rank “in the name of the Father, of the Son, and of the Holy Ghost.”

And even at American graduations, students, faculty, parents, and alumni are free to pray on their own. As I said earlier, the free speech clause protects private speech from government interference. When public schools speak, they may (indeed, must) be neutral on matters of religion. But they can’t impose that point of view on other speakers.

Catholic schools like Notre Dame and Georgetown are also participants in the market of ideas when they stage commencements. In a culture like ours, where abortion has become a form of birth control, it is a welcome contribution to the free market of ideas when a school delivers a pro-life message at graduation. The AAUP suggested that Notre Dame had a duty to “protect and model free inquiry and open dialogue” by honoring someone who condemned the pro-life message. That’s an odd—I would say surprising—position to take for an organization devoted to academic freedom. Notre Dame might protect open dialogue by allowing its students and faculty to take a variety of positions. It would model academic freedom by regulating with a light hand. But to say that the school is obliged to temper its own speech by endorsing contrary ideas is the essence of censorship.

In the piece, John raises several examples of religiously affiliated and unaffiliated universities making decisions about student groups.  He argues that the key distinction is between the public and the private: Georgetown, CUA, and Vanderbilt are different cases than UC Hastings.  For a somewhat contrasting view about the importance of the division between public and private higher education, see Paul Horwitz’s institutionalist take in his new book, First Amendment Institutions.  My own view about the endorsement “test” as an Establishment Clause standard is more negative than John’s.  But–quite apart from the constitutional context–he makes many insightful points about the nature of endorsement and the meanings that we reasonably ascribe to “official” action by institutions of higher education.

And do see the St. John’s Journal of Catholic Legal Studies’ recent collection of essays addressing the question, “Whom Should a Catholic Law School Honor?”

Tebbe on Government Endorsement and Disparagement

Nelson Tebbe (Brooklyn Law School) has posted Government Endorsement and Disparagement. The abstract follows.

What are the constitutional limits on government endorsement? Recently, a sense has been spreading that when the government speaks on its own account, it faces few restrictions. That impression has been fed by two doctrines and their accompanying literatures. First, the Court’s cases developing the government speech doctrine have implied that the only constitutional restriction on government expression is the Establishment Clause, and scholars have adopted that assumption. Officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Second, experts on religious freedom likewise have assumed that there is no secular Establishment Clause. So the belief that government is free to endorse and denigrate secular ideas is common, thanks in part to the Supreme Court and in part to scholarship on free speech and religious freedom. But it is mistaken. In this Article, I argue that in fact the Constitution properly limits government endorsement through multiple provisions. I give examples of situations where official expression runs up against such limitations, including racialized speech, electioneering, same-sex marriage exclusions, political gerrymandering, and messages concerning reproductive decisions. Limits in these areas are grounded in equal protection, due process, and free speech itself. Together, my examples suggest a constitutional theme, government nondisparagement, that has been overlooked. Drawing out that theme, I suggest new contributions to theoretical debates surrounding political morality, free speech, and religious freedom.

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