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?”

District Court Dismisses Claim of Teaching Course from a “Christian Worldview”

The U.S. District Court for the District of Arizona has dismissed a claim by a woman who enrolled in a course called, “Introduction to Ethics” at a public community college, and who alleged that the teacher of the course “failed to teach the course according to the course description and instead taught her own Christian worldview,” in violation of the Establishment Clause.  The class, the plaintiff claimed, consisted of “indoctrination” rather than of instruction in various philosophical texts as set out in the course description.

After dismissing the claims for injunctive relief on grounds of mootness (the plaintiff had already completed the course and would not repeat it) the court also held that the plaintiff was not entitled to damages because of the doctrine of qualified immunity.  A little background: qualified immunity protects government officials from suit unless the particular right claimed to be violated  was ‘clearly established’ at the time of the challenged conduct.  The existence of the right needs to be “beyond debate.”

The court agreed with the defendants that although certain religious practices are clearly barred in the classroom (e.g., Bible reading, recitation of the Lord’s Prayer, posting of the Ten Commandments in every classroom, and several others), “the exact contours of what is allowed when using religious materials in a classroom and teaching from a religious perspective are not entirely clear.”  More from the court: “[J]ust becase a book, or chapters within a book, that are used in a classroom are theological in nature, the use of the book in a classroom does not automatically result in a violation of the Establishment Clause.”  And the fact that religion was discussed by the teacher was likewise not enough to make out an Establishment Clause violation.

The case is Smith v. Arizona, 2012 WL 3108818 (D. Ariz. July 31, 2012).

Sixth Circuit Rules in Favor of Christian University Student in Religious Discrimination Case

A Sixth Circuit panel has ruled unanimously in favor of a Christian university student who claims that Eastern Michigan University expelled her from its graduate counseling program because of her religious beliefs. Julea Ward told the university that as a Christian she could not affirm same-sex relationships (as well as non-marital heterosexual relationships); when a client in her counseling practicum sought counseling about a same-sex relationship, Ward asked that the client be referred to a different counselor. As a result, the university commenced a disciplinary proceeding and eventually expelled her from the program, ostensibly because the university had a blanket policy against students referring clients to other counselors. When Ward sued the university under title VII, claiming the university had dismissed her in violation of her free speech and free exercise rights, the district court granted summary judgment for the university.

Today, the Sixth Circuit reversed. Writing for the panel, Judge Sutton held that a jury could reasonably find that the “no referral” policy was merely a pretext the university had manufactured after the fact. Even worse, a jury could find that it was a poor pretext: there was evidence that the university allowed students to refer clients to other counselors for certain “secular” reasons.  A jury could thus find that the no-referrals rule was not neutral with respect to religion; as a result, under Employment Division v. Smith, the university would have to show a compelling interest to justify the rule – which, on the record, seemed very unlikely. The Sixth Circuit distinguished last month’s decision by the Eleventh Circuit in Keeton v. Anderson Wiley, which CLR Forum discussed here. Today’s case is Ward v. Polite (6th Cir., slip op. Jan. 27, 2012).

11th Circuit Rules Against Christian Student in Religious Discrimination Case

Last Friday, the 11th Circuit dismissed a lawsuit a graduate student had brought against Augusta State University in Georgia, arguing her expulsion from the university’s school-counseling program violated her constitutional rights. The student, a Christian, had expressed skeptical views about homosexual identity and conduct, and the university required her to participate in a “remediation plan” to make sure that her views did not affect the counseling she would provide clients in the program’s clinical practicum, particularly clients from the “gay, lesbian, bisexual, transgender and queer/questioning (GLBTQ) populations.” When she refused to do so, the university expelled her. The 11th Circuit ruled that her expulsion violated neither her free speech nor free exercise rights. Briefly, with respect to the former, the court noted that the student would be advising clients in a university-sponsored clinic; the university thus could require her to conduct herself in accordance with the American Counseling Association’s code of ethics, which forbids counselors from imposing moral views on clients. The university was not disciplining the student for her religious views, in other words, but for failing to agree to put them aside in accordance with her professional responsibilities. With respect to the student’s free exercise claims, the court held that school’s requirement that students abide by the ACA code, notwithstanding their own religious convictions, was neutral and generally applicable, and rationally related to the university’s legitimate interest in maintaining its accreditation. The case is Keeton v. Anderson-Wiley (Dec. 16, 2011).

%d bloggers like this: