The Boston Business Journal (BBJ) reported last week on recent developments between Gordon College in Wenham, Massachusetts and its accreditation board, the New England Association of Schools and Colleges (NEASC): take a year to review (and change) college policy.
(By way of background, NEASC had put Gordon on the agenda for its higher education commission’s meeting during September 17-18, following heightened attention to Gordon’s behavioral expectations last summer. This attention spawned from Gordon President Michael Lindsay’s signing of a letter to President Obama arguing for exemptions for religious organizations’ hiring practices under an executive order limiting hiring discrimination by federal contractors. At issue for the NEASC is whether the exclusion of “homosexual practice” by Gordon’s behavioral expectations violates NEASC “standards and policies” [see BJJ 7/10/14]).
Last week’s developments reflect the NEASC granting Gordon College a year reprieve in order for a college working group to review Gordon’s behavioral standards for consistency with NEASC policy. While the review is ostensibly at Gordon’s initiative, the purpose (from NEASC’s perspective) is clear: to give the college a chance to see the error of its ways and to change its policy. According to the BBJ’s report, NEASC President Barbara Brittingham described the year in just these terms: “She said the long time frame that Gordon College has been allowed for the review is appropriate considering that Gordon College’s policy is ‘deeply embedded in the culture of the college’ and such things ‘don’t change overnight.'” (BBJ)
Much remains to be seen about how this will play out, so it’s best not to rush to any final judgment. The process and what is driving it, however, bear consideration. Without inferring any malevolence on NEASC’s part, its actions should give pause to those committed to religious liberty and to a pluralist society. In this instance, an accrediting board is using its power to pressure a private college away from its religious commitments as manifested in its behavioral expectations. NEASC’s power is far from insubstantial: accreditation has major implications for college finances, perhaps most notably through students’ eligibility for federal financial aid. Put strongly, the pressure from NEASC brings the coercive power of the state (albeit indirectly) to bear on (re)shaping a distinctively religious community.
Moreover, NEASC’s actions reflect a broader cultural confusion about what toleration and pluralism mean–the same confusion shaping the CSU system’s recent policy change for its on-campus groups. Rather than suggesting that Gordon ensure that prospective students are familiar with its policies so that those who disagree with them can elect to attend other institutions, NEASC’s stance suggests something else. It seems to indicate that reasonable people of good will cannot disagree about sexual ethics, and that those who do disagree–even voluntary communities like Gordon–should be prevented from shaping policies pursuant to their beliefs.
Regardless of one’s opinions about Gordon’s behavioral standards, a pluralistic society must retain protections for religious freedom such that voluntary associations are not precluded from shaping their communities in a manner consistent with their beliefs. As Robert George provocatively phrased it over at Mirror of Justice, “If the powers that be—in this case an accreditation board—can force Gordon College into line with the dogmas of expressive individualism and sexual liberationist ideology, no college (or law school) whose moral and religious commitments place it in dissent from the new orthodoxy will be safe.”
Stephen Monsma’s recent piece in Capital Commentary provides helpful perspective on the California State University’s system-wide de-recognition of InterVarsity Christian Fellowship. InterVarsity asks that its officers hold religious views consistent with the group’s mission, placing it at odds with recent CSU policy changes prohibiting recognized clubs from discriminating on a host of lines, including religion. Monsma wonders how: “…in the upside-down, Alice-in-Wonderland world of the CSU, reducing the diversity of on-campus religious student organizations somehow will increase students’ ‘exposure to new ideas, especially those that are in conflict.’”
Monsma’s argument echoes Justice Alito’s 2010 dissent in Christian Legal Society v. Martinez–a case which dealt with a closely parallel situation. In the CLS case, Alito argued that making an all-comers policy a condition for recognized club status worked against the very diversity it purported to promote: “In sum, Hastings’ accept-all-comers policy is not reasonable in light of the stipulated purpose of the RSO forum: to promote a diversity of viewpoints ‘among’–not within—‘registered student organizations'” (p. 31).
Like Alito, Monsma points out that not all discrimination is invidious. Indeed, ensuring that groups can make such distinctions is essential to the existence of groups espousing diverse viewpoints. Monsma is right that CSU’s policy injures the pluralism of California’s CSU campuses. His commentary can be found in its entirety here.
There is a good deal of confusion as to whether Arizona’s SB1062, if signed, would enable businesses to systematically discriminate against homosexuals. Some major media outlets strongly indicate that it would and further suggest that this is the primary aim of the law. CNN Money states that the law: “would allow retailers to refuse service to lesbian, gay, bisexual and transgender customers based on the owners’ religious convictions.” The L.A. Times describes it as “a measure to bolster the rights of business owners to refuse service to gays and others on the basis of religion.” Thus framed as a pro-discrimination measure, the law is the subject of great deal of public ire and disdain.
Speaking helpfully into these discussions, a number of prominent law professors yesterday sent this letter to Arizona Governor Janice Brewer. Its authors include Mary Ann Glendon of Harvard Law School, Michael McConnell of Stanford Law School, Richard Garnett of Notre Dame Law School, and Douglas Laycock of UVA Law School, among a number of others.
While I commend reading the letter in its entirety, its major points include:
- Framing this amendment to Arizona’s Religious Freedom Restoration Act in the larger context of Federal and state RFRAs, which provide certain limited protections for religious believers faced with the prospect of being forced to personally participate in an activity which would violate their religious beliefs.
- Clarifying that when an is action covered under Arizona’s RFRA–even as amended–it does not mean that the action will be vindicated, but rather that certain guidelines will shape it’s subsequent adjudication in court (burdens on sincerely held religious convictions can only be sustained for compelling state interests–requiring assessment of sincerity, burden, and state interest). In the words of the letter: “So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.“
- Explaining how the changes that SB1026 makes to Arizona’s existing RFRA legislation help to clarify ambiguities in its current language that lead to increased litigation, particularly on threshold issues rather than substantive ones.
- Finally, noting how SB1026 does not suffer from the same discriminatory defects as Kansas’ HB2453.
The letter concludes:
“Business regulations do not often require a business owner to violate a deeply held religious belief, but sometimes they do, and when that happens, the Arizona RFRA should be available. Keep in mind that it will not guarantee either side a win; it will test the government’s claims and the religious believer’s claims under RFRA’s general standard.”
While many will still disagree about the substance of the law, this sort of clear legal thinking provides an important voice that may be missing from much of the current public discussion.