Archive for December, 2009

The AAUP’s Perplexing Response to the Sheldon Victory

December 18, 2009

As David Hacker recently noted, the U.S. District Court for the Northern District of California allowed June Sheldon’s First Amendment claims to proceed by denying San Jose/Evergreen Community College District’s motion to dismiss.  But the reaction to Professor Sheldon’s victory from the American Association of University Professors (AAUP) remains quite mystifying.

In early November, the AAUP released a report warning that the Supreme Court’s 2006 decision in Garcetti v. Ceballos “perhaps fatally” undermined “constitutional protection for academic freedom at public institutions.”  So it urged faculty to get their universities to pass academic freedom protections so as “to preserve all elements of academic freedom in the face of judicial hostility or indifference.”  And it endorsed a University of Minnesota policy that stated in part:  “Academic freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline . . . on matters related to professional duties.”

Within weeks, Judge Whyte ruled on Professor Sheldon’s case.  She had lost her teaching job merely for answering a student’s question in class about the class curriculum.  If this situation does not fall within the AAUP-endorsed policy, nothing does.  And sure enough, her college relied on Garcetti to urge the court to throw the case out of court.  But Judge Whyte saw through her college’s legal smokescreen, writing that “Garcetti by its express terms does not address . . . the First Amendment’s application to teaching related speech,” and thus the college’s “heavy reliance on Garcetti is misplaced.”

So far, this seems to be the AAUP’s dream outcome.  The court recognized faculty free speech rights, distinguished Garcetti, and affirmed Professor Sheldon’s academic freedom.  But Rachel Levinson, senior counsel for the AAUP, was only “‘cautiously’ pleased” with the decision.  She added that she was “very pleased” with the Garcetti aspects of the case, describing them as “heartening.”  But her overall response seemed surprisingly tepid, especially in contrast to the AAUP’s dire warnings in early November.

Of course, this presents an interesting question:  Why the tepid response?  Could it be that AAUP views this as a single district court opinion at an early stage of what may turn out to be a long legal battle?  Or could it be that Professor Sheldon’s remarks that homosexual conduct is not an innate, genetic characteristic offends the AAUP’s leftist sensibilities?  Of course, we sincerely hope that the AAUP will recognize the inherent value of free speech on campus regardless of whether it agrees with the viewpoint being expressed at any given moment.  Only time will tell.

Elane Photography Plans Appeal of Negative Ruling by New Mexico Court

December 16, 2009

   Elane Photography lost another round in court with a New Mexico trial court ruling  that the company engaged in illegal “sexual orientation” discrimination when the main photographer declined an invitation to photograph a same-sex commitment ceremony in Taos, N.M.  Same-sex “marriage” is not legally recognized in New Mexico.  UCLA law professor Eugene Volokh has already blogged about the decision here, here and here,  pointing out how the decision fails to protect the First Amendment rights of the photographer and her company.  

    Earlier, the New Mexico Human Rights Commission had ruled against Elane Photography, the small company in Albuquerque run by a young husband and wife,  Jon and Elane Huguenin.  The state commission found the company guilty of discrimination and ordered it to pay approximately $6600 in attorneys fees to the lesbian who filed the complaint. Jon and Elaine have religious beliefs and public policy beliefs that marriage is defined only as one man and one woman. ?

     The District Court’s opinion found that the business was a “public accommodation” under the New Mexico Human Rights Act, even though Elaine Huguenin uses immense amounts of creative and artistic talent to make the photographs of a wedding ceremony.  Usually, “public accommodation”  laws apply to businesses that dispense uniform products or services, such as a restaurant or a hotel, not to a business that creates unique products. This is a massive and  unwarranted expansion of the concept of “public accommodation.”  Not every commercial business is a “public accommodation” like a restaurant, hotel or store might be.

    Also, the District Court rejected the claims that the state commission’s actions violated the free speech rights and religious liberty of Elane Photography.   The District Court reduced the creative role of the photographer to a mere conduit of photos for the buyer.  This severely understates what a photographer does in selecting images from among the many taken, altering their tone and color, cropping them, etc.  A couple hires a wedding photographer because of her artistic skills.  They are not like an employee behind the counter taking passport photos with a stationary camera.

   Also, the District Court rejected the religious liberty claims under the federal and state constitutions.  Again, the court diminishes the impact of the state’s actions against the photography company, with its statements that Elane Photography is merely being asked to photograph something for a fee.  There is no sense that  people can be asked by their customers to do something with their businesses that violate the business owners’ beliefs.  A photographer who is a vegetarian might decline to create photos for the promotional materials of a meat packing plant.  If New Mexico law made that an act of discrimination, the District Court opinion says that there is no First Amendment protection.  That can’t be right, and that is why we will appeal this decision to the New Mexico Court of  Appeals.

Christian Legal Society v. Martinez – Responding to Professor Volokh

December 14, 2009

The battle over Christian Legal Society v. Martinez continues to rage. Eugene Volokh responds to David French, ADF Senior Legal Counsel.

By treating this case as a “government benefits” case, I think Eugene is missing a few vital things. First, let’s not forget that this case arises in a university setting, where a very long line of case law holds — among other things — that the university is “peculiarly a marketplace of ideas” that if closed will cause our culture to “stagnate and die.”

Click to read counter response by David French to Eugene Volokh.

Speak Up University – Protect and Promote Religious Rights at our Public Universities.

From “In Loco Parentis” to Just Plain Loco

December 8, 2009

If it weren’t bad enough that some colleges and universities think they need to tell students how to think and what to believe, one public university has actually tried to force students deemed overweight—by the university—to exercise.

Beginning with entering students in 2006, Lincoln University, a public university in Pennsylvania, instituted a requirement that any student with a Body Mass Index (BMI) of 30 or more would be required to take a physical fitness course called “Fitness for Life” in order to graduate.  The students’ BMI was not self-determined—rather, it was determined through a mandatory exam by college officials.  If a student had a BMI of 30 or higher, they were required to take the fitness course in order to graduate.

Student Tiana Lawson protested the requirement in The Lincolnian:

I didn’t come to Lincoln to be told that my weight is not in an acceptable range. I came here to get an education which, as a three time honor student, is something I have been doing quite well, despite the fact that I have a slightly high Body Mass Index.

Ms. Lawson’s editorial brought national attention to this policy, and it was thankfully repealed last week after the university received several complaints. 

This is one of the more ridiculous university policies I’ve ever heard of—it is condescending, paternalistic, and intrusive, as Temple University Law Professor David Kairys points out.  There is nothing wrong with encouraging students to adopt a healthy lifestyle, but this policy crosses the line.  As Ms. Lawson pointed out, the students are there to receive an education, not to have their personal characteristics scrutinized by a “nanny” university.

Given their recent attempts to control the bodies and exercise schedules of their students, it is not surprising that the school also apparently attempts to control student speech.  Lincoln University has a “red light” rating  from FIRE with regard to its policies affecting speech.  One policy prohibits “actions, words, jokes, or comments based on an individual’s sex, race, color, national origin, age, religion, disability, or any other legally protected characteristic.” 

The irony of prohibiting students from simply making a “comment” about someone’s characteristics but essentially calling some of its students too “fat” to graduate was apparently lost on Lincoln.  Let’s hope Lincoln’s speech code soon goes the way of the fitness requirement, and Lincoln students are as free to exercise their First Amendment rights as they are to choose whether they want to exercise.

Court allows Sheldon case to proceed against San Jose City College

December 8, 2009

The day before Thanksgiving, the United States District Court for the Northern District of California denied in part and granted in part San Jose/Evergreen Community College District’s motion to dismiss June Sheldon’s case.

The ADF Center for Academic Freedom, partnering with the Pacific Justice Institute, filed a lawsuit on behalf of Ms. Sheldon in 2008 after she lost her job merely for answering a student’s in-class question.  The College argued, in part, that the complaint should be dismissed because professors are not entitled to freedom of speech and academic freedom in the classroom.  ADF argued that professors’ ability to speak freely in class should be fully protected so long as their speech is germane to the curriculum.

The Court’s ruling allows Ms. Sheldon’s case to continue against the College.  We will update further as the case proceeds.

Forcing Tolerance: How to Skate on Thin Ice

December 7, 2009

Recently, Robert O’Neil commented in the Chronicle of Higher Education about the growing conflict between university anti-discrimination policies and the First Amendment rights of campus student groups to select their members according to the groups’ core religious beliefs. To his credit, Mr. O’Neil clearly grasps the critical importance of this issue. His commentary provides a detailed, thoughtful discussion of the current state of the matter in the federal court system and his call for clarification from the Supreme Court is well-taken.

Unfortunately though, Mr. O’Neil’s commentary concludes by providing a “how to” guide showing universities how they can apply their anti-discrimination laws to exclude religious groups from campus without violating the Constitution. While his suggestions that such policies be “clear” and administered “evenhanded[ly]” are not inherently problematic, his other proposals smack of a disdain for religious organizations that would not be tolerated if applied to other student organizations.

For example, Mr. O’Neil suggests that universities sanction student groups for the act of “refusing to sign . . . a nondiscrimination policy” rather than the “stated views of the organization” because conduct is less protected than speech. Under this formulation, student groups could hold to any religious beliefs they wanted . . . .as long as they signed away their right to act on those beliefs in the future. This proposal would render the students’ beliefs meaningless.

Similarly, Mr. O’Neil proposes that public universities utilize “creative thinking” by requiring religious groups to “acknowledge” the nondiscrimination policy, but only sanctioning them if and when an aggrieved student files a charge of discrimination. Again, such an arrangement provides no protection for the student groups whatsoever.

These and other of Mr. O’Neil’s proposals offer little in the way of real compromise. His implicit premise is clear: Universities and student organizations can get along if the student groups will forfeit any religious beliefs that do not comport with the university’s concept of “tolerance.” And by offering all the ways universities can implement their policies just shy of violating the constitution, Mr. O’Neil betrays an implicit—and sadly prevalent—bias against religious student organizations. Indeed, would Mr. O’Neil also advise universities how close they can come to the line of sexual harassment, racial discrimination, or sexual orientation discrimination? I think the answer is obvious.

As the Supreme Court has repeatedly held, public universities—like all government entities—need to give private organizations a wide berth for the exercise of First Amendment freedoms, rather than looking for ways to encroach as far as the Constitution will technically permit. Hopefully, university administrators will take this principle to heart, rather than skate on the constitutional thin ice provided by Mr. O’Neil. But the Supreme Court now has the chance to reaffirm this principle definitively as today it agreed to review the Ninth Circuit’s decision against the Christian Legal Society. May the First Amendment win.

U.S. Supreme Court agrees to hear lawsuit against UC-Hastings

December 7, 2009

The Supreme Court will decide whether the Constitution allows a public university to use a “non-discrimination” rule to punish a religious student group that draws its leaders and voting members from among those who share its religious commitments.  The Court announced today that it will review a lower court decision in Christian Legal Society v. Martinez, a case involving the University of California’s Hastings College of the Law.

Christian Legal Society (CLS) is an association of Christian lawyers, law students, judges, and law professors.  The foundation of CLS is faith in Jesus Christ.  Like many religious organizations, it adopted a statement of faith setting forth its basic religious beliefs.  In addition, CLS has expressed its adherence to the traditional Christian view of human sexuality, i.e., that sexual intimacy should occur only within the bond of a marriage between one man and one woman.

Hastings encourages the formation of student groups by offering them numerous benefits, including access to meeting space, communications mechanisms, and funding.  A group of CLS law student members at Hastings formed a CLS chapter and sought recognition from law school officials.  CLS indicated that all are welcome to attend CLS meetings but that the chapter’s leaders – as well as those who select them – must be CLS members.  One must sign the statement of faith to be a CLS member.

Hastings concluded that CLS’s religious standards for leadership and voting membership constitute “discrimination” on the basis of religion and “sexual orientation.” In response, CLS pointed out that its leadership and membership policies are not “discrimination,” which is properly defined as the invidious reliance upon irrelevant personal characteristics.  CLS also argued that its sexual morality standards do not constitute “sexual orientation,” given their emphasis on conduct rather than “orientation” and given that all extramarital sexual conduct is considered sinful, whether same-sex or opposite-sex.

Hastings rejected these arguments, and CLS asked the federal courts to vindicate its constitutional rights.  Both the federal district court in San Francisco and the U.S. Court of Appeals for the Ninth Circuit sided with Hastings.  And now the Supreme Court will consider the case.

Much is at stake.  CLS itself has numerous chapters at law schools across the country.  Many of them have fought successfully for their religious freedom, often through litigation.  Many other campus religious groups draw their leaders from among those who share their religious commitments.  If the Court rules against CLS, public universities could force student groups to accept as leaders and voting members individuals who oppose the groups’ beliefs.

More broadly, the freedom of all religious groups – not just campus organizations – to associate around shared religious commitment is under attack.  For example, the ACLU and its allies are working to exclude faith-based social service providers from federally funded programs on the ground that they “discriminate” on the basis of religion and “sexual orientation.”

It is no secret that theologically conservative Christianity is not particularly popular with the elites who control much of America’s higher educational system.  The traditional view of human sexuality is seen as a particularly galling departure from the prevailing campus orthodoxy.  University administrators, moreover, seem to have a lot a trouble complying with the First Amendment.  Let us pray that the Supreme Court will vindicate the foundational principles underlying our first freedom.

Who’s talking about this case?
The Volokh Conspiracy
NRO:Phi Beta Cons
The Chronicle of Higher Education
The Fire