February 12, 2006

CLS and the Great University

by PG

The debate over whether Christian Legal Societies should be allowed to discriminate against homosexuals in their membership/ leadership, when such organizations are at schools that forbid discrimination on the basis of sexual orientation, is in full force at Columbia this year. Emeritus co-blogger Chris Geidner was closely engaged in the discussion at Ohio State and is much more informed on it than I, but the resolution there was driven partly by the fear of a lawsuit. Because Columbia is a private school, it is not a "constitutional actor" and thus only morally obliged to take the First Amendment into consideration. One of the arguments propounded in favor of requiring the Christian Legal Society to abide by the university's policies is that there must be places in our society where certain values will be held strongly, and Columbia should feel an obligation to be an institution that is going to hold to non-discrimination and not make exceptions for groups within the school. However, that claim prioritizes the university's expression over the ability of people to express themselves within the university.

I was reminded of this while reading the posts at Crescat Sententia and Mirror of Justice about Catholic universities' prohibition on performances of the Vagina Monologues. CS: "There is no problem with a Catholic university deciding to construct a distinct institutional identity. [...] I do think that being a great university requires a certain ideological neutrality on the important issues of the day. That means that a great university, ideas and views are to be expressed by individual scholars and students, not by the institution as a whole. That means, maybe, that universities that are avowedly and purposefully Catholic can't be 'great.'"


I disagree, of course, with the claim that Catholic universities, to the extent they try to construct and maintain a distinctively Catholic character and mission, cannot be "great." Or, more precisely, I am not drawn to any definition of 'great' that excludes the possibility of "great" distinctively and authentically Catholic universities. [...]

I do not disagree that it is important that all universities (Catholic or otherwise) engage with positions that are contrary to their own views and beliefs, and that a university that is unwilling to so engage is not performing a crucial function of a university.
However, it is illusory to think that there exist any institutions, universities or otherwise, that take no position on the issues of the day. That the positions are not expressed in religious or moral terms does not mean they do not reflect an underlying view of the humam person and the person's relation to others. And that underlying view of the human person has an impact on how one views "the issues of the day."

There seems to be confusion about what "ideological neutrality on the important issues of the day" means.

Personally, I do think that a university can be great without being externally neutral. By this I mean that, for example, Columbia's institutional support for sexual orientation equality does not conflict with its potential for greatness; indeed, being "out front" on the trend our society should take, whether with regard to equality of race, gender or sexual orientation, strikes me as one aspect of a great university. Though obviously many would disagree with my metric, I would consider backwardness in these areas at schools like Bob Jones University or the military academies to be a detriment to their greatness. My own undergraduate alma mater's newspaper chided students during the civil rights movement for participating in sit-ins, calling such peaceful demonstration ungentlemanly, and I would regard this as one area in which the University of Virginia suffers in comparison to its competitors such as UC-Berkeley.

However, a school that is not internally neutral -- that stifles viewpoints that conflict with its institutional stance -- does remove itself from the category of great universities. Schools that adopt restrictive speech policies in which students are penalized for or blocked from dissenting expression are failing to be the fora of ideas that great universities seek to be. That Columbia externally considers the question of homosexuality's acceptability to be settled does not decide whether it should enforce that stance on all members within the community. That Catholic schools externally consider the question of female sexuality to be settled does not decide whether they should prohibit the Vagina Monologues.

UPDATE: Columbia Law School's Student Senate proposes revising its recognition guidelines to permit an exception:

If an organization�s purpose is to express an idea, viewpoint or belief, such an organization�s leadership, but not membership, may be limited by such narrowly-tailored criteria that the organization finds, in good faith, essential to upholding that organization�s explicit expressive purpose as defined in its constitution. Any such limitations on leadership shall be explicitly stated and ratified in the organization�s constitution.
This actually adheres to the idea in the BSA v. Dale dissents that if the Boy Scouts really were an organization that made "sexual orientation the subject of any unequivocal advocacy, using the channels it customarily employs to state its message," it would be able to exclude homosexuals, but "[t]o require less, and to allow exemption from a public accommodations statute based on any individual�s difference from an alleged group ideal, however expressed and however inconsistently claimed, would convert the right of expressive association into an easy trump of any antidiscrimination law."

February 12, 2006 7:11 PM | TrackBack

The question of funding drives this issue somewhat. Presumably, liberal students may not want their dues used to support these organizations any more than conservative students would want their dues going to support liberal causes. Or do law students even pay dues? It's been so long...

Posted by: Tom T. at February 13, 2006 10:57 PM
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