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“Could We Be Discriminating?”

That is the question that dominated the Society for Personality and Social Psychology at its annual conference, according to a fascinating article in today’s New York Times (also referenced by Inside Higher Ed).  But rather than looking at the usual litany of victims and rounding up the usual suspects, Dr. Jonathan Haidt of the University of Virginia argues that social psychologists discriminate against conservatives.  After polling the audience, over 80% of which self-identified as liberal, he commented: 

Anywhere in the world that social psychologists see women or minorities underrepresented by a factor of two or three, our minds jump to discrimination as the explanation. . . .  But when we find out that conservatives are underrepresented among us by a factor of more than 100, suddenly everyone finds it quite easy to generate alternate explanations.

And this leftist echo chamber has consequences on campus, especially for conservative students, who hide their political beliefs from colleagues who openly assume that everyone—or at least everyone who is considered “intelligent”—is liberal. 

Dr. Haidt’s diagnosis confirms what other studies—some of which the New York Times references—have shown:  that leftists and Democrats vastly outnumber conservatives and Republicans among university faculty.  And it confirms what professors like Dr. Mike Adams and students like Julea Ward have experienced:  if you merely express conservative or Christian views, you will face discrimination, in the form of lost promotions or even expulsion.  

But Dr. Haidt does not just diagnose the problem.  He also explains how it arose:  “social psychologists are a ‘tribal-moral community’ united by ‘sacred values’ that hinder research and damage their credibility—and blind them to the hostile climate they’ve created for non-liberals.”  And to break up this ideological monopoly, he prescribes some good medicine:  hefty portions of National Review and Thomas Sowell.  Hopefully, his message will catch on and the discrimination against conservatives and Christians in higher education will end.  Until then, perhaps we should call his prescription Chicken Soup for the Leftist Soul.

Author

ADF Litigation Staff Counsel ADF Center for Academic Freedom

2010 Challenges Present 2011 Opportunities for Student Rights

Posted on January 17th, 2011 Uncategorized | 1 Comment »

At the beginning of a new year, there is a valuable opportunity for reflection on the past year and what it means for the future.  While 2010 was certainly not without its major victories for free speech, it also suffered some challenges.    Here’s a quick look back at developments in ADF’s academic freedom cases in 2010 and what they mean for 2011:

Badger Catholic v. Walsh, et al. (University of Wisconsin):

Part of the ongoing battle against the University of Wisconsin for its discriminatory student fee program, Badger Catholic presents a challenge to the denial of student fee funding to a Catholic student group because its activities may involve student-led prayer, worship or proselytizing in violation of Rosenberger’s requirement of viewpoint neutrality.  In September, the Seventh Circuit handed down its opinion, reaffirming that the Establishment Clause does not require such discrimination against religious student speech.  The court ruled that the University must treat religious student groups equally to nonreligious student groups, in terms of granting them funding for their expression and allowing them space to meet on campus.

Badger Catholic was a huge win, but the battle isn’t over yet.  Attorneys for the University of Wisconsin filed a petition for writ of certiorari to the United States Supreme Court in November. 

Sheldon v. Dhillon (San Jose-Evergreen Community College District):

 June Sheldon was an adjunct professor at San Jose City College. While teaching her class on human heredity, a student asked whether homosexuality was genetic or environmentally influenced.  Ms. Sheldon responded that the issue was complex and referred the student to materials mentioned in the textbook, but one student was offended by her response and complained anonymously.  The college district responded by firing Ms. Sheldon.  At the end of 2009, the United States District Court for the Northern District of California refused to dismiss Ms. Sheldon’s First Amendment claims, holding that an instructor’s speech in the classroom is protected by the First Amendment, and in June 2010, a settlement was finalized with the District.  As a result of the settlement, the District agreed to fully expunge any allegations of wrongdoing from Ms. Sheldon’s employment record and pay her $100,000 in damages.  The Sheldon case represents a huge victory for faculty free speech, and its precedent can be used in the future to help protect professors’ rights.

Professor Kenneth Howell (University of Illinois):

Dr. Kenneth Howell, a well-respected and well-liked professor at the University of Illinois, was fired in July after teaching the Roman Catholic Church’s position on homosexual behavior in a class called Introduction to Catholicism, after a student (who was not even enrolled in the class!) complained.  But after a few letters from ADF, and facing a groundswell of support by students and media scrutiny, the University reinstated Dr. Howell.  Moreover, a few months later, a faculty committee issued a report on the situation and agreed that Dr. Howell was entitled to due process, that professors of religious studies may have a perspective in teaching their courses, just like any other professor, and that students don’t have a right to not to be offended.  While the Howell situation did not involve a court ruling, the University’s corrective actions should serve as an example to other universities in the future when they are given the opportunity to protect the free speech rights of faculty members.  The Howell situation should also serve as an encouragement to students to stand up for what’s right—the students who started the grassroots effort to get Dr. Howell reinstated played an integral role in this victory.

Indiana University of Pennsylvania

Despite the Third Circuit’s 2008 ruling in DeJohn v. Temple University, many public universities under that Court’s jurisdiction continued to retain unconstitutional speech policies which allowed a student to be punished for saying something that simply offended another student.  In an effort to bring these policies into compliance with DeJohn, ADF allied attorneys sent letters to several universities, notifying them that their policies ran afoul of the Constitution and offering assistance in changing those policies.  As a result of a letter sent by ADF allied attorneys Leonard Brown and Randall Wenger, IUP agreed to change their unconstitutional speech code.   Hopefully more universities follow their lead in 2011 and voluntarily give up their unconstitutional policies.

Despite these victories, 2010 also presented some challenges:

In CLS v. Martinez, the Supreme Court ruled that University of California Hastings College of Law could have an all-comers policy without violating the First Amendment, even though, as the justices rightly pointed out, it made little sense.  (Extensive analysis of the Court’s decision can be found here, here, here, and here, for a start.)  Importantly, however, the Court remanded the case to the district court to determine whether there was discriminatory enforcement of the policy—in other words, whether CLS was targeted for unequal treatment under the policy.  Given the evidence in the record regarding the other student groups that required their members and leaders to hold views in common with the purpose of the group, we are hopeful that CLS will get justice in the end.  And because the ruling was quite narrow (virtually no other schools have an all-comers policy, probably because they are silly and stifle the marketplace of ideas), it had a lesser impact on free speech and associational rights than anticipated.  In the words of Michael McConnell, we have lived to fight another day. 

In Lopez v. Candaele (Los Angeles Community College District) and Rock For Life v. Hrabowski (University of Maryland, Baltimore County), the Ninth and Fourth Circuits, respectively, went the opposite way of the Third and Sixth Circuits in holding that students lack standing to facially challenge policies that restrict their speech.   OSU Students Alliance v. Ray (Oregon State University) is currently awaiting an oral argument date at the Ninth Circuit after a district court judge dismissed the students’ complaint.  While these rulings were certainly disappointing, ADF was able to obtain positive policy changes in all three of these cases.  Adams, Ward and Keeton are also at the appellate level following disappointing district court rulings.  All of these cases are still ongoing, and will be ones to watch for developments in 2011. 

Finally, the Supreme Court heard Arizona Christian School Tuition Organization v. Winn, a case that has implications for associational rights in the educational context.  The opinion in this case is expected in Spring 2011, probably late March or April. 

Given what’s at stake, 2011 promises to be an incredibly crucial year for student and faculty free speech in the courts.

Author

ADF Legal Counsel - University Project

Top Ten New Year’s Resolutions for College Administrators

Since this is still the first week of the new year, it’s not too late to make some New Year’s resolutions.  Here are some suggestions for college administrators, based on what happened in 2010: 

10.  Surreptitiously confiscating an independent student newspaper’s bins and throwing them in a storage yard next to a dumpster is probably not a good idea.  Giving the independent paper access equal to other student publications is.

 9.  Stop the irrational prejudice against the Future Farmers of America.  You like diversity, remember?

 8.  Remember that forcing a student to change their religious beliefs to stay in school qualifies as indoctrination, not education.

 7.  Make your whole campus a “free speech zone,” as the First Amendment requires.  This would probably only work if you run a university for Smurfs.

 6.  Don’t treat pro-life students like criminals.  Praying on a college campus isn’t a punishable offense either.

 5.  Hire faculty based on their academic credentials.  Being “potentially evangelical” is not a disqualifier.  On that note, spend some time reviewing a little law called Title VII.

 4.  Don’t fire faculty members for teaching their subject matter.  Encourage thin-skinned students “offended” by said subject not to take the class.  Or alternatively, to grow up.

 3.  Repeal your speech codes without waiting to get sued, like the University of Virginia.

 2.  Re-read Supreme Court cases on student fees, especially if you work at the University of Wisconsin.

 1.  Realize that all-comers policies are as dangerous to the marketplace of ideas as Ford Pintos were to the highway.  Not to mention that they would effectively bar single-sex a capella groups, a decidedly huge blow to campus culture.

Author

ADF Legal Counsel - University Project

“Is Academic Freedom a License to Indoctrinate?”

Posted on January 3rd, 2011 Thought Reform | 2 Comments »

Check out this insightful essay (“Is Academic Freedom a License to Indoctriate?“) by Peter Wood in the Chronicle of Higher Education.  Wood discusses Penn State’s decision . . .

. . . to mutilate its academic freedom policy, HR64, to make clear that faculty members have no particular obligation to avoid indoctrinating students “with ready made conclusions on controversial subjects.” That was one clause eliminated from Penn State’s academic freedom policy, but not the only one. The redactors also decided it is no longer proper to call on faculty members to demonstrate “a fair and judicial mind” in presenting information; or to avoid subjecting divergent opinions to “suppression or innuendo.” And they decided to scrub the provisions that enjoined a Penn State faculty member not to use the classroom to discuss “controversial topics outside his/her own field;” and not to take advantage of professorial authority to introduce into the classroom “provocative discussions of irrelevant subjects.

Wood’s appropriately biting assessment:

What happened at Penn State is a relatively small but startlingly clear distillation of the problem. A self-serving collection of faculty members decided they no longer wanted the trammels of having to avoid “indoctrinating” students. That’s the word they actually struck from their policy on academic freedom. Why on earth would the emancipated, enlightened faculty members of a major university want the right to indoctrinate? Should we be worried about the state of freedom in a society where a privileged elite covets this right?

The great irony in all this is that the secular left routinely (and usually unfairly) accuses religious conservatives of anti-intellectual ”indoctrination.”  Don’t the psychologists call this phenomenon “projection”?

Author

ADF Senior Counsel - University Project

“Potentially Evangelical”: How to Lose a Job Offer Without Even Trying

Did the University of Kentucky commit religious discrimination?  It sure looks that way.

The University decided to construct an astronomical observatory.  It considered a number of candidates for the directorship of the new observatory, including Martin Gaskell, at the time a professor at the University of Nebraska-Lincoln.  The search committee eventually ranked him first among all the applicants, and started checking references.  They discovered that he had written an article called “Modern Astronomy, the Bible, and Creation.”  The article lists quotations from scientists and philosophers about the relationship between science and religion; it describes the competing interpretations of the creation account in Genesis; it sets forth some of the scientific and religious explanations for the diversity of life on earth; and it sets out some of the scientific evidence for the proposition that the universe came into existence at a particular point in time.  It also describes certain of the ramifications that tend to flow from the different understandings of origins.  To be sure, the essay does not purport to be utterly “neutral” on these matters, but it is marked by a healthy measure of intellectual humility and tentativeness.

Apparently this was still too much for certain members of the UK search committee.  It appears as though a candidate’s unwillingness to wholeheartedly embrace absolute atheism renders him or her ineligible to do scientific work at the University of Kentucky.  One member of the committee revealed that he would “be worried” every time Gaskell might be “let out in public.”  UK biology professors consulted by the search committee declared that the biology department would refuse to cooperate with the physics and astronomy department on a proposed ”outreach science team” if hired “one of these types of individuals.” 

Another member of the committee wrote: “Clearly this man is complex and likely fascinating to talk with — but potentially evangelical.”  Uh oh . . . not that!  A potential evangelical!  Can’t have any of those around here!

To his credit, one member of the search committee complained that Gaskell was being denied the job because of his religious beliefs.  He wrote that “no objective observer could possibly believe” the decision was based on any reason other than religion and that the whole process caused him to question UK’s commitment to religious freedom.  He predicted that “other [pretextual] reasons will be given for this choice when we meet.”

Sure enough, Gaskell didn’t get the job, and UK has pointed to other alleged reasons in the subsequent litigation.  Shockingly, UK admits that it declined to hire Gaskell because of his religious views — but argues that the law allowedit to do so.  UK essentially argued that if it hired Gaskell, he would inevitably use his position in an inappropriate way to foster his personal religious views.  In addition to forbidding covered employers from considering religion in their employment decisions, Title VII of the Civil Rights Act of 1964 also imposes upon such employers an affirmative obligation to accommodate their employees’ religious exercise (e.g., Sabbath observance), but only if such accommodations are “reasonable.”  UK argued that if it hired Gaskell, it would inevitably confront requests for unreasonable accommodations, and, therefore, it could pre-emptively decline to hire him in the first place.  This is an astonishing argument.  Gaskell never requested any sort of accommodation or sought an exemption from any generally applicable rule.  UK is essentially arguing that the law allows it to decline employment to Christians because of what they might do.

In an important victory for Gaskell, a federal district court has permitted his employment discrimination lawsuit against the University to go to trial.  Congratulations to our friends at the American Center for Law & Justice, which represents Professor Gaskell.  Trial is set for February 2011.

Author

ADF Senior Counsel - University Project

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