Private Religious Colleges and Free Speech

I have been guest blogging this week, and Eugene asked me to reserve some of my posts to respond to reader comments. From the moment that Eugene announced I would be posting, a few commenters have decided that the single most important thing FIRE should actually be fighting is the scourge of censorship-happy Christian colleges. I confess, as I have before, to just being really tired of this argument, as we’ve explained FIRE’s stance on private colleges so many times. (Check out the following link, and most recently my piece in RealClearReligion.)

It’s really pretty simple, and people familiar with law and legal principles should be able to understand our stance. Public colleges and universities are, of course, legally bound by the First Amendment. Private colleges are not. However, private institutions should be held accountable for how they present themselves and for the contractual promises they make to students. The vast majority of private colleges promise free speech in rather glowing language found in student handbooks, codes of conduct, and similar materials. But out of the top few hundred colleges and universities in the country, a small minority do not. FIRE has concluded that it makes little sense in our pluralistic democracy to go after private colleges that have policies making it clear that the institution places other values (for example, their religious or ideological identity) above the value of freedom of speech.

Pepperdine University is an example of a school with a very powerful statement that should serve as a warning to students that its religious identity takes priority. Pepperdine policy states, for instance, that “[i]t is expected that all students will adhere to biblical teaching regarding moral and ethical practices. Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.” The same is true of Liberty University, Yeshiva University, Brigham Young University, and a few others. You will never be able to seriously convince me that someone can either work at or attend BYU and suddenly be surprised that the university takes its Mormon identity more seriously than it does freedom of speech. Sorry.

So I’ll address, one at a time, the different strains these arguments typically take:

1.       “FIRE gives Christian colleges a pass.”

This argument is nonsense. Here is a short list of Christian institutions we have taken on over the years. It is important to remember that these are colleges that promise free speech quite clearly in their policies:

Georgetown University: In 2010, we wrote to Georgetown three different times over its unequal treatment of student organizations, specifically its refusal to recognize the pro-choice group H*yas for Choice. We have continued to stay after Georgetown on this matter this year. Additionally, Georgetown earns our worst, “red light” rating for speech codes, in violation of its stated commitments to free speech.

DePaul University: In 2011, we named DePaul one of our “12 Worst Colleges for Free Speech” in a feature we put together for The Huffington Post. Why did DePaul receive this dubious honor? The university claims to support free speech, yet it has been involved in a handful of FIRE cases over the years, including for refusing to recognize the student advocacy group Students for Cannabis Policy Reform and for pursuing harassment charges against a conservative student group that held an “affirmative action bake sale.”

Boston College: We have written to BC three times to ask the administration to clarify whether it truly is committed to free speech (as some of its policies would indicate), or whether it places other values, including its religious identity and mission, above students’ freedom of expression. We also wrote to the university over its disinvitation of Bill Ayers in 2009.

Le Moyne College: FIRE has had two memorable cases at Le Moyne, one over the dismissal of a student newspaper advisor for not exercising more control over the paper, and the other involving a graduate student dismissed from the education program due to a “mismatch” between his personal beliefs and the goals of the education program. The latter, in fact, led to a lawsuit in which the Supreme Court of New York’s Appellate Division found in his favor and held that Le Moyne was wrong to dismiss him without the due process promised in its own rules.

We have also taken on Notre Dame  for its Red light policies as well as Holy Cross.

2.       A variation on the first argument: “FIRE leaves Christian colleges off of its list of worst schools.”

Again, we rate and take on a large number of the most highly rated Christian colleges, as long as they promise free speech. But look at the colleges that we don’t rate, from our 2012 annual report on speech codes:  “Baylor University, Brigham Young University, Pepperdine University, Saint Louis University, the U.S. Military Academy, the U.S. Naval Academy, Vassar College, Worcester Polytechnic Institute, and Yeshiva University. Bard College, which was not rated in previous years, chose this year to dramatically expand its stated commitments to free speech.” Did you catch all that? There are TWO Christian colleges on the list.Two. The others are secular, Mormon, Jewish, technical, and military schools, and one liberal arts college. (For the record, we do not rate the military academies because the U.S. Supreme Court has held that First Amendment protections do not apply in the military to the same extent they do in civilian life.)

3.    “FIRE doesn’t care about free speech because it doesn’t list Liberty and BYU among the ‘worst colleges for free speech.’”

Again, kind of a riff on the first two, but in the accusers’ minds this accusation somehow makes it safe to ignore everything FIRE says. People who make this argument, however, miss three things: freedom of association, informed consent, and contracts. You have both the right to form and the right to join associations that do not make free speech a high priority and place other values above it. So, for an early Thanksgiving example, Pilgrims have the right to start up an oppressive, speech-restrictive Pilgrim University. And if they are clear about their oppressive policies, a student can give informed consent to be governed by their rules in order to attend Pilgrim U. If Pilgrim U then oppresses a student, the student has no one to blame but him or herself.

The good news for free speech fans is that there just isn’t a huge market out there for colleges that don’t provide students and faculty with free speech and academic freedom. True, those who are happy to forgo their academic freedom and free speech rights in order to be in an environment that prioritizes other values are more often than not religious individuals, but it’s worth noting that these folks are the exception. That’s why we end up with only 9 “not rated” universities out of the roughly 400 that FIRE surveys.

The special fixation on Jerry Falwell’s Liberty University has always been somewhat amusing to me, because even if it did provide free speech guarantees, it still would not make it into our list of colleges because it’s not highly rated enough to fit within our criteria for rating a college.

4.    Finally, there is the sort of meta-argument of “Well, I just know that FIRE is in the bag for the Christian right because they defend them.”

It’s a suspicion I am tired of, frankly. I am a liberal-leaning atheist in an organization that was founded by two atheists, and I have proudly defended the rights of (among many others) evolutionary biologist Richard Dawkins to speak at the University of Oklahoma, a student at Washington State University to put on a play mocking the Passion of the Christ, students who wished to form a gay and lesbian group at Hampton College, and students at the University of Maryland who wanted to show an X-rated film at a campus event. The funny thing is that we get the “hey, you’re one of THEM” attacks from both sides. When I started as president of FIRE back in 2006, we got some very concerned emails from Christians afraid of this new “ACLU liberal” becoming the head of FIRE.

FIRE’s position on private colleges is certainly not a matter of convenience; indeed, many people either do not understand it—or like to pretend they don’t understand it, so they don’t have to take seriously the hundreds of examples of violations of student and faculty rights we have fought and won over the years. FIRE’s position on this gets flack from some conservatives who think we should leave private colleges entirely alone under all circumstances, and from some liberals who think BYU should not be allowed to be so, you know, Mormon. But we’ve chosen our position because we believe it is the right one not only under constitutional principles, but under the principles of how to run a genuinely pluralistic society. And, by the way, this approach maximizes the protections of freedom of speech by holding the overwhelming majority of top private colleges to their promises of free speech, while recognizing the importance of freedom of association and allowing for the reality that some people really would prefer to be at a college that has a greater allegiance to the teachings of St. Paul, Mao, Mohammed, or what have you.

I realize it’s much simpler and easier to use BYU or Liberty as an excuse to ignore FIRE’s advocacy. I also realize that doing so is tempting to some because it aligns with their suspicions and paranoias. It’s more complex to engage in the hard work of understanding the difference between one type of school and another type when it comes to their missions, identities, and historical practices. It’s also more accurate. And ultimately, more rewarding.

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