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Thursday, April 05, 2012

Rick Garnett on "Discrimination" and Religion

At The Public Discourse, our co-blogger Rick Garnett has a piece called "Confusion About Discrimination." The occasion is the decision of a Catholic student group at Vanderbilt, a private university, to leave campus rather than comply with a university policy that, in Rick's words, "requires religious student groups (but, interestingly, not all student groups) to open membership and leadership positions to 'all comers,' without regard to religion."

Rick argues that "the goings-on at Vanderbilt reveal a troubling confusion about 'discrimination,' a confusion that, as it spreads, will undermine religious freedom, institutional pluralism, and civil society. This confusion travels with a deeply illiberal failure to appreciate that the kind of liberal democracy we should embrace is not 'total' or 'comprehensive'; in Lawrence Alexander’s words, it is not 'liberalism all the way down,' and it does not insist that the rules that govern in the political sphere and context—non-discrimination, neutrality, 'all comers', etc.—need to, or even should, govern in other spheres and contexts." He suggests that incidents like this risk confusion about two matters: what constitutes not just discrimination but wrongful discrimination and, even when we are confident that we have identified it, when government is or is not empowered to address it. (Rick is quite clear that the Vanderbilt incident itself only involves the first question, not the second. But he notes, accurately, that Vanderbilt draws on the Supreme Court's decision in CLS v. Martinez to justify the policy.)

I am largely, although perhaps not entirely, sympathetic to Rick's argument.

Let me first add a factual detail or two about Vanderbilt's policy, as best as I can make it out on a brief examination. (Here's a link to a Vanderbilt page discussing the policy.) The nondiscrimination policy is not directed at religious student groups alone, and is broadly applicable. The major exception, as far as I can tell, is that (go figure) it exempts single-sex fraternities and sororities, as permitted by federal law. The university's description of the policy says, for example, that "Republicans and Independents are eligible to join the College Democrats, and any member may run for office, though it is up to the members to select their leaders.  This is true for all RSOs at Vanderbilt."

It's also worth adding this part of the university's statement: "This past year, the University conducted a review of all RSOs’ compliance with the nondiscrimination policy following an allegation of sexual-orientation discrimination.  Most RSOs were found to be in full compliance, but a handful were not, often based on a misunderstanding of the policy." I don't know whether the Vandy Catholic group was one of those allegedly non-complying groups. A story about the controversy quotes a group leader as saying, "We require that our leaders be practicing Catholics. And the university’s nondiscrimination policy -- they have made it clear that there is no room in it for an organization that has these faith-based qualifications." On the face of that statement, this appears to be about something other than sexual orientation itself; it is not incompatible with being a practicing Catholic to be gay or lesbian! I would be less sympathetic to the group, at least given what I understand about underlying Catholic doctrine, if it engaged in status-based exclusion based on sexual orientation; if its position is that leaders of a student Catholic group must be Catholic and not, say, Hindu, that would be a different and I think, more sympathetic, policy, even though it would be more exclusive in certain respects.

I agree with Rick (as he knows) that simply invoking discrimination, or even invidious discrimination, is not enough to answer the question when a group is engaged in wrongdoing, much less when the government can or ought to address it. Let us be clear that Rick is emphatic in his editorial that he believes that opposition to invidious discrimination is wrong, as do I. Like him, however, I don't think that belief alone settles the kinds of questions he's addressing.

Does it matter that this case involves Vanderbilt and not, say, Hastings? Under the law, absolutely. I'm less clear about how it figures in for Rick, although I know both he and I disagree with the Court's decision in CLS. (For an excellent critique of that opinion, see this measured but critical piece by John Inazu.) I suspect that, like me, Rick thinks it matters but is not dispositive of what Vanderbilt ought to do rather than what it can do; but I'm not clear, past that, on how we might come out in different cases.

For both of us, the phrase "institutional pluralism," which he uses above, is essential. My own view is that Vanderbilt is arguably free to form, as a matter of institutional mission, a position that disfavors even the requirement that leaders of Catholic (or Jewish, or Baptist, etc.) groups belong to that faith. Both members of that university community, and members of the broader academic community and citizens themselves, are then free to praise or criticize that decision. I would rather that the decision be left open to the university itself rather than being legally compelled, however. From that position, I am both willing to defend Vanderbilt's decision in broad terms of institutional pluralism and inclined to think it was the wrong decision. In any event, I agree with him that simply invoking "discrimination" will not settle the matter.

Read Rick's piece! 

Posted by Paul Horwitz on April 5, 2012 at 11:56 AM in Paul Horwitz | Permalink


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Andrew, I always enjoy your comments at MoJ and here. That said, I don't think that's what I said or believe, and I don't think it's what Rick believes either. I believe we ought to have institutional pluralism, and that this *can* include institutions which don't allow full internal dissent or pluralism. I also believe that we are always entitled, if not obliged, to then criticize those institutions for their actions when we disagree with them and urge, but not compel, them to change their policies. I can't speak for Rick on this, but for me that does mean that our criticisms should acknowledge the right of those institutions to shape their own missions and act accordingly. It should affect and often moderate the tone of our criticisms; but it does not disentitle us to criticize.

Posted by: Paul Horwitz | Apr 16, 2012 11:27:39 AM

"We must have institutional pluralism, except we can't have any institutions which don't allow internal pluralism, unless those organizations are Catholic ones."

Is that basically it?

Posted by: Andrew MacKie-Mason | Apr 15, 2012 5:22:18 PM

Basic category error: Rick's column is inapposite because the function of the Vanderbilt policy is not to identify "when a group is engaged in wrongdoing." It is, instead, to shape part of the *school-sponsored* and school-subsidized educational experience that Vanderbilt endeavors to provide its students.

The policy in question provides that school-registered student organizations "must be open to all students as members and must permit all members in good standing to seek leadership posts." To that end, as the Dean's letter explains, "Vanderbilt’s nondiscrimination policy embodies our commitment to sustaining and nurturing a community in which all students may participate fully in the Vanderbilt experience. Our policy requires that all students are presumed to be eligible for membership in registered student organizations and that all organization members in good standing are eligible to compete for leadership positions, though it is up to each organization to select its own leaders."

In other words, Vanderbilt will only allow official "registration" of groups that are open to all students, just as all of its classes are open to all students. And what does registration provide? "Certain privileges, including the use of the Vanderbilt University name to signify their institutional affiliation; eligibility to apply for funding from various sources; participation in the University-sponsored student organization recruitment fair; use of listservs, group mail, and URLs administered by the University; and other resources."

In other words, Vanderbilt is ensuring that its *benefits,* like its curriculum, are available to all students equally.

This isn't the only policy a school such as Vanderbilt might adopt, or even necessarily the best policy. Another school might well view registered student groups as being much more independent of the school and its pedagogic objectives, not as part and parcel of the educational experience the school is trying to provide. But Vanderbilt's objective--basically the same as that described in greater detail in the Ginsburg and Kennedy opinions in CLS v. Martinez-- is surely a legitimate reason for a policy of conferring the benefits of University registration only on groups open to all of the students who are paying their tuition dollars to attend the university.

In the column to which Rick links, Mike Paulsen alleges that Vanderbilt has decided Christian groups are "not welcome on campus" or "not valid"; that Vandy is "hostile to orthodox Christianity" and endeavors "suppress its faithful exercise on its campus"; that the school wishes to "exclude or suppress the expression of religious views"; that the University is "discriminat[ing] against religion"; that it is "protecting its community from improper influences"; and that its open access policy is akin to its past exclusion of black students.

As Mike undoubtedly knows, these hyperbolic claims make for a provocative column in the culture wars, but they have virtually nothing to do with Vanderbilt's all-students policy and the reasons it was adopted for purposes of conferring school benefits. Indeed, the policy expressly provides that "student groups that are not registered are welcome to meet on campus informally or to rent spaces through the Office of Reservations and Events. Also, non-registered student groups may also communicate with students via email (including University email), social media (e.g., Facebook), and certain bulletin boards and kiosks on campus." And as the Dean emphasized, "we recognize that some groups, including some religious student organizations, may decide not to register. We will respect any such decisions and hope that those groups will continue to be actively engaged with our students and community, albeit without the rights and privileges accorded registered student organizations."

Does that sound like an attempt to "suppress [the] faithful exercise [of religion] on its campus"? to "exclude or suppress the expression of religious views"? Analogous to admitting only white students? Please.

Posted by: Marty Lederman | Apr 5, 2012 2:32:45 PM

By way of "turtles all the way down," those interested in the issues raised in this post may also enjoy the following article from the Times: http://www.nytimes.com/2012/04/06/us/catholic-fund-heightens-scrutiny-of-recipients-ties.html?ref=us

Posted by: Paul Horwitz | Apr 5, 2012 12:58:55 PM

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