diversity

Essay on the push by Christian colleges and others to be exempt from federal civil rights requirements

On June 25th a group of faith-based organizations wrote a letter to President Obama asking him to include “explicit religious freedom protections in any executive order providing nondiscrimination guarantees for LGBT employees of federal contractors.” One week later on July 1st another group wrote an almost identical letter. The first letter was largely ignored by media; the second letter has been criticized by many as calling for the president to tolerate bigotry. The presidents of Christian colleges were signatories and a number have drawn much criticism as a result.

Why were the June and July letters received so differently? After all, faith-based groups have had hiring exemptions embedded in legislation since the civil rights laws of the 1960s.

The key is Burwell v. Hobby Lobby, which was handed down five days after the first letter and one day before the second. The Supreme Court ruled that Hobby Lobby, a huge business, could have a faith-based exemption from part of the Affordable Care Act. This was the first time the Supreme Court had recognized a faith-based exemption for a business. While the case made a fairly narrow ruling based on a piece of legislation that can be amended, the implications of the case caused an uproar. The picture of a rich family-owned business getting exemptions at the expense of poorer female employees who struggled to afford IUDs irritated many. So, when the July letter to Obama was made public in the aftermath of Hobby Lobby, the image of religious institutions that want exemptions from anti-discrimination policy turned many Americans sour. Is allowing Christian institutions autonomy in hiring religious freedom or is it institutionalized discrimination? The answer is more difficult than many recognize.

I know most of the people who signed the June and July letters; I grew up in their communities and they are my colleagues, mentors and friends. They are faithful citizens who do not hate the LGBT community. They take seriously Jesus’ summary of the law and prophets when he said, “Love the Lord your God with all of your heart, soul and mind; love your neighbor as yourself.” Their institutions have done much good in the world, and these leaders are sincere in their belief that they must live and work in accordance with their deeply held religious beliefs. 

In addition, most are from Christian traditions that have historically held that homosexuality is a sin. Times are changing, though, and people in these traditions today are struggling to think through two things. First, what does it mean to love someone who lives in ways they believe are wrong? Second, what do we really know about what God intends for gay people? Churches and theologians are demonstrating that there are different ways to think about these things and changes are starting to occur in these institutions. The Christian culture is in transition and these leaders are trying to do good work in the world in the midst of great change. I admire them for this.

I also think it is important to understand exactly what they are asking for. For 200 years our First Amendment jurisprudence has held some form of this principle: Religious belief is to be protected, and sometimes religious belief is not private but is made manifest through policies of institutions like churches, schools and nonprofits.

There are limits to this protection, of course, because some religious beliefs harm others. When courts have tried to balance religious freedom against possible harm caused to others they have used the compelling interest test. They find for religious freedom unless limiting this freedom is the least restrictive alternative to protect others.

So, since the civil rights legislation of the 1960s, we have seen legislators pick up on this protection, particularly in the area of employment. For almost 50 years, faith-based institutions have had a statutory and Constitutional right to make employment decisions according to their religious belief. There has always been some lack of clarity about whether the law protects only the right to hire co-religionists or whether it allows complete freedom from nondiscrimination laws related to race, gender and disability. There has also been ongoing debate about whether faith-based institutions should receive government funding.

It helps to understand the framework that underlies the exemption request. Most of the authors of the letters to President Obama are driven by an appreciation for what is often referred to as structural or principled pluralism. They argue that as far back as the framing of the Constitution, Americans have valued the right to live according to deeply held beliefs. But, they say, it is a mistake to bifurcate belief and behavior. Belief always directs behavior so protections of belief have to be extended to institutions as well as to individuals.

This kind of pluralism has its roots in European democracy, mostly clearly seen in a policy about schools advocated by theologian and statesman Abraham Kuyper in the Netherlands. Kuyper found himself in a conflict between Roman Catholic, Protestant and secular groups with respect to the funding of schools. In an effort to protect pluralism of institutions and pluralism of worldviews, he devised a solution that gave public funds to all schools, saying that all schools contributed to the common good and educated students. Thus, all worldviews that supported the schools should have access to public funding. To limit funding to only one kind of school would elevate one worldview over another. That is not government’s role. Government, to the extent possible, should treat worldviews similarly.

It’s this kind of pluralism that drives the authors of the letters to argue that their institutions should receive the same public funding that other schools and nonprofits receive. They are doing the same work: they educate students; they feed the poor; they heal the sick. Government should not treat them differently because of their worldview. Their request for exemption from employment law isn’t really related to LGBT people. It is a broad request that asks for room to define themselves by their deeply held beliefs, and also to be treated the same as other similarly situated groups contributing to society in the same way.

This, of course, is the irony. The LGBT community, and in particular the Christian LGBT community, is asking for the very same thing: treat us the same as others with similar qualifications.

I have spent my life studying First Amendment jurisprudence and the kind of pluralism that these faith-based groups are asking for. I, too, am a pluralist. I believe that government should try to protect a diversity of worldviews and should also fund a pluralism of institutions that are shaped by different worldviews.  I think this leads to a healthy society where minority voices have room to grow and to try and influence their communities. If we do not have pluralism we have only majoritarian processes.  Majorities often tread on the toes of smaller groups. Allowing for pluralism does not mean that we give up on a fight against discrimination; rather it means that government is not the tool by which a good life is defined. Government protects the rights of institutions to exist according to their beliefs (subject to the compelling interest test), but within the institutions the fight for justice and nondiscrimination can flourish.

But, as a pluralist I am troubled by those letters. President Obama has signed the executive order without the exemption and already a number of lawsuits are planned to challenge his action. I understand that the lawsuits are designed to protect religious freedom, but I hope most who signed the letter will not join the litigation. I think those of us who advocate for religious pluralism have more thinking to do, and along this line, I offer those faith-based institutions a two-part challenge. My challenge comes from a place of understanding because they are my people. But it is a serious challenge because I think that my people have neglected an important responsibility.

First, are these people of faith arguing for pluralism for others? Political pluralism is supposed to protect a variety of worldviews that shape institutions. This means that even in family policy, pluralism rather than majority perspective must prevail. It is no surprise that the Netherlands, home to Kuyper, was the first country to recognize same-sex marriage. But the groups that have been advocating for pluralism to protect their own views did not lead the discussion for legal recognition of different sorts of marriage and family structures. In fact, some led the opposition. People who favor pluralism should have been the first in line to support public, legal recognition of different sorts of families.

Second, what obligations do faith-based institutions have? Many of the same groups that ask for this employment exemption heralded Hobby Lobby as a clear victory for justice. There was no caution; they expressed no worry about poor women’s access to contraception and no concern for the religious freedom of employees. Instead, they expressed triumph in the Supreme Court’s movement toward the autonomy of faith-based institutions. 

The problem is that the pluralism they advocate for is not based in autonomy. Structural and worldview pluralism has its political roots in the sphere sovereignty of the Reformed tradition and the subsidiarity of the Roman Catholic tradition.  The emphasis is on responsibility of institutions and on connectedness in communities.  Autonomy has little place in the discussion.  Faith-based institutions must focus on the responsibility they have in the public sphere and they have an obligation to explain what sorts of government regulation would be legitimate.  Would they argue that faith-based businesses should be allowed to discriminate against customers?  If so, on what basis?  Sexual identity? Race? Gender?

I think the key here is to consider what it means to have an institution that reflects religious belief. Consider two different organizations: the first says we will employ anyone other than gay people because of our belief; the second says we will employ only the kind of Christian that believes along with us that homosexuality is a sin. Are these two organizations the same? I’d say the first is not articulating a worldview but the second is. The Supreme Court says it will not get into deciding what is and is not legitimate religious belief but I think that faith-based institutions that want exemptions from law should at a minimum be required to spell out who they say they are. And they should be required to be consistent. I do not care for behavior covenants at schools, colleges or nonprofits, but I think a democracy can make room for them. However, if an employee is fired for violating a behavioral covenant that excludes homosexuality, employees that violate other parts of the covenant should likewise be fired. Transparency and consistency of treatment are very important.

I am committed to fighting for just treatment of the LGBT community. For Christians like me who believe the historical context of a few verses in the Bible has been misunderstood, sexual identity justice at this point in history seems as critical as suffrage for women centuries ago or civil rights for African Americans during emancipation. 

But in the final analysis I wish President Obama had put an employment exemption into his executive order, bringing it in line with other civil rights laws. Now, a renewed “government war on religious institutions” will be declared by leaders, and we do not need this going into the next two election cycles. I am worried that the litigation is going to further damage LGBT people in these faith-based institutions and I think that change would have been better and more permanent had it come from within. I know that some of the organizations represented by these letters have members who are actively pursuing policy changes that would result in nondiscrimination of the LGBT community. For many of us, treating gay brothers and sisters in Christ as full members of our institutions is required by our goal of following Jesus. 
 

Julia K. Stronks has practiced law and is the Edward B. Lindaman Chair at Whitworth University, in Spokane, Washington. She is the author of Christian Teachers in Public Schools and Law, Religion and Public Policy. She also wrote OneJesus: A Response to the World Vision LGBT Policy.

Straight Business Students Crash Gay Job Fairs

Some gay M.B.A. students are frustrated that straight students are attending job fairs set up to recruit gay talent, Bloomberg Businessweek reported. At a recent Reaching Out M.B.A. event, only 1 of the 15 students who attended from Rice University was openly gay. The job fairs are theoretically designed to help gay students navigate the corporate world, and feature programs in addition to the chance to meet with recruiters. Gay students report being offended when they hear straight students at the event say things like “Dude, I’m not gay” or “There needs to be less focus on gay stuff at this event.”

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Obama's Anti-Bias Order Won't Exempt Religious Groups

President Obama is expected to sign an executive order today that bars federal contractors from discriminating on the basis of sexual orientation or gender identity. The executive order is not expected to exempt religious organizations, as some Christian colleges and other Christian organizations have sought, The New York Times reported. Other religious organizations have said that no exemption is needed -- and many gay rights groups encouraged the president to proceed without an exemption. Within higher education, much of the impact may be symbolic as the largest federal contractors tend to be research universities that, public or private, are secular institutions.

 

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Audio: Religious College Exemptions, Affirmative Action

On the latest edition of "This Week," Inside Higher Ed's news podcast, Shapri D. LoMaglio of the Council of Christian Colleges and Universities and Campus Pride's Shane Windmeyer joined Inside Higher Ed Editor Scott Jaschik and the moderator Casey Green to discuss efforts by religious institutions to seek exemptions from key federal civil rights laws; also, the constitutional scholar Rodney A. Smolla analyzed a federal appeals court's ruling last week upholding the University of Texas at Austin's consideration of race in admissions.

Stream or download the podcast here. And click here to receive an email notification when we air a new edition of This Week.

George Fox previously won exemption to Title IX so it could discriminate against divorced or unwed parents

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George Fox U., which the Education Department recently permitted to discriminate against transgender students, previously won the right to discriminate against divorced people or unwed parents.

Two legal cases illustrate growing tensions over rights of transgender students at Christian colleges

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As Christian colleges seek exemptions from parts of some federal laws, two institutions face legal challenges to their treatment of transgender students -- and Education Department exempts one from part of Title IX.

UCLA Pays $500,000 to Settle Claim of Racial Profiling

The University of California at Los Angeles has agreed to pay $500,000 to settled complaints of use of excessive force and racial profiling against a black judge during a traffic stop, The Los Angles Times reported. The UCLA Black Alumni Association will receive $350,000 of the payment, to be used for scholarships. UCLA has also agreed to hold a one-day forum on police-community relations, including the issue of racial profiling.

 

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Union Severs Ties to UNCF, Citing Koch Grant

The American Federation of State, County, and Municipal Employees is ending an internship and grant program for students at United Negro College Fund institutions, to protest the UNCF's acceptance of a $25 million grant from Koch Industries and the Charles Koch Foundation. The gift had critics from the moment it was announced, with people noting efforts by the Koch brothers that they viewed as inconsistent with the interests of many black Americans. In a letter to Michael Lomax, the UNCF president, Lee A. Saunders, president of AFSCME, pulled no punches. His title for his letter -- "A Principle Is a Terrible Thing to Waste" -- is a play on the UNCF's slogan.

"Like many supporters of the UNCF, I was deeply troubled by your decision to accept $25 million from David and Charles Koch. But I assumed that in accepting those funds you were in no way supporting or lending the name of the UNCF to the political or social causes or substantive views of the Koch brothers," wrote Saunders. "So I was truly stunned to learn that less than two weeks later, you attended and spoke at the Koch brothers summit in California. This was a betrayal of everything the UNCF stands for. The avowed purpose of this private event was to build support -- financial and political -- for the Koch brothers' causes. Your appearance at the summit can only be interpreted as a sign of your personal support and the UNCF's organizational support of the Koch brothers' ideological program. The Koch brothers and the organizations they fund have devoted themselves for more than a decade to attacking the voting rights of African Americans. They support voter identification laws. They seek to restrict early voting and voter registration. They support laws that threaten organizations that register voters in the African American community."

Lomax issued a statement about the letter. "UNCF has over 100,000 donors with a wide range of views, but they all have one thing in common: They believe in helping young students of color realize their dreams of a college education. For over 70 years we have never had a litmus test and we have asked all Americans to support our cause," he said. "While I am saddened by AFSCME's decision, it will not distract us from our mission of helping thousands of African American students achieve their dream of a college degree and the economic benefits that come with it.”

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City Kills Contract With College Over Anti-Gay Stance

The City of Salem, Mass. has killed a contract under which Gordon College has operated the city's historic Old Town Hall, Boston.com reported. The city cited the Christian college's "behavioral standards" for the college, which ban sex outside of heterosexual marriage. Gordon's policies have been in the news because its president signed a letter to President Obama asking that religious institutions be exempt from an executive order he is drafting to bar anti-gay discrimination by federal contractors. Gordon says that it is exercising its religious freedom. Salem officials say that they are committed to doing business only with entities that do not discriminate.

 

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Colleges must confront histories tainted by discrimination (essay)

This week, in response to concerns expressed by student activists, Washington and Lee University announced changes to the display of Confederate flags on its campus. Northwestern University recently studied the involvement of one of its founders with a massacre of Cheyenne and Arapaho Indians, while Duke University removed the name of a segregationist politician from a dormitory.  

And many Northern and Southern colleges are considering evidence that they benefited from the colonial slave economy, as documented in Craig Steven Wilder's book Ebony and Ivy (2013). Inevitably, the older a college or university, the greater the likelihood it has some history of which it is not proud. 

The question for those of us who work on complicit campuses is how to respond to this knowledge. When institutional identity collides with identity politics, the result is a microcosm of our national culture wars: debates over the meaning of contested events and people; questions about apologies and restitution; and demands by some to jettison traditions that others cherish. 

What should a modern, multicultural institution do about history and symbols tainted by exclusion or discrimination? 

First, we must boldly research and acknowledge the past, and then we need to think hard about how – or whether – our institutional identity should be recast.  A principled response may mean changing the stories that we tell about ourselves. It may mean altering or recontextualizing the names, iconography, and traditions of our campus.  In short, we owe it to our students to interpret any uncomfortable facts in light of our current values. 

Confronted with a history that is contested, troubled, or downright shameful, there is no need for embarrassment. Rather, we should gather as many facts as possible, acting proactively and pursuing this research with rigor and candor.  In the words of Brown University’s Slavery and Justice Commission, which explored Brown's ties to the slave trade, “Universities are dedicated to the discovery and dissemination of knowledge. They are conservators of humanity’s past....  If an institution professing these principles cannot squarely face its own history, it is hard to imagine how any other institution, let alone our nation, might do so.” The fearless embrace of scholarship and analysis is a powerful way of demonstrating institutional ideals.

In undertaking this work, we must be prepared for the possibility of dissent. Brown's review of its connections to slavery attracted the attention of both advocates and opponents of reparations, as well as demonstrations by white supremacists and the Nation of Islam. 

But we cannot use the risk of conflict as an excuse to minimize the relevance of such “ancient” history. As Wilder says, this would be to “misunderstand the role that history should be playing in the modern academy. It reflects a sense that there is a problem to be managed rather than a history that has to be embraced and woven into the narrative of the institution.  Every act of evasion only empowers those who actually are using the history politically.” 

For colleges and universities, the past that we do not explain becomes the arena where others reveal the difficult truths we have avoided or, less constructively, project myths and agendas that contradict our institutional cultures.

Exposing the facts is only the first step. It is not usually the historical record that poses the problem; the hard choices arise in the interpretation of and response to that history. 

Debate over the necessity for apologies or restitution is one common area of contention. These are decisions that institutions must make for themselves, but in the context of a contemporary college or university, acknowledgment is usually more important than apology, particularly when historical responsibility is murky or the recipient of the apology is not immediately identifiable.  

At Brown, where the university was primarily a beneficiary of slavery rather than a perpetrator, President Ruth Simmons decided against a formal apology but committed the university to "restorative justice" activities, including the establishment of a scholarly center and creation of a traveling exhibit. In contrast, in June 2013, Babson College President Lewis Schlesinger chose to formally apologize to Brandeis University for the anti-Semitic behavior of Babson students at a soccer game in 1978 – an incident that took place within living memory under college auspices.

A second challenge arises from the messages embedded in campus iconography, names, and traditions.  We are the present-day custodians of these symbols, and inaction on our part suggests an implicit or even explicit endorsement of such messages.  At the very least, controversial symbols must be identified and explained, and in some cases the best response may be to abandon them. 

Key factors for consideration are the level of connection between the problematic individual or event and the institution, and the existence of any relevant contractual requirements. Because the offensiveness of a name or tradition may be debated, colleges and universities must clearly explain their decisions to either retain or alter symbols. 

At Northwestern, for example, significant honor has been given to the university founder John Evans, whose name appears on the alumni center and several professorships (as well as the town of Evanston, where the university is located).  After a thorough review of the factual record, Northwestern’s John Evans Study Committee cleared Evans of direct involvement in an 1864 massacre of Native Americans but deplored his justification of it and noted that the university has benefited from Evans’ positive reputation.  The committee recommended that Evans’s name remain in its honorific positions but that Northwestern also increase access for Native American students and enhance the study of Native American cultures.  

At Duke University, following a similar review, President Richard H.  Brodhead made a different decision, which was to strip the name of a segregationist politician from a campus dormitory.  In Duke’s case, the eponymous man had minimal involvement with the university, and in the future the building will contain an explanation of the name change.  Both of these differing approaches are appropriate to the circumstances, expressing a commitment to factual transparency while reframing the universities’ institutional narratives and reaffirming their modern values. 

The situation currently unfolding at Washington and Lee University illustrates many of these considerations.  Student activists demanded an apology for the university’s participation in slavery and a denunciation of Robert E. Lee’s participation; the removal of Confederate flags from the campus chapel; and an end to allowing the Sons of Confederate Veterans, an unaffiliated group, to hold an annual program on campus.  

In his response this week, President Kenneth P. Ruscio announced plans to modify the display of Confederate flags and provide more historical and educational context designed to clarify their ambiguous message.  While acknowledging the complexity of Lee’s legacy, Ruscio chose not to apologize for Lee’s actions prior to his affiliation with the university. 

I agree that an apology is unnecessary.  Far more meaningful will be a thorough airing of Washington and Lee’s institutional ties to slavery, which Ruscio has already launched. I question the wisdom of allowing outside groups to use the campus to promote their own interpretive agendas, but thoughtful disagreement about such complex topics is to be expected. 

Washington and Lee cannot change its history, but it is doing the hard work of engaging with its past to shape its current and future culture. All colleges and universities must be prepared to do the same. As the historian Wilder states, “We can’t evade the consequences of the past or shift the responsibility of research to others.  This is something we have to wrestle with.”

Michele Minter is vice provost for institutional equity and diversity at Princeton University.

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