Academic Freedom and Religious Freedom : Reflections on Free Speech in the University

This article is a transcript of an "Ethics at Noon" talk given January 31, 2008, by Robert M. O'Neil, former president of University of Virginia and director of the Thomas Jefferson Center for the Protection of Free Expression.

I am deeply grateful for the opportunity to meet with you today. Although I taught law in the Bay Area for nearly a decade, I must confess this is my first visit to Santa Clara. But I assume it's never too late to make amends, thanks to the good offices of Dean Don Polden of the Law School and Professors Hanson and DeCosse of the remarkable Markkula Center for Applied Ethics. The title of this event - Ethics at Noon - is a bit daunting. It recalls my most challenging law school course, which met thrice weekly at this very hour and - because of the opaqueness of our professor - was affectionately known as "Darkness at Noon." I hope today's gathering will afford a bit more light.

What I should like to explore during our brief time together is two related issues that have keen interest for me, and I hope will intrigue you as well. One is academic freedom in the religious university; the other religious freedom in the public university. There are close, if not obvious ties, between the two topics, which I hope will provide ample material for discussion before our session concludes.

Let me start with a seemingly simple question, to which the answer is not so simple. Suppose a friend asks: "As a person who teaches or studies at a Jesuit university, are you as free to write or speak as your counterparts at Cal or Stanford or San Jose State?" As citizens, your freedoms are of course not affected by the nature of your institution; the First Amendment and the free speech clause of the California Constitution protect all of us from government sanctions. But in your dealings with your own institution, its affiliation may make a major difference. For starters, most of us in public universities enjoy constitutional liberties on campus that don't extend fully to our colleagues in the private sector. Here, as in other areas, though, it turns out that California has done it very differently. In fact, students at Stanford are actually freer than their counterparts on public campuses because California has enacted a unique ban on private university speech codes and other constraints. Thus Stanford's code was struck down by state courts a decade or so ago, while Cal's code remains in force unchallenged. Just to complete this bizarre picture, there are two further wrinkles: The statute in question, called the Leonard Law, exempts the student speech policies of all California church-affiliated institutions like this one. Meanwhile, state law may regulate such matters at CSU campuses like San Jose but not those of the University of California because the UC Regents uniquely enjoy constitutional status. Thus within a relatively short distance from here, we actually have four different structures governing student speech - one at Stanford, a different one at UC-Berkeley, yet another at San Jose State and here at Santa Clara a legal situation unlike any of the others. Happily, no other state is nearly as confusing as California.

Now let me focus on the main issue I posed a moment ago: How different, if at all, are speech and academic freedom at a religiously affiliated university from the rights of those of us who teach at secular institutions? This issue occasionally reaches the national media, as it did last week with the comments of St. Louis University basketball coach Rick Majerus. (Coach Majerus recently appeared during a Hillary Clinton fundraiser on a St. Louis television station, and in response to a question casually remarked, "personally, I'm pro-choice" and later declared himself to be "very much an advocate for stem-cell research." News of these comments soon reached St. Louis' conservative archbishop Burke, who urged university officials to sanction the outspoken coach, expressing his "confiden[ce] that [SLU] will deal with the question of a public representative making declarations that are inconsistent with the Catholic faith." University officials promptly told the media they anticipated no reprisal, since "Rick's comments were his own personal view" and were "made at an event he did not attend as a university representative."

To our basic question, highlighted by this recent encounter, one might expect an easy answer to this question - though even if it were easy a lawyer would have to caution, "that depends." And here it does indeed depend, as anyone familiar with the issue would concede. The conventional wisdom across much of the academic community is that the same basic standards apply across the spectrum. But, like much conventional wisdom, this view turns out to be as misleading as it is symmetrical.

From its inception, the American Association of University Professors has recognized often markedly different values and missions in the church-related college or university. Accordingly, the AAUP's Basic 1940 Statement on Academic Freedom and Tenure contains a "Limitations Clause" which addresses that very issue. This clause recognizes that even eminent research universities like Georgetown, Notre Dame, and Santa Clara, as well as Brigham Young, Southern Methodist, Loma Linda and Yeshiva, may have higher or more focused expectations of their faculties than do their secular peers. Rather than enjoining the enforcement of those expectations, AAUP Policy declares that "limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment." This language implies, quite correctly, that religious institutions may hold their faculties to standards different from those permissible at a secular college or university. There are, however, several notable qualifications: Such expectations must be articulated and applied in a manner befitting due process; they must reflect the special mission or values of the institution, and they must therefore be limited to religious matters - making clear that a church-related college may, for example, not constrain the political speech or activity of its professors to any greater degree than could a secular campus.

The Limitations Clause has had a rather tortuous history. A 1970 interpretative comment added, somewhat cryptically, that "most church-related institutions no longer need or desire [such a departure from academic freedom principles] and we do not now condone such a departure." One might have inferred that the Limitations Clause was about to be abandoned, or at least modified beyond recognition. But a funny thing happened on the way to the funeral, and by the late 1980s this clause was reaffirmed. The Association's Committee A on Academic Freedom and Tenure, noted at that time - again somewhat cryptically - that "the invocation of [the Limitations] clause does not relieve the institution of its obligation to afford academic freedom." The Committee's chairman perceptively observed that this language "begs the question of what obligations a church-related institution has to afford academic freedom" - a quandary which, he candidly recognized, "will apparently continue to vex us."

Well, in practice this issue has proved less vexatious than one might have feared. There have been fewer and fewer complaints of disregard of the rights of professors at church-related institutions, though they have not vanished entirely from the docket. Virtually all the serious cases that have led to formal AAUP inquiry have been decided on a mainly procedural basis, thus leaving open the vastly more difficult substantive issue of how far a religious institution may depart from the norms of secular higher education in its expectations of its faculties with regard to religious issues. Thus, for example, academic freedom violations have been found at the flagship Mormon university Brigham Young, evangelical Christian colleges like Nyack, Jewish institutions such as Yeshiva, Catholic universities like St. Bonaventure, and Loma Linda of the Seventh Day Adventist faith.

Yet in each case the institution's dereliction turned out to be a procedural failure adequately to warn the faculty member of its unusual expectations, not the application of a substantively unacceptable policy. To quote from the critical language in the resolution that imposed censure in the Brigham Young case (with which I am especially familiar because I chaired AAUP's Committee A on Academic Freedom and Tenure at the time): BYU's stated limitations "provide inadequate guidance to faculty members and give excessive discretion to the administration." Notably, the several major investigations at Brigham Young have involved only LDS faculty, whose commitment to the church - measured in terms of "temple-worthiness" - had been questioned. Although the university now employs a substantial number of non-Mormon professors, none of them seems ever to have suffered comparable constraints on their free speech or extracurricular activities.

It would not be quite fair to say that AAUP has never addressed issues of substance in dealing with church-related institutions. The investigation of a faculty complaint at Gonzaga University some years ago found no cause for censure even though the faculty handbook reserved the right to dismiss non-tenured faculty for "inculcation of viewpoints which contradict explicit principles of faith and morals." That provision had been applied to a particular Gonzaga professor in ways that the AAUP inquiry found had afforded adequate notice of the university's special needs, and that was the end of the case. Some critics at the time charged that "Gonzaga got a pass" to the extent that the AAUP report seemed to validate handbook language that would not have passed muster in the regulations of a secular institution. In cases such as this one, when the procedure passed muster, there has simply been no occasion to address the far harder question of what substantive limitations, if any, may be imposed on academic freedom of those who choose to teach in a religious institution. A brief inquiry into that deeper issue might be helpful here.

There are a few relatively clear cases. When in the 1970s the Concordia-St. Louis Seminary of the Missouri Synod of the Lutheran Church required all its faculty members to swear an oath that they would teach only the inerrancy of scripture, the Association of Theological Schools stepped in to impose "notations" on the school's professional accreditation. Again, though, the primary focus was more on process than substance. The chief proponent of sanctions within the ATS board happened to be the President of the Fuller Seminary; after noting that "I yield to no one in my insistence on inerrancy," he explained why Concordia's crude method of imposing such a commitment upon its theologians contravened basic principles of fairness and due process. Krister Stendahl, then Dean of the Harvard Divinity School and later head of the Official Lutheran Church in his native Sweden, asked the three pastors who supported the inerrancy oath: "You do this in the name of Martin Luther; do you know anything about Martin Luther?"

Because Concordia's procedures were so seriously flawed, we never found out how the merits of the inerrancy issue would have been resolved -- though even a conservative divinity school would have had a hard time demonstrating the requisite link between its mission and the challenged policy. Of course one should recognize that schools of theology and divinity make a special case that does not apply even to other church-affiliated institutions; I vividly recall a dinner meeting of the Trustees of the Carnegie Foundation for the Advancement of Teaching, where discussion focused on the recent dismissal of the outspoken liberal Catholic theologian Fr. Charles Curran by Catholic University. Our special guest of the evening, Georgetown President Fr. Tim Healey, insisted that "Charlie Curran is no freer to express dissonant views than the professor of military tactics at West Point." Though the analogy seemed to some of us slightly flawed, Father Healey had the last word for reasons that any of you who knew him will readily appreciate.

Since our focus this noon is ethics, let me suggest that church-related universities inevitably face an ethical dilemma in this volatile area. On one hand, each is a member of a community of faith which articulates certain principles that may differ substantially from those that prevail elsewhere in a secular society. Religiously affiliated institutions of higher learning may reasonably be expected to perpetuate and underscore those values in preparing its citizens for productive lives.

On the other hand, such colleges and universities are also members of the larger academic community, and are thus committed to the pursuit of truth even where that pursuit may conflict with or diverge from religious values and beliefs. Moreover, increasing numbers of their professors and students are not members of the sponsoring religious order, and they come to such universities seeking an educational experience comparable to what they would receive at a secular campus. Perhaps most important, church-affiliated institutions are no less bound to respect and protect basic tenets of academic freedom than are their secular peers, even though the Limitations Clause does afford some latitude in regard to the expectations they may impose. If there is an ethical dilemma here, it arises at two distinct levels - facing both those guardians of academic freedom like AAUP who interpret and apply the Limitations Clause, and those administrators and trustees at the campus level who take advantage of the latitude that clause affords. I could hardly offer any magical solution to this perplexing dilemma. But I do wish we could discuss academic freedom in religious institutions more freely than we usually do - as much among those of us on the secular side as our sectarian colleagues.

Let me now turn to my other topic - religious freedom in the public university. This theme takes us up and across the Bay. The University of California-Berkeley, where I spent my first decade in teaching, and where my oldest son and his wife met as undergraduates, has been embroiled in two controversies on precisely this issue. I suspect some of you have followed one or both; as is often the case with issues of importance to higher education, the Mercury's coverage has been exemplary. Several years ago, a group of UC science professors obtained a grant from the National Science Foundation to create and post a website called "Understanding Evolution." That site contains a number of references not only to materials and sources that explain and elaborate the Darwinian theory of evolution, but also links to many religious organizations that have asserted and proclaimed the compatibility of faith and evolution.

Barely had the website become accessible to the public than a group of evolution opponents filed suit in federal court against UC-Berkeley and the NSF, claiming that the contents of Understanding Evolution violate the Constitutional mandate for the separation of church and state. Specifically, the plaintiffs argued that by linking to the religious groups' statements of compatibility, the university was "taking a position on evolution and attempting to persuade minor students to accept that position." Such a posture, declared the critics, was "the height of hypocrisy for this to be coming from people who claim that they are trying to keep religious instruction out of science class." Although the website's faculty sponsors were understandably reluctant to discuss matters with the media, Professor Ron Caldwell did explain that Understanding Evolution was designed to help teachers - especially those who were under pressure from creationists or proponents of Intelligent Design - to explain more clearly the scientific view of the origins of human life. The references to religious groups that stressed compatibility was strictly a factual component of the website, hardly intended to (or really even capable of) proselytizing. The case was recently dismissed on a purely procedural ground - lack of standing among the plaintiffs - with no ruling on the merits.

Had the court addressed them, the merits of the challengers' claim could be readily dismissed. Even far more aggressive advocacy of evolution could hardly be deemed a violation of the Establishment Clause, since nothing remotely "religious" would be promoted by such advocacy. Elevating science over faith - even if that had been the thrust of this website - could not remotely breach the wall of separation between church and state. Nor could such material be deemed in any sense to abridge the Free Exercise of Religion - a claim that might have been but apparntly was not advanced by this lawsuit; clearly no threat to anyone's belief, much less religious practice, was even remotely implied.

Thus the dismissal of such a suit seems a mere formality, and should have occurred long since. The deeper concern is the potential implication of this case for academic freedom in a public university. Individual faculty sponsors of the website were named as defendants, though represented ably by UC attorneys. Thus a major scholarly commitment had been assaulted and challenged in federal court. Substantial time and energy had to be devoted to preparing the University's response. Should the case have gone to trial on the merits, surely some of the faculty who designed the website would have been called as witnesses, thus further undermining their commendable commitment to further science education on a critical and contentious issue. While the university made a vigorous commitment to the defense of the lawsuit, and spoke out strongly in support of the responsible professors, irreparable harm was nonetheless inflicted. The next time a group of university scientists is invited to take on a comparable assignment, they may well think twice as they reflect on recent events here in the Bay Area.

Actually Understanding Evolution is only part of the problem. Not long after the legal complaint over the webpage, several Christian secondary schools and the national association that represents them filed suit in federal court in Los Angeles, pressing a constitutional claim against the University of California's undergraduate admissions policies. The specific focus of this suit was action taken a couple of years earlier to deny future eligibility to certain high school science curricula that used undeniably creationist textbooks. Among the suspect materials were a biology book that calls Darwinian evolution "a retreat from science" and a physics text that treats the Bible as infallible truth ("the only sure truths are found in God's Word, which is settled forever in Heaven; the Bible, written by an omniscient God, can never be proved wrong.") UC faculty who reviewed the proffered teaching materials had designated a small number of such books as deficient, with the result that courses based upon them would no longer satisfy the science component of the admissions process. The plaintiffs, in contrast, argue that since "viewpoint" teaching materials focused on feminism or other values still satisfy the admissions criteria, Christianity has been a target of unconstitutional bias.

This lawsuit, like the legal challenge to the website, should have been a prime candidate for easy and early dismissal. Apart from the absence of any actionable claim of discrimination or denial of religious liberty, there is another and equally compelling factor. Courts have long deferred to the framing and application of admissions criteria as a core component of academic freedom - the central premise, in fact, of Justice Lewis Powell's pivotal opinion in the Bakke case on the role of race in the UC-Davis Medical School admissions. Yet the district judge in Los Angeles refused last summer to dismiss the Christian schools' suit, noting that if the alleged bias could be proved, "such action would run afoul of the limits of [UC's] freedom to determine its admission policies." A trial which was anticipated for some time in 2007 has not yet occurred, and there is no evidence of progress in any other form.

What we now have, therefore, is a dual and uniquely ominous threat to academic freedom in the study and teaching about the origins of human life. University of California science professors seem to be at risk in two distinct arenas because of their commitment to evolution and its teaching. What complicates the situation, of course, is that the Christian schools in the admissions suit advance a countervailing academic freedom claim of their own. They insist that their right to select textbooks that meet the special needs of their teachers and reflect the schools' religious values has been abridged by UC's actions which disadvantage their graduates in the increasingly intense competition for college admission. Academic freedom for those seeking to enter college is hardly comparable to the freedom of those who design and teach courses, and fashion admissions standards, at the college level. But the suggested parallel is at least superficially troubling, as the survival of their legal challenge in federal court seems to attest.

Here too there lurks an intriguing ethical issue we should not disregard, however clear we may be about the merits. A devout Creationist or Intelligent Design proponent might claim that fervent opposition to the teachings of Darwin reflects not only a theological imperative but an abiding personal belief. Thus, the argument would run, going to court to suppress evolution is not only ethically defensible, but even ordained. The answer seems to me much clearer here than in our earlier ethical dilemma. One who debunks Darwin is completely free to express his or her dissonant views. Indeed, even a university professor may widely advocate alternative views on the origins of human life - as in fact one of my former Berkeley law colleagues continues to do - unless one's discipline is biology or a related science, in which case such views would almost certainly yield a judgment of lack of fitness to continue as a scholar in that field. And if one is charged with preparing science students for college, ethical duty seems to me to compel the use of textbooks that reflect established teachings even on contentious issues such as origins of life. Both teacher and student are entirely free to study Genesis at home or in church - or even in the school library - but not to preach it in science class. Thus any ethical dilemma must be resolved in favor of teaching and learning evolution, whatever one may believe.

Let me conclude with a very different observation about freedom in the contemporary academy and forces that threaten such freedom. Had I been a professor at the University of Rome earlier this month, I like to think that I would not only have refused to sign, but would vigorously have opposed, the science faculty petition demanding that Pope Benedict XVI not address the opening convocation this month, apparently because of an article some years ago seeming to condone the Vatican's seventeenth century condemnation of Galileo. It is not that I would trivialize the rationale for opposing the Holy Father's appearance. Even hinting at tolerance for the Church's official rejection of Galilean astronomy strikes me as profoundly contrary to principles of science. Yet equally heretical seems to me the notion that one deals with such misguided views by exorcising them - that if they are out of sight they somehow also come to be out of mind.

In fact this recent controversy superbly illustrates how pernicious such notions are; instead of engaging the issue in Rome or elsewhere, the protest that caused the Pope to withdraw only served to suppress the issue, shifting the focus from the core of academic science to the treatment of a putative guest speaker. While it would be naïve to assume that the Pope, in the manner of Iranian President Ahmadinejad at Columbia a few months ago, would have responded to questions or been willing to justify his abhorrent views, the very willingness of an academic community to hear (even Ex Cathedra) a speaker whose public pronouncements it despises reflects the core of academic freedom. Let us hope the next time such an issue arises, even in Rome, not all will do as the Romans have done.

In the time that remains, I welcome comments and questions on any of these issues or others. I regard this occasion as the start of a dialogue in which I hope many of us will continue to be engaged.