TENTH CIRCUIT STRIKES DOWN EXCLUSION OF "PERVASIVELY SECTARIAN" INSTITUTIONS FROM GOVERNMENT-PAID STUDENT SCHOLARSHIPS
I was interested because I am a Christian and I have long believed that the courts have wrongly interpreted the first amendment “freedom of religion” clause by gradually claiming that any intersection of religion and “public” life establishes a religion or leads inevitably down that slippery slope. In so doing, I believe that the courts have effectively removed the part of the constitution that guarantees the free exercise of religion. My version of the constitution does not prohibit the free exercise of religion in the “public” sphere.
As it happens, Volokh explains current law:
The government is generally free to provide broadly available student scholarships that students may use at any institution, religious or secular. Such generally available funding programs don't violate the Establishment Clause, though some earlier Supreme Court decisions had held the contrary.
The government is, however, also free to decide to limit such scholarships in certain ways, even when those ways discriminate against religious uses: The Supreme Court has held (in Locke v. Davey) that the government may exclude devotional theology majors from otherwise generally available scholarships, and that this discrimination against religious uses doesn't violate the Free Exercise Clause. The question that Locke leaves open is just what other kinds of exclusion of religious uses from generally available programs are constitutional.
Click on the link to read the entire essay.
But the Volokh Conspiracy allows readers to respond and a frequent reader is Dilan Esper. DE is a Liberal and responded thusly (in part):
But it isn't a good result, because it forces governments into a bind of either (a) funding the Regent Universities and Liberty Universities of the world, which are basically churches dressed up in academic trappings and are not committed to academic values of truth seeking and dissent…
This is simply humbug and an excellent example of the kind of religious bigotry that parades in plain view because “we all know” that Christians are some kind of inferior species who can’t be insulted because everything we say about them is true.
I responded…
Some other sites have a flag or some other method of signaling to the site administrator that some posts have objectionable comments. Since this site does not, let me direct my comment to Mr. Volokh.
I realize that this site has a Libertarian outlook, and Libertarians are not known for their religious orientation. Libertarians are vigorous advocates of free speech. However, I wonder how long it would be if a commenter made repeated references to a certain dusky race of people by identifying them as “N…..s” before some action would be taken?
Dilan Esper has made it a habit of disparaging conservative Christians, in effect assigning them to the religious version of a ghetto. He has stated that Regent and Liberty Universities are not really educational institutions, but instead are “churches dressed up in academic trappings and are not committed to academic values of truth seeking and dissent.”
That may be one man’s opinion but because these are accredited institutions of higher education, they are ignorant, bigoted and objectionable.
If I find myself in the company of people who make racist comments, I leave. But I know what kind of people who stay are and share their own racist jokes are; ditto for the kind of juveniles who tell each other smutty stories. Toleration of these things tells me a lot about the group. This blog and many others form a kind of society. The comments of its members and what is tolerated without objection defines the society.
The disclaimer at the end of the comments seem to be treated much the same way as the prospectus of a mutual fund: nobody reads it and most ignore it. The proprietors of this site should do a little more to protect its reputation.
Volokh shot back…
Moneyrunner43: Criticizing ideologies, whether religious or otherwise, strikes me as eminently legitimate in principle. Now if you think that particular criticisms are unsound, please feel free to respond to them. But I don't think that faulting Regent University -- or for that matter Howard University -- is inherently improper.
Nor do I see why even criticisms of wider religious groups are tantamount to racism. Racism is faulted precisely because people's skin color is not inherently linked to their beliefs. People's religions are inherently linked to their beliefs, and criticisms of such beliefs and those who hold them can be quite sensible (though of course, as I said above, particular criticisms might be unsound).
To which I responded…
Eugene, this is your blog and you can tolerate anything you want, but let me respond to your comments. First, religion is not an ideology although they share some characteristics. Second, criticisms are legitimate. Making derogatory comments such as the reference to certain universities as “churches dressed up in academic trappings and are not committed to academic values of truth seeking and dissent” is not reasoned criticism, it's simply an expression of anti-religious bigotry. There was no attempt to fault Liberty or Regent on a substantive basis. It was simply an ugly put-down.
Both Regent and Liberty are unabashedly Christian colleges and I am sure – without checking the actual statistics – that many students go there because they find the other students and faculty compatible with their religious beliefs. There are too many examples of colleges and universities discriminating against the open expression of religious belief, so some students simply go to where they feel more comfortable. Many traditionally black colleges are havens for students who are more comfortable with people of their own skin color. But if I were to state that Howard is a “monochrome ghetto dressed up in academic trappings and are not committed to academic values of truth seeking and dissent” that could legitimately be called a bigoted expression of racial hostility.
Third, you seem to see a difference between racial bigotry and religious bigotry. Are you stating that blacks are blacks forever, but Christians can escape religious bigotry by renouncing their religion? Or hiding their beliefs? Or letting religious bigotry pass unremarked? Like Blacks did back in the day, when they were forced to smile and ignore racist comments like being called “boy.”?
The first blacks who objected were called uppity by some and hyper sensitive by others. So be it. This Christian is a little tired of casual slurs by bigots, even bigots who don't think they are, and - like Rosa Parks - I’m not going to put on a smile and move to the back of the bus.
Fourth, criticism of beliefs may not be as reasonable a thing as you seem to think. If I believe blue is the prettiest color, some may disagree but few would criticize. Theoretical Communism is – in a universe not inhabited by humans – a wonderful system. That its implementation has led to the world’s most evil regimes is reason to criticize its real-world application. A number of communities have been established in the US run along communist lines. Brook Farm is an example. They have all failed as communities, but I can’t criticize them in the same way I would criticize the practice of Communism in places like the USSR, China, North Korea and Cuba. I don’t mind if people believe in things that I do not such as astronaut Dr. Edgar Mitchell’s belief in aliens. It is the actions that result from these beliefs that are the legitimate objects of criticism.
In your own field of law, I have no problem with the belief that the Constitution of the United States is embodied in the corporeal forms of 9 men and women appointed to the Supreme Court. (Hughes: “The Constitution is what the judges say it is”). I have a problem when those same men and women act on that belief and re-write the poor old written Constitution to agree with their personal preferences.
I suspect that the academy has internalized its bigotry in the same way the South did during Jim Crow. Then it was possible for whites who were racists and whites who were not racists to find the "N" word acceptable because … well … everybody called them that. "Don't take it personally, Mr. Black Man, it's just the way we talk."
Of course I recognize that visually blacks can't pass for white while Christians can pass as atheists and gays can pass as straight. I am persuaded that among certain "enlightened" groups denigration of racial and sexual differences is out of bounds, but denigration of religious groups is accepted because it's part of the culture.
Your disclaimer at the bottom of your comments says "…please, also avoid rants, invective, substantial and repeated exaggeration."
I hope that my comments are neither too far off the mark nor a rant not filled with invective. And I would hope that for those who believe that displays of religious bigotry are acceptable may re-consider.
Within those bounds, if anyone want to claim that Liberty or Regent provide a poor educational experience, be my guest.
Meanwhile Dilan Esper …
First of all, thanks to Professor Volokh for the defense of free speech. I should add that his defense applies equally to conservative Christians who want to criticize secular types.
Second, I think that there's a confusion here between (1) hatred Christian conservatives because of their religious belief, which I abhor and condemn, and (2) opposing Christian conservative political goals.
One political goal of Christian conservatives is to discredit the system of secular education as nothing more than an ideological straitjacket imposed by liberals, and more narrowly, to promote alternative conservative Christian collegs where doctrines that they disagree with are not taught and traditional concepts of academic freedom are restricted or eliminated.
I oppose that political goal. While conservative Christian groups are free to create their own universities where the central academic principles of peer reviewed scholarship, academic freedom, and diversity and dissent are not upheld, I don't believe that these institutions should be treated by governments as equivalent to traditional academic institutions. Not because they are Christian-- plenty of Christian denominations run or affiliate with institutions that follow traditional academic norms and should be funded, and I would oppose funding a Muslim or Jewish or Scientologist equivalent to Liberty or Regent.
I think traditional academic institutions have a great value to our society, that this value arises in part from concepts of academic freedom, peer review, and freedom to dissent, and I oppose any policy that affords any sort of prestige or support or equivalence to institutions that claim to be colleges or universities but do not uphold these policies.
Many conservatives tell themselves, of course, that the entire world of higher education is no different than Liberty or Regent in its demands for ideological rigidity and closed-mindedness. But that's a falsehood, and fighting that falsehood is part of why I oppose aid to the Regents and Liberties of the world.
But rest assured, my position has nothing to do with hating Christian conservatives, who have every right to participate in the political process and debate and to advocate their positions.
To which I replied….
The defense of you religious slur was certainly a defense of free speech. However, this blog expressly limits speech; see the “Important note to helpful readers.” So it seems that Mr. Volokh defends certain expressions but not others. We live in an environment of limited speech (see FIRE) and I am of the opinion that people should be as careful of religious slurs as they are of any other.
Regarding your assertion that you abhor: “hatred [of] Christian conservatives because of their religious belief” I will take at face value despite the absence of evidence. I also will take at face value that you: “…oppos[e] Christian conservative political goals” as self evident.
Based on your contentions, I believe that you have a cartoon-like concept of what “Christians” believe and what those “Lumpen Christians” want. Believe it or not, Dilan, Christians are not the homogeneous “other” so easily caricatured by the non-Christian world.
Liberals in the academy have managed to discredit higher education all by themselves with absolutely no help from Christian conservatives or anyone else. I need only refer you to the Duke Lacrosse fiasco as a recent shining example, writ large, of the view that many people have of the academy as a hive of like-minded, racist, sexist and classist ideologues leavened with the rest of the see-no-evil faculty and managed by a spineless administration. A place where “… doctrines that they disagree with are not taught and traditional concepts of academic freedom are restricted or eliminated.” Oops, that’s how you characterized evangelical Christian colleges.
Again to borrow a few of your phrases: Liberals have “…create[d] their own universities where the central academic principles of peer reviewed scholarship, academic freedom, and diversity and dissent are not upheld.” Well, perhaps these institutions do have peer review. Wasn’t Ward Churchill the author of peer reviewed articles that were later proven to be … well, false?
And it is your contention that Christian colleges do not publish peer reviewed research?
And finally, no one is asking you to fund Liberty or Regent. They are private, not public. But I object to your attempt to throttle them financially by refusing to allow students the free choice of where they want to spend their scholarship money simply because you have a political disagreement with them. That is not the way political opinions contend in a free society. I hope that it is not indicative of the kind of anti-freedom authoritarian views and actions that many believe characterize the Left and the Academy.
And that’s where it stands.
No comments:
Post a Comment