In an excellent and informative article about the Second Circuit’s recent decision to require a Jewish fraternity to admit women, I ran across the following quote:
In the new ruling, “the court is saying there’s no question but that the government has a substantial interest in eradicating discrimination and it recognizes that non-discrimination policies that condition funding interfere [with students’ rights] only to a limited degree, and that’s exactly the issue in our case,” said Ethan P. Schulman, a lawyer for the University of California Hastings College of Law.
UC Hastings is currently defending a lawsuit brought by the Christian Legal Society and Alliance Defense Fund over the university’s decision to derecognize CLS because CLS (gasp) requires its voting members and leaders to be Christian. The rhetoric above is typical of attorneys and administrators who defend the application of religious nondiscrimination policies to religious organizations. But are universities really interested in “eradicating discrimination?” Is that a credible claim? Consider the following forms of discrimination that universities routinely endorse:
-Viewpoint discrimination. To see yet another example of viewpoint-based discrimination and the assault on the marketplace of ideas, one need not go outside Mr. Schulman’s own state. Apparently, former (Clinton) cabinet member and Harvard president Larry Summers is just too offensive to be heard. More precisely, it seems that hundreds of members of the California university system believe that Larry Summers is too offensive for others to hear, since most of those who protested his appearance wouldn’t even be at the Board of Regents dinner he was scheduled to address.
-Religious discrimination (when nondiscrimination rules would actually protect observant Christians). Always remember that religious nondiscrimination rules were designed to protect religious expression, not exclude it from campus. Yet when these nondiscrimination rules could actually help, say, Christian professors receive fair consideration in hiring and tenure decisions, they are mysteriously no longer relevant.
-Ideological discrimination (when it preserves leftist student activism). The typical university nondiscrimination laundry list includes race, gender, sexual orientation, religion, and disability. Among these, only religion directly and necessarily implicates a person’s viewpoint. Student groups may discriminate on the basis of ideology, so that the potpourri of women’s groups, minority groups, environmentalists, anti-war organizations, etc. may impose any ideological litmus test they desire. This is their right, of course. But why deny the same right to religious organizations?
And don’t even get me started on the admissions process itself. Universities discriminate every day on the basis of intelligence, athletic ability, class, and race. Some of this discrimination is healthy (do we really want 90 pound weaklings on the football team?) and some of it is pernicious (the grotesque race-based distortions designed to achieve proper “balance”), but the discrimination undeniably exists.
Cases like those at Hastings are really about the university’s desire to maintain maximum autonomy – the ability to include or exclude groups according to the university’s ideological tastes. In other words, they actively seek to discriminate while publicly proclaiming a desire to “eradicate[e] discrimination.”