How the Push for Religious Consensus Is Putting Academic Freedom At Risk: What the Law Allows, and Forbids, in This Area

It would appear that academic freedom is at some risk at the hands of religious forces. Two trends are especially worrying: There is a push to ensure that, where religion is studied, only one viewpoint is represented. And there is a push to transform secular educational institutions - like law schools, and public high schools - into, in effect, religious ones.

A recent article in the Wall Street Journal explained why academic freedom may be at serious risk in American universities' religious studies departments. The primary problem appears to be that funding for chairs in religion tends to come from devout adherents of those religions, and the donors are unwilling to fund a critic.

It's the donors' right, of course, to determine how their money is spent. But when the professors with prized chairs at a public institution are of a single viewpoint, dissent and critical thinking within the institution will predictably suffer. Moreover, the practice of allowing public schools' donors to choose recipients based on religious belief or viewpoint may well be unconstitutional - as I argue below.

In recent years, there have also been reports that the Catholic Church is cracking down on its dissident professors in the Catholic universities. In addition, evangelical and Christian law schools have appeared on the horizon, in order to educate law students from a particular religious perspective.

Universities and law schools are supposed to be places where students encounter a host of perspectives - not places where they are inculcated into a single view. (Along these lines, I have written in an earlier column about the baleful effects of liberals' dominance in legal academia.) In school, students are supposed to search their minds, hearts, and souls to figure out what they really believe, and to develop the beliefs they will act upon in later life. When there is only one acceptable, official answer to this soul-searching, the process is short-circuited at the time.

Add to these realities the push to get creationism, now dubbed "intelligent design," into the public schools, and the quest for truth and knowledge within our schools does appear to be at risk.

In this column, I'll explain the law that applies to private and public schools - and explain why it may permit, in some instances, these troubling developments.

The Law that Applies to Private Schools: They Are Not Required to Prize Academic Freedom Above Their Own Beliefs

From a legal perspective, private universities and law schools can engage in religious discrimination if they so choose. Federal law permits private religious employers to discriminate in hiring on the basis of religious belief, if the posting rests on sincere religious belief that is part of the tenets of the faith. (Otherwise, Title VII's antidiscrimination protections against racial and gender discrimination, for example, apply with full force. In addition, if private religious employers engage in racial discrimination, they lose federal tax exempt status.)

In addition, such universities can offer as narrow or broad a curriculum as they choose, and can, if they want, hire only those professors whose research interests will follow the religious institution's teachings.

More generally religious institutions can subjugate academic freedom to the larger institution's beliefs. That is their right under the Constitution's Free Exercise Clause, and it is their choice to decide which values to hold most dear.

If a professor does not want his or her emerging research agenda to be constrained, he or she obviously can choose to avoid such universities. It does, of course, mean that religious dissidents within the faith are excluded, but such is the price in a free society for dissension.

Laudably, Some Religious Universities Opt For Greater Academic Freedom

To be fair, not all religious universities, though, are intent on keeping views that differ from their own theology off their campus, and away from their students.

Notably, the President of Notre Dame University, the Rev. John Jenkins, amidst much dissent, permitted Eve Ensler's "Vagina Monologues" - which discusses sexuality frankly and repeatedly -- to be performed at Notre Dame. He sought a "dialogue" between Catholicism and culture, as opposed to a constant re-looping of the same message.

To cite another example of religious institutions that do honor academic freedom, as a professor at Cardozo Law School of Yeshiva University, I've found the Law School to be entirely tolerant of my academic research agenda - even though it has led me to criticize religious institutions and actors quite publicly in my recent book, God vs. the Gavel: Religion and the Rule of Law.

I believe it is no accident that Yeshiva and Notre Dame are each, respectively, the top university representing their religion in America. Their tolerance of debate and dissent, and their embrace of a meaningful dialogue with the larger culture, have fostered scholarship that features vision, not just orthodoxy. That dialogue is a large part of the reason that they are prominent on the scholarly map.

Public Schools: Given State Subsidies, Very Different Legal Rules Apply

The legal analysis is, of course, very different for the state schools; because they accept state money, the Constitution's "state action" requirement is fulfilled, and constitutional protections fully apply.

That means that all the key clauses of the First Amendment - the Free Exercise Clause, the Establishment Clause, and the Free Speech Clause - are in full force on these campuses. So, of course, are federal antidiscrimination statutes - and for these schools, the exemption for religious hiring does not (and constitutionally cannot) apply.

When a state school (and the state legislature that funds it) chooses faculty on the basis of religious viewpoint, it violates both the Free Exercise Clause -- in rejecting candidates based on their religion or lack thereof -- and the Establishment Clause. The only legitimate criteria in the selection of faculty are the originality of their scholarship and the contribution they will make to the institution.

What happens, then, when private donors control who receives the moneyed religion chairs at public institutions? Potentially, constitutional violations follow. Although the donors are private, the institution is public. For the institution to administer these privileges in a discriminatory way, is thus likely unconstitutional.

Society Benefits From a Mix of Religious and Secular Schools

Our culture is enriched by the presence of private religious educational institutions, to be sure, even if they only permit a limited research agenda. Yet at the same time, it must have public (and private nondenominational) educational institutions where scholars have broad latitude to test the far frontiers of belief and research - in religion, as in all other subjects.

Part of the need for these other, state-based institutions is in the necessity of challenging the claims to truth that religious entities make. Society as a whole is hobbled if only one aspect of, or viewpoint on, a religion, or a religious institution, is considered or shown. The history of religion shows, with striking clarity, that there are many sides to religion, all of which merit close scrutiny.

There is also a private remedy (as well as the constitutional remedy) for state institutions filling religion chairs with simpatico believers. There is no fundamental reason that the donors in this marketplace should be so lopsidedly on the side of fostering their denominations. Donors devoted to academic freedom and the separation of church and state -- of which surely there are many -- can and should counter this trend with chairs dedicated to open inquiry in religious studies. The culture today desperately needs these voices of reason in the educational marketplace.

If the public institutions' religion departments are indeed, as the Wall Street Journal's reportage suggests, becoming pro-denominational, discriminatory, and less likely to pose the hard questions about religion, we will all suffer as a result. The one absolute in a free society is that there is always a crying need for the pursuit of the truth.