FIRE's Letter to Williams' College
December 15, 2000
Morton Owen Schapiro
P.O. Box 687
Williamstown MA 01267
RE: Williams College Non-Discrimination Policy
Dear Dr. Schapiro:
As you can see from our Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, due process, legal equality, academic freedom, andâ€"in the matter of a compulsory administrative order from Williams College Activities Coordinator Richard C. Kelleyâ€"voluntary association, freedom of speech, and religious liberty on America's college campuses. Our webpage, www.thefire.org, will give you a fuller sense of our identity and activities.
I am writing on behalf of a number Christian students and student groups at Williams College who are concerned that the College's statement of its non-discrimination requirements, applied to the activities of voluntary student associations, deny the right to freedom of association promised by the 2000-2001 Williams College Activities and Resource Manual.
A May 8 memo from Richard Kelley to the "Williams College Community" instructed student groups to adopt "non-discrimination" language in their constitutions. Kelley mentions only the category of sexual orientationâ€"not, for example, the category of religion or raceâ€"and he justifies this imposition by asserting, without any specific citations, that Williams's actions in this regard are "completely dictated by the Federal Department of Education, Office of Civil Rights guidelines for non-discrimination." Nothing could be further from the truth or less supported by the law. Nothing whatsoever in Massachusetts or federal law would ever require Williams College to violate the First Amendment to the Constitution and its protection of the free exercise of religion.
For example, it is a fact of the free exercise of religion that a number of the religious faiths represented by student groups at Williams College requires their members openly to condemn homosexual practice as a sin. In the case of several of these, their faith also calls upon them to condemn unrepentant heterosexual practice outside of marriage as a sin. Surely Williams College would not suggest that those religions
whose faith requires them openly to condemn unrepentant homosexual practice as a sin are no longer welcome to official recognition as Williams College student organizationsâ€"with the attendant use or loss of facilities and resourcesâ€"simply because they exercise their sincere religious beliefs.
Is William's College truly prepared to argue in public that federal and state require it to forbid such free exercise of religion? To insist that a religious student organization not discriminate on issues of faithâ€"and on the voluntary association that flows from the practice of faithâ€"not only deprives the individual members of that organization of their rights under the free exercise clause of the First Amendment, but also imposes upon them an ideology alien to their conscience in violation of the free speech clause of the First Amendment. In fact, this issue was settled over fifty years ago by the United States Supreme Court's decision in the case of West Virginia Board of Education v. Barnette.
In 1943 the Supreme Court was faced with a challenge to a daily flag salute requirement imposed on school children as part of a statute requiring schools to teach, foster, and perpetuate "the ideals, principles and spirit of Americanism." Jehovah's' Witnesses refused to salute the flag, believing it an act of idolatry forbidden by Scripture. Writing for the majority, Justice Robert Jackson condemned the flag salute requirement because it compelled a student "to declare a beliefâ€¦to utter what is not in his mind." He linked the freedom of unorthodox dissent to the very cause at stake in World War II. The non-discrimination requirements being imposed on the student religious groups at Williams is a "pledge to diversity" just as surely and in the same way that the pledge to the flag rejected by the Supreme Court in Barnette was a "pledge to Americanism."
Explaining why even men of good intentions should not possess the awesome power to compel belief, Justice Jackson noted that nothing would rend society more than "finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing." Justice Jackson concluded that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what will be orthodox, in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith [in it]."
This legal explanation should suffice to correct any misunderstanding your student life activities office may have regarding Department of Education guidelines.
If Williams College chooses to impose such language of its own volition, as some private institutions have attempted to do in the past, it would be in violation not only of the moral principles that are the foundation of religious freedom and the rights of conscience, but of the explicit contractual obligations that Williams chose to enter into with its students when it guaranteed to them the right to freedom of association in the 2000-2001 Williams College Activities and Resource Manual (Resource Manual).
The Resource Manual sets forth, in the context of the "Responsibilities of the Student Organization," "Williams College Non-Discrimination Statements" as follows:
It is the policy of Williams College that registered and recognized student organizations are in full compliance with all Federal and state non-discrimination laws and equal opportunity laws, orders and regulations. Recognized student organizations will not practice any discrimination against a member or prospective member on the basis of race, color, religion, sex, national origin, ancestry, age, sexual orientation, marital status, handicap, unfavorable discharge from the military, or status as a disabled veteran of the Vietnam era, except as specifically exempted by law [emphasis added].The Resource Manual also sets forth the "Rights of Student Organizations," in relevant part, as follows:
2 Right to Freedom of Association, expression, speech, etc.
4. Right of access to funding, as provided through various sources.
7 Right to elect and/or reject members (limited, based on non-discrimination laws and the organizations constitutions and/or by-laws) [emphasis added].
8. Right to govern or rule itself (within minimal limitations provided by the College and/or College Council).
As noted above, Williams College expressly guarantees its students freedom of association and freedom of speech. The Resource Manual qualifies the application of Williams' non-discrimination policies "except as specifically exempted by law."
As you are probably aware, this summer the U.S. Supreme Court expressly held that state non-discrimination laws requiring the Boy Scouts to permit an avowed homosexual to serve as a scout leader violates the organization's First Amendment Right of expressive association. This decision would also apply to attempts to impose Federal OCR guidelines prohibiting sexual orientation discrimination on the Boy Scouts or on any Williams College student group.
Both Massachusetts and federal case law bind Williams to its contractual guarantees of freedom of association. FIRE would be happy to provide numerous Massachusetts and U.S. Supreme Court opinions that have upheld the rights of student to require a college to comply with the promises made in the student handbooks.
To summarize, nothing in Massachusetts or Federal law, to say the least, requires the application of non-discrimination policies to deny the free exercise rights of student religious associations. Further, the applicable court cases require Williams to comply with its contractual guarantees to its students of freedom of association and religion. The question arises, then, of how far Williams intends to extend its "non-discrimination" policies into individual matters of sincere religious belief and conscience.
By applying the Williams non-discrimination policy to Christian student religious organizations, are you also suggesting that individual students whose religion calls upon them to condemn homosexual practices as a sin (such as Islam or Orthodox Judaism) are no longer welcome to form organizations of prayer, activity, and common purpose at Williams, and that their sincere expressions of religious belief and conscience would subject them to disciplinary action under the Williams non-discrimination policy?
Williams College justly boasts of a community consisting of students and faculty who represent a strikingly diverse set of ethnic, cultural, and religious backgrounds. Authentic diversity surely requires a place at the table for Evangelical Christians, Orthodox Jews, Roman Catholics, and Eastern Orthodox Christians, just as it requires a place at the table for those who might believe and openly condemn such religious beliefs as themselves sinful or immoral.
Does Williams intend to punish what it now would define as religious heresy? If that is to be the case, we assume both that this return to past centuries should go before the Board of Trustees, and, above all, that it should be stated explicitly in all of your literature so that students and faculty can make an informed decision about your credal loyalty oaths, imposed orthodoxy, and inquisitions into religious conscience before agreeing to attend or teach at Williams College.
Consequently, we ask your administration to address this problem directly and to recognize that the forced adoption of "sexual orientation" non-discrimination requirements by student religious organizations is an assault upon religious liberty in violation of the United States Constitution for any public actor and in violation of moral and contractual obligations in the case of Williams College. The very foundation of American religious liberty is our religious pluralism. Does Williams College truly seek to impose a religious orthodoxy on its student groups, denying the rights of association to dissenters? Will it proclaim that publicly? Evangelical Christians, Orthodox Jews, Eastern Orthodox Christians, Muslims, and Roman Catholics need not apply?
While we hope that this issue may be settled discreetly on the basis of moral argument and respect for the diversity of religious conscience, FIRE is committed to seeing this through to a principled and moral conclusion. In the absence of an answer from you within the next two weeks, please be advised that we will take whatever rightful actions we deem necessary to protect the contractual rights of the student religious groups whose very existence hangs in the balance and, of course, to inform the broader public of what is occurring at Williams College. In the absence of a prompt and rightful settlement, we look forward to the broadest and fullest possible public debate about events at Williams College and about its treatment of dissenting religions.
FIRE is resolutely committed to an academic world in which universities honor their own policies and honor both the letter and spirit of ordered liberty. Religious persecution is no part of ordered liberty. We have been monitoring this case very closely, will continue to do so, and shall stay with it to ethical conclusion, of which truth in advertising is a major part. We look forward to hearing from you.