FIRE's Letter to Williams' College

Morton Owen Schapiro
President

Williams College
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, and—in the
matter of a compulsory administrative order from Williams College
Activities Coordinator Richard C. Kelley—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
orientation—not, for example, the category of religion or race—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
organizations—with the attendant use or loss of facilities and
resources—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 faith—and
on the voluntary association that flows from the practice of faith—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 belief…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.