FIRE’s letter to WUSL Chancellor Mark Stephen Wrighton

September 30, 2002

Mark Stephen Wrighton

Chancellor, Washington University in St. Louis

Chancellor’s Office, Box 1192

One Brookings Drive

St. Louis, MO 63130

Dear Chancellor Wrighton,

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, academic freedom, due process, legal equality and,
in the case of Washington University’s Law Students Pro-Life, voluntary
association, freedom of speech, and religious liberty on America’s
college campuses. Our web page, www.thefire.org, will give you a
greater sense of our identity and of our activities, although the great
majority of our appeals to the spirit of liberty and legal equality are
successful without contention.

FIRE is in possession of a copy of a letter from Elliott M.
Friedman, president of the Student Bar Association (SBA), to Jordan M.
Siverd, chairman of Law Students Pro-Life (enclosed). That association,

which the University has authorized to act in these matters,
has directly, inappropriately, and unlawfully interfered with the
freedom of conscience, freedom of association, and freedom of speech
rights of Law Students Pro-Life.

The SBA rejected the Constitution of Law Students Pro-Life, a
group organized by and for students at Washington University School of
Law (WUSL) with a religiously-based purpose to advocate "pro-life
principles as applied to abortion, euthanasia, and assisted suicide."
President Friedman stated that the SBA "felt that the organization was
not touching on all possible Pro Life issues" because it did not have
an "anti-death penalty" position in its Constitution. Friedman also
suggested that the Pro-Life group consider "revamping" the organization
to expand the scope to include "not simply the pro-life side." Friedman
stated that the "narrowness" of Law Students Pro-Life’s topic of
interest was the "catching issue" because Law Students Pro-Life was
"very one sided." Essentially, Friedman and the SBA believed that if
Law Students Pro-Life became a completely different Student
Organization, it has a better chance of being allowed to exist at your
university.

The letter from your university’s SBA ironically accuses Law
Students Pro-Life of being "narrow." Instead of going by what the SBA
"felt," President Friedman perhaps should have thought this one out
analytically. It is WUSL, through the board to which it has delegated
this authority, that has demonstrated both a scandalous
narrow-mindedness toward and a bigoted intolerance toward religious
students. Religious students should have no more rights than
non-religious students on campus, but they likewise should have no fewer rights.

Given your previous stated devotion to "an intellectual community
capable of open discourse," and the self-evident contradiction between
that mission and this SBA decision, we bring this matter first to your
attention rather than to the public’s attention in order to give you an
opportunity to engage in immediate
self-corrective measures that would avoid the reality of manifest
hypocrisy and double standards, the certainty of extreme public
embarrassment, the risk of potential litigation, or, indeed, all of
these undesirable ends.

Despite meeting all of the requirements stated in the student government’s Approval for Student Organizations By-Laws,
Law Students Pro-Life has twice been officially denied the right to
exist as a recognized student organization at WUSL. The suggestion that
Law Students Pro-Life adopt an anti-death penalty stance violates the
group’s right to organize according to its own principles. It is an
attempt to coerce them to espouse beliefs that they may not want to
address, or that may even violate their deepest religious convictions.
As an intellectual matter, the SBA is wrong in assuming that there is
an inconsistency in the convictions of these students. While some
religionists argue that a pro-life religious philosophy must oppose
both abortion and capital punishment, others believe that there is a
difference between protecting "innocent" life while capital punishment
inflicts death on those found "guilty." Surely your university would
not suggest to the members of Law Students Pro-Life that they must
adopt different views in order to be permitted to exist—with the
attendant use or loss of facilities and resources—simply because they
exercise their sincere religious beliefs? No institution seriously
committed to open discourse would tell students what issues they cannot
address; let alone, what issues they must address.

The SBA’s rejection of this new expressive organization is
particularly duplicitous when one considers that the SBA includes a
"Diversity Committee" and recently funded a "Diversity Week,"
presumably to enrich student life by exposing students to pluralistic
viewpoints and activities. In the minutes of the SBA’s August 26
meeting, also in FIRE’s possession, the SBA treasurer announced that
"more funds [are] available [for student groups] due to [an] increase
in student body fees and transfers." Mandatory student fees, partly
used to fund SBA student organizations, are collected and administered
by your administration.

The enforcement of ideological conformity is abhorrent and
infamous, but the actions of the SBA further reveal a breathtaking
double standard. SBA has already approved several organizations with
equally "narrow" interests, including the Jewish Law Society, committed
to "fulfilling the needs of Jewish students"; the Black Law Students
Association, which functions solely "to orient, assist and otherwise
support African American students"; the Washington University
Environmental Law Society, which exclusively explores the "intersection
of law and the environment"; OUTLAW, which restricts its activities to
fostering an environment that is "supportive, positive, and safe for
individuals of sexual and gender diversity."; and the Golf Club, whose
mission is obviously quite narrow.

Friedman’s letter asserts that the Law Students Pro-Life must
"encourage and facilitate discussion of the issues as a whole, and not
simply the pro-life side of certain issues." This statement denies the
group’s right to promote the principles that it was established to
uphold. Does your university dictate the activities of other expressive
organizations in the same way? Is the Environmental Law Society
required to include the voices and opinions of industry leaders and
those who favor market-driven solutions to environmental questions? Is
OUTLAW obligated to provide a variety of views on sexuality, including
views that run counter to the stated purposes of creating a
"supportive, positive, and safe" environment for sexual minorities?

In the same way that the Environmental Law Society, OUTLAW, and
the many other student groups must be free to define themselves, within
the law, by their own lights and promote their principles, so must Law
Students Pro-Life be free, within the law, to promote and organize on
the basis of their principles. Put more simply, your agent’s ruling
against Law Students Pro-Life imposes a disability that you do not—and
would not—impose upon those of different belief and persuasion.

For public universities, of course, this issue was settled more
than fifty years ago by the United States Supreme Court’s decision in
the case of West Virginia Board of Education v. Barnette.
In that 1943 ruling, decided in the darkest days of World War II, 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." That is more than a legal doctrine; it embodies a
moral doctrine that no great private university should traduce. Jackson
linked the freedom of unorthodox dissent to the very cause at stake in
World War II. The imposition on Law Students Pro-Life is a mandated
ideological orthodoxy that conflicts with the core religious doctrine
of these students, in the same way that the pledge to the flag rejected
by the Supreme Court in Barnette was a mandated ideological orthodoxy that conflicted with the core religious doctrine of Jehovah’s Witnesses.

Explaining why even men of good intentions should not possess the
awesome power to compel belief, Justice Jackson concluded that "if
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 therein."

No private institution that cherishes the rights of free association
and expression can, in good conscience, extend fewer rights and
freedoms to their students than a public institution, bound by the
Constitution. Do the law students of Washington University enjoy fewer
protections of expression and conscience than students at Missouri
community colleges? To restrict freedom of conscience, freedom of
association, and freedom of speech is to create a stifled and
intellectually bereft environment—the very antithesis of what you
promised when you became Washington University’s fourteenth chancellor.
The petty officials in the SBA have violated that promise.

The actions of the University’s agent in this matter are also
in violation of the WUSL’s contractual obligations, delineated in its 2002-2003 Parent’s Handbook, which states that WUSL "is committed to the principles...of freedom of religion and speech."
If WUSL intends to establish a certain orthodoxy on campus, this change
should go before the Board of Trustees, and, above all, it should be
stated explicitly in all of your literature so that students and
faculty can make an informed decision about your creedal loyalty oaths,
and inquisitions into private conscience before agreeing to attend or
teach at WUSL. Anything less than that, on this deepest matter of
conscience and “freedom of religion and speech,” would be fraudulent
inducement and breach of contract.

FIRE requests that you secure an immediate withdrawal of the
letter written to Mr. Siverd and the Law Students Pro-Life group. That
letter is a violation of both the moral responsibilities of WUSL and of
the clear declarations that you have made in the past relating to free
speech at your university. Further, we call upon you directly to
reassure the affected party, in this case the Law Students Pro-Life
group, that those who would deny its rights may not do so on your
watch. We have no desire to take this matter public if it can be
immediately resolved discreetly, and we hope to hear from you very,
very soon about such a resolution. Each hour that this decision remains
the decision of your university is a violation of fundamental human
rights.

Sincerely,

Thor L. Halvorssen

Executive Director

cc.

Jordan M. Siverd, Chairman, Law Students Pro-Life

Jonathan Katz, Professor of Physics

Joel Seligman, Dean, School of Law

Michael R. Cannon, General Counsel

Jill Carnaghi, Director, Campus Life

Elliott M. Friedman, President, Student Bar Association