Endorsement & Academic Freedom
Debates About Commencement Speakers & Student Groups Reveal a Double Standard
by John Garvey
This is the time of year when we begin to argue about commencement speakers. Every spring Catholic colleges attract attention for inviting (or disinviting) speakers whose messages are at odds with the teaching of the Catholic Church. This matter of honoring commencement speakers is a lot like another issue we wrestle with throughout the academic year—giving official recognition to student groups. Both issues touch on an institution's expression of its own identity. I'd like to offer some thoughts relevant to this year's inevitable round of debates.
In spring 2012 there was a flap over Georgetown University's choice of Kathleen Sebelius to speak at the commencement of its Public Policy Institute. The Department of Health and Human Services, which Sebelius heads, had just announced that it would force Catholic colleges and universities to cover surgical sterilizations and prescription contraceptives, including some that may cause early-stage abortions, in the healthcare plans they offer to students and employees. The archbishop of Washington protested the invitation of Sebelius, as did some 27,000 people who signed a petition.
It was like the dispute in 2009 when Notre Dame invited President Obama to give its commencement speech and awarded him an honorary degree. Let me focus my attention on that one, because the facts are better known. The president is a strong supporter of abortion. As a state senator in Illinois, he opposed the Born-Alive Infants Protection Act, intended to prevent the killing of infants who survived an abortion attempt. As a presidential candidate, he criticized the Supreme Court's decision in Gonzales v. Carhart, which upheld the Partial-Birth Abortion Ban Act of 2003. He wasn't in office as president for three days before he lifted restrictions on government funding for groups that provide abortion services or counseling abroad.
Giving the president an honorary degree seemed to be a tacit endorsement of these views by the university. Fr. John Jenkins, Notre Dame's president, disowned this meaning in his speech to the graduates. When he introduced Obama he said, "We are fully supportive of Church teaching on the sanctity of human life, and we oppose [the president's] policies on abortion and embryonic stem-cell research." But that did little to still the controversy. Bishop John D'Arcy of Fort Wayne–South Bend decided not to attend the graduation rather than suggest his approval of the president's policies, and 82 other bishops joined him in condemning Notre Dame for its action.
Invitations and Awards
Who was in the right there? Bishop D'Arcy's position was consistent with that taken by the United States Conference of Catholic Bishops in their 2004 statement Catholics in Political Life. That document, addressed principally to Catholic politicians, also has words of advice for Catholic institutions like Georgetown and Notre Dame. It says that such institutions "should not honor those who act in defiance of our fundamental moral principles. They should not be given awards, honors or platforms which would suggest support for their actions."
This seems to say that Notre Dame's fault lay not in inviting the president to campus, but in giving him an honorary degree and a prestigious speaking platform. Inviting him to give the commencement address was quite different from, say, hosting him on some Wednesday in March to talk about the financial crisis, or even from inviting him to participate in a debate about the morality of embryonic stem-cell research or abortion. The bishops themselves would like to engage him on those points, and Notre Dame might render a useful service in playing host to such a disputation.
In that case, the university would simply be inviting Mr. Obama to speak in the same kind of open forum at which lots of people, espousing lots of different positions, appear in the course of a school year. There would be no implied agreement with his point of view. Methodists dispute the doctrine of the Immaculate Conception, but no one thinks that Notre Dame expresses agreement with them by letting them speak on campus.
The thing about honorary degrees, medals, and endowed lectures, however, is that—unlike the simple permission (or even invitation) to speak in an open forum—they seem to indicate endorsement of the recipient's beliefs or policies.
Bundling & Ambiguity
This much should be obvious. But there are a few subtleties I have passed over. One is the problem of bundling. Mr. Obama was elected president on a platform with a lot of planks: he favored, among other things, expanding health care, ending the war in Iraq, reducing greenhouse gas emissions, allowing a path to citizenship for illegal immigrants, expanding federally funded embryonic stem-cell research, and providing easier access to abortion.
Did Notre Dame's honorary degree signal agreement with all of these ideas and policies? Surely not. After all, George W. Bush got an honorary degree from Notre Dame in 2001, and he held different views from Obama on several of these issues.
So why is it abortion and stem cells, rather than health care and Iraq, that Notre Dame endorses by giving the degree? This is a question of symbolic meaning. The answer is not one we can logically derive from the stated facts. That's not to say there is no right answer; only that the reasoning process is fuzzy. One reason the degree seems to endorse abortion is that the bishops set the problem up that way. Catholics in Political Life singles out pro-abortion politicians and says Catholic institutions should not give them "awards, honors or platforms." In the context in which it was operating, Notre Dame knew that the bishops and many faithful Catholics would interpret its action as an endorsement of (or at least an expression of ambivalence about) Obama's abortion policies.
But, you might object, why should we privilege the meaning given to Notre Dame's actions by its critics? After all, its president, Fr. Jenkins, said that the invitation and honorary degree did not signify endorsement of Obama's abortion policies. The citation that went with the degree read in full:
Nothing there about abortion. We might call this the problem of ambiguity. The problem of bundling was that Obama had a lot of positions, and it wasn't clear which one Notre Dame was endorsing. The problem of ambiguity is that Notre Dame made several statements (some express, some implied) in conflict with one another. How do we know which one to single out as the meaning of the honorary degree?
This begins to sound like bickering in a bad marriage, each side claiming, with citations to context and history, that the other's words were hurtful or inexcusable, while his own were innocent or justified. But unlike family fights, this one was carried out in public and involved the president of the United States, one of America's great Catholic universities, and the hierarchy of America's largest church. Here the issue of meaning is not committed to the parties directly involved. It's more of a public matter. What do we (or maybe as the lawyers would say, what would the reasonable person) think it means for Notre Dame to give Mr. Obama an honorary degree?
From that perspective, it's hard to avoid saying that it made some kind of statement about abortion. Catholics believe that an unborn child is a living human being from the moment of conception. In America today, 22 percent of all pregnancies end in abortion—about 1.2 million each year. Since 1973, when Roe v. Wade was decided, there have been about 50 million abortions in the United States. For those who share the Catholic point of view, this is killing on such a massive scale that it overwhelms every other electoral issue. In the Iraq war, by way of comparison, about 4,400 Americans died. Since the Supreme Court's 1976 decision in Gregg v. Georgia, ending a moratorium on the death penalty, 1,324 people have been executed.
Presidents will not appoint people to the Supreme Court who do not share their views on abortion. Millions of people (a Gallup poll now a few years old estimates one in five) will not vote for a presidential candidate who doesn't share their views on abortion.
In this context, for those who subscribe to the Catholic position on abortion, it is impossible to overlook the fact that the president wants to do something really bad about the most important moral issue of our time. For a Catholic school, then, to give him an honorary degree implies that the school doesn't think the issue as important as all that—that the president deserves our accolades because he supports good things that outweigh the harm from abortion.
The AAUP's Defense
Many academics praised Notre Dame for its decision to invite Mr. Obama, and for standing by its invitation when Catholics began to protest. The president of the American Association of University Professors (AAUP) and the president of the Indiana Conference of the AAUP wrote an open letter suggesting that Catholic schools had an obligation to invite speakers, like President Obama, who disagreed with Catholic teaching:
To a non-academic, it might seem odd to say that a school bent on finding the truth should invite someone to argue for ideas it thinks are wrong. But liberal theory holds that we can best discover truth out of a multitude of tongues rather than through a collective effort. John Stuart Mill says in On Liberty that it's good to have dissent because (1) an unpopular opinion might be true, and, even if it is not, (2) we will understand the truth better if we have to defend it. Catholic schools, the AAUP officials suggested, should "protect and model" this kind of "free inquiry and open dialogue" notwithstanding what they called (with just a hint of condescension) their "right to propagate their special faith" and their "Catholic dogma."
But there are several problems with this defense of Notre Dame.
First, it misses the point. The AAUP letter did not address the distinction the bishops drew in Catholics in Political Life. As I explained above, the problem was not inviting the president to speak; the problem was endorsing his position by giving him an honorary degree. The AAUP letter simply asserted that there was no implied endorsement. It actually misstated the facts in an effort to pass over this distinction. It said that "invitations made to outside speakers by students or faculty do not imply approval or endorsement by the institution of the views expressed by the speaker." But the invitation to a commencement speaker comes from the president of the university, and the honorary degree is voted on by the board of trustees, so the institution stands behind it in the strongest possible way.
Second, the AAUP letter suggested that "free inquiry and open dialogue" are in jeopardy at religious colleges and universities because church officials will exert improper pressure on the side of "dogma." In this case, the letter seemed to say, it was improper for the bishops to stick their noses into the matter:
Of course the AAUP itself asserts authority to censure universities for violations of its principles. My own university was censured 23 years ago for telling Charles Curran he could not teach Catholic theology. (We had differences over marriage and divorce, sex, abortion, and euthanasia.) The AAUP would probably say that its own censorious behavior respects the principle of institutional autonomy because, as an organization of university professors, it has an authority internal to the academic community—or maybe because the AAUP's principles are themselves concerned with academic freedom.
But these points are not very different from what the Catholic Church says about its relations with Catholic universities. Pope John Paul II said in Ex Corde Ecclesiae that bishops "should be seen not as external agents but as participants in the life of the Catholic University." And their interest in seeking the truth is congruent with the interest of the academic community.
It is at least not self-evident that ecclesiastical censorship is a greater threat to truth-finding than AAUP censorship. We need to add the assumption that John Stuart Mill was right, that the surest path to the truth in every forum is to invite contradiction to our most deeply held beliefs.
Third (and this may be the most important point), what the bishops have said about commencement speakers is remarkably similar to what many on the academic left say about commencement speakers who invoke a religious theme. Let me turn to that issue.
Three years ago Montana State University (MSU) invited Pastor Tim Zerger from the local Community Alliance Church to speak at its commencement. He prayed and mentioned Jesus. This time it was not the bishops who complained, but the Montana legal director for the ACLU. She said, "We're very hopeful that the Board of Regents will look into the situation and we then would like them to actually apologize to the people who were offended or at least shocked and surprised."
The ACLU invoked First Amendment doctrine, not Catholic dogma. The Supreme Court has held that students at a public school may invite a minister to campus to pray with them, because they have a right to freedom of speech. State officials (at a public university, this includes the administration) should not regulate such events on the basis of who the speaker is. The situation is different when the school itself invites the minister to a commencement. In that case the state is advancing a particular religious point of view. And while the Constitution generally lets public officials say what they please, the establishment clause requires them to remain neutral about religious affairs. It says that "Congress [and by extension, state governments] shall make no law respecting an establishment of religion. . . ."
State schools usually try to defend invitations like the one Montana State extended to Pastor Zerger by spreading the honor around. Next year the university might invite a rabbi; in two years it might ask a member of the American Humanist Association. The university can then say it is being evenhanded about religion, because it gives every faction an opportunity to express its point of view.
The ACLU, on the other hand, will point out that there is only one speaker for each graduating class. So far as they are concerned, there is no variety of viewpoints. And commencement is a big deal. The invitation to speak, and any honors that attend it (suppose MSU gave the minister an honorary degree), are extended by the president and the board of trustees. Those actions communicate a kind of approval of the speaker and his message.
The Endorsement Test
In 1984 Justice O'Connor (in Lynch v. Donnelly) offered a way of thinking about this problem. The important thing, she said, was that the government not appear to be endorsing a religious point of view.
Sometimes it's hard to tell. As I suggested a moment ago, the school might disclaim any intention to endorse the speaker's position, but that would not be dispositive. Justice O'Connor proposed the following test:
There are those who try, every year, to slip a commencement prayer past the watchdogs at the ACLU, but by and large this fight is over. There is a lot of good common sense in Justice O'Connor's test.
Schools & the Free Market of Ideas
Notice, though, how similar her position is to the bishops' statement, Catholics in Political Life. The bishops were concerned about "honor[ing]" people who defy Catholic moral principles. They proposed that such people should not "be given awards, honors or platforms which would suggest support for their actions." In other words, Catholic schools should not endorse those actions, as public schools should not endorse religion.
The two cases are in fact very much alike, and it would help to settle most of our annual spring quarrels if we recognized this. When a school stages a commencement program, it is a participant in the free market of ideas. Institutions can participate in that market just as individuals can. Think of the intellectual movements we associate with particular universities: the Chicago School of Economics, the Yale School of Literary Theory (Jacques Derrida), the Cambridge School of the History of Political Thought (Quentin Skinner, J.G.A. Pocock, Peter Laslett), the Oxford Movement of Anglicans to the Catholic Church (John Henry Newman, Gerard Manley Hopkins, Ronald Knox), the Wisconsin Tradition in Legal History (James Willard Hurst, Lawrence Friedman, Robert Gordon).
Universities promote intellectual movements like these by hiring certain faculty and not others, by attracting graduate students interested in certain fields of study and not others, and by sponsoring lectures and conferences on certain subjects and not others. It's the same with commencement programs. If Michigan State wants to deliver a message about the unfairness of affirmative action, it might invite Ward Connerly. If the Catholic University of America wants to deliver a message about the sanctity of life, it might invite Cardinal Timothy Dolan.
When Montana State invites a minister to lead its graduates in prayer, it too is acting as a participant in the market of ideas. Even though it's a public institution, it can stake out almost any position it likes. It is under no obligation to give equal time to competing ideas. (The president of the United States is a public official, and we expect him to promote an agenda.) Because it's a public institution, though, the people have ultimate control over the messages it delivers. And in this matter of praying, the people have taken the position (in the establishment clause) that it can't promote religion. It is a good thing to recall that God is with us in all our affairs; we should begin every undertaking by blessing his holy name. But we don't want the government and its agencies superintending our devotions.
It would be a mistake to suppose that this rule (don't endorse prayer) is an impediment to academic freedom. On the contrary, it is an exercise of academic freedom. In the world of higher education there are different schools of thought on the subject. Americans take one position. The English take another. At Oxford University commencements the Vice Chancellor touches master's and doctoral candidates on the head with a Bible and admits them to rank "in the name of the Father, of the Son, and of the Holy Ghost."
And even at American graduations, students, faculty, parents, and alumni are free to pray on their own. As I said earlier, the free speech clause protects private speech from government interference. When public schools speak, they may (indeed, must) be neutral on matters of religion. But they can't impose that point of view on other speakers.
Catholic schools like Notre Dame and Georgetown are also participants in the market of ideas when they stage commencements. In a culture like ours, where abortion has become a form of birth control, it is a welcome contribution to the free market of ideas when a school delivers a pro-life message at graduation. The AAUP suggested that Notre Dame had a duty to "protect and model free inquiry and open dialogue" by honoring someone who condemned the pro-life message. That's an odd—I would say surprising—position to take for an organization devoted to academic freedom. Notre Dame might protect open dialogue by allowing its students and faculty to take a variety of positions. It would model academic freedom by regulating with a light hand. But to say that the school is obliged to temper its own speech by endorsing contrary ideas is the essence of censorship.
Nor does it matter if Notre Dame disinvites a pro-choice speaker in deference to the U.S. Conference of Catholic Bishops. The university is entitled to a position in the marketplace of ideas regardless of the origin of its ideas. A Catholic school that follows the bishops' no-endorsement rule is like a public school that follows the First Amendment no-endorsement rule. Both are respecting norms essential to their identity, and the public positions they take are informed by those norms.
Let me turn now to the issue of student organizations. Here we find another set of parallel cases, and a similar intellectual tension.
Gay Rights Coalition at Georgetown
In 1980 the Gay Rights Coalition (GRC), a student group, sued Georgetown University under the Washington, D.C. Human Rights Act for refusing to give it official recognition. This was something the GRC wanted, perhaps because recognition would give it a kind of moral legitimacy, but also because recognized groups can get university funds, office space, telephone service, and university mail service. (There were actually two student groups, one at the college and one in the law school, but I will mostly refer to the law school group, the GRC, for ease of exposition.)
Georgetown pointed out that it was a Catholic university, with an institutional "duty not to undermine the Roman Catholic teaching that 'human sexuality can be exercised only within marriage.'" This meant that the university should not endorse, either explicitly or implicitly, activities like abortion, premarital intercourse, and homosexual conduct. Official recognition of the GRC would be tantamount to a statement that "the Church was either neutral or approving of the range of homosexual activities." That in turn would run the risk of "leading others astray or giving scandal in the technical sense of the word."
Aid & Comfort, Endorsement
Thomas Reed Powell once said that "if you can think of one thing without thinking of something else to which it is inextricably connected, then you have a legal mind." He may have been thinking of the D.C. Court of Appeals. It held that Georgetown did not have to give official recognition to the GRC, but it did have to provide the group with office space, phone and mail service, and access to university funds. It's not clear to me what's left, if you take the usual package that recognition signifies and subtract those things. It almost seems as though the court (like the AAUP with the bishops) was being intentionally obtuse about Georgetown's objection.
It's not that hard to understand. The constitution of the college gay rights group said it was committed to "the development of responsible sexual ethics consonant with one's personal beliefs"—a notion at odds with the Catholic belief in an objective moral law. Giving financial support, facilities, and communications services to such a group would be wrong in at least two ways.
First, it would contribute to the propagation of a message the Catholic Church condemns. That would be wrong even if Georgetown's support were clandestine, just as it would be wrong during wartime for the owner of a radio station to lend his facilities secretly for the broadcast of enemy propaganda. Call this the aid and comfort argument.
Second, if Georgetown's support became publicly known—if it became common knowledge that the university was giving the GRC an office, a university phone, university mail service, and access to university funds—people would interpret that as a message of support for the group's platform. This is what we mean by endorsement.
Candidates for political office tout the fact that they are supported by former presidents, labor unions, the NRA, Emily's List, and so on. These endorsements signify approval of their policies. Georgetown would have sent the same message of approval if it provided facilities and services to the GRC, but the D.C. appellate court appeared not to understand this. (In 1989, not long after the decision, Congress intervened. It changed the D.C. Human Rights Act to permit schools like Georgetown to deny recognition to student groups like the Gay Rights Coalition.)
Christian Groups at Vanderbilt & Hastings
Compare the treatment of the Gay Rights Coalition at Georgetown with the treatment of Christian groups at secular and public schools. In 2011 Vanderbilt University, a private secular school, told four student groups—the Christian Legal Society, the Fellowship of Christian Athletes, the Graduate Christian Fellowship, and Beta Upsilon Chi (a national Christian fraternity)—that they were in danger of losing recognition as registered student organizations for violations of the university's nondiscrimination policy.
The policy, the university said, required student groups to admit anyone who wanted to be a member, and to let any member run for office. This meant that the affected groups could not require belief in the divinity of Christ as a condition of membership. It followed, too, that Evangelical groups could not ask their officers to lead Bible studies, prayer, or worship—activities that presuppose a belief in the efficacy of prayer. Nor could they ask members to comply with conduct requirements imposed by their faith, like abstaining from sex outside of marriage.
At Vanderbilt, as at Georgetown, there are obvious advantages to being a registered student organization (RSO). RSOs can use the university's name to signify their affiliation. They are eligible to apply for funding and to take part in the university's recruitment fair to solicit new members. Registered groups can use email services, group mail, and URLs administered by the university. Those denied official status have to rent university space for meetings, and use social media and private email to communicate with their members.
In defense of its policy, Vanderbilt cited the 2010 Supreme Court decision in Christian Legal Society v. Martinez, which upheld a similar policy at the University of California at Hastings Law School. Both universities gave several reasons for adopting an "all comers" rule. Vanderbilt's chancellor argued that the ideal of inclusiveness articulated in its policy was "essential to [the] education experience. . . . We believe we all have the opportunity to learn greatly when we are exposed to new people, and to ideas and beliefs different from our own."
But it wasn't just the failure to pursue this ideal that disqualified the Christian groups. They were also deemed guilty of discrimination—against non-Christians and against gays and lesbians. UC Hastings said (in its brief to the Supreme Court) that it would be wrong in two ways to recognize a group that was guilty of such discrimination. First, it would be wrong to "subsidize with public monies and benefits conduct of which the people of California disapprove." In other words, the school should not have to give aid and comfort to a cause it condemns. Second, "the outside world will conclude that [official recognition] say[s] something about the 'image [the university] wishes to project.'" The Christian Legal Society should not "forc[e] the State not only to subsidize but to lend its name to practices deemed discriminatory by the citizenry." In short, the law should not force the school to endorse a practice it frowned on.
The efforts to exclude Christian groups proved more successful than Georgetown's attempt to bar the Gay Rights Coalition. At Vanderbilt, the administration held firm even when other Christian groups objected and Vanderbilt Catholic (the organization of Catholic students) said it would leave campus. The Tennessee legislature passed a bill allowing religious groups to limit membership to believers, but the governor vetoed it. He thought it was inappropriate for the government to dictate such policies to a private institution.
UC Hastings won in the Supreme Court. The Court held that the law school's nondiscrimination rule did not curtail the rights of the Christian Legal Society. The argument was about university support, the Court said, not an outright prohibition. Private groups (like the Christian Legal Society) could carry on their work without official recognition. Electronic media and social networks let them communicate with members. And universities should be left free to support and endorse those values and causes they think are most important for the education of their students.
Private & Public Schools
To paraphrase an old Sesame Street song, one of these cases is not like the others. There are, of course, some obvious similarities among all three. All three schools declined to recognize a student organization on the grounds that recognition would be wrong, not just inconsistent with university policy. It would be wrong because (1) recognition would give tangible support to an activity the school condemned (the aid and comfort argument), and (2) the school would be understood to be publicly endorsing a position it thought was immoral (the endorsement argument). But the three cases come out differently.
The odd one is not Georgetown, as you might first suspect, but UC Hastings, which involves a public university. If we are really interested in vigorous debate and a diversity of ideas in higher education, we should be alert to the danger that, as a nation, we could become like a town with one newspaper.
These days, most college students (more than three out of four) attend public schools. Giving the state the power to decide what values and causes students should adhere to, not just in elementary and secondary schools but also in universities, is kind of scary. This is true even if we are talking about non-coercive support like the funding of student groups. Public universities—because they are run by the government—should have less room than private ones to favor a particular intellectual or political orthodoxy.
Vanderbilt and Georgetown, by contrast, are private universities whose institutional policies deserve respect from the government. I don't agree with the substance of the policy Vanderbilt adopted. But I think that those on the right who defend the recognition policies of Catholic universities should acknowledge the formal similarity to what Vanderbilt has done. And those on the left who argue for more pluralism at Catholic schools should feel obliged to take the side of Christian groups at Vanderbilt.
A Plea for Respect
Universities, we all need to remember, are First Amendment actors. The government, accrediting organizations, professional associations, and self-appointed protectors of academic values show little respect for their role in creating the public culture when they direct religious universities to tangibly support or publicly endorse ideas the universities disagree with. It is surprising that there is so little appreciation for this point in sophisticated legal, academic, and cultural circles, particularly when the same groups have no trouble applying these principles to public and secular private universities. •
John Garvey is President of The Catholic University of America. In 2008 he was President of the Association of American Law Schools. He has practiced law with the firm of Morrison & Foerster in San Francisco, and taught at Notre Dame, Michigan, and Kentucky. He is the author or co-author of numerous books, including Religion and the Constitution (Aspen Publishers) and Sexuality and the U.S. Catholic Church (Crossroad).
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“Endorsement and Academic Freedom” first appeared in the May/June 2013 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue. Click here for a printer-friendly version.
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