Religious Discrimination and Academic Freedom: A Reader's Thoughts

Professor Jamie Prenkert, of the Kelley School of Business at

Indiana

 

University

, sent me these thoughts, in response to my post about the use of the term “discrimination” in the context of mission-oriented hiring by religiously affiliated institutions:

I thought I would share with you . . . two of my recent publications that touch on the notion of mission-sensitive or mission-motivated hiring.  The first, entitled "

Liberty

, Diversity, Academic Freedom, and Survival:  Preferential Hiring Among Religiously-Affiliated Institutions of Higher Education," 22 Hofstra Lab. & Emp. L.J. 1 (2004), involves an analysis of such hiring practices by religiously-affiliated institutions of higher education.  I've attempted to craft a rather broad-based defense of those preferential hiring practices when preferences are aimed at maintaining and reinforcing the religious mission of the school.  I argue that, in those instances, the "inter-institutional diversity" (Heather Gerken recently coined a much better term for it, "second order diversity") is enriched as a result and that is a good thing.  I do, however, point out a major drawback to the practice; namely, the appearance of (and, in some instances, actual) infringement on academic freedom.

The second article, co-authored with my colleague Julie Manning Magid, focuses on the seemingly-dormant "hybrid rights" described by Justice Scalia in the Smith case.  We argue that the First Amendment right of free association, as broadened and strengthened in Dale, when combined with a free exercise claim, could exempt from Title VII employers who claim a religious mission for their businesses and corresponding religious motivation for their hiring practices, even though they are not related to or affiliated with any religious organization.  As a result, we advocate a somewhat expanded interpretation of the religious employer exemption from Title VII to avoid a constitutional problem with Title VII as applied to such businesses.  The cite for the article is Magid and Prenkert, "The Religious and Association Freedoms of Business Owners," 7 U. Pa. J. Lab. & Emp. L. 191 (2005).

To which I responded:

What is the threat, do you think, to "academic freedom" from mission-oriented
hiring?  I guess I don't see it (or, maybe I'm working from a different
understanding of academic freedom's content and value).

And, Professor Prenkert then wrote:

In answer to your question about academic freedom, to the extent that mission-oriented hiring involves some sort of test of the orthodoxy of a person's belief/practice, then the institution may have the appearance and, perhaps, the actual effect of cutting off or discouraging branches of inquiry that either offend or contradict that orthodox belief system. I think it is possible to argue whether or not that's a problem.  I would personally prefer an institution that allows open dialogue, but don't really see a problem with an institution that is publicly honest in it's imposition of limits on particular topics or (to reuse my not-particularly-apt phrase) "branches of inquiry."  (By the way, my sense is that Catholic institutions are much more likely to go with the open discourse model and fundamentalist or evangelical protestant institutions are more likely to cut off certain strains of discussion or debate.  But, I'm nowhere near an expert on that and "my sense" is as much guess as informed hypothesis.)

The drawback I see is that, to the extent that there are limitations on inquiry in such institutions, the benefit I identified to justify, in part, liberal preferential hiring ("inter-institutional diversity," as I've donned it) is undermined when an institution doesn't have the traditional commitment to academic freedom (allowing the virtually unencumbered inquiry and pursuit of knowledge) and is shunned by the "mainstream" academic community.  In other words, there is a risk that a perceived or real lack of commitment to academic freedom, as evidenced by certain "don't go there" issues or inquiries, can lead to marginalization. Then, the school may be less a unique approach to the "university" (adding some diversity to the higher education landscape) than a mini-seminary or (from my faith tradition's frame of reference) a bible school (i.e., schools not in the business of a liberal education with a religious underpinning, but schools aimed solely at deeper
indoctrination of the faithful).  That's not a bad thing in and of itself, but it doesn't really play into the interest I had identified. 

Now, as I point out in the paper (borrowing from the work of Anthony Diekema, the former president of Calvin College in Grand Rapids, Michigan, which is affiliated with the Christian Reformed Church), orthodoxy tests are hardly unique to religion or religious institutions.  Certainly, many institutions have ways of encouraging consistency with -- and punishing divergence from -- often unspoken, non-religious worldviews.  It seems to me that the Crit/Realist division at

Harvard

Law

 

School

in the late 80s was an unusually public struggle over which "orthodoxy" would be dominant.  In some ways the modern approach to academic freedom is also orthodoxy of its own.

I also discuss in the paper that the pressures on religiously affiliated schools to avoid marginalization and to fit the modern academy's expectations, for example through accreditation processes, can create an undertow of sorts that eventually leads toward secularization of the institution's mission and character.  Thus, I really discuss how the potential to alienate the "mainstream" academy by not upholding its conception of modern academic freedom must be balanced against the pressure that the academy often asserts (perhaps unwittingly, perhaps not) for religious institutions to secularize.

Rick