Word comes that Zaytuna College, an Islamic institution located in Berkley, California, has received initial accreditation from the Western Association of Schools and Colleges, the same body from which UC Berkley and Stanford University receive their accreditation. Some on the political right (Breitbart) are not happy about this development, in part because of the anti-Semitic and anti-Israeli statements of some individuals involved in founding Zaytuna. In addition, they report that Hazam Yusuf, the College's president, signed a much publicized letter condemning ISIS but supporting the establishment of a caliphate and the imposition of the death penalty under sharia law for Muslims who openly renounce Islam.
Plainly, the views of at least some Zaytuna administrators represent something out of the mainstream relative to the views of most college administrators. Although it is unlikely that such views will be greeted by shouts of "Je Suis Charlie!" (and putting to one side the merits of such views), there can be no doubt that they constitute a contribution to the plurality of views that the First Amendment was designed to foster and protect. (Holmes' "marketplace of ideas" includes the souk).
Of greater importance is the pluralism in higher education that Zaytuna College itself represents. Zaytuna expressly identifies itself as a "Muslim liberal arts college" and forthrightly states that its "aim and ambition is to fully participate in a renewal of the teachings embedded in the Islamic religious tradition so that students may grasp their relevance to the present world" (see here). Zaytuna's mission is "to educate and prepare morally committed, professional, intellectual, and spiritual leaders who are grounded in the Islamic scholarly tradition and conversant with the cultural currents and critical ideas shaping modern society" (Id.).
One might ask what sort of "moral commitment" Zaytuna is seeking in its students? Here, the College makes clear that "[s]tudents, faculty, staff and visitors are strictly forbidden" from using or promoting the use of tobacco, alcohol and "illegal or controlled drugs or intoxicants" (here p. 49). Violation of this policy may be grounds for expulsion. Men and women must dress modestly and in a way "consistent with the dignity adherent to representing a Muslim institution of higher education" (Id. at 48). "Clothing is inappropriate when it is sleeveless, revealing, or form fitting" and women's skirts and trousers "must be full length" (Id.). Moreover, "Muslim students should not visit bars, discos, casinos, or other places where actions prohibited in Islam (e.g. drinking alcohol) are the primary activity" (Id. at 49).
With respect to housing, all student housing is single-sex and "students of opposite gender are not permitted to visit each other in student housing" (Id. at 66). Violation of this policy may be grounds for expulsion. Beyond this, in order to foster "spiritual growth" and "moral formation" consistent with "Islamic norms," when outside of class "students should study and socialize with members of their own gender" (Id. at 49).
Most significantly, Zaytuna's student catalogue provides that "[d]ating, sexual activity, or romantic relationships among unmarried Muslim students are not allowed either on campus or off campus" (Id.). Violations of this policy "are deemed serious and will result in disciplinary action, which may include expulsion" (Id.). The catalogue expressly provides that "[s]tudents of other faiths are also expected to abide by the Honor Code, although they are not required to attend extracurricular religious services and prayers and are free to practice their own faith or philosophy" (Id. at 37). The Honor Code does not specifically prohibit "dating" or "sexual activity" but these prohibitions, which do expressly apply to Muslim students, could be applied to non-Muslims under the Honor Code's general principles of "Propriety and Modesty" and "Sobriety and Restraint," and as the Dean of Student Life may provide (Id.). The catalogue does not specifically mention homosexuality, and I suppose it is possible to interpret Zaytuna's catalogue as not prohibiting "sexual activity" between two students of the same sex who are married under state law, but I somehow doubt that administrators at Zaytuna would subscribe to such a reading.
In previous posts on MOJ Rick Garnett has commented on the current threat to Gordon College's accreditation, and by implication, the threat to institutional pluralism and the religious liberty of other religiously affiliated colleges and universities foreshadowed by this incident (see here, here, and here).
Gordon is a Christian college that expects its students, faculty and staff to abide by Scriptural standards of conduct and refrain from "blasphemy, profanity, dishonesty, theft, drunkenness, sexual relations outside marriage, and homosexual practice." Gordon makes clear that these actions "will not be tolerated in the lives of Gordon community members, either on or off campus" (see here).
Gordon's accrediting body, the New England Association of Schools and Colleges' Commission on Institutions of Higher Education initiated a process to determine "whether Gordon College's traditional inclusion of 'homosexual practice' as a forbidden activity . . . [is] contrary to the Commission's Standards for Accreditation,"a process that now requires a the College to submit a report in September 2015 (see here).
Why the difference? Why is the Islamic college granted accreditation and the Christian college threatened with revocation of its accreditation? It may be a difference in standards between the NEASC and the WASC. There doesn't appear to be the equivalent of NEASC's non-discrimination norm in Standard 11.5 (here) in the WASC standards (here) although WASC's diversity policy (here) would seem to allow for the application similar regulatory pressure. Or it may be a difference in the relative zeal of the enforcers.
Or the difference may due to a desire on the part of accrediting bodies to appear to be open and welcoming to those who are deemed appropriately "diverse" -- a category that does not include traditional Christianity. Is it due to a fear of Islam or of appearing Islamaphobic and of reprisals that would ensue following a denial of accreditation? Whereas religious identity can be discounted and treated as an empty remnant where Christianity is involved?
If this is not the case -- if the decision to grant accreditation to a college like Zaytuna is in fact principled, based on a genuine respect for diversity and institutional autonomy in higher education as it relates to religious identity -- then surely a similar decision can encompass a Christian college like Gordon.
Presently, there is no threat to Catholic colleges and universities that express their identity in similar policies regarding the behavior of students, faculty and staff (Catholic elementary and secondary schools are, of course, another matter, see here). This may be due to the fact only a handful of Catholic colleges and universities maintain standards regarding student sexual conduct beyond sexual activity that is non-consensual (compare the standards at Notre Dame and Franciscan-Steubenville with those at Marquette and Loyola-Chicago). But if the accrediting bodies are allowed to bludgeon small Christian colleges like Gordon in the name of an intolerant tolerance, does anyone really believe that that will be the end of it?
This piece, by Profs. Sarah Barringer Gordon and Nomi Stolzenberg, presents what I think is an inaccurate account of the current efforts to secure religious exemptions and accommodations in various states. Now, authors rarely get to pick the titles of their pieces (in my experience, anyway), and so I don't think Profs. Gordon and Barringer should be blamed for the headline, "State Legislatures Pit Religious Freedom Against Civil Rights." Still, as I tried to set out, in this forthcoming essay,
the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in as many cases and to as many persons and entities as possible, in a sincere effort to welcome religious minorities, objectors, and dissenters as fully as we can into what Justice Harlan called “the dignity and glory of American citizenship”? What barriers exist to the promotion and achievement of civil-rights goals through religious accommodations and how might these barriers be overcome? Are civil-rights laws being designed and enforced in ways that guard against unintended or unjustified disregard for or sacrifices of the civil (and human) right to religious liberty?
A worthwhile reflection at the always interesting Hedgehog Review by Wilfred McClay. Here's an interesting bit on the difference between memory and unfiltered, endlessly accreting deposits of historical data:
Memory is the very core of our personal identity, and it is most powerful when it is purposeful, and selective. Above all, it requires that we possess stories and narratives—contexts—that link facts in ways that are both meaningful and true, rather than treat them as a mass of disaggregated data, to be exploited as we, or others, might wish. What makes for intelligent and discerning memory is not the mere capacity for massive retention, but a certain balance and order in the mental economy of remembering and forgetting. In other words, memory takes an active role in thinning out the mental trees so that the forests can be discerned. We need to retain less if we are to remember more. In so doing, we may rediscover the enduring virtues of ink on paper, of scripta that remain in one place, as the vehicle for a new kind of samizdat, one that eschews the digital grid altogether.
I'm one of the contributors to today's "Room for Debate" feature at the New York Times. The theme is "Parents' Beliefs vs. Their Children's Health" (which, in my view, might be a bit question-begging, but anyway . . .). My contribution, "Parents' Beliefs Should Be Honored, Within Reason," is here (and has a title that I did not select). A bit:
If a regulation – even a sensible one that serves well the public good – imposes a significant burden on someone’s religious practice or conscience, we are willing to consider an accommodation if, all things considered, it would not undermine our ability to promote important government interests and public goals. Religious beliefs and objections do not and should not supply an absolute license to violate general laws, but they do and should deserve special care and consideration by policymakers. . . .
Here is a Heritage Foundation backgrounder, by Ryan Anderson and Gene Schaerr, on the upcoming SCOTUS marriage cases. The paper focuses on the question of the appropriate role of the federal judiciary in directing or concluding the current debate about both what marriage is and what our laws regarding marriage should be. I expect the Court to decide that the Constitution requires states to include same-sex couples within their category of legal marriage but also think that the rationale the Court majority offers could well matter, going forward, for purposes of religious accommodations, etc. (See this, for more.)
It appears that the good folks at the Pepperdine Law Review put together a really interesting conversation about Steven Smith's most recent book, The Rise and Decline of American Religious Liberty. (A must-read, in my view.) Here is his response, "Situating Ourselves in History," to contributions by Nelson Tebbe ("What Is at Stake?"); Andy Koppelman ("Theorists, Get Over Yourselves"), and Paul Horwitz ("More Vitiating Paradoxes").
I'm with Steve, I admit, in thinking that "Barzunesque" "gloom" might be the appropriate response to the current state of religious-freedom law and conversations, and that Nelson's and Andy's "don't worry, it won't be too bad" assurances don't quite dispel it for me but . . . we'll see. In any event, this is a very engaging collection of papers.
The contents of the Declaration of Independence, including its recitation of a "long train of abuses and usurpations," should be well known.
Here is Ferrara describing his counternarrative:
In the final decades of the 18th century radical coteries in America and France, guided by the thought of Hobbes, Locke, and the philosophes of the "moderate" Enlightenment, and animated by a burning antipathy toward monarchs and institutional religion, employed propaganda, the exploitation of popular grievances, and political theater to incite a small segment of the populace, almost entirely in key urban areas, to revolt against existing authority. (Ferrara, Liberty, the God that Failed at 8)
To the extent that Ferrara's counter-narrative captures some aspects of the American Revolution, it captures more of a Jeffersonian strand than to represent the thought and actions of individuals like George Washington and John Adams. This counter-narrative thus shares a Jefferson-centric way of thinking with the standard narrative rooted in the Declaration of Independence.
Writing to Edward Everett in 1826 to acknowledge his receipt of Everett's oration on the fiftieth anniversary of independence, John Marshall described the Declaration of Independence as more of a public-relations piece than an account of the true reason for the American Revolution, even while insisting that "[t]he war was a war of principle." Here's Marshall:
Allow me to express the peculiar satisfaction I felt at reading your statement of the causes in which our great revolution originated. Our resistance was not made to actual oppression. Americans were not pressed down to the earth by the weight of their chains, nor goaded to resistance by actual suffering. "They were not slaves rising in desperation from beneath the agonies of the lash; but freemen snuffing from afar 'the tainted gale of tyranny.'" This view of the subject is not only more consistent with the fact, but is more honorable to the intelligence of those virtuous patriots and sensible men who dared to lead us into the mighty conflict. The long list of tyrannical acts which is found in our declaration of independence, and which swells the papers of the day, was judiciously inserted as tending to produce unanimity, and was justified by the irritated feelings of the moment; but the time is arrived when the truth may be declared, and it is most honorable to our ancestors to declare it. The war was a war of principle, against a system hostile to political liberty, from which oppression was to be dreaded, not against actual oppression. (John Marshall to Edward Everett, August 2, 1826)
Twenty-five years prior, a Marshall letter to Charles Cotesworth Pinckney on the day Marshall administered the oath of office to Jefferson reveals the distance in political philosophy between Marshall and Jefferson. Marshall wrote:
To day the new political year commences--The new order of things begins. Mr. Adams I believe left the city at 4 OClock in the morning & Mr. Jefferson will be inaugurated at 12. There are some appearances which surprize me. I wish however more than I hope that the public prosperity & happiness may sustain no diminution under democratic guidance. The democrats are divided into speculative theorists & absolute terrorists: With the latter I am not disposed to class Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country--if he does not they will soon become his enemies and calumniators.
4 OClock
I have administered the oath to the President. You will before this reaches you see his inauguration speech. It is in the general well judged & conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him; but it is strongly characteristic of the general cast of his political theory.
(John Marshall to Charles Cotesworth Pinckney, March 4, 1801)
Like many Americans, I’ve been watching the news closely since last fall when the death of Michael Brown drew thousands of people to the streets and to social media to protest the use of excessive force against minorities, and to challenge more broadly what they see as a culture that places no value on their lives. This movement, which organizes around the hashtag BlackLivesMatter, sees itself as “a Call to Action and a response to the ways in which [black] lives have been de-valued.”
Protesters’ grievances were bolstered with last week’s release of a report from the Department of Justice finding that the Ferguson Police Department intentionally discriminated against African Americans. The report contains examples of many shameful practices that are easy to condemn. But in part because the report's findings are so egregious, it also would be easy to write Ferguson off as an aberration—proof that the real problem lies with a renegade law enforcement agency that hasn’t yet adopted modern values about racial justice.
Days after the Justice Department released its report, tragedy struck again with the death of Tony Robinson. Like Michael Brown, Tony was a young, unarmed black man who was shot during what appears to have been an altercation with a police officer. But that’s where the "bad police make for angry citizens" story gets a lot more complicated and uncomfortable.
I know because Tony is from my hometown. It’s not Ferguson.
Madison police aren’t the riot gear type. I know because I have had the privilege of spending time in the field with them, observing them on ride-alongs, at community forums, and in criminal justice working group meetings. They are engaged, thoughtful, and well-trained on the subject of racial inequity. Madison police have been national leaders in engaging with community stakeholders to address disparities in the criminal justice system—disparities that, notably and despite many efforts, remain among the highest in the country.
Tony’s death and the protests that have followed it are reminders that problems of racial inequality aren’t limited to bad agencies or officers. More importantly, they should remind us to listen more closely to the thousands who are protesting. They don’t just want to blame police for isolated incidents of force—they want change on a much bigger scale. Although the #BlackLivesMatter movement was sparked by police actions, activists’ demands for justice go beyond ending police brutality, and call for an end to mass incarceration and voter disenfranchisement, and access to better education, housing, food, and living wages.
Their cries for justice are ones we need to hear. Evangelium Gaudii discusses the dangers of marginalizing people and the unintended violence it can bring:
[I]n many places we hear a call for greater security. But until exclusion and inequality in society and between peoples are reversed, it will be impossible to eliminate violence. The poor and the poorer peoples are accused of violence, yet without equal opportunities the different forms of aggression and conflict will find a fertile terrain for growth and eventually explode. When a society . . . is willing to leave a part of itself on the fringes, no political programmes or resources spent on law enforcement or surveillance systems can indefinitely guarantee tranquility. This is not the case simply because inequality provokes a violent reaction from those excluded from the system, but because the socioeconomic system is unjust at its root. (59)
There aren’t easy answers for how to fix deeply broken systems or eradicate prejudices or remedy inequities that have existed for generations. But if it’s true, as Pope Francis says, that ending exclusion starts with being capable of “feeling compassion at the outcry of the poor [and] weeping for other people’s pain,” Chief Mike Koval’s example seems instructive. Unlike in Ferguson, where police responded to protests that followed Michael Brown’s death by tear gassing crowds, Chief Koval responded to Tony’s death by immediately meeting and praying with Tony's family, and by publicly apologizing for “the loss of a young African American man, who life was ended far too soon.”
Here's another new paper by Prof. Steven Smith, to my mind one of the most perceptive legal scholars around:
This paper, written for a conference at Pepperdine on “Wisdom, Law, and Lawyers,” begins by considering the meaning of wisdom as well as some possible tensions between wisdom and “reason.” The paper then argues that the kind of reason celebrated in the classical common law tradition can be interpreted as an (imperfect) embodiment of the insights associated with wisdom, but that modern legal thought tends to aggravate the tensions between wisdom and reason, and thus to reduce law to foolishness. The tendency is evident in the recent rush of decisions invalidating traditional marriage laws.
