Making sense of ‘orthodoxy’ at secular and religious colleges

There appears to be a double standard directed at private colleges and universities in the United States. Secular institutions are condemned for entrenching orthodoxy in who they hire, what professors teach and write about, and even who may be invited to speak on campus. If you hold and espouse the “wrong” beliefs about racial and gender equality, access to abortion, LGBTQ rights and numerous other issues, critics argue, you are not welcome on campus. Religious colleges and universities also entrench orthodoxy of belief and exclude those whose values conflict with the tenets of their faith. These schools, however, are more likely to be praised for the values-centered education they provide rather than challenged for their exclusionary policies.

Indeed, this disparate treatment has occasionally moved beyond rhetoric to law. California’s so called “Leonard Law,” for example, enacted to sharply limit university hate speech codes, explicitly does not apply to educational institutions controlled by a religious organization if the law’s provisions were inconsistent with the organization’s religious tenets.

Let me be clear here that I am only discussing orthodoxy at private colleges, not public universities. These private educational institutions, whether secular or religious, are not state actors. They are protected by the First Amendment, not constrained by it. The debate about orthodoxy at private universities is about what is good university policy, not what is constitutionally permissible. Also, I do not challenge the autonomy of religious universities to mandate conformity to the beliefs and requirements of their faith. I do suggest, however, that the difference in treatment of religious and secular university orthodoxy raises important questions that deserve serious discussion.

The first step in such a discussion should identify reasons why the entrenchment of orthodoxy at universities is problematic.

As an educational matter, students learn to think by confronting ideas that challenge their assumptions and predispositions. From a political perspective, if faculty and students want to operate in the world outside of academic institutions, they need to be able to engage with people who hold views that are starkly contrary to their own. If universities are attempting to distinguish truth from falsehood, produce new knowledge, and assist society in resolving public policy disputes, the best way to do so is through open and robust discussion of competing arguments and analysis. Of course, exposure to some ideas may be painful and unsettling. But the cost of suppressing them interferes too much with the university’s core functions.

This critique of constraints on campus speech and ideas raises powerful points. We may ask, however, whether all of these criticisms directed at secular private universities apply with equal force to their religious counterparts?

What if it is a religious college that is imposing orthodoxy and refuses, for example, to accept teaching, scholarship or student expressive activities that support access to abortion or the legitimacy of same-sex marriage? Don’t the same criticisms apply? Is the education of students at religious colleges lacking because they do not confront ideas that challenge their beliefs? Are faculty and students limited in their ability to be productive citizens outside of the religious ivory tower because they lack the experience of engaging those who hold contrary views? Is the search for truth, new knowledge, and the ability to contribute to public policy hindered by the lack of open and robust discussion of competing arguments?

One might acknowledge that these costs of orthodoxy are just as real for religious universities as they are for secular colleges, but that this is a price worth paying to protect and promote the nurturing and supportive environment of religious belief created at religious schools. Whatever the merits of that argument, however, it requires a clear acknowledgment of the costs incurred to achieve those benefits.

Further, it is unclear why we should be less supportive of promoting a nurturing and supportive environment of secular belief at secular schools that parallel the experience created at religious schools.

This difference in treatment might be resolved by extending the criticism of orthodoxy to religious colleges. But there is another way to think about this issue.

Suppose we flip the argument around. Is it permissible to have a private secular university committed to moral principles that justify constraints on speech and belief? May a secular private university contend that its commitments to full racial and gender equality, reproductive autonomy, and the humanity and rights of members of the LGBTQ community are just as foundational and essential to its identity and purpose as religious orthodoxy is to a religious college? Is the goal of creating a nurturing and supportive environment grounded in these secular values less worthy of respect than the goal of creating a religiously supportive environment?

Right now, the private university world is divided between two formal frameworks. Secular colleges claim to reject orthodoxy and adhere to academic and expressive freedom, and they are harshly criticized for failing to live up to these ideals. Religious colleges, on the other hand, are permitted as a formal matter to demand orthodoxy or at least as much orthodoxy as they deem necessary.

The open question is whether we will move to a new model that encompasses a third framework, a model in which some secular colleges embrace orthodoxy based on secular principles of justice and equality. These secular universities would justify some constraints on freedom of speech and beliefs in the name of the values on which these universities claim to be grounded, just as religious universities impose similar constraints in the name of the religious values on which they are grounded.

Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and served on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.